Decision #23/08 - Type: Workers Compensation
Preamble
This appeal deals with the worker’s back condition and its relationship to his employment. The worker injured his back at work in November 2003 and states that he never recovered from the injury. He also states that he re-injured his back on October 13, 2006. The Workers Compensation Board (WCB) found that the worker recovered from his 2003 injury and did not sustain a new workplace injury in 2006. The worker appealed this determination to Review Office which upheld the WCB decision. A hearing was held on January 8, 2008 at the request of a worker advisor, acting on behalf of the worker.Issue
Claim for injury occurring November 13, 2003
Whether or not the worker is entitled to retroactive wage loss benefits from June 2005 in relation to the November 13, 2003 injury.
Claim for injury occurring October 13, 2006
Whether or not the claim is acceptable.
Decision
Claim for injury occurring November 13, 2003
That the worker is not entitled to retroactive wage loss benefits from June 2005 in relation to the November 13, 2003 injury.
Claim for injury occurring October 13, 2006
That the claim is acceptable.
Decision: Unanimous
Background
November 13, 2003 injury:
On November 13, 2003, the worker injured his low back in a work related accident. He was subsequently treated by a chiropractor and was diagnosed with a sprain/strain to the low spine and associated soft tissue with subluxation at L5. While undergoing chiropractic treatment, the worker commenced a graduated return to work program in December 2003 working at a stationary grinder.
An initial physiotherapy report dated February 13, 2004 diagnosed the worker’s back condition as a chronic low back strain with underlying mechanical back pain.
In a report by the attending anesthesiologist dated February 25, 2004, she reported that she initially saw the worker for chronic right ankle pain in July 2003 as well as chronic low back pain that radiated down both legs. When she examined the worker’s back, she found localized pain over the left lumbar spine but otherwise the physical examination was within normal limits. When the worker returned five months later, he complained of more significant low back pain that radiated into his buttock. The specialist referred the worker to another specialist for a lumbar medial branch block.
By May 4, 2004, the worker returned to 8 hour shifts at the stationary grinding area. On June 6, 2004, the treating chiropractor stated that the worker still complained of low back pain and range of motion was reduced by 15%.
The worker was examined by a WCB chiropractic consultant on August 3, 2004. The consultant noted that the worker did not benefit greatly from the various forms of treatment he received and had only progressed about 20%. The worker was on holidays and was relatively asymptomatic and there were no objective findings. The worker claimed that when he returns to work, his symptom level will increase as it did prior to vacation time. Based on these and negative x-ray findings, the consultant’s opinion was that a significant part of the worker’s problem was due to deconditioning and an exercise program to improve core strength was recommended.
In December 2004, the worker stopped working due to the effects of a non-compensable condition that was covered by private insurance.
On January 12, 2005, the treating chiropractor reported that a recent CT scan revealed a very tiny possible disc herniation at L4-5. The chiropractor felt that this was not a significant finding and could not specifically state that it arose out of the worker’s work duties. She advised that the worker was at maximum medical improvement and did not feel that the WCB should be responsible for any further treatment in relation to this injury.
On March 16, 2006, the worker advised the WCB that he had been cleared to return to work at reduced hours and that the reduced hours were due to his back claim. He also claimed that the WCB did not pay him for the correct hours while he was working his graduated return to work program in 2003 and 2004. On March 17, 2006, the employer advised the WCB that the worker provided them with a doctor’s note stating that he could work only limited hours due to the effects of his back injury that he sustained on November 13, 2003.
In a decision dated March 17, 2006, the worker was advised that the WCB was not supporting the graduated return to work with his employer as a WCB responsibility. It was the WCB case manager’s view that the worker’s work duties were not playing a role in his current back difficulties given that he had been out of the workplace for a lengthy period of time.
On August 1, 2006, a worker advisor appealed the above decision on the worker’s behalf and submitted new medical information for consideration. It was the worker’s contention that he continued to suffer back symptoms during the time that he was off work for non-compensable medical issues.
In a report dated June 22, 2006, a neurosurgeon noted that the worker underwent an MRI of the lumbar spine which showed some degenerative narrowing of the L3-4 and L5-S1 disc spaces. At L5-S1 there was a small annular tear and some osteoarthritic degeneration of the zygapophyseal joints. The neurosurgeon stated that surgical decompression was not indicated and there was no clinical evidence of radiculopathy. A facet block was suggested as a form of treatment.
