Decision #128/07 - Type: Workers Compensation
Preamble
This is an appeal by the employer of Workers Compensation Board (“WCB”) Review Office Order No. 345/2007 holding that the worker’s current problems are related to the compensable injury of May 4, 2004.
The worker injured his back region on May 4, 2004 during the course of his employment. The claim was accepted based on the diagnosis of a strain injury and the worker received treatment from a chiropractor and a general practitioner. On May 21, 2004, he returned to his regular work duties while seeking chiropractic treatment. Then on August 3, 2004, the worker ceased work due to back pain that he related to the accident of May 4, 2004. On August 26, 2004, the WCB denied responsibility for the worker’s current back difficulties as being related to the May 4, 2004 accident and a new claim was initiated with the accident date of August 3, 2004. On September 2, 2004 the WCB determined that there was no relationship between the worker’s current back complaints and an accident occurring on August 3, 2004. Following receipt of additional medical information, the case manager rescinded the adjudicative decision of August 26, 2004 and accepted responsibility for the worker’s continuing back problems as being related to the effects of his May 4, 2004 accident. This decision was appealed by the employer’s representative on March 30, 2007 to Review Office.
On May 17, 2007, Review Office outlined its view that a causal relationship existed between the May 4, 2004 injury involving the worker’s back and his continuing problems. It felt there was no evidence of any new injury having occurred on August 3, 2004. The employer appealed Review Office’s decision to the Appeal Commission and a file review took place on August 14, 2007.
Issue
Whether or not the worker’s current problems are related to the May 4, 2004 compensable injury.Decision
That the worker’s current problems are related to the May 4, 2004 compensable injury.Decision: Unanimous
Background
On May 4, 2004, the worker drove over two potholes at 40 km per hour when he felt a jar in his back.
On May 7, 2004, the worker advised the WCB that he worked on May 5 and 6, 2004 but his back was sore. When he awoke the following morning, he could barely move. He was in a lot of pain and the muscles in his back kept pinching up. He reported pain mostly on the left side that went down his left leg and up into the centre of his back.
He attended a chiropractor for treatment and complained of pain and tightness of the left low back especially with standing and walking. The diagnosis was a left SI (sacroiliac) strain.
The worker sought treatment from a general physician on May 6, 2004. He reported tenderness in the L5 and S3-S4 regions. The diagnosis was a low back strain.
A chiropractic progress report of May 10, 2004, indicated “fixation [left] SI joint with decreased effusion – spasm [left] iliolumbar region.”
A physiotherapist’s diagnosis following her first assessment of the worker was L3-L5 facet irritability accompanied by spasm of the associated muscles.
On May 21, 2004, the worker returned to full duties while attending chiropractic treatment. In a progress report dated July 16, 2004, the chiropractor noted that the worker was still having recurring low back pain especially after driving. He noted mild recurring fixations especially at the left SI area.
In August 2004, the WCB received information that the worker ceased work on August 3, 2004 due to a sore back which he related to the effects of his May 4, 2004 compensable injury. A report from a physician dated August 3, 2004, noted that the worker had tenderness at the L5-S1 region with restricted range of movement. The diagnosis was low back strain.
In a letter dated August 26, 2004, the case manager advised the worker that he was unable to accept his ongoing back difficulties as being related to his accident of May 4, 2004. He noted that a WCB chiropractic consultant contacted the treating chiropractor who was not aware of any new incident at work and stated that the worker’s condition on August 9, 2004 was very good. The case manager also indicated that he requested a new claim be opened so that it could be adjudicated if the worker experienced a new claim. A new claim was established with the accident date being August 3, 2004.
On September 2, 2004, the worker advised his case manager that he was relating his current problems to his prior claim. He said his back was “killing him”. He was not involved in any new accidents or incidents at work. He indicated he discussed the situation with his supervisor and discontinued working. He did not report a new accident and again related his problems to his old injury.
The worker was then informed on September 2, 2004 by his case manager that following a review of his claim and after considering the fact that there was no new accident or incidents at work on August 3, 2004, he was unable to establish a relationship between his current condition and a new accident occurring at work.
