Decision #106/08 - Type: Workers Compensation

Preamble

On May 1, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for back difficulties that she related to the nature of her work duties as a bakery clerk. The claim for compensation was denied by both primary adjudication and Review Office as they were unable to establish that the worker’s back condition arose from her work activities on October 30, 2006. The worker disagreed and filed an application to appeal with the Appeal Commission and a hearing was held on May 21, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On May 1, 2007 the worker completed a WCB worker injury report. The worker reported that she experienced pain in her low back region six months earlier on October 30, 2006 while at work. She stated there was no specific incident and she was just doing her usual work duties that consisted of pushing and pulling racks and lifting boxes.

The Employer’s Accident Report indicated that the worker’s last day was October 30, 2006. The worker did not report that her low back pain was work related and she requested a record of employment so she could collect employment insurance benefits. Then on April 5, 2007, the worker contacted her supervisor to say her back condition was work related and she was going to her physician to acquire a doctor’s note. The employer indicated that they were disputing the claim.

In a letter dated October 23, 2006, the worker indicated that her back became very painful and she tried to continue work but was unable to do so. She told her manager that she just wanted to get home.

On April 10, 2007, the worker told WCB staff that her back was so bad that she had to stop work on October 23, 2006. She related her back problems to a back injury in 2001. She thought it would be hard to claim through WCB so she filed for EI sick benefits.

In a letter dated April 24, 2007, the treating physician noted that the worker fell at work while pushing a cart and she hurt her back on September 17, 2006 (later file records indicate that the correct date was 2001 and not 2006). Since then, the worker complained of severe pain in her low back radiating to both sides. There was no significant range of motion in the thoracic or lumbar spine. An MRI taken on March 16, 2007 revealed a herniated disc in the low spine without displacement. The diagnosis was degenerative disc disease with disc prolapsed clinically.

On May 10, 2007, the worker advised a WCB adjudicator that she continued to have problems with her back since her 2001 injury and had never completely recovered from it. The worker indicated that she did not fall while pushing a cart in September 2006 and does not know where that information came from. She said her supervisor was aware of her back problems. She said she did not provide a cause for her back complaints but assumed that her employer knew it was from work.

The WCB adjudicator contacted the worker’s manager and a co-worker. The manager could not recall the worker making any complaints to him about her back prior to the day she left work. The co-worker indicated that the worker complained to her for at least six months that her back was sore. There was no specific accident at work to cause her back pain but it was due to the job duties in general.

On May 25, 2007, the worker was advised that the WCB was unable to confirm that her back difficulties were related to her work activities from October 30, 2006. The worker was advised that her prior claim would be reviewed for consideration regarding a possible recurrence.

Following a review of the worker’s prior WCB files from 2001 and 2003, the worker was advised on May 28, 2007, that based on the diagnosis at the time of those injuries and how the claims ended (injuries resolved/regular duties), the WCB would not be able to establish a relationship between her current back problems and her prior claims.

The case was considered by Review Office on June 12, 2007, at the worker’s request. Review Office confirmed that the claim was not acceptable as it was unable to establish that there was a direct relationship between the diagnosed degenerative process in the worker’s lumbar spine and the work she performed on a day to day basis as a bakery clerk. In February 2008, the worker appealed the decision to the Appeal Commission and an oral hearing was arranged.

On May 13, 2008, the worker’s union representative provided the Appeal Commission with a medical report dated January 22, 2008 by a sports/musculoskeletal medicine specialist for consideration. In response to questions posed by the union representative, the specialist provided the following comments:

"1. There is mild disc dessication which can be considered a degenerative change but is also in the realm of incidental finding in asymptomatic individuals.

2. My clinical findings do not suggest a degenerative condition but did suggest a recovering left lumbar radiculopathy.

3. The left sided disc herniation in combination with [the worker’s] presentation and consistent subjective complaints appear to be clinically relevant.

4. The retrolaminar synovial cyst appeared to be an incidental finding. Whether it played a role in her discomfort is difficult to determine but on the basis of probabilities this is unlikely.

5. The basis of her pain appeared to be a recovering Lt Lumber (sic) radiculopathy at likely the S1 level. Lumbar radiculopathies may have a prolonged recovery period.

6. On the information provided, it is probable that [the worker] work duties as outlined had a causal relationship to her lumbar radiculopathy.

The opinion above is based on the medical information available.”

Following the hearing held on May 21, 2008, the appeal panel requested additional medical information from the treating physician and the sports/musculoskeletal specialist. The additional information was later received and was forwarded to the interested parties for comment. On July 7, 2008, the panel met to render its final decision.

Reasons

Applicable legislation:

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (the “Act”) provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The issue to be determined by the panel deals with causation and whether the worker’s low back difficulties were caused by an accident arising out of and in the course of employment.

