Decision #54/08 - Type: Workers Compensation
Preamble
The worker injured her low back area in a work related accident. The claim for compensation was accepted by the Workers Compensation Board (“WCB”) and the worker was paid benefits up until September 15, 2006 when it was determined by both primary adjudication and the Review Office that the worker had recovered from the effects of her low back injury. A worker advisor, acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and a hearing was held on November 22, 2007.Issue
Whether or not the worker is entitled to wage loss benefits and services beyond September 15, 2006.Decision
That the worker is entitled to wage loss benefits and services beyond September 15, 2006.Decision: Unanimous
Background
On October 14, 2004, the worker slipped on a wet floor and in the process, her legs split and she jerked her body and felt a sharp pain on the left side of her low back.
The employer’s accident report indicated that the worker entered a patient’s room and slipped on water and started to fall. “She did not fall to the floor as grabbed onto the wall but strained her back.”
Following the accident, the worker sought medical treatment from her family physician for pain and stiffness in her low back. The diagnosis rendered was myofascial strain of the lumbosacral spine.
The worker attended a physiotherapist for treatment on October 18, 2004. He noted that the worker’s subjective complaints included acute mechanical low back pain with no complaints of buttock or leg pain along with pain on sitting.
On November 29, 2004, the treating physician commented that the worker was showing no improvement in her condition and that she had low back pain radiating into the right gluteal region.
On December 2, 2004, the treating physiotherapist questioned whether the worker had a right S1 radiculopathy.
The worker was assessed by a WCB medical advisor on December 6, 2004. The medical advisor indicated that the worker’s description of her current symptoms suggested a possible disc protrusion with nerve root irritation. He noticed some inconsistencies in his examination findings. A CT scan was recommended to rule out a disc lesion.
A CT scan assessment was carried out on December 10, 2004 and the results were reviewed by the examining WCB medical advisor on December 30, 2004. He indicated that the worker was likely suffering from an L4-L5 disc protrusion, with right L5 nerve root involvement and that this diagnosis was consistent with the mechanism of injury.
On February 21, 2005, the treating physician indicated that the worker’s back pain remained unchanged and that he was referring her to a neurosurgeon for an assessment. In a subsequent report from the neurosurgeon dated May 3, 2005, he stated that the worker’s clinical presentation was not typical for a radiculopathy. He thought that her symptoms could be summarized as mechanical low back pain which originated from an irritation of the dorsal elements of the spine. Treatment suggestions included a new CT scan and infiltration of the joints.
The worker underwent a second CT scan on June 20, 2005 and an MRI assessment on July 13, 2005. The test results showed that the worker had moderate facet arthropathy at L4-L5 with diffuse disc bulging associated with a small broad based central disc protrusion. The MRI revealed stenosis at T11-T12 which was not of any clinical significance and a small annular tear at L4-5.
On October 11, 2005, the treating neurosurgeon stated the infiltration which the worker had at the beginning of June was marginally beneficial. She had increased mobility of the lumbar spine.
Subsequent file records indicate that the worker was treated by a registered psychologist for signs of depression and that her treating physiotherapist recommended that she return to light duty employment. The worker also attended a work hardening program which only provided minor physical improvement in her condition with no change to her pain levels.
On May 2, 2006, the worker was assessed by a WCB physical medicine and rehabilitation consultant (a “physiatrist”). He found no evidence of any lumbosacral nerve root irritation and no significant findings on examination. The consultant commented that none of the worker’s symptoms suggested a sacroiliac joint complex origin. He said the mechanism of injury suggested only minimal trauma and that a significant injury would not be expected with this mechanism. He could not identify a condition that would prevent the worker from progressing to her prior work duties through a graduated return to work process.
On July 18, 2006, a WCB case manager recorded that she met with the worker. The worker said she was still in a lot of pain and felt constant pressure on her back. The worker had limited tolerance for sitting and standing. It was stated that the worker would increase to four hour shifts for one day a week and 3.5 hours per shift the other day of the week.
In a decision dated September 14, 2006, the WCB case manager advised the worker that no further responsibility would be accepted for her claim beyond September 15, 2006. The case manager indicated that the information on file showed that the worker had recovered from the effects of her low back injury sustained while working on October 14, 2004.
The WCB received a report from an occupational medicine physician dated November 2, 2006. He indicated that the worker’s findings were localized to the right sacroiliac joint and was consistent with her functional limitations of prolonged sitting, climbing stairs and walking quickly. He felt the worker has not recovered sufficiently to return to her regular duties with S1 joint irritation being a significant barrier in her rehabilitation.
