Decision #112/08 - Type: Workers Compensation

Preamble

On September 2, 2005, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred on August 30, 2005 while exiting a truck. The claim for compensation was accepted based on a lumbar sprain diagnosis and the worker was paid wage loss benefits up until her return to work on September 10, 2005.

Subsequently, in the summer of 2006, the worker claimed that she had ongoing back symptomatology which was related to her original compensable injury. Primary adjudication and Review Office found that there was no relationship. The worker also requested a Medical Review Panel under subsection 67(4) of The Workers Compensation Act (the “Act”) based on a difference of medical opinion between a WCB medical advisor and her treating physician. The request was denied by both primary adjudication and Review Office on the grounds that a full statement of facts had not been provided by the treating physician. The worker disagreed with these decisions and a worker advisor filed an application to appeal with the Appeal Commission. A hearing was then held on July 15, 2008 to consider both matters.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act; and

Whether or not the worker’s back problems which precluded her working in the summer of 2006 and since December 2006 are a sequela of her August 2005 accident.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act; and

That the worker’s back problems which precluded her working in the summer of 2006 and since December 2006 are not a sequela of her August 2005 accident.

Decision: Unanimous

Background

The worker reported that she injured her low back on August 30, 2005 from the following work related accident:

“I was getting out of the truck. I had my left foot out on the running board. All my weight was on my left foot, I slipped and my left leg was over extended. I took some Tylenol for the pain and continued with working.”

The worker reported that she made an appointment to see her doctor when she returned to Winnipeg on September 2, 2005. She noted that her back was very sore and painful since the injury and that the Tylenol dulled the pain but was not enough to make it tolerable.

On September 6, 2005, the treating physician reported that when the worker was seen on September 2, 2005, she complained of pain in her left lumbar area. The worker had tenderness over the right sacroiliac joint and para-lumbar musculature. There was positive straight leg raising on the left side, sensation, motor function and reflexes were all considered normal. The diagnosis rendered was a right lumbar strain.

The worker was next seen by the treating physician on September 9, 2005. He reported that the worker had minimal tenderness in the left low back region and that she was capable of returning to her normal duties.

The WCB accepted the claim for compensation and the worker was paid wage loss benefits from September 3, 2005 to her return to work date of September 10, 2005.

On November 14, 2005, the worker sought treatment from a chiropractor with complaints of deep achy pains in her low back and pelvis area with minor leg pain on the right side. Neurological testing was normal. The chiropractor diagnosed the worker’s condition as a right sacroiliac strain and felt she was capable of performing her full work duties.

On July 6, 2006, the worker spoke with a WCB adjudicator stating that she had been performing her regular work duties but with ongoing problems since September 2005. She stated that she was prescribed medication and was told by her physician that it could take several months before she felt better. The worker indicated that she was presently experiencing pain in her low back radiating into her leg and it included numbness in her buttocks. She made no ongoing complaints to her employer about her back symptoms nor did she receive any medical treatment since November 2005. The adjudicator advised the worker that she would approve the two chiropractic treatments that she had in November 2005 but would not be able to relate her current symptoms to the compensable injury for the following reasons:

· The diagnoses by the treating physician and chiropractor were “muscular”;

· The worker returned to her regular duties in September 2005 with no inability to perform those duties or complaints to the employer.

· The worker sought no medical treatment for her symptoms since the last appointment with her chiropractor.

The next report is from a physiotherapist dated October 27, 2006. He reported that the worker complained of constant low back pain for a year and that her left leg slipped on a wet surface. The worker had pain in her groin and into her heel region. Her “clutch” foot was very sore with constant leg pain. The therapist’s diagnosis was questionable L5/S1 disc and left discogenic low back pain. A CT scan was ordered.

On November 10, 2006, the treating physician noted that the worker’s pain from her injury was progressively worsening and was radiating down her left leg. The new diagnosis was an L4/5 disc prolapse.

A CT scan of the lumbar spine was completed on November 2, 2006. The impression read,

“Degenerative disc disease with disc space narrowing as well as a right paracentral foraminal and extraforaminal diffuse disc protrusion. This may minimally encroach on the traversing right L5 nerve root at the L4, 5 disc level, minimally impinges on the already exited more superior right L4 nerve root. The significance of this is uncertain. The degree of impingement may be better demonstrated on an MR study.”

In a decision dated December 7, 2006, the worker was advised that the WCB was unable to establish that her current back difficulties were related to her low back injury of August 30, 2005. This decision was based on the following rationale:

· the worker did not seek ongoing medical treatment from November 2005 to July 2006;

· the worker made no ongoing complaints to her employer; and

· the worker continued to perform her regular work duties without difficulty.

