Decision #116/08 - Type: Workers Compensation

Preamble

On February 1, 2006, the worker filed a claim with the Workers Compensation Board (WCB) for injuries he sustained in a work related accident. The claim for compensation was accepted and the worker was paid benefits by the WCB up until November 7, 2007 when it was determined by primary adjudication and Review Office that the worker’s difficulties beyond that date were not related to the compensable injury. The worker disagreed with the decision and his solicitor filed an application to appeal with the Appeal Commission. A hearing was held on June 11, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond November 7, 2007.

Decision

That the worker is entitled to wage loss and medical aid benefits beyond November 7, 2007.

Decision: Unanimous

Background

On January 29, 2006, the worker reported injuries to his right knee and left back from the following work related accident:

“I was strapping bundles on top of a rack about 4 feet high, my co-worker [name] picked up a bundle with a crane behind me and proceeded to swing it into the back of my legs (accidentally). I stumbled forward into the rack, from the moment of impact I didn’t feel too much because I was in shock, approx. 10 mins. later I started to feel pain in the back of my right knee, and front and up and down my thigh…The next day I noticed my back was killing me and my leg was really hurting, so I went to the doctor.”

When seen for medical treatment on January 30, 2006, the attending physician reported objective findings of a sore back at L4-5, decreased range of motion, bilateral posterior leg pains, no swelling, knees okay. The diagnosis rendered was back and leg injuries.

A physiotherapy report dated February 7, 2006 diagnosed the worker with a possible L3-L4 prolapse with L4 radiculopathy on the right.

Between April and May 2006, diagnostic testing was performed. On April 13, 2006, the worker underwent a CT scan of the lumbosacral spine. The results showed no evidence of disc herniation, spinal stenosis or nerve root involvement at L2-3 or L3-4 levels. At L4-L5 and L5-S1, there was mild diffuse annular disc bulging with no evidence of disc herniation, stenosis or nerve root involvement. There was shallow scoliosis convex to the left.

On May 11, 2006, the worker underwent an MRI evaluation. The results showed anatomic alignment and disc signal intensity was well preserved. There was no disc herniation or protrusion and the central canal and foramina were well preserved.

As the worker continued to complain of back and right leg pain in spite of negative investigations, arrangements were made for him to be assessed by a WCB medical advisor. In his examination report dated May 25, 2006, the medical advisor noted that the worker complained of discomfort in the midline and to the right low back. The pain radiated to the right buttock and down the back, front and side of the right leg. There was an intense numb feeling associated in the area of his right foot. This was in the entire right foot, dorsum and plantar surfaces. The worker also complained of an ongoing aching discomfort in the area of his right knee. In the opinion of the medical advisor, the worker presented with ongoing low back pain likely secondary to mechanical dysfunction. There were physical findings suggestive of radiculopathy in the right leg with the presence of slightly diminished straight leg raise, diminished strength of the muscles about the knee, hip and foot and diminished sensation. The findings on examination were not explained patho-anatomically by any imaging abnormalities. It was felt that the worker was capable of modified duties with restrictions to avoid lifts greater than 10 pounds and to avoid repetitive bending.

Arrangements were made through the accident employer for the worker to commence a gradated return to work at modified duties with the goal of returning to full time hours. During this time, the worker developed increasing back pain and swelling of his feet.

The worker underwent further laboratory investigations that consisted of a bone scan carried out in June 2006. The scan revealed changes within the right ilium which was typical for Paget’s Disease although “…this would be unusual in a patient of this age.” The worker also had plain x-rays taken of his pelvis and right hip in July 2006 which showed a 4 cm lucency involving the cortex medulla of the right medial femoral neck. “While it is possible this represents osteolytic form of Paget’s, this is somewhat unusual given the patient’s age. Metastatic disease should be excluded.”

On July 19, 2006, a vascular surgeon opined that the worker did not have a circulation problem. He said the worker’s history of swelling may be related to either the relative immobility due to chronic pain or perhaps a Reflex Sympathetic Dystrophy (RSD).

Nerve conduction studies were done in July 2006 which suggested a proximal lesion of the nerve root.

The worker underwent a CT of the pelvis and hip in August 2006. The impression read:

“Diffuse enlargement of right hemipelvis associated with ill defined mixed lytic and sclerotic changes. Features although not entirely diagnostic would be most consistent with Paget’s disease, mixed phase. Biochemical correlation would be useful.

Lyutic defect anterior femoral neck. Although somewhat large and atypical I suspect this represents a herniation pit. Radiographic follow-up is recommended for the femoral neck lesion. If there is any increased symptomatology of the femoral neck lesion, MRI is recommended.”

An MRI was carried out on September 25, 2006 of the right hip. A non-specific benign appearing cyst was found in the anterior inferior neck of the right femur. The appearance of the cyst would be slightly atypical for a herniation pit.

