Decision #143/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between a worker’s pre-existing back condition and his workplace injury. The worker suffered multiple injuries when the truck he was a passenger in ran off the road onto the median of a divided highway. He applied to the Workers Compensation Board (WCB) and his claim was accepted. He was provided with benefits until February 3, 2007 at which time the WCB found that the symptoms in his low back were not related to his workplace injury. The worker appealed to the Review Office which found that he had degenerative changes in his lumbar spine. Review Office was unable to find that the worker continued to suffer the effects of the workplace injury. The worker appealed to the Appeal Commission and a hearing was held on September 19, 2007. The panel discussed the case on the same day.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 3, 2007.Decision
That the worker is not entitled to wage loss benefits beyond February 3, 2007.Decision: Unanimous
Background
On March 31, 2006, the worker reported injuries to his neck, shoulders and low back suffered while in the bunk of a truck when the truck struck an icy patch on the road. On April 1, 2006, the initial treating physician diagnosed the worker with a lumbosacral, cervical and right shoulder strain. The physician also noted that the worker sustained a previous back injury 3 to 4 years ago.
A report received from the family physician dated March 27, 2006, noted that the worker was climbing down from his truck two weeks earlier on March 15, 2006 when he lost his balance and came out of the cab using his left hand for support causing an upward strain of the shoulder to prevent himself from falling 4 feet. The worker was then diagnosed with a left rotator cuff and trapezius strain and physiotherapy treatments were arranged.
In a report dated April 10, 2006, the family physician diagnosed the worker with multiple contusions and sprains.
An initial physiotherapy report indicated that the worker was being treated for his neck, low back and rotator cuff strain.
On May 5, 2006, the family physician reported that the worker was making a slow but gradual improvement in his symptoms. He suggested an exercise conditioning program.
On June 13, 2006, the family physician stated the worker’s neck and shoulder symptoms had cleared but he still had residual lumbosacral pain with some radiating into the right buttock. A CT scan was arranged.
Laboratory test results revealed the following findings:
- April 4, 2006 – x-rays of the lumbar spine showed minimal disc space narrowing at the L3-4 level and at the L5-S1 level. End plate compression deformities were seen at L3, L4 and L5 vertebral bodies. These were of “indeterminate age”. X-rays of the cervical spine showed small osteophytes seen anteriorly from C4 to C6. The right shoulder revealed an intact gleno-humeral joint and minor degenerative changes at both the acromio-clavicular and gleno-humeral joints. No acute abnormalities were evident.
- July 27, 2006 – CT scan of the lumbar spine showed bilateral pars defects at L5-S1. The left appeared partially healed. There was no evidence of spondylolisthesis or fracture. On August 10, 2006, a WCB medical advisor commented that the bilateral pars defects at L5-S1, partially healed left side, could be related to the compensable injury and account for the worker’s ongoing pain.
- August 28, 2006 – bone scan results showed a very mildly increased uptake on the left side of L5-S1. No similar reaction was seen on the right side.
On September 13, 2006, the family physician noted an increased uptake on the bone scan which he thought was related to disruption of the pars defect. A referral to an orthopaedic specialist was indicated.
On September 15, 2006, a WCB medical advisor stated that bone scan findings likely correspond to the pars defect. This suggested the lesion was metabolically active (i.e. not yet healed). This could be related to the compensable injury given the mechanism of injury. On September 19, 2006, the WCB medical advisor indicated there was no evidence of a significant pre-existing condition on imaging studies. X-rays showed minimal disc narrowing but the CT scan did not show any disc pathology so it was unlikely to be affecting recovery.
On October 26, 2006, a senior WCB medical advisor stated that the pars defect was of questionable origin but could be related to the compensable injury. He said there was evidence of significant pre-existing degenerative disc disease with osteophytes in the worker’s lumbar spine. On January 23, 2007, the WCB medical advisor stated that the compensable injury was a strain causing aggravation of a pre-existing degenerative disease in the lumbar spine. He opined that the pars defect was congenital in nature and that the effects of the compensable injury had resolved.