On December 22, 2006, the employer wrote the WCB to advise that an error had been made and that the employer was indeed aware of the worker having ongoing back pain and discomfort since her compensable injury.

Primary adjudication referred the case to a WCB medical advisor for an opinion as to whether there was a cause and effect relationship between the August 30, 2005 compensable injury and the worker’s present symptoms. In a response dated January 22, 2007, the WCB medical advisor provided rationale to support her opinion that the worker’s ongoing symptoms were not related to the compensable injury of August 30, 2005. She stated, in part, “…the SLR was limited in September, 2005 but it was limited to 20 degrees. Tension on the nerve roots does not start until 40 degrees, so this SLR is not indicative of nerve root impingement.” She noted there was a quick resolution of the worker’s initial symptoms and findings according to reports on file and that the worker’s present symptoms were on her left side whereas at the time of her compensable injury, her symptoms were on her right side.

On January 23, 2007, the worker was advised by the WCB that no responsibility could be accepted for her recurrence as it could not relate her current pain to her original injury of August 30, 2005. It was felt that the worker’s left sided symptoms were not related to her original injury in 2005 because the area of the body where she was experiencing the pain had changed. The WCB determined that the worker should have recovered long ago from her original soft muscle strain and that the CT scan results did not support her current left sided symptoms.

In a letter dated January 24, 2007, the treating physician stated there was a clerical mix-up with regard to the side in question regarding the worker’s back pain. “It is in fact the left side that has always been the problem and not the right side.”

In light of the above report, primary adjudication referred the case back to the WCB medical advisor for further comment. In a response dated March 4, 2007, the medical advisor stated, “…it doesn’t change the opinion previously given. The main reason for saying that the current problems were not related to this C/I was not which side the symptoms were on, but more that the initial presentation was not consistent with a diagnosis of disc pathology. This new information also does not change the fact that the claimant’s symptoms are on the left but the disc pathology on the CT is on the right.” On March 6, 2007, the worker was advised that based on this information, no change would be made to the decision of January 23, 2007.

An MRI of the lumbar spine was completed on June 1, 2007. The impression read, “There are disc protrusions at L1-L2 in the left paracentral region and at L4-L5 in the right lateral and far lateral region. The disc lesion at L1-L2 contacts the traversing left L2 root. Clinical correlation is recommended.”

The MRI results were reviewed by a WCB medical advisor on June 27, 2007 at the request of primary adjudication. The medical advisor noted that the MRI showed multilevel disc changes consistent with degenerative disc disease. This was the most likely cause of the worker’s ongoing complaints. She felt there was nothing on the MRI that was related to the September 2005 compensable injury and that the MRI findings do not change her previous opinion regarding cause/effect. Based on these comments, the worker was advised on June 28, 2007 that no changes would be made to the WCB’s decisions of January 23, 2007 and March 6, 2007.

In a submission dated September 10, 2007, a worker advisor outlined the position that the worker had not fully recovered from the August 30, 2005 injury when she returned to work on September 9, 2005 and that her current low back condition was causally related to the August 30, 2005 compensable injury. Included with the submission was a letter from the treating physician dated September 7, 2007. The worker advisor quoted the following excerpt from this letter in her submission:

“I have reviewed this lady’s chart extensively and there is no mention what so ever of a back injury prior to her accident in 2005. She does demonstrate and had demonstrated symptomatology of a prolapsed disc following her accident in 2005. Because a person’s straight leg raising sign is 20 degrees initially, this does not eliminate a disc prolapse spasm that may have initially limited this to the 20 degrees. Disc prolapse injuries often improve with conservative treatment. I believe that [the worker’s] back problems and symptomatology date back to her accident on August 30, 2005.”

The worker advisor commented that the treating physician reported that the worker was exhibiting symptoms of a prolapsed disc following the August 30, 2005 incident and continued to experience symptoms related to this injury. She noted that the treating physician stated that prolapsed discs can improve with conservative treatment which would explain why the worker was able to return to her duties on September 9, 2005.

The treating physician’s report was reviewed by the WCB medical advisor on September 28, 2007. After reviewing the report, the medical advisor stated that no change would be made to her previous opinion and that she remained of the view that the claimant’s current complaints were not related to her original compensable injury. She indicated that the initial symptoms and findings presented by the physician on September 2, 2005 did not suggest that the compensable injury caused a disc injury.