At the case manager’s request, the examining WCB physiatrist reviewed the opinion outlined on November 2, 2004. In a memo dated January 30, 2007, the physiatrist stated in part, “A significant injury of /or irritation of an S1 joint is not likely with this mechanism. Tenderness over an SI joint 1) is also a subjective symptom that can be referred from higher levels of the spine. There also can be tenderness with this type of involvement. Also the number of examiners that the claimant has seen to date would not likely have missed significant sacroiliac joint involvement. There was no evidence that any SI irritation was produced with the original incident at work. Also, there is no evidence that any trials of treatment are necessary for this area related to the job partial slip.”
On February 5, 2007, the WCB case manager determined that the occupational medicine physician’s opinion did not alter her decision of September 14, 2006. The case manager felt that the medical evidence supported that the worker had recovered from the effects of her compensable injury and that she may experience some low back symptoms as it related to her pre-existing medical condition.
In a submission to Review Office dated July 18, 2007, a worker advisor outlined the position that the worker had not recovered from her workplace injury and needed further treatment as outlined by the occupational medicine physician. He stated that although the WCB physiatrist was of the view that the mechanism of injury would not involve hip involvement, the earlier examination by the WCB medical advisor noted such involvement after only two months or so after the injury. Given these time lines, the worker advisor felt it was more likely than not that the hip was involved in the injury. He also contended that the worker’s pre-existing back condition was asymptomatic. He felt the workplace injury resulted in a disc injury with intermittent nerve root involvement.
On August 2, 2007, Review Office determined that the worker was not entitled to wage loss benefits beyond September 15, 2006. Review Office noted the worker advisor’s argument that the workplace accident resulted in a disc injury with intermittent nerve root involvement. It stated that this opinion was contradicted by the attending neurological consultant who reported that the clinical and radiological findings did not support the existence of a radiculopathy and characterized the worker’s symptoms as mechanical low back pain. As well, the WCB physiatrist failed to detect any significant physical findings and illustrated inconsistent responses by the worker to his examination. Review Office noted that the October 14, 2004 accident resulted in a sharp pain on the left side of the back with no radicular signs. Within six weeks, the worker’s symptoms included pain radiating into the buttock and later down the right leg. Review Office was therefore unable to conclude that the worker continued to suffer a loss of earning capacity due to the effects of her October 14, 2004 injury.
On September 4, 2007, the worker advisor filed an appeal with the Appeal Commission with respect to Review Office’s decision of August 2, 2007. He later provided the Appeal Commission with additional medical information from the occupational medicine physician, the worker’s treating physiotherapist and from a physiatrist for consideration.
Following the hearing held on November 22, 2007, the appeal panel requested and received additional medical information from the worker’s treating physiatrist that was forwarded to the interested parties for comment.
In a submission to the appeal panel dated March 13, 2008, the worker advisor included an updated report from the occupational medicine physician. This report was then forwarded to the employer’s advocate for comment. On April 10, 2008, the panel met and rendered its final decision.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and the policies of the WCB’s Board of Directors. This appeal deals with the provision of ongoing 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. Subsection 27(1) provides that the WCB may provide a worker with medical aid to cure or provide relief from a workplace injury.
Worker’s Position
The worker was represented by a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the panel.
The worker advised that at the time of the accident she was working as a nurse’s aide and had worked as a nurse’s aide for almost 13 years. She advised that prior to the injury she had no problems and was very active, attending a gym up to six times per week. Through questioning by her representative, the worker described the workplace accident, resulting injury, treatments and symptoms. She also described her return to work to light duties on a part-time basis.
Regarding whether the worker injured her left or right side, the worker advised that she never injured her left side and that she never reported a left side injury. She noted that one report mentioned a left sided injury and that she advised the WCB this was a mistake.
The worker stated that she stopped work in September 2006 because she was scheduled to return to regular nurse’s aide duties on a full time basis which she knew she could not perform.
The worker’s representative submitted that the Review Office was wrong in concluding the worker sustained a minor strain. He said that the evidence on file is supportive for an initial disc injury that has been non-responsive to treatment to the degree required to allow the worker to return to her regular duties. He advised that the worker is still restricted in what she can do.
In answer to a question, the worker’s representative submitted there is a relationship between the worker’s right hip complaints and the workplace injury. He noted that a WCB medical advisor who examined the worker on December 6, 2004 recorded complaints of constant pain in the right buttocks and hip area. He submitted there was no evidence of anything else happening since the accident to account for this symptom.
