Decision #103/08 - Type: Workers Compensation
Preamble
On November 19, 2002, the worker filed a claim with the Workers Compensation Board (“WCB”) for injuries he sustained to his low back, shoulders, right arm and left leg from an accident that occurred during the course of his employment on November 4, 2002. The claim was accepted and benefits and services were paid to the worker up until May 19, 2004 when it was determined by primary adjudication that he had recovered from the effects of his compensable injury. This decision was upheld by Review Office on two occasions. The worker disagreed and his worker advisor filed an appeal with the Appeal Commission. A hearing took place on March 18, 2008 and a final decision was reached by the appeal panel on July 31, 2008.Issue
Whether or not the worker is entitled to wage loss benefits and services beyond May 19, 2004.Decision
That the worker is entitled to wage loss benefits and services beyond May 19, 2004.Decision: Unanimous
Background
On November 4, 2002, the worker was assaulted when he tried to prevent robbers from stealing cargo off his semi-truck. He reported to the WCB that he was pushed out of the burglar’s pick-up truck and was dragged about approximately 50 feet. The back wheel of the pick-up then ran over his left side. He reported injuries to his low back, both shoulders, right arm and left leg. Following the assault, the worker was taken by ambulance to an emergency facility and complained of pain in his left chest, left abdomen, left pelvis and left hip. X-rays and other test results were negative for fractures or acute internal injury. It was indicated that the worker was discharged home in good condition with a prescription for Tylenol.
When seen by his family physician on November 18, 2002, it was recorded that the worker was run over by a pick-up truck. Objective findings were listed as extensive bruising of the left low leg and thigh, left lateral chest and left hip. The diagnosis rendered was a contusion of the back and chest. Treatment consisted of 180 cc. drainage of blood from the worker’s low back.
The worker was referred to a physiotherapist and was seen initially on December 2, 2002. The diagnosis was lumbar disc injury/facet irritation and a rotator cuff injury.
On December 16, 2002, x-rays were taken of the lumbosacral spine. The radiologist’s report indicated mild marginal spurring at multiple levels throughout the lumbar spine. The findings were reported as being consistent with minimal degenerative disc disease.
In early February 2003, the worker commenced a trial return to work. Subsequent progress reports from the treating physician stated that the worker experienced pain and stiffness after driving too long. In April 2003, the treating physician referred the worker to a specialist noting that the worker complained of pain in his lumbar region radiating down his left leg to the knee and numbness in his low back.
On June 19, 2003, a CT scan of the lumbar spine demonstrated minor early low lumbar facet arthropathy. There was no evidence of significant stenosis involving the central canal, exit foramen or lateral recess. No disc protrusions were identified.
In a July 4, 2003 progress report, the treating physician noted that the worker complained of numbness in the low back and buttock and swelling in the low back. He stated the worker was finding truck driving to be difficult and stressful.
On July 18, 2003, the treating physician advised a WCB case manager that he was unsure what was causing the worker’s numbness and pain. He stated the worker had a very serious hematoma that was drained many times and that has resolved but there was still swelling. The swelling was not putting pressure on anything that would cause the problems the worker continued to have.
On November 17, 2003, the treating physician diagnosed the worker with reactive depression.
The worker was next seen by a neurosurgeon on November 18, 2003. The neurosurgeon stated that the symptoms experienced by the worker were most probably a combined irritation of the paraspinal muscles and the zygapophyseal joints as a consequence of the trauma he suffered. Treatment suggestions included an injection to the zygapophyseal joints and an intense physiotherapy program.
On February 27, 2004, the worker underwent injections into the zygapophyseal joints at L3-4, 4-5 and L5-S1. It was reported that the worker’s pain subsided after the procedure and that his lumbar spine range of motion had increased.
In March 2004, the worker did not renew the lease on his truck and he discontinued working for the accident employer.