On October 2, 2007, the WCB advised all parties that after reviewing the updated medical information from the treating physician, the decision made on June 28, 2007 remained unchanged. On October 15, 2007, the worker advisor appealed the decision to Review Office. She maintained the position that the worker had not fully recovered from her injury when she returned to work on September 9, 2005 and that her current low back condition was causally related to the August 30, 2005 compensable injury.

Prior to considering the appeal, a Review Officer spoke with the worker on December 7, 2007 to obtain further information regarding the worker’s description of accident and the medical treatment she received.

In its decision dated December 13, 2007 Review Office determined that the worker’s back problems which precluded her working in the summer of 2006 and since December 2006 were not a sequela of her August 2005 accident. Review Office placed weight on the initial reports from the worker’s physician and chiropractor. It felt the reports were consistent with the worker having suffered a minor injury from which a quick recovery would be expected. It stated the reports were not consistent with what the worker now reported her complaints to have been. Review Office felt the mechanism of injury was inconsistent with the two diagnosed disc protrusions or the degenerative disc disease found at various levels of the worker’s spine. It stated that at best, any pre-existing conditions would have been temporarily aggravated by the workplace injury.

On December 21, 2007, the worker advisor requested a Medical Review Panel (“MRP”) under subsection 67(4) of The Workers Compensation Act (the “Act”). She felt there was a difference of medical opinion between the worker’s treating physician (report dated September 7, 2007) and WCB medical advisor (comments made on September 28, 2007) concerning the diagnosis at the time of the August 30, 2005 injury.

In a January 7, 2008 decision by primary adjudication, the worker’s request for an MRP was denied as it was felt that the worker’s treating physician did not provide a full statement of facts and reasons supporting his medical conclusion that the worker’s present symptoms were related to her 2005 work injury. On January 10, 2008, the worker advisor disagreed with the decision and appealed to Review Office.

On January 17, 2008, Review Office determined there was no basis to convene an MRP as in its view, the opinion provided by the treating physician on September 7, 2007 did not meet the test set out in the Act for a full statement of facts and reasons supporting a medical conclusion.

On April 10, 2008, the worker advisor provided the WCB with new information from an orthopaedic specialist dated March 18, 2008 which stated that the worker had a chronic disc injury at L4-5. Based on this report, the worker advisor argued that the chronic disc injury at L4-5 was causally related to the August 30, 2005 incident. It was also her opinion that the worker’s employer and medical information on file provided evidence of continued low back symptoms following the August 30, 2005 incident.

Prior to considering the appeal, Review Office referred the case to a senior WCB medical consultant on April 24, 2008 to provide a medical opinion as to whether the worker’s ongoing back problems diagnosed by the orthopaedic specialist, were due to a chronic disc injury at L4-5 and whether they were causally related to her August 2005 accident. A response by the consultant was received dated May 6, 2008. The consultant opined that on a balance of probabilities, the worker’s ongoing low back difficulties described as an L4-5 injury with accompanying evidence of an L5 radiculopathy on the left side were probably not causally related to the event in question.

In a decision dated May 20, 2008, Review Office determined that the worker’s back problems which precluded her working in the summer of 2006 and subsequent to December 2006 were not a sequela of her August 2005 accident. Review Office was of the opinion that the weight of evidence remained firmly in support of its decision of December 13, 2007. The fact that the worker had back problems after her accident did not establish a relationship between the two. On May 28, 2008, the worker advisor appealed Review Office’s decisions to the Appeal Commission.

On July 15, 2008, an oral hearing before the Appeal Commission was held. The worker was represented by a worker advisor. During the course of the hearing, a further report from the orthopaedic specialist was submitted as an exhibit. The report dated June 24, 2008 stated:

“The patient was seen again following the chronic disc injury of L4-5. The patient had a discogram…which confirms the annulus tear at L4-5.”

Reasons

There are two issues being appealed before the panel. Each will be addressed individually.

1. Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

The worker has requested that an MRP be convened. The relevant provisions of the Act are subsections 67(4) and 67(1).

Subsection 67(4) provides:

Reference to panel on request of worker

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."

To accept the worker’s appeal on this issue, we must find on a balance of probabilities that the medical opinion of the medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 67(4) and 67(1) of the Act. We are unable to make that finding.