The worker’s position:

The worker was assisted in her appeal by her union representative. In the Appeal of Claims Decision form, the grounds for appeal are stated to be that the worker suffered a gradual onset back injury due to her work activities. At the hearing, it was submitted that the worker made a mistake in failing to file a WCB claim when her symptoms first caused her to be disabled from work. Nevertheless, it was argued that the evidence shows that the worker’s job duties involved repetitive heavy lifting, which she had performed for 20 years. She had a history of two previous herniated discs, and while those injuries had healed, she continued to experience periodic back pain. There was evidence that the worker was in distress at the time of going off work with symptoms that indicated radiculopathy down the legs, and that subsequently she was medically diagnosed as having a recovering left lumbar radiculopathy and was treated for same. The worker’s doctor opined that her work activities were the cause of her condition and that her low back condition was resolving with treatment. It was submitted that on a balance of probabilities, the evidence supports the conclusion that the worker had a work-related injury of a herniated disc.

The employer’s position:

The employer’s representative participated in the hearing via teleconference. The employer’s position was that it was in agreement with the Review Office decision and the employer questioned why, if the injury was caused by her job duties, the worker did not bring the matter to the attention of her supervisor. The employer disputed that the worker’s back condition was work related.

Analysis:

In order for this appeal to be successful, the panel must find that the worker’s medical condition arose out of and in the course of her employment. On the basis of the evidence before us, we are not able to find that there was a causal connection between the worker’s lower back pain and her employment.

At the hearing, the worker described her work duties as a bakery clerk. The position was physically demanding and involved repetitive lifting, bending, twisting, crouching, pushing and pulling. The lifting involved weight of up to 50 lbs and sometimes required reaching over her head.

With respect to her medical condition, the worker’s evidence was relatively vague. When asked about when she first had pain, the worker described pain that went down her legs, more on the left than the right. She was not able to describe the pain as being either dull or sharp/shooting, but stated that the pain was always present and sometimes greater in intensity. Rather than helping, physiotherapy and chiropractic treatment worsened her condition and caused her setbacks. When she was in pain, she mostly had to recline and she frequently remained in bed. She could only sit or stand for short periods of approximately half an hour. In April, 2007, the musculoskeletal specialist started to follow her treatment, and after he began personally working with her in approximately July 2007 to strengthen her back, she was able to discontinue medications and her condition improved. At present, her condition has improved, and she suffers more from soreness across her back than pain. There is still some pain in her right leg and occasional shooting pain in the middle of her back.

As noted in the background, following the hearing, the panel requested the medical charts of the treating physician and the musculoskeletal specialist. After receipt and review of this additional medical information, the panel notes the following:

  • The initial findings by the treating physician on October 31, 2006 indicate primarily upper back pain, with low back pain off and on;
  • On November 21, 2006, the low back symptomatology is described by the treating physician as a dull ache. It is notable that there is no indication of radiculopathy at that point;
  • On November 23, 2006, the low back pain is reported to have increased;
  • On January 16, 2007, the chart notes indicate that pain in the left leg has improved but right leg still has significant pain. The treating physician diagnoses degenerative disc disease;
  • An MRI performed March 16, 2007 reveals: “At L5-S1, there is mild intervertebral disc desiccation. There is a small posterior annular tear and a tiny central and left paracentral disc herniation. The herniated disc material approaches the left S1 nerve root without displacing it.”
  • The report of a neurosurgeon dated March 29, 2007 states: “There certainly is nothing on the MRI to suggest neural compression of any magnitude and I very much doubt this is anything to do with this patient’s symptoms. She does have some degenerative disc disease at L5-S1, which is associated with an annulus tear. This is something frequently associated with low back pain.”
  • The consultation notes of April 18, 2007 from the musculoskeletal specialist indicate: “dx- with Lt L5 radic 2nd to herniation” and “radiation – to left leg, lateral foot."
  • By report dated May 17, 2007, a neurologist reports that he could find no objective evidence suggestive of radiculopathy. He opines that the worker’s back symptoms could be related to mechanical factors.
  • The patient history taken by the neurologist notes a long-standing problem with back discomfort with symptoms originally stemming from an accident resulting in disc herniation approximately seven years ago.

In view of the foregoing medical evidence, the panel finds that on a balance of probabilities, the worker’s low back difficulties cannot be related to her work. The worker argues that her diagnosis is a work related left lumbar radiculopathy. The evidence reveals, however, that her initial complaints in October 2006 concerned the upper back. Subsequently, there was gradual worsening in her lower back pain. As this occurred when she was off work, this decline cannot be related to any particular work duty. The panel also notes that the left lumbar radiculopathy diagnosed by the musculoskeletal specialist does not appear until mid-2007. In January, 2007, the treating physician’s notes indicate that the left leg pain had improved, although the right leg still had significant pain. At the time when the worker consulted with the musculoskeletal specialist in April 2007, she only complained of radiation to the left leg. Finally, both the neurosurgeon and the neurologist opine that there is no neural compression or radiculopathy associated with the worker’s symptoms.

In the panel’s opinion, the worker suffered a gradual worsening of her long-standing low back problem, which was unrelated to her work. The panel therefore finds that the worker’s claim is not acceptable. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 19th day of August, 2008

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