In a follow-up report dated March 22, 2004, the neurosurgeon reported that the worker’s low back discomfort recurred after the February 27 procedure. His examination of the worker revealed restricted range of motion and he could not detect any sensory or motor abnormalities of the lower extremities. He said the worker complained of numbness radiating from the mid lumbar area into the left flank. The surgeon recommended that the worker have an MRI of the lumbar spine and retroperitoneal region to better visualize the plexus given the swelling of the muscles visible on the last CT scan.
On April 14, 2004, a physiotherapist reported left hip and buttock numbness, low back pain and buttock pain and pain worse with activities such as prolonged sitting or walking. His diagnosis was chronic hip hematoma and mechanical lumbar pain.
A WCB medical advisor reviewed the file on May 10, 2004. Based on clinical information, he felt the worker’s pain generators were due to zygapophyseal joints in the lumbar area which showed degenerative changes.
In a letter dated May 20, 2004, the WCB case manager indicated that the worker was no longer employed with the accident employer effective March 11, 2004 and that as the worker quit his job with the accident employer, entitlement to wage loss benefits would end May 19, 2004 as he no longer suffered a loss of earning capacity after that date.
On June 3, 2004, the worker was examined by his treating physician. The Doctor’s Progress Report indicates: “Patient found sitting in truck for long hours caused increased back pain. T3 prn. He was advised not to continue long haul driving.” The report indicates restriction on work capabilities as: “Light work; cannot do long haul driving.”
The worker reported that he aggravated his compensable injury on June 8, 2004 when his left leg gave out and he fell down on his knee and felt a sharp pain in his back. On June 21, 2004, the worker was informed of the WCB’s position that based on the balance of probabilities, there was no relationship between his compensable back injury and his recent secondary accident. This decision was again confirmed by the WCB on June 23, 2004.
In a July 30, 2004 report, the treating neurosurgeon reported that the worker’s clinical condition remained fairly stable or slightly improved since his last visit in March. The low back discomfort was less significant but had increased again over the past two to three days. He noted that an MRI of the lumbar spine taken July 17 was reported as being normal. He further stated, “…there is no obvious correlate for the symptoms the patient is experiencing. Besides conservative treatment with analgesics and anti-inflammatories, I encouraged [the worker] to continue his physiotherapy treatment.”
On June 24, 2004, the worker appealed the case manager’s decision of June 21, 2004 and stated that his doctor told him to stop working and that he needed physiotherapy.
Prior to considering the worker’s appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. The consultant provided the following opinion to Review Office on August 31, 2004:
“We do not have a diagnosis for the apparent ‘muscle swelling’ unless it was related to his muscle injury and tear giving rise to an extensive hematoma necessitating repeated aspiration until it resolved. MRI was negative. It is approaching two years since he had the original CI which basically was a soft tissue and muscle injury, leading to a large hematoma…No restrictions need be imposed at this time. Should continue with back exercise program outlined by the physiotherapist.”
In its decision dated September 24, 2004, Review Office determined that the worker was not entitled to wage loss benefits beyond May 19, 2004 on the grounds that there was insufficient evidence to support the contention that the worker had not recovered from the compensable injury. In reaching this decision, Review Office made reference to the WCB’s policy concerning pre-existing conditions and considered the opinions on file from the treating physician, the treating neurosurgeon and WCB consultants.
The next medical report was from a treating physiatrist dated May 15, 2006. He reported that the worker had ongoing pain affecting the left flank and hip region. There was no evidence of joint restriction and no finding consistent with radiculopathy. He said the worker had findings consistent with a soft tissue injury.
On November 9, 2006, the worker advised his WCB case manager that he still had symptoms in the left low back, left hip/buttock/left leg. He had not worked for approximately two years and had been in receipt of CPP disability benefits. He never returned to truck driving and opted to give up his license. The worker said he cannot sit or stand for too long and had a hard time sleeping. He requested that the WCB pay him wage loss top up from what CPP was paying him.