The panel agrees with the WCB that the brief reports by the treating physician dated August 21, 2007 and September 7, 2007 do not meet the subsection 67(1) definition of “opinion”, which requires a full statement of the facts and reasons supporting a medical conclusion. The reports provided by the treating physician provide only minimal detail as to the clinical findings relied upon by the physician and do not explain the reasons why he reached his conclusion that the worker’s symptoms stem from and are related directly to having had an accident. At the hearing, the worker advisor rightly admitted that the reports were not likely sufficient to meet the requirements of the Act. We therefore find that there is no basis upon which to convene a medical review panel. The worker’s appeal on this issue is dismissed.

2. Whether or not the worker’s back problems which precluded her working in the summer of 2006 and since December 2006 are a sequela of her August 2005 accident.

Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. In order for compensation to be payable, the loss of earning capacity must be causally related to the workplace accident.

At the hearing, the worker provided detailed evidence as to the progression of her back symptomatology. She stated that she has pain that starts in the left side of her back which goes down to her hip and around the top of her thigh and groin area. There is a numbness on the left side of her buttocks and the pain then runs down her left leg and into the bottom of her foot. This particularly causes a lot of pain as this is the clutch foot. The worker’s evidence was that this pain had been present since the time of the accident in August, 2005. She was told by her doctor that it would take months for the injury to heal. She returned to work in September, 2005, but the pain continued. She and her husband each reduced their workload from driving twelve hours a day to nine. Her husband also performed all of the heavy work required during loading and unloading. The worker testified she has seen physiotherapists, chiropractors, had massage therapy, acupuncture, and ultrasound, but still did not experience any recovery. After a further attempt in October, 2006 to reduce her work to driving single, she was finally forced to discontinue working completely on December 7, 2006.

In addition to hearing the worker’s oral evidence, the panel has reviewed the information contained in the WCB file. After considering the evidence as a whole, we are unable to find that the worker’s claim for her current diagnosis of annulus tear at the L4-5 disc is related to the August 2005 incident when she slipped.

In arriving at our conclusion, the panel relied on the following evidence:

  • The worker’s initial time loss from the August 30, 2005 accident was from September 3 to September 10, 2005. By report dated September 9, 2005, her treating physician reported that at that time, she had minimal tenderness in the left low back and that she was capable of returning to her normal duties.
  • The treating chiropractor’s report of November 14, 2005 stated that at that time, “neural testing normal.”
  • No medical treatment was sought between November, 2005 and July, 2006;
  • The complaints of pain which radiates down the leg only start to appear in the medical reports in the later part of 2006. The physiotherapist’s report of October 27, 2006 is the first indication of: “(Left) discogenic low back pain.”
  • At the hearing, the worker’s evidence was that she has had gradually increasing symptomatology and that no treatments have helped her condition to improve. This would suggest that degeneration may be the cause of her pain.
  • The report of the orthopaedic specialist dated March 18, 2008 states: “Review of the x-rays dated October 2006…confirms mild narrowing of the L4-5 disc space with retrolisthesis. The MRI scan and CT scan done later confirm the same problem with obvious disc disease at L4-5. The remainder of the lumbar spine is completely normal and healthy looking.”
  • At the hearing, a more recent report dated June 24, 2008 from the orthopaedic specialist was submitted as an exhibit. Results from an L4-L5 discogram performed May 12, 2008 were attached and indicated that: “Radiologically, the discogram demonstrates a diffusely and severely degenerated disc with extravasations of the material throughout the disc space per se as well as dorsally beyond the normal limits of the annulus.”
  • The senior WCB medical consultant performed a very thorough forensic analysis of the worker’s WCB medical file and his report of May 6, 2008 opines that: “So while I have no doubt that the injured worker is currently suffering from an L5 radiculopathy based on the physiotherapy evidence and that penned by (the orthopaedic specialist), it does not appear to be causally related to the event in question. It would be my opinion that this is a consequence of the rigors of life.” The panel accepts the opinion of the WCB medical consultant.

Overall, the panel is not satisfied on a balance of probabilities that the worker’s current condition is related to the compensable injury. The medical reports indicate that by the fall months of 2005, the worker had mostly recovered from her injury and was able to carry on employment, which involved team driving and taking the wheel for nine hours per day. As stated in the WCB medical consultant’s report of May 6, 2008, when the worker reactivated her WCB claim in mid-2006, some 14 months after the workplace incident, she presented: “a distinctly different clinical scenario.” We are of the opinion that the worker’s symptomatology of back pain with radiculopathy is not related to her original workplace injury. The panel therefore finds that the worker’s back problems which precluded her working in the summer of 2006 and since December 2006 are not a sequela of her August 2005 accident. The worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of August, 2008

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