On October 10, 2006, an MRI of the lumbar spine revealed mild degenerative changes and no significant interval change from the study performed on May 11, 2006.

At the request of primary adjudication, the worker was examined by a WCB medical advisor on October 25, 2006. In response to questions posed by primary adjudication, the medical advisor diagnosed the worker’s current condition as a right S1 radiculopathy. The medical advisor indicated that his examination was suggestive of an ongoing cause and effect relationship between the diagnosis and the compensable injury. Recommendations were made for a repeat MRI, for the worker to return to physiotherapy and a referral to a physiatrist.

A repeat MRI was carried out in December 2006. The MRI revealed normal anatomic alignment, no disc herniation or protrusion with the central canal and foramina being well preserved.

On November 20, 2006, the worker was examined by a physiatrist. He summarized that the worker’s clinical presentation was unclear and there was no convincing sign of a radiculopathy.

The worker was assessed by a physical medicine and rehabilitation consultant on January 4, 2007. In his opinion and based on his physical examination, it was felt that there was evidence of myofascial pain syndrome.

On February 20, 2007, the worker was seen by an endocrinologist. In part, the specialist indicated that the finding of Paget’s disease was incidental to the worker’s ongoing pain complaints.

In April 2007, the worker was assessed by an internal medicine consultant. It was indicated that the differential diagnosis had to include reflex sympathetic dystrophy although this presentation was somewhat atypical. The consultant felt that the incidental findings of Paget’s disease needed to be addressed.

The worker was interviewed at the WCB’s Pain Management Unit (PMU) on May 29, 2007. In a subsequent case conference held on June 26, 2007, it indicated that the worker was experiencing a major depression in partial remission and would benefit from psychopharmacological treatment and transitional psychological counselling to address pain management.

In a June 11, 2007 report, the physical medicine and rehabilitation specialist noted that the worker’s chronic low back pain with radiation to the right buttock and right leg had not resolved. He also complained of bilateral feet and ankle swelling.

In a report dated June 14, 2007, a pain management specialist outlined his opinion that the worker may be suffering from a chronic regional pain syndrome involving his lower limbs.

Bone scan results dated June 29, 2007 noted focal uptake in the right SI joint of uncertain significance. “Given the appearance of the prior bone scan which suggested Paget’s disease this could represent a stage in the evolution of Paget’s as it becomes quiescent. But again, as indicated on the previous report this is very unusual in a patient of this age…Unilateral sacroiliitis is also a possibility.”

In a July 30, 2007 report, a pain clinic director noted that the worker presented with low back pain, an examination which was consistent with chronic neuropathic pain and right sacroiliitis. “As you can see from the bone scan, this is compatible with it so a fluoroscopically guided local plus cortisone to the right sacroiliac has been ordered.”

On October 12, 2007, it was determined by primary adjudication that the worker’s current problems were not related to the contusion of the legs and low back strain he suffered at work on January 29, 2006 and there was no further loss of earning capacity. This decision was based on a review of the mechanism of injury, the results of treatment and testing by a number of specialists and an opinion by a WCB medical advisor that the worker’s current ongoing back and leg pain had not been explained on a physical basis. The worker was advised that wage loss benefits and medical treatment would continue until November 7, 2007 inclusive and final.

On October 29, 2007, an internal medicine consultant made the following comments:

“Subsequent examinations in my office have always shown that his only limiting disability is his chronic leg pain. In my best professional opinion, I don’t think Paget’s Disease is what is causing this. It would certainly be very unusual for Paget’s Disease to be continually active despite treatment and no biochemical evidence to support it’s activity. In fact, he may have an entity called Reflex Sympathetic Dystrophy which can sometimes happen after fairly significant injury.”

On November 2, 2007, a WCB case manager advised the worker that no change would be made to the decision of October 12, 2007. She stated that the new information submitted by the internal medicine consultant was reviewed by a WCB medical advisor. The medical advisor indicated that the worker was seen by a specialist in the summer of 2007 who indicated that the worker did not fulfill the clinical diagnostic criteria for Complex Regional Pain Syndrome (CRPS). It therefore was the WCB’s position that the worker’s case did not fulfill the criteria and for CRPS. This decision was appealed by a solicitor on the worker’s behalf. The case was forwarded to Review Office for consideration.

On January 22, 2008, Review Office confirmed the WCB case manager’s decision that the worker was not entitled to wage loss benefits and medical treatment beyond November 7, 2007. Review Office referred to a December 10, 2007 report from the pain clinic director regarding the etiology of the worker’s low back pain and right buttock and leg pain. In this report, the director indicated that the underlying diagnosis had always been post-traumatic low back pain with associated autonomic features in the right leg and increased muscle based pain and reaction to it. He stated that the nature of the worker’s compensable injury would explain the initial and ongoing musculoskeletal problems in his low back. With respect to vasogenic edema in the worker’s right leg, he stated it was a common feature but was not enough to be diagnostic for CRPS.

