Decision #71/08 - Type: Workers Compensation

Preamble

The worker sustained a compensable injury to his low back region on December 22, 2003. The claim for compensation was accepted by the Workers Compensation Board (“WCB”) and the worker was paid compensation benefits to January 18, 2007 when it was determined by both primary adjudication and the Review Office that he had recovered from the effects of his compensable injury and that his going complaints were related to degenerative disc disease. The worker disagreed with the decision and an application to appeal was submitted to the Appeal Commission. An oral hearing was then held on May 15, 2008.

Issue

Whether or not the worker is entitled to compensation benefits after January 18, 2007.

Decision

That the worker is not entitled to compensation benefits after January 18, 2007.

Decision: Unanimous

Background

On December 22, 2003, the worker struck his back and left buttock region when he slipped and fell on icy steps during the course of his employment. He immediately sought medical attention and was diagnosed with traumatic lumbago. The worker continued to attend his treating physician for his back complaints and was eventually referred to an orthopaedic specialist. In May 2004, the specialist outlined the view that the worker strained his back from the December 2003 accident and that he had pre-existing lumbar disc degeneration at a number of levels.

In late December 2004, a WCB medical advisor examined the worker and concluded that he suffered from mechanical low back pain which was likely related to a combination of degenerative disc disease, possible facet arthropathy and SI joint pain. On January 30, 2005, the medical advisor indicated that the worker was ready to begin a graduated return to work program with restrictions to avoid lifting more than 20 lbs. and no repetitive or sustained bending or twisting.

As the employer was unable to provide the worker with modified duties, the case was forwarded to the WCB’s vocational rehabilitation branch to assist the worker with finding employment. An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker in the field of customer service. In January 2006, the worker obtained employment at a call centre and wage loss benefits were paid accordingly. In February 2006, the worker’s employment was terminated as he was unable to meet the performance demands of the position.

On March 18, 2006, the worker was assessed by a WCB physiotherapy consultant for the purposes of establishing a Permanent Partial Impairment (“PPI”). During the interview portion of the assessment, the worker indicated that he had worsening lumbar pain on a daily basis limiting standing to 5 minutes or less and limited walking to only short distances. Given the worker’s reported increase in pain and severe decrease in function, the consultant indicated that the worker was not considered to be at MMI (maximum medical improvement) and that a PPI rating was not appropriate at this time.

The worker was seen again by a WCB medical advisor on April 11, 2006. The medical advisor noted that there was no objective evidence that the worker’s degenerative disc changes had been enhanced but he continued to complain of pain and loss of function which he did not have prior to the injury. It was indicated that the worker did not require any active treatment other than his home exercise program. It was suggested that the worker was now at his MMI and the previous measurements for the PPI should be reviewed and a rating given.

In a memorandum to the adjudicator dated April 25, 2006, the WCB medical advisor stated, “there are no objective findings to relate ongoing symptoms to a compensable injury. Ongoing difficulties are more likely related to pre-existing degenerative changes and any aggravation of those by the C/I have resolved. There remains no objective evidence of an enhancement of the pre-existing condition.” The medical advisor also commented, “Following the call in examination, it was felt that any ongoing limitation in range of motion is due to the degenerative changes and not the effects of the compensable injury. No PPI is warranted…Now that he has resolved of the effects of the compensable injury, any workplace restrictions he may have should be considered preventative in nature.”

In a report dated July 25, 2006, the orthopaedic specialist stated that the worker reported that he felt backache with any activities. The worker appeared somewhat depressed and had decreased range of lumbar spine movement. X-rays showed slight arthritic changes of the hips. There was definite narrowing of L2-3 and L3-4. It was suggested that the worker be treated with conservative measures.

In a decision dated September 28, 2006, it was determined by Review Office that the worker was not entitled to a PPI award on the grounds that the compensable injury only caused an aggravation rather than an enhancement of a pre-existing condition.

On November 9, 2006, the treating orthopaedic specialist reported that the worker continued to complain of back pain that made it difficult for him to do any heavy lifting. He suggested that the worker continue with conservative measures.

In a decision by the adjudicator dated December 20, 2006, the worker was advised that he was considered to have recovered from his low back strain and any symptoms he was experiencing were no longer related to his compensable low back injury of December 22, 2003. The worker was further advised that he would receive partial wage loss benefits until January 18, 2007. On January 16, 2007, the worker appealed the decision to Review Office.

On March 8, 2007, Review Office determined that the worker was not entitled to compensation benefits beyond January 18, 2007. Review Office stated that there was no objective evidence to support that the December 22, 2003 event caused a permanent injury. It noted that x-rays taken on July 25, 2006 appeared to suggest that there was a progression of the degenerative findings. It stated that the treating orthopaedic specialist indicated in a report that in the long term, the worker’s degenerative changes would likely affect his ability to engage in the heavy demands of his pre-accident employment. Review Office also relied on the WCB medical advisor’s opinion that the worker had recovered from the effects of his compensation injury and that his ongoing symptoms and limitations were associated with degenerative changes.

On October 19, 2007, a worker advisor asked Review Office to reconsider its decision of March 8, 2007 based on a report from the treating orthopaedic specialist dated August 28, 2007 which provided the opinion that the injury sustained by the worker resulted in an enhancement of his pre-existing degenerative changes. The worker advisor argued that the worker continued to experience the effects of his injury which precluded him from returning to his pre-accident employment and that he was entitled to reinstatement of benefits.