In a decision dated January 24, 2007, the worker was advised of the WCB’s position that the weight of information did not support that the symptoms in his low back were related to his compensable injury. As a result of this decision, wage loss benefits would be paid to February 3, 2007.
In a memo to file dated January 25, 2007, the worker told his case manager that his doctor had not cleared him to return to work as a team driver but that he was able to drive single, shorter hauls.
A report from the treating orthopaedic specialist dated February 9, 2007 outlined his view that the worker had permanent problems in his back secondary to wear and tear and had been augmented by the last two motor vehicle accidents. He did not feel the worker was a surgical candidate.
On February 21, 2007, the family physician stated that the worker’s bilateral L5-S1 pars interarticularis defects were possibly injured during the motor vehicle accident as evidenced by mild increased uptake on the bone scan results. He felt the worker required vocation modification.
A bone scan report dated March 5, 2007 stated, in part, “Aside from uptake related to degenerative change, there is no abnormal activity in the lumbosacral spine, and in particular, no abnormal activity is present at L5-S1.”
On March 7, 2007, the case manager advised the worker that following a review of the reports from the orthopaedic specialist and family physician, no change would be made to the decision of January 24, 2007.
In a report dated March 9, 2007, the family physician stated the following after his review of the March 7, 2007 bone scan results, “…there is improvement and clearing of the increased intake at the L5-S1 region. This would serve to confirm that he indeed did have an acute fracture of the pars intra-articularis in this region and this is in the process of healing and would account for the protracted nature of his symptoms. It would also indicate that bending, lifting and torsion type movements may still produce pain and in the future this would be likely a weak area for him and he may be susceptible to further such injury therefore a vocation requiring excessive amounts of these movements would not be in his best interest.”
The worker appealed the WCB’s decision to end his compensable benefits effective February 3, 2007. On March 26, 2007, the worker advised the Review Office that he has not worked since his benefits were terminated in February 2007 and he was requesting wage loss benefits and treatment coverage. He felt he could not return to long distance driving based on the advice given by the orthopaedic specialist and his family physician and because of the constant pounding on his spine when he is truck driving.
Prior to considering the worker’s appeal, Review Office obtained an opinion from a WCB orthopaedic consultant on April 4, 2007. Based on questions posed by Review Office, the orthopaedic consultant stated the worker had pre-existing multi-level degenerative changes of the lumbar spine and spondylolysis of L5 which was aggravated by the compensable injury. He felt the compensable injury aggravated the pre-existing changes in the worker’s spine. He felt the worker had recovered sufficiently from the effects of his compensable injury to permit a return to work as a long haul truck driver. He stated the worker did not sustain an acute fracture of the L5 pars interarticularis.
On April 4, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits beyond February 3, 2007. In making its decision, Review Office considered the comments made by the WCB orthopaedic consultant dated April 4, 2007. Review Office said that while it was apparent that the worker had a back at risk due to the degenerative changes in his lumbar spine, it was unable to establish that the worker continued to suffer from the effects of the compensable injury sustained on March 31, 2006. The worker subsequently disagreed with Review Office’s decision and a worker advisor submitted an appeal to the Appeal Commission.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.
In accordance with subsections 4(2) and 39(2) of the Act wage loss benefits are payable for workplace injuries until such a time as the worker’s loss of earning capacity ends, as determined by the WCB.
This worker was found to suffer from a pre-existing condition. The Board of Directors made WCB Policy 44.10.20.10 which sets out when the WCB will accept responsibility for a pre-existing condition.
Worker’s Position
The worker was represented at the hearing by a worker adviser who made a submission on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative advised that prior to the accident, the worker was able to complete his normal run as a long haul trucker. He stated that the worker’s position is that he has not recovered from the accident and continues to suffer from the effects of the injury. The representative referred to the reports of a WCB medical advisor which indicated a relationship between the worker’s pars defect and the workplace injury. He also referred to the report of an orthopedic surgeon that indicated that the worker has permanent problems in his back which would be due to wear and tear, augmented or increased by the worker’s last two workplace injuries. He stated that even if the worker is suffering from an aggravation of a pre-existing condition, this aggravation continues and under the WCB policy dealing with pre-existing conditions such an aggravation is compensable.