Review Office agreed with the WCB medical advisor’s opinion that the evidence on file did not support a diagnostic of either CRPS or RSD. The physicians that brought forward these diagnoses were doing so on a speculative basis as there was no clinical objective medical evidence to support these theories. Review Office noted that the worker saw a multitude of specialists and received treatment without success. It felt there were psycho-social issues involved in the claim that may have an effect on the worker’s condition. It therefore did not feel that a cause and effect relationship existed beyond November 7, 2007 between the worker’s subjective complaints of pain and his January 29, 2006 injury.

On February 26, 2008, the worker’s solicitor appealed Review Office’s decision to the Appeal Commission. For consideration by the appeal panel, the solicitor provided reports from a clinical psychologist dated December 3, 2007 and May 12, 2008.

Following the hearing held on June 11, 2008, the appeal panel requested additional information from the pain clinic director. His report dated July 3, 2008 was forwarded to the interested parties for comment. The director indicated in this report that there was no convincing evidence to show that the worker had complex regional pain syndrome. He indicated that the worker presently had signs of chronic pain related to increased muscular tone as well as mechanical low back pain. He related this to the nature and intensity of the worker’s compensable injury.

Reasons

Applicable Legislation

The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and by policies made by the Board of Directors of the WCB.

This appeal deals with provision of 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) allows for the provision of medical aid benefits which are necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker was represented by legal counsel who made a presentation on his behalf. The worker answered questions from his counsel and the panel. As well, the worker’s wife answered questions asked by the worker’s counsel.

The treating internist was called as a witness on behalf of the worker. The internist advised that he initially saw the worker in November 2007. He noted that the worker had fairly significant limitations as to mobility secondary to pain, mostly in his right side, his right leg and his back. At this time the internist suspected that the worker suffered from Paget’s Disease and treated him for this condition. He subsequently concluded that the worker did not have this condition. He advised that he considered CRPS or RSD as a possible diagnosis. At the hearing the physician acknowledged that he has not been able to identify a diagnosis for the worker’s condition but that in his opinion, the symptoms arise from the workplace injury.

The worker advised that he had worked for the employer since 2000 and at the time of the injury was a saw operator and material handler. He described the workplace accident noting that his right knee swelled up right away and that he saw his physician the next day. He advised that he attended physiotherapy but it did not improve his condition. The worker described some of the other medical treatments that he received.

The worker advised that he attempted to return to work on two different occasions but without success. He has not attempted to return to work since his WCB benefits were terminated because of ongoing pain in his back and leg. The worker advised that his activities around the house are very restricted.

With respect to his condition, he stated that it has remained the same since the accident. He advised that he has received some injections which provided limited but not permanent relief.

Legal counsel noted various reports from medical professionals who examined and treated the worker and supported a relationship between the workplace injury and ongoing symptoms. He noted that the WCB medical advisors did not examine the worker and simply formed their opinions from documentation. He submitted that as the onset of the pain related to the workplace incident, and that the worker was healthy before that, there is a causal relationship between the worker’s traumatic injury and his current condition.

Analysis

The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond November 7, 2007. For the appeal to be successful the panel must find that the worker’s loss of earning capacity is a result of his workplace injury or in other words, that the worker’s ongoing inability to work was caused by his workplace injury. With respect to medical aid benefits, the panel must find that the ongoing treatments are related to the workplace injury.

The panel finds, on a balance of probabilities, that the worker’s loss of earning capacity and symptoms in the low back and legs are caused by his workplace injury. Accordingly the worker is entitled to wage loss and medical aid benefits beyond November 7, 2007. In reaching this decision the panel relies upon the following:

  1. File evidence confirming the continuity of the worker’s symptoms. This evidence includes medical reports from various practitioners who have examined the worker. In addition, the worker confirmed at the hearing that his condition has not changed.

  1. The opinion of the treating internist who attended the hearing and answered questions from the panel. He noted that the worker’s condition has not changed from when he initially saw him in November 2007. When asked about the relationship to the accident he responded, in part, that “…its very hard for me to piece together why it is that he is well up until he has the injury and then he is unwell subsequent to that.” He noted there is a temporal relationship and that the other specialists have not been able to find an alternative cause for the worker’s condition. He advised that he can safely say the diagnosis is not Paget’s disease but can not give a firm diagnosis of what it could be.

  1. The opinion of the pain clinic director who wrote on December 10, 2007 that the nature of the trauma would explain the initial and ongoing musculoskeletal problems in the worker’s low back. In a further report dated July 3, 2008, this physician noted that the forces that involved when he was struck by the crane would be enough to incite the worker’s symptoms. He commented that “Both the intensity and the nature of the force, that being uncontrolled and potentially life threatening, would be expected to leave [the worker] with musculoskeletal symptoms.”

The worker’s appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 11th day of September, 2008

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