In a report to the WCB dated August 23, 2006, the treating physician made reference to the neurosurgeon’s findings outlined in his report of June 22, 2006. The physician stated “It is felt that, in view of the more significant disc narrowing and annular tear, this likely was related to an injury, most probably on the basis on his work.”
In a decision dated August 18, 2006, the WCB case manager determined that the additional medical evidence did not support that the worker’s current back difficulties were related to his November 13, 2003 back strain. She felt that the degenerative narrowing and osteoarthritic degeneration of the zygapophyseal joints was a pre-existing back condition and was not a result of any workplace injury.
In a further decision dated September 14, 2006, the WCB case manager advised that the report from the treating physician dated August 23, 2006 was considered in consultation with a WCB medical advisor and that the report did not provide any information to change the previous decision.
On January 5, 2007, a different worker advisor submitted a December 13, 2006 report from the treating physician for consideration. The worker advisor contended that the new information supported the finding that the worker’s current back difficulties stemmed from his workplace duties and that the worker had work restrictions as a result of his November 13, 2003 workplace injury.
In a decision dated January 24, 2007, the WCB case manager indicated that the December 13, 2006 report had been reviewed by a WCB medical advisor and that it did not provide any information to change the previous decision. It remained the WCB’s position that it could not accept responsibility for the worker’s current back difficulties as being related to the November 13, 2003 workplace accident. On April 20, 2007, the worker advisor appealed this decision to Review Office.
On May 4, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits retroactive to the time that he maintained that he approached his employer for modified duty work in June 2005. Review Office considered all the available information on file and concluded that the compensable injury of November 13, 2003 was nothing more than a soft tissue strain/sprain of the low back superimposed on pre-existing degenerative changes. It noted that the worker had previously been referred to a pain clinic facility for essentially the same low back and leg complaints which attested to the level of symptomatology that he was experiencing prior to the at work injury. Review Office was of the opinion that the worker had been fairly compensated for the effects of his compensable injury and the appeal was denied. On September 21, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission.
Claim for injury occurring October 13, 2006
The worker filed a claim with the WCB on February 7, 2007 for back difficulties that he experienced on October 13, 2006 which he related to his work activities of shank pouring. The worker indicated that he reported his back difficulties to his employer on October 18, 2006.
In a report dated October 16, 2006, the treating physician diagnosed the worker with an aggravation to his lumbosacral spine. He noted the worker was grinding at work, bending in and out of boxes and manipulating a shank pot. In a later conversation with his WCB case manager, the worker attributed his condition to “shank pouring”.
Information from the accident employer indicates that they were unaware of the worker injuring his back on October 13, 2006 or that he reported an accident to them on October 18, 2006. The employer said the worker was terminated from its employ on November 13, 2006.
On February 9, 2007, the employer’s representative advised the WCB that the worker returned to work on March 6, 2006 and worked at a stationary grinder, grinding 7 1/2 to 15 1/2 lb castings. On September 11, 2006, the worker moved to the crane operating position where there was no manual labor involved. He worked at that position until October 2, 2006 when he was moved to the shank ladle pourer area. The worker’s job was to pour metal from a 300 lb. pot which was on a rail system. There was some pushing and pulling involved in positioning the pot in line to pour the metal. The employer stated the worker complained about his back from the time he started work up to October 12, 2006 and that the worker had chronic back difficulties. He said the worker called work on October 13 to say that he was not coming in because he was “too sore”.
On February 15, 2007, the worker advised the WCB that he had been having low back difficulties since his November 2003 injury and that he continues to seek ongoing medical treatment for his difficulties. He stated his back pain was tolerable when he returned to work in March 2006 but as the months went on his back flared up. The shank pouring position made his back worse.
A report from a neurosurgeon dated February 22, 2007 noted that recent x-rays of the lumbar spine revealed some narrowing of the disc spaces at L3-4 and L5-S1. Osteoarthritic degeneration of the zygapophyseal joints was noted but there was no increased laxity/abnormal mobility on the flexion and extension study. A previous MRI of May 2006 showed evidence of an annular tear at the lumbosacral junction but no progress impinging upon the thecal sac or the roots. He stated the clinical presentation remained suggestive of musculoskeletal/mechanical low back pain with no evidence of radiculopathy.