On December 6, 2006, the file was reviewed by a WCB medical advisor who was of the opinion that no current diagnosis appeared to be present related to the assault and that no apparent cause-effect relationship appeared to be present between current symptoms and the workplace injury. In forming this opinion, the WCB medical advisor noted that the transient relief of symptoms from the trial injection of cortisone to the six lowest facet joints did not support any soft-tissue origin for his symptomatology. On the basis of his file review, the medical advisor felt that no structural or other physical contraindications appeared to exist as related to the prior assault to prevent the worker from returning to work and his usual activities.
In a decision dated January 17, 2007, the WCB case manager outlined her position that the medical information no longer supported a cause and effect relationship between the accident of November 4, 2002 and the worker’s current difficulties. The case manager indicated that the worker’s claim remained accepted on the basis of a soft tissue/muscle injury only. She noted that the injection treatments received by the worker only provided temporary relief which supported that the cause of his pain was something other than a soft tissue injury. She noted further that the WCB’s physical medicine specialist was unable to establish a causal relationship between the worker’s current symptoms and the reported mechanism of injury. He also felt there was no medical information to support that the worker currently had restrictions related to his November 2002 injury which would prevent him from returning to his pre-injury job.
By report dated April 11, 2007, an occupational health physician reported that he saw the worker for his medical assessment and opinion. He stated that by his assessment, the worker was a straightforward historian who gave a reliable history of consistent back pain impairments with left leg involvement in the seated position since his 2002 work injury. In the course of treatment under his WCB claim until 2004 he had no relief or improvements of sitting tolerance which limited him to one hour or less before left leg numbness and weakness interfered. The worker never had a call-in examination by a WCB physician and the closure of his claim file was based on expected recovery times only. It was further reported that: “According to the assessment of the medical doctors most familiar with his condition, there is agreement that his ability to return to his pre-injury work as a long distance truck driver has been significantly impacted by his injury…More recently, under the care of (treating physiatrist) he has had improvements in his back functioning and pain levels, but no improved tolerance for prolonged sitting. This is the main restriction that prevents him from returning to his pre-injury work as a long distance truck driver.”
On June 27, 2007, the worker asked Review Office to reconsider its previous decision that he was not entitled to wage loss benefits beyond May 19, 2004. On July 27, 2007, Review Office stated that the medical reports and test results did not indicate any abnormality consistent with the reported symptoms referred to by the worker. After considering all information which included the opinion expressed by an occupational medicine specialist on April 11, 2007, Review Office held the position that there was insufficient evidence to support that the worker had not recovered from his compensable injury of November 4, 2002 and that there was no entitlement to benefits beyond May 19, 2004. On November 29, 2007, Review Office’s decision was appealed by a worker advisor and an oral hearing was arranged.
By report dated January 8, 2008, the treating physiatrist reported that at an examination on that date, the worker presented with neuritic pain now affecting his right lower extremity with minor symptoms on the left. A number of diagnostic tests were arranged to determine the cause for the new findings in the worker’s lower extremities.
On March 18, 2008, an oral hearing was held. Following the hearing, the panel requested a medical report from the treating physiatrist and asked for specific comment on the results of the diagnostic tests as well as the physiatrist’s opinion with respect to the worker’s current medical condition in relation to his compensable injury.
By letter dated June 27, 2008, the treating physiatrist reported that his conclusion as of the initial assessment on May 15, 2006 was that the worker suffered pain in the region of the left flank and hip region due to injury and subsequent muscle tightness in the left quadratus lumborum, left lumbar paraspinal muscles, gluteus minimus and medius. The pain was due to sensitized peripheral pain generators within these muscles. Essentially the pain was due to soft tissue injury. This remained the diagnosis. The physiatrist noted that although there are no hard objective findings, the overall physical presentation fits the described assault and that the regions in which the worker noted pain and limitation have been consistent.
The physiatrist also reported that in 2008, an MRI, x-ray of the pelvis, bone scan and electrodiagnostic studies were conducted, but with a lack of positive findings in these investigations, there was no explanation for the new findings indicated in his January 2008 letter. Accordingly, the new findings in the lower extremities and the associated weakness could not be explained by the work trauma from November 2002.