The worker advised that he suffered a workplace injury in 2002. He advised that he was off work as a result of this injury until approximately 2005. He did not feel he had recovered but had to return to work due to his financial situation. He returned to work with a different employer and was required to have a physical examination.
The worker described the March 2006 accident. He advised that he was sleeping in the sleeper unit when the truck ran off the road. He did not recall pain at the time of the accident but the next morning his back, neck and shoulders were sore. He stated that his back was sore just above the belt line with pain shooting up towards his right hip. He also had pain in the centre of his back shooting towards his right shoulder.
Regarding his current condition, the worker advised that his back continues to be painful. He described the pain as a “numb pain”. He advised that he has difficulty performing daily activities. He cannot twist, lift or stand for long periods and sitting can be uncomfortable. He is able to walk for a good hour. He advised that his neck and shoulder pain are just muscle pain but have not completely resolved. The worker stated that he has not recovered from the injury.
The worker advised that he recently drove his car from Winnipeg to Carman and Winkler and back. He advised that his back did not bother him but that his neck and shoulder were sore. He also advised that he recently delivered a couple trucks for a friend and had no problems. He advised this involved a 10 to 15 minute drive.
The worker advised that he was provided with a gym membership for three months and that his back improved “quite a bit”. He also advised that he has lost 63 pounds.
Employer’s Position
The employer was represented by an advocate who made a submission on the employer’s behalf. The advocate reviewed the medical evidence on the claim file and submitted that the weight of medical evidence does not support the worker’s appeal for continued benefits. He noted that the worker had two bone scans and that the first bone scan showed increased uptake while the second bone scan showed no activity. He stated that it appears that the worker has a pre-existing pars defect which appears to be the source of his ongoing problem.
Analysis
The panel was asked to determine whether the worker is entitled to wage loss benefits beyond February 3, 2007. For this appeal to be successful, the panel must find that the worker’s loss of earning capacity beyond February 3, 2007 was caused by his workplace injury. In other words, the panel must find that the workplace injury or an aggravation of the worker’s pre-existing condition prevented the worker from working after the noted date. The panel was not able to make this determination.
After considering all of the evidence, including the worker’s evidence at the hearing, the panel finds, on a balance of probabilities, that worker is not entitled to wage loss benefits beyond February 3, 2007. The panel finds that the worker recovered from the workplace injury by February 3, 2007 and that his current symptoms are not related to the workplace injury. The panel relies upon the opinion of the WCB medical advisor dated January 4, 2007 that the worker’s likely diagnosis was a back strain with an aggravation of the worker’s pre-existing condition.
The panel notes that the worker’s pre-existing back condition was noted in a CT scan of the worker’s lumbosacral spine conducted in September 2002, approximately 3.5 years before the March 2006 workplace injury. The CT report at that time noted multi-level disc and facet changes with osteoarthritis.
The panel notes there was much discussion regarding the worker’s pars defect and its relationship to the workplace injury. In this regard it notes that a bone scan conducted on March 5, 2007 indicates that the very mild activity noted on the prior bone scan, conducted on September 13, 2006, had disappeared on the current examination. The impression was that “aside from uptake related to degenerative change, there is no abnormal activity in the lumbosacral spine, and in particular, no abnormal activity is present at L5-S1.” This suggests to the panel that any aggravation of the pars defect caused by the accident had cleared up and that ongoing symptoms are due to the degenerative condition.
Finally the panel notes that in a February 9, 2007 report the treating orthopedic surgeon reported that the worker had intermittent lumbar back pain over the past five to six years. The physician commented that the worker has a permanent problem in his back, secondary to wear and tear and augmented by his last two vehicle accidents. The panel agrees with this comment but finds that the March 2006 injury resulted in an aggravation which cleared up by early 2007 as noted by the March 2007 bone scan. The panel therefore finds on a balance of probabilities that the worker’s medical symptoms as of February 3, 2007 are no longer causally related to the compensable injury and the worker is thus not entitled to wage loss benefits beyond that date.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 31st day of October, 2007