Decision #52/08 - Type: Workers Compensation
Preamble
On May 7, 2007, the worker reported that she injured her low back region at work after caring for a resident. After receiving medical treatment, she returned to her regular work duties on May 14, 2007. The worker claimed that her back pain continued and when she awoke on June 11, 2007, her back pain was so severe that she could not get out of bed. The Workers Compensation Board (“WCB”) accepted responsibility for the worker’s low back injury and time loss from work between May 9 to May 11, 2007. It did not accept responsibility for time loss beyond May 11, 2007 on the grounds that it could not establish a relationship between the worker’s sudden onset of back pain on June 11, 2007 to her compensable back injury of May 7, 2007. A worker advisor acting on the worker’s behalf, appealed the decision to the Appeal Commission and a hearing was held on April 8, 2008.Issue
Whether or not the worker is entitled to wage loss benefits after May 11, 2007.Decision
That the worker is not entitled to wage loss benefits after May 11, 2007.Decision: Unanimous
Background
On July 18, 2007, the worker filed a claim with the WCB for a low back injury that she attributed to her work activities on May 7, 2007. The worker advised that she and a co-worker had finished caring for a resident, which involved getting him out of bed, onto a commode and then into a recliner. As they left the room and started to walk down the hall, she suddenly felt extreme pain in her right low back. She finished her shift that day and had the next day off but was very sore. On May 9 and May 10, she called in sick because she still felt sore and then went to see a doctor. The worker advised that her doctor ordered tests and told her to take May 11, 2007 off work. She then returned to her regular work duties on May 14, 2007.
The worker indicated that her back continued to bother her and that she returned to see her doctor on June 13, 2007. She had x-rays taken and was prescribed medication and was referred for physiotherapy treatment.
The Employer’s Injury Report indicated that the worker did not file a WCB green card and they had no record of an injury occurring.
Initial medical reports showed that the worker attended a physician for treatment on May 10, 2007. He described the worker having a sudden onset of low back pain for four days which was not improving.
When seen for treatment on June 13, 2007, the worker complained of stiffness and pain in her low back that woke her up. There was no sensory or motor complaints. There was no spinal or paraspinal muscle tenderness. Range of motion was limited.
A lumbar spine x-ray was taken on June 13, 2007. The results showed mild lumbar spondylosis with degenerative disc disease at L4-L5.
The worker was seen by a physiotherapist on June 14, 2007. She noted that the worker developed back pain after a heavy stretch of work, similar to previous episodes resulting from specific workplace injuries. The diagnosis rendered was mechanical low back pain with considerable soft tissue strain.
In a progress report dated July 25, 2007, the treating physician questioned a possible disc herniation. She stated the worker still had pain and restricted movements. An MRI was ordered.
On July 26, 2007, a WCB adjudicator spoke with the worker. The worker confirmed the information that she provided to the WCB on July 18, 2007. She clarified that she did not know exactly what caused her May 7, 2007, injury and was not sure if she twisted or bent her back. She stated that she continued to work nights from May 14 to May 26 with discomfort and that her employer and co-workers were aware of her ongoing back pain. She indicated that she was on holidays from May 28 to June 10. She attended a wedding during this time and did some light yard work and rested on the deck. She denied doing anything that aggravated her back. On June 11, she had severe back pain and had trouble getting out of bed. She took medication and went to work. She continued working with great discomfort until June 13, 2007 when she went off work. The worker also advised the adjudicator that she has had prior back problems in 2003, 1998 and 1994.
On August 8, 2007, the WCB adjudicator contacted several co-workers identified by the worker as being aware of her back difficulties. One co-worker stated she was not aware of the cause of the worker’s injury but in May 2007, the worker said she had a sore back from an aggravation of an old injury. She recalled seeing the worker holding herself rigidly. The other co-worker recalled that the worker had quite a bit of pain in May and that the worker was having back spasms and was holding her back. She did not recall the worker mentioning a specific event that caused her back pain.
In a decision dated August 14, 2007, the worker was advised that the WCB was not accepting responsibility for the onset of her symptoms that occurred at home while sleeping on June 11, 2007 but was accepting responsibility for wage loss between May 9 to May 11, 2007 inclusive. The adjudicator indicated that she had obtained updated medical information and had contacted co-workers to confirm ongoing difficulties from the date of the accident to the date of lay off and was unable to confirm any ongoing complaints between May 28 and June 10, 2007.
On September 7, 2007, a worker advisor provided the WCB with a medical opinion which indicated that the worker was currently exhibiting the same symptoms of discopathy that was identified in the first doctor’s report dated May 10, 2007. The worker advisor also noted that the worker’s co-workers confirmed that the worker continued to complain about ongoing right sided low back pain when she returned to light duties on May 11, 2007 until her holidays commenced on May 28, 2007. Based on the available information, the worker advisor contended that there was a causal relationship between the worker’s current low back difficulties and the May 7, 2007 compensable injury.
In a second decision dated September 21, 2007, it was determined by the adjudicator that the new medical information did not alter the previous decision and that it was still the WCB’s position that the worker’s June 11, 2007 symptoms and subsequent diagnosis were unrelated to the May 7, 2007 compensable injury.
On September 27, 2007, the worker advisor appealed primary adjudication’s decision to Review Office. She commented that the treating physician stated that the worker’s “…initial diagnosis was ‘discopathy’ and that it relates to her current diagnosis of possible disc herniation in that it ‘can put pressure on the spinal cord or nerve roots’”.