On March 5, 2007, the WCB provided the worker’s supervisor with an accident/incident report that was submitted by the worker for an incident occurring on October 15, 2006. The October 15, 2006 incident was described by the worker as “Bending in and out of box’s (sic). I’m a crane man and shoud (sic) have been on the crane in March not grinding.”. On March 5, 2007, the worker’s supervisor advised the WCB adjudicator that the report was an internal document but the worker never reported an incident to him on October 15, 2006 and this was the first time he has seen this report. He stated that the last time he spoke with the worker was on October 12 which was the last day he worked.
In a decision dated March 5, 2007, the WCB case manager determined that there was insufficient information to conclude that the worker’s difficulties were related to a specific incident either on October 13 or 15 as reported and therefore his claim for compensation was denied. The case manager’s decision was based on the fact that the employer was unable to confirm that the worker sustained an incident on October 13 or October 15, 2006. The case manager noted that the main issue on the accident/incident report of October 15 is that the worker felt he should be operating the crane as opposed to the grinding duties and that he continued to have ongoing low back difficulties and continued to seek ongoing medical treatment since his 2003 claim.
On June 5, 2007, a worker advisor appealed the case manager’s decision of March 5, 2007 to Review Office. The worker advisor outlined the worker’s position that he was entitled to benefits from the time that he had to go off work in October 2006. The worker advisor noted that the worker had problems under his 2003 claim but was able to continue with his grinding duties with some pain. The worker’s pain increased with the continued strain to his back from his work duties and when the shank ladle pouring work was added to the mix, his back deteriorated at a much more rapid rate and he found that he could not continue. The worker also said that there had been an increase in the bending from the grinding that he had to perform in tighter spaces. The worker advisor further noted that under the applicable legislation, any “thing” that is related to work can provide the nexus for a compensable workplace injury and in this particular case, it was the effect of the duties performed in September 2006. The worker suggested that the WCB erred in concluding that his claim was not acceptable.
On June 21, 2007, Review Office confirmed that the claim for compensation was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of his employment. Review Office found that the evidence on file, including the inconsistencies regarding the date of the incident and the inconsistencies as to who and when the incident was reported to and the fact that the employer could not confirm that the incident was reported to them, does not support that an accident as defined in subsection 1(1) of The Workers Compensation Act (the Act) had been satisfied. On September 21, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission.
In a report to the Appeal Commission dated August 20, 2007, the treating physician stated, in part, “It would appear entirely reasonable and clear to me that, regardless of the initial cause of his L5-S1 disc tear (most probably repetitive stress injury, perhaps initiated by the November 13, 2003 event), that significant lumbar stressing and loading activity, as [the worker] was involved with in relation to his job description, would aggravate this condition.”
Reasons
The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel. The employer was represented by its plant manager and its vice president. The plant manager made a submission and both employer representatives answered questions posed by the panel.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.
The first issue deals with the payment of benefits for an accepted accident and the second issue with whether the worker’s claim that he was injured at work on October 13, 2006 is acceptable. Several sections of the Act are applicable including subsection 1(1) and 4(1), and section 39.
Subsection 1(1) of the Act defines accident and subsection 4(1) provides that where a worker suffers personal injury in a workplace accident, compensation is payable.
Subsections 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
WCB Policy No. 44.10.20.10, Pre-existing Conditions, sets out the circumstances where the WCB will accept responsibility for an injury involving a pre-existing condition. Generally the WCB will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.”
Issue One
Worker’s Position and Evidence at the Hearing
The worker’s representative submitted that the worker injured his back on November 13, 2003 and continued to suffer a loss of earning capacity related to this injury after June 2005. The representative submitted there is medical support for the worker’s position and referred to the August 21, 2007 report of the family physician. The physician commented that although day-to-day activities can cause some degree of flare-up in the worker’s condition, it is clear that his work-related activity has been the most stressful aspect of his day-to-day life since November 13, 2004. He stated that it appears a natural and sensible deduction that his work related activities are the significant contributors to his ongoing back complaints.
The worker’s representative asked various questions of the worker to which he provided information regarding his employment history with the employer, various positions he filled at the workplace, a description of the 2003 workplace injury, his return to work from the injury, difficulties with his return to work including concern that the duties he was provided were not appropriate, description of flare ups that occurred including an incident in November 2004, information regarding an un-related medical problem which took the worker off work after November 30, 2004, and his medical condition and treatment at various times.