On July 31, 2008, the panel met to review the additional medical information and to render a decision.
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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The Worker’s Position
The worker was represented at the hearing by a worker advisor. The submission made on behalf of the worker was that he has not yet recovered from the workplace injury and that his wage loss benefits should be paid beyond May 19, 2004. The workplace injury of November 4, 2002 involved a fairly horrific incident for the worker which disabled him from working. In February 2003, he returned to work with his employer, but was unable to resume the long distance truck driving which he had previously performed. Eventually in March 2004, due to pain in his left lower back and hip, he quit his job and discontinued working as a driver. He returned to work at other duties, but was unable to maintain that job due to his medical condition. It was submitted that although the worker did not incur any major structural problems in his back due to the accident, he continues to suffer from a soft tissue injury which prevents him from his regular duties. While it was admitted that the worker does not suffer from total disability, he does have limitations which restrict him in the type of work he is able to perform.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits and services beyond May 19, 2004. In order for the appeal to be successful, the panel must find that by May 19, 2004, the worker had not recovered from the effects of the injuries he sustained in the workplace accident of November 4, 2002. We are able to make that finding.
The evidence given by the worker at the hearing was that since the time of the workplace accident, he has had pain in his left lower back and hip. It is like a vise and someone is squeezing him in the lower back. Some days the pain is worse and it feels like needles or a knife in his back. His left leg is numb, often right down to the toe. He has difficulty sleeping because of the pain. He cannot walk very far and has difficulty on stairs. At the point where the tire made contact with his body, the bruising has resolved but there is a lump which was described as a mass of muscle and nerves, which causes him pain when his clothing presses on it.
On June 3, 2004, the treating physician reported that the worker was advised not to continue long haul driving because the prolonged sitting in the truck caused increased back pain. With the benefit of hindsight, the panel finds that the treating physician was correct in this assessment. From the worker’s evidence, it is clear that despite his best attempts at continued working, the truck driving conditions deteriorated his medical condition. He stated that the sitting and the bouncing would cause needling pain in his back and his leg and toes would go numb. The worker describes how due to increased pain, his ability to push the clutch became affected, to the point where he feared for the safety of himself and others. He changed to short haul runs, and he had to stop frequently to get out of the truck and stretch. Routes which formerly took him 15 hours to drive now took him 22 hours. Finally it got to a point where he realized that he could no longer continue to make a living as a truck driver. He feared that he might cause an accident on the road, so he turned in the lease on his truck and quit his employment in March, 2004.
In the panel’s opinion, it was reasonable and appropriate for the worker to discontinue his work as a truck driver at that time due to his continuing symptomatology from the November 2002 incident.
In approximately April, 2004, the worker attempted employment with a dog kennel but this position did not work out due to the worker’s inability to perform the tasks. He was asked to do such jobs as haul small logs and rake and bale hay, but he was unable to do so because of his back condition. The worker also found that his leg was giving out on a few occasions, causing him to fall.
The June 27, 2008 medical report of the treating physiatrist confirms that in his opinion, the worker’s complaints regarding pain in the left flank and hip region are due to the workplace injury and subsequent muscle tightness in the left quadratus lumborum, left lumbar paraspinal muscles, gluteus minimus and medius. It is his opinion that although there are really no objective tests to identify them, the soft tissue injuries continue to cause the worker pain. The treating physiatrist states: “(The worker) would have considerable difficulty tolerating the continual vibration and jarring as well as the need to physically get in and out of his truck, lift, push, pull and carry load items that make up his job as a long haul truck driver.”
On a balance of probabilities, the panel finds that at the time the worker discontinued his employment as a truck driver, he continued to experience pain and disability related to the soft tissue injuries he sustained in the workplace accident. By May 19, 2004, the worker had still not recovered from the effects of the injuries. As such, he is entitled to wage loss benefits and services beyond May 19, 2004. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of August, 2008