Upon receipt of additional medical information requested by the panel subsequent to the hearing, the worker’s representative made a written submission. He noted that that the treating physiatrist who performed a right sacroiliac joint injection on January 15, 2008 and examined the worker on February 19, 2008 noted the worker’s severe pain had subsided. The representative noted that the physiatrist concluded that the benefits from the injection confirmed that the pain from the sacroiliac joint was a significant factor. The representative submitted this finding supports the conclusion that the sacroiliac joint was involved in the workplace injury and that the worker had never recovered. The representative enclosed a copy of a recent report by an occupational medicine specialist which supported a relationship between the workplace injury and right sacroiliac joint condition.
Employer’s Position
The employer representative submitted that the worker had been adequately compensated for her injury. She reviewed the medical information on file. She submitted there was no indication of any disc or nerve root involvement as had been originally queried. She referred to the opinion of the WCB physical medicine specialist who did not find any condition that should prevent the worker from progressing with her return to work. She submitted that this opinion should be accepted over that of the occupational medicine specialist, noting that the physical medicine specialist examined the worker in May 2006, many months before the other physician.
The employer’s representative noted that the worker was being accommodated with light suitable duties when she stopped working in September 2006.
The employer’s representative submitted that the diagnosis is of mechanical low back pain which would have resolved and if it has not resolved is due to the worker’s pre-existing condition, and that any ongoing complaints are due solely to the pre-existing condition.
Upon receipt of a copy of the additional medical information requested by the panel, the employer’s representative made a further submission. She submitted that the panel should place more weight on the opinion of the worker’s orthopedic specialist who examined the worker shortly after the injury in 2005 and the WCB physical medicine specialist. She noted the WCB physical medicine specialist’s comments of January 7, 2007 that there was no sacroiliac joint complex involvement as a result of the workplace injury. She also stated that there is no reason why the worker ceased working entirely on September 15, 2006 and asked the panel to deny the worker’s request for further benefits.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits and services beyond September 15, 2006. 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. For the worker to receive other services, the panel must find that the worker continued to suffer from symptoms related to her workplace injury. The panel did find, on a balance of probabilities, that the worker’s SI joint complaints are related to the workplace accident and prevented her from returning to her regular duties in September 2006. The panel notes, however, that the worker complained of a variety of other symptoms, including disc protrusion symptoms, which the panel is not able to relate to the accident.
The panel finds that the worker’s current SI joint symptoms are related to the workplace injury. The panel notes that the worker has consistently complained of symptoms in this area. In a memo to file dated November 23, 2004, the WCB case manager noted that the worker complained that she feels a pinching in her right hip area. This was also noted by the WCB medical advisor in a report of an examination that took place December 6, 2004, less than two months after the accident. The medical advisor noted the worker’s complaints of constant pain in the right buttock and hip area. The treating neurosurgeon also noted the worker’s complaints of pain in this area. In a report dated August 24, 2005, he noted the worker’s complaint of discomfort/tightness at the lumbosacral junction.
The panel notes an occupational medicine physician reported on November 2, 2006 that his findings on examination are localized to the right SI joint and are consistent with the worker’s functional limitations. He opines that she has not recovered sufficiently to return to her regular duties, and SI joint irritation remains a significant barrier in her rehabilitation. The panel finds this opinion to be persuasive.
The panel finds that the SI joint symptoms continued to be a significant factor in the worker’s inability to return to work. This is confirmed in the February 19, 2008 report of the treating physiatrist. He advised that he performed a right sacroiliac joint injection on the worker on January 15, 2008 and that this reproduced her typical symptoms. He also noted that when seen on February 19, 2008 the worker reported the severe pain had subsided and that she did not experience intense symptoms with movement as she previously did. He advised that in his opinion “…the reproduction of her typical symptoms and subsequent benefit with a confirmed low volume intra-articular injection strongly support the impression that pain from the sacroiliac joint was (is ) a significant factor in her presentation.” He noted that the worker now feels she would be able to attempt a graduated return to work program and concurred that this was appropriate.
The employer’s representative submitted that the opinion of the WCB physiatrist should be preferred over that of the treating physicians. The panel notes that the WCB physiatrist found subjective sensitivity in the localized area over the sacroiliac joint complex but stated that no apparent diagnosis was identified to explain these symptoms. The panel is satisfied that the subsequent injections by the treating physiatrist confirm the SI joint diagnosis in the same area where the WCB physiatrist had been able to elicit symptoms.
The panel finds that the worker is entitled to wage loss benefits and services beyond September 15, 2006. The worker’s appeal is accordingly allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 24th day of April, 2008