The worker advised that his back condition never resolved and that his pain was continuous. He indicated this was due in part to the duties assigned by his employer which he considered were inappropriate. He advised that his back felt best when he worked on the crane.
The worker advised that he had a back injury in 1988 but since that time he did not have any back problems until November 2003. The worker was asked about a report from a pain clinic dated July 18, 2003 which indicated that he complained about chronic low back pain. The worker denied any prior back difficulties before the November 2003 injury and could not explain the reference in the July 2003 report from the pain clinic.
The worker confirmed that he was away from the workplace commencing on November 30, 2004 and did not return to work until March 2006, a period of approximately 15 months. He confirmed that he had been working full time prior to this date but had suffered a flare up in November 2004 before going on leave. He indicated that he had a choice at that time to go on WCB benefits for his back injury or obtain treatment for his unrelated medical condition. The worker advised that he chose to undergo treatment for his unrelated medical condition.
The worker confirmed that he was off work from November 30, 2004 until March 2006. The worker indicated that he did not receive any medical treatment for his back during this period. Regarding the condition of his back in June 2005, he stated “…I felt physically all right. Like, physically I felt good…” He also stated that on his return to work in March 2006 he still had problems with his back.
The worker advised that in June 2005 he obtained medical clearance to return to work, but that he did not return until March 2006. On his return he started working four hours per day and increased to eight hours per day. He advised that he worked until he injured his back on October 13, 2006. The worker’s representative advised he is seeking benefits retroactive to June 2005.
Employer’s Position and Evidence at Hearing
The plant manager advised that the employer works with the WCB, the workers’ union and medical professionals in determining appropriate duties on a return to work. He also indicated that seniority plays a role in determining which positions are available.
The vice president advised that the stationary grinder position is frequently used in return to work plans because it is the most flexible for rest periods.
Analysis
Issue One
The first issue is whether the worker is entitled to retroactive wage loss benefits from June 2005 in relation to the injury which occurred November 13, 2003. June 2005 is claimed by the worker as the start date for further wage loss benefits because that is the time when he had completed treatment for a non-compensable medical condition and he alleges that he approached his employer for modified work.
In order for the appeal of this issue to succeed, the panel must find that in June 2005, the worker continued to suffer a loss of earning capacity resulting from the November 13, 2003 accident. We are not able to make that finding.
The injury on November 13, 2003 was initially diagnosed by the treating chiropractor as a sprain-strain injury to the low spine and associated soft tissues with subluxation at L5. The worker underwent chiropractic treatment which was later augmented with some physiotherapy. By May, 2004, he was able to resume full time employment, although only on modified duties.
Earlier in 2003, prior to the accident, the worker had been referred for assessment and treatment at a pain clinic. At the initial assessment in July 2003, he complained of severe chronic ankle pain as well as chronic low back pain that radiated down both legs. At a subsequent attendance on December 17, 2003, the worker was complaining of more significant low back pain that radiated into his buttock. The worker was referred for a trial of lumbar medial branch blocks. He underwent a series of injections, but obtained only limited relief.
In January, 2005, the treating chiropractor reviewed a recent CT scan of the worker and noted that at L4-5 there was a very tiny possible disc herniation. The chiropractor advises that this was not a significant finding and she could not specifically say it arose out of his work duties. In the chiropractor’s opinion, the worker was at maximum medical improvement and any further chiropractic treatment would be considered maintenance care.
In March, 2005, the worker came under the care of a family physician. The December 13, 2006 report of the family physician relates the worker’s current diagnosis as chronic lumbosacral spine pain, resulting from low back musculotendinous strain, recurrent and aggravated by certain exertional activities. Underlying this, the worker had MRI evidence of narrowing of L3-4 and L5-S1 discs, as well as L5-S1 disc annular tear. Additionally, there was some osteoarthritic degenerative changes in the posterior joint elements relating to his low back.
In view of the above medical evidence, the panel is satisfied, on a balance of probabilities, that the worker had pre-existing chronic low back pain and that on November 13, 2003, he suffered a sprain/strain injury which exacerbated the pre-existing condition. The panel accepts the chiropractor’s opinion that by January 2005, the worker had reached maximum medical improvement from the exacerbation and we therefore conclude that no further wage loss benefits are payable in respect of the 2003 accident. The panel does not accept the August 23, 2006 opinion of the family physician that the worker’s disc narrowing and annular tear was likely related to a work injury.