An advocate acting on the employer’s behalf provided Review Office with a submission dated November 7, 2007. The advocate asked Review Office to uphold the decision to end responsibility after May 11, 2007. The advocate noted that the worker had an increase in back pain and symptoms after sleeping at home on June 11, 2007. He submitted that any disability after that point would not be due to her work duties nor to any hazard of the workplace. He also noted there were no substantiated complaints of pain between the worker’s initial time loss and her subsequent time loss.
On November 29, 2007, following a review of the medical evidence particularly from the treating physician and physiotherapist, Review Office concluded that the worker’s degenerative disc disease was more likely the cause of her current symptoms given the spontaneous onset of her sudden severe pain after waking on June 11, 2007. It therefore confirmed the decision that the worker was not entitled to wage loss benefits beyond May 11, 2007. On December 14, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of benefits on an accepted claim. Subsections 4(2), 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.
Worker’s Position
The worker was represented by a worker advisor who made a presentation on her behalf. She answered questions posed by her representative and the panel.
The worker described her activities on May 7, 2007 to the panel. Although she had just completed working with a difficult patient, she did not have any symptoms until she was finished and was leaving the room. She advised that she had no back symptoms prior to the May 7, 2007 incident. She said symptoms since May 7, 2007 are different than she had with previous incidents with her back. She said she has had more muscle spasm with this incident.
The worker advised that although she returned to work on May 14, 2007, she was not able to perform all her duties and that her co-workers assisted her. Since the injury she has had continuous pain. She stopped work on May 26, 2007 and was on vacation until June 11, 2007. She advised that her symptoms continued throughout this period and that she had to restrict her activities while on vacation. The worker explained that upon waking on June 11, 2007 she had severe pain and had trouble getting out of bed.
The worker advised that she had previously had back problems related to her work. Regarding her prior back problem, the worker advised that she had been prescribed medications for her back for many years. She would get occasional flare-ups in the same area of the back that would resolve after a few days and would take some time off work, with sick days, if necessary.
Regarding medical treatment, the worker advised that she has used her private insurance to obtain physiotherapy and that she is scheduled to see an orthopedic surgeon in 2009. She also advised that she has returned to work to restricted duties on a part-time basis.
The worker’s representative submitted that the continuation of symptoms in the same anatomical area from the May 7, 2007 injury until the symptoms worsened June 11, 2007 supports a causal relationship between the May 7, 2007 compensable injury and the June 11, 2007 incident.
Employer’s Position
The employer was represented by a consultant who made a presentation on behalf of the employer. The consultant advised that the employer agrees with the Review Office decision.
The representative noted that no specific accident was identified and that the evidence does not point to a significant workplace event or trauma. He noted that the worker seemed to have an increase in symptoms after sleeping at home on June 11, 2007. He also noted that the worker has a history of back problems going back several years and submitted that the latest disability seems to be an onset of her on and off again back difficulties. He was unable to relate the worker’s current difficulties to her work duties. The representative submitted that the worker’s condition is not work related and noted that it is being dealt with by her disability carrier which is appropriate in the circumstances.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits after May 11, 2007. For the worker to be awarded wage loss benefits, the panel must find that the worker suffered a loss of earning capacity after this date as a result of her workplace injury. The panel was not able to make this finding.
The panel is unable to relate the worker’s wage loss after May 11, 2007 to a workplace injury and further is unable to relate the worker’s symptoms and wage loss on and after June 11, 2007 to the May 7, 2007 injury.
In reaching this conclusion, the panel notes that the worker has a history of back problems. The orthopedic surgeon who examined the worker noted that the worker had problems with her back since 2001. When asked about this at the hearing, the worker confirmed that she has had periodic problems and that on occasion she would miss a couple days from work due to her back.
The panel also notes that the x-ray of the worker’s lumbar spine indicates the worker suffers from degenerative disc disease at the L4-L5 level of the spine. The worker advised that she has used prescription drugs for her back condition for many years.
The panel finds, on a balance of probabilities, that the worker had recovered from the May 7, 2007 injury. In support of this finding, the panel notes that the worker returned to regular duties on May 14, 2007 and worked until May 26, 2007. During this time the worker saw a physician on only one occasion at the outset of her claim, and did not seek further medical treatment until after the June 11 incident at home. The worker indicated that throughout this period she worked in pain and that her co-workers assisted her with her duties.
The panel also notes that after May 26, 2007, the worker was on vacation until June 11, 2007 when she felt an increase in pain and had trouble getting out of bed. At the hearing the worker indicated that she continued to experience pain while on vacation which restricted her activities. However, the treating physiotherapist noted in a report dated July 23, 2007 that “pain seemed to resolve after 10-11 days then recurred June 11/07.” The panel places greater weight on the report of the physiotherapist that was prepared closer to the date of the injury than on the worker’s evidence at the hearing.
The panel is unable to find that the worker’s symptoms were continuous as asserted by her representative. The panel finds, on a balance of probabilities, that the worker’s May 7, 2007 injury had resolved and that the worker suffered a new flare-up of pain on June 11, 2007, unrelated to the May 7, 2007 injury. The panel finds that the evidence does not support a causal relationship between the May 7, 2007 injury and the June 11, 2007 incident; rather, the evidence suggests a sudden spontaneous onset of pain upon waking on June 11, 2007. The panel notes that this second incident is consistent with the many years of spontaneous onsets of back pain experienced by the worker, rather than a continuous relationship to the prior May 7 incident.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of April, 2008