Prior to responding to the worker advisor’s appeal, Review Office sought the medical advice of a WCB orthopaedic consultant which led to the worker being examined by the consultant on December 5, 2007.

In a decision dated December 14, 2007, Review Office confirmed its earlier decision that the worker was not entitled to compensation benefits after January 18, 2007. Review Office relied mainly on the opinion expressed by the examining WCB orthopaedic consultant that the worker was no longer experiencing the effects of his compensable injury. It stated that the file information received since its decision of March 8, 2007 did not indicate that there was any significant change in the worker’s condition since that date. Therefore the December 5, 2007 examination findings were consistent with the worker’s condition at the time his benefits ended on January 18, 2007. On January 23, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (“the Act”) and by policies made by the WCB’s Board of Directors. This appeal deals with 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.

The WCB’s Board of Directors made WCB Policy 44.10.20.10, Pre-Existing Conditions, which provides that the WCB is responsible to pay wage loss benefits when the worker’s loss of earning capacity is due to a combination of both the pre-existing condition and the workplace injury. When the loss of earning capacity is due solely to the pre-existing condition, wage loss benefits are not payable.

Worker’s Position

The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel. The employer did not participate in the appeal.

The worker described his duties and lifestyle prior to the workplace injury. He advised that his job was physically demanding and he had many activities. He advised that the injury changed his life. He is no longer physically active and could not return to his pre-accident job.

The worker described the accident which involved slipping on ice and falling 5 or 6 steps down outdoor stairs. He acknowledged that he had symptoms before the accident, but was able to perform his employment duties without interruption. He said that before the accident, his back and arms would be sore at the end of the day. He obtained relief through the use of anti-inflammatory medication and hot baths. He advised that he was not aware that he had a pre-existing condition. He stated that the symptoms after the accident differed, were felt in the upper portion of the left buttock and resulted in acute pain. He continues to have these symptoms.

The worker advised that he is working in a different field and which does not involve physical labour as did the pre-accident job.

The worker’s representative reviewed various medical reports on file. She noted that the worker’s treating orthopedic specialist provided an opinion that the worker’s pre-existing condition was enhanced by the injury. She stated that, on a balance of probabilities, the worker’s condition is caused by the combined effect of the pre-existing condition and the workplace injury, and that the worker is accordingly entitled to compensation benefits.

Analysis

The issue before the panel was whether the worker is entitled to compensation benefits after January 18, 2007. For the panel to accept this appeal, it must find that the worker continued to suffer from the effects of his workplace injury after this date. The panel was not able to make this finding.

The panel notes that the worker has a history of back symptoms pre-dating the workplace injury and, as well, evidence of a pre-existing degenerative condition. The existence of a pre-existing condition is significant as under the Act, a loss of earning capacity caused solely by a pre-existing condition is not compensable as it is not a “personal injury by accident arising out of and in the course of employment.” However where the worker’s loss of earning capacity or inability to work is due to the combined effect of the pre-existing condition and the workplace injury, benefits are payable.

In this case the panel found that workplace injury likely caused a temporary aggravation of the worker’s pre-existing condition. During the period of the aggravation, the worker was provided with benefits for the combined effect of the injury and his degenerative condition. However the panel finds, on a balance of probabilities, that the aggravation ended by January 18, 2007 and that the worker’s pre-existing condition was not enhanced, or permanently worsened by the workplace injury. The panel finds that the worker is not entitled to compensation benefits after January 18, 2007.

In reaching this decision the panel relies upon the clinical notes and reports provided by the treating orthopedic specialist. The panel notes that the treating orthopedic specialist described the worker’s injury as a strain and/or an aggravation. This is noted in various reports and clinical notes including those of May 10, 2004, November 1, 2004, November 9, 2006 and August 28, 2007. While the panel acknowledges the physician’s report of September 7, 2007 to the worker’s representative states that the worker’s injury has enhanced the symptoms and that the enhancement is permanent, the panel prefers the physician’s earlier opinion on the injury being a strain and/or an aggravation.

The panel attaches significant weight to the opinion of the WCB orthopedic consultant who examined the worker on December 5, 2007. The physician commented that:

  1. “The current diagnosis appears to be mechanical low back pain caused by degenerative lumbar disc disease.

  1. Symptomatic degenerative lumbar disc disease existed prior to the accident of December 22, 2003. In my opinion, there is not a cause and effect relationship between the current diagnosis of degenerative lumbar disc disease and the compensable injury. Rather, Mr. (worker’s) current status is consistent with the natural history of the pre-existing condition.

  1. In my opinion, the probable accident-related diagnosis was that of a low back strain. This is consistent with the expressed opinion of the attending orthopaedic surgeon on May 10, 2004, which reads in part ‘I believe this gentleman therefore strained his back.’

  1. There is no objective information to substantiate that the injury of December 22, 2003 caused enhancement of the pre-existing degenerative condition. The reasons for my opinion are:

a) Since the accident of December 22, 2003, imaging studies have not shown progression of the pre-existing degenerative changes in the lumbar spine, nor have the post accident imaging studies demonstrated structural changes related to the December 22, 2003 accident.

b) There is currently little clinical evidence of abnormal physical findings with the exception of reduced active motion of the lumbar spine, a finding consistent with the pre-existing condition.”

The panel finds that the worker has recovered from his workplace injury of December 22, 2003 and that any on-going symptoms are more likely related to his long standing pre-existing condition.

The worker’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 28th day of May, 2008

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