The panel is unable to relate any loss of earning capacity after June 2005 to the November 30, 2003 workplace injury as the panel finds that this worker recovered from the aggravation caused by the November 13, 2003 injury by January 2005.
The worker’s appeal on this issue is denied.
Issue Two:
Worker’s Position and Evidence at Hearing
The worker described the incident that occurred on October 13, 2006. He advised that he was working full time at the time of the injury. He indicated that on the day of the incident he was working both as a grinder and as a shank pourer. He advised that the incident occurred as he was moving a large and heavy pot of liquid steel on a rail system. He noted that the pot jammed which resulted in jarring of his back. He advised this happened during the last heat of the day and that he took it easy after the incident. His back was sore the next day and he could not work. He subsequently called the employer’s office and left two messages on the answering machine. The worker advised that he attended his family physician on October 16, 2006 and on October 18, 2006 he attended the employer’s office to drop-off the physician’s report and was involved in a verbal dispute with the plant manager. The worker stated that he asked his physician to send in a report about the injury on his behalf.
The worker was asked about whether his condition has changed since the October 2006 injury, he advised that “Its not too bad like as in pain … as long as I don’t do any heavy lifting. And what I mean by that is anywhere from 10 to 15 pounds.”
The worker was asked the following questions regarding his current condition and gave this answer:
Q So you’re talking about now having a certain pattern of good days and bad days. You talked about the fact that your back got worse and that’s why you left work in the middle of October. When did that start to recede? When did that start to – when did you – obviously, you went through some kind of hump up and then basically back down.
A Yes, Oh, I bet you three and a half months it was pure, pure hell, even after I got those injections in December. Oh, I was stuck in bed for three days. Did that hurt. You know what? I regret going for them because they didn’t work and the pain that I went through. You know, that’s why I suggested it, and I’m not even a doctor, cut the vein. Whatever is causing the pain, cut it.
The worker advised that prior to this incident he had a continuous ache in his back but that it increased with the incident so he sought medical attention.
The worker’s representative submitted that the worker did give notice of the injury although it may have been overlooked or wasn’t pursued. He noted that the worker left the matter in his physician’s hands, given the strained relationship with the employer. He submitted that the notice provision in the Act isn’t strict and that the worker’s claim is a just claim and should be accepted.
Employer’s Position and Evidence at Hearing
The plant manager advised that he did not meet with the worker on October 18, 2006 and did not know about the October 13, 2006 injury until the WCB advised them. He also said that, to his knowledge, the employer did not receive any phone messages at that time from the worker advising that he was ill or injured.
In response to a question about information on the file which indicates that the worker did leave phone messages, the plant manager advised that this was possible but that he did not receive those calls personally.
The employer confirmed that the worker was subsequently terminated from his position.
Analysis
The second issue to be considered by the panel is whether the claim for injury occurring on October 13, 2006 is acceptable.
For the worker’s appeal of this issue to be successful, the panel must find that the worker suffered personal injury by accident in the workplace on this date. We did make such a finding.
While the panel notes there was some confusion regarding the actual date of the incident (October 12, 13, or 15), the panel finds that the evidence supports a finding that the incident occurred on October 13, 2006.
The panel finds, on a balance of probabilities, that the worker did suffer a new injury in October 2006 which aggravated his pre-existing chronic lumbosacral spine condition. The worker’s evidence is that the shank pouring duties being performed by him involved pulling and possible jerking motions. This evidence was uncontroverted by the employer. The panel accepts the worker’s evidence that on the day of the accident, he had pulled hard on a pot which had jammed and in the course of doing so, he hurt his back. The panel notes that three days after this incident the worker attended his physician. The physician’s report indicates that he saw the worker on October 16, 2006 and diagnosed an aggravated lumbosacral spine. The physician notes the worker was performing grinding duties and manipulating a shank pot on the day of the accident. The panel finds this evidence corroborates the worker’s evidence of an injury on October 13, 2006.
The panel notes that the new injury caused the worker to experience increased pain in his lower back, which continued for a period of approximately 3 ½ months.
The panel finds that the worker’s claim is acceptable and allows the appeal on this issue.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 5th day of February, 2008