On September 30, 2004, the worker’s back was assessed by an orthopedic specialist who reported examination findings of “marked muscular tenderness in the left low back with pain on active and passive range of motion of his hips, but that is fairly full. Straight leg raising was unremarkable and he was able to move his ankles and toes well. My impression is that this is more muscular pain.”
Laboratory tests show that the worker had a CT scan of his lumbosacral spine on February 15, 2005. The report stated, “There is no evidence of disc herniation, spinal stenosis or nerve root compression at any of the imaged levels.”
In a November 29, 2005 report, a physiatrist reported that he had seen the worker the day before. He said the worker complained of lumbosacral pain radiating down to the left leg and paresthesia affecting both feet. Following his examination, an MRI was suggested given the radicular/neuropathic quality of the worker’s symptoms.
An MRI of the lumbosacral spine dated April 4, 2006 stated “Shallow posterior and left posterolateral L5-S1 disc protrusion that causes mild displacement of the left S1 nerve root.”
On January 5, 2005, the treating chiropractor stated the worker attended for treatment on August 3, 2004 and told him that he was getting sharp low back pains and was not able to work.
A WCB medical advisor reviewed both claims on May 16, 2006 and provided responses to questions posed by primary adjudication. Following his review of file documents dated May 7, 2004, August 11, 2005, November 29, 2005, January 18, 2006 (electrophysiological testing) and April 4, 2006, he stated the diagnosis in relation to the May 4, 2004 workplace injury was a left S1 radiculopathy. He further stated that on a balance of probabilities, the worker’s radicular symptoms occurred in reasonable temporal relationship to the work place injury of May 4, 2004, with relative continuity over time since the workplace injury.
In a June 29, 2006 decision, the case manager rescinded the adjudicative decision of August 26, 2004 and accepted responsibility for the worker’s continuing back problems as being related to the effects of his May 4, 2004 accident. This decision was appealed by the employer’s representative on March 30, 2007 to Review Office. The employer argued that responsibility should not be accepted for the worker’s continued back problems on the May 2004 claim and felt that the August 3, 2004 claim should be reconstituted and denied as initially determined.
On May 17, 2007, Review Office confirmed the most recent adjudicative decision and concluded that a causal relationship existed between the May 4, 2004 injury involving the worker’s back and his continuing problems. It felt there was no evidence of any new injury having occurred on August 3, 2004. The employer’s representative appealed the decision to the Appeal Commission and a file review was arranged.
Reasons
The issue is whether the worker’s S1 radiculopathy and disc protrusion are related to his May 4, 2004 compensable injury.
We find that they are.
Initial reports both from the worker and his treating medical practitioners describe an injury to the left SI area, with some variance noted regarding the presence or absence of radiculopatic (neurological) symptoms, over subsequent reports. The employer argues that the original diagnosis was a mere muscle strain, and that the compensable medical condition should be restricted to that diagnosis. The panel notes, however, that an initial diagnosis of a strain is commonly provided by the first medical examiner, and it is not uncommon to see a diagnosis evolve as a condition evolves or better information becomes available.
In this case, the panel notes that the worker’s medical treatment subsequent to the May injury involved chiropractic adjustments to the SI disc area that provided relief to the worker, suggesting a disc involvement very early on in the claim. The panel further notes that the continuity of symptoms, even in the absence of work following August 3, 2004 is more indicative of a disc injury than a muscle injury, where one would expect to see improvements while away from work. Finally, the January 2006 MRI results demonstrates a disc injury including a displacement of the left S1 nerve root that is consistent with the areas and types of symptoms first reported by the worker and his treating practitioners.
On the basis of these findings, the panel concludes that the worker’s S1 radiculopathy and disc protrusion are, on a balance of probabilities, causally related to his May 4, 2004 compensable injury. The panel therefore would deny the employer’s appeal.
Panel Members
A. Finkel, CommissionerL. Butler, Commissioner
Recording Secretary, B. Kosc
A. Finkel - Commissioner
Signed at Winnipeg this 1st day of October, 2007