Decision #136/08 - Type: Workers Compensation
Preamble
In August 2003, the worker injured his right knee, ankle and back in a work related injury. The worker was mostly treated for his right ankle condition but was reported to have sustained a contusion to his back. The worker was paid wage loss benefits by the Workers Compensation Board (“WCB”) to November 18, 2003 when it was determined by his treating physician that he was fit to return to his full time employment.
Then on August 9, 2005, the worker reported that he was performing his regular work duties when he felt a sharp pain that shot down his left leg and up his spine to the middle of his back area. The claim was accepted based on the diagnosis of a back strain but a later CT scan revealed that the worker had L4-5 and L5-S1 disc protrusions. The WCB ultimately determined that the worker’s disc protrusions were not the result of either his 2003 or 2005 claims and that he was not entitled to further wage loss or medical aid benefits. The worker disagreed and filed an application to appeal with the Appeal Commission and an oral hearing was held on May 7, 2008.
Issue
Whether or not the worker is entitled to wage loss benefits after February 22, 2006;
Whether or not the worker is entitled to further medical aid benefits in relation to the August 4, 2005 compensable injury; and
Whether or not the worker is entitled to wage loss or medical aid benefits after November 18, 2003.
Decision
That the worker is entitled to wage loss benefits after February 22, 2006;
That the worker is entitled to further medical aid benefits in relation to the August 4, 2005 compensable injury; and
That the worker is not entitled to wage loss or medical aid benefits after November 18, 2003.
Decision: Unanimous
Background
2003 claim:
On August 27, 2003, the worker reported that he injured his low back, right knee and ankle when he fell down a few steps while descending a steep set of stairs and landed on his tail bone and “hit my back nerve”. The worker indicated that his ankle and back were swollen after the accident and that he could not get to a doctor right away because they were working on a skeleton crew.
Medical information revealed that an x-ray was taken of the worker’s right ankle on August 29, 2003. The x-ray report stated there was soft tissue swelling at the ankle but no bony abnormality was seen.
A Doctor’s First Report showed that the worker attended for treatment on August 29, 2003 with subjective complaints of bruise pain in the left sacroiliac and that the right ankle was popping. The diagnosis was a back contusion and talocalc fracture.
A bone scan report dated September 29, 2003 indicated that the feet and ankles showed mild and diffusely increased uptake in the right mid foot with faint concentration in the right talus. No other abnormality was seen in the right foot. The impression read “The overall appearance is most suggestive of a soft tissue or joint pathology. If the injury were several weeks earlier, it is possible that the mild uptake in the right talus could represent a healing fracture but the intensity is not sufficient to suggest a recent fracture. The absence of increased blood flow and blood pool activity would also be against a recent occult fracture in this location.”
On October 22, 2003, the worker advised his WCB case manager that he felt a lot of shooting pains from his ankle up to his knee. He stated his back was still a little sore but his doctor was focusing on his ankle. He said the doctor told him his back problems were soft tissue and would heal with time.
The worker’s claim for compensation was accepted and benefits were paid to November 18, 2003 when the worker returned to his employment duties.
2005 claim:
The worker filed a claim with the WCB on August 9, 2005 for back pain that occurred on August 4, 2005 and was reported to the employer on August 7, 2005. The worker attributed his back pain to repetitive heavy lifting and bending at work. He said he worked with a power jack and had to get on and off the machine to get orders. He said he would bend to the floor to pick up heavy stuff and reach above his head or over to get to the third shelf.
The worker further indicated that he has had ongoing back pain since a fall that happened two years ago. On August 4, 2005, his back pain was stronger than usual while doing his regular work and he felt a sharp pain that shot down his left leg and up his spine to his middle back area. When he twisted he felt pain.
The employer’s accident report described the worker’s accident as follows: “[worker’s] foot slipped off his power jack. His foot landed on the floor. It caused him to jar his back.”
A WCB staff person was in contact with the worker on August 18, 2005. The worker stated that he suffered an injury to his back two years ago when he fell down some stairs. He said he recovered from the injury but his back has bothered him since. The worker indicated that on August 4 he was doing his regular duties when his foot slipped off the power jack and jarred his back. He continued to work and completed the shift on August 6 but the pain continued to get worse. He then sought medical treatment at a hospital on August 7.
A hospital emergency report confirmed that the worker was seen on August 7, 2005. It was noted on the report that the worker had a history of a back injury one year ago with large contusion/hematoma in the left low back. Since then the pain has been off and on in the low back with very physical work. The diagnosis rendered was mechanical low back pain.
A doctor’s first report showed that the worker attended for treatment on August 12, 2005 for pain in his lumbar area that radiated to his thighs. The diagnosis was a lumbar muscle strain. When seen again on August 19, 2005, the physician reported that the worker still complained of low back pain and that x-rays of the lumbosacral spine were normal. He noted that the worker could do light duty jobs for two weeks.
File records indicate that the worker saw a different physician for treatment on August 24, 2005. Complaints consisted of low back pain, with radiation to knee and left side spine aggravated by sitting, driving and arching. The neurological exam was normal. The diagnosis rendered was a back strain and the physician confirmed that the worker was fit for light duty work that involved no lifting, bending or twisting.
The worker returned to modified duty work on at least three occasions and had to stop because of back pain.
The WCB arranged for the worker to undergo a 4 to 6 week reconditioning program with the anticipation that he would be able to return to his regular work duties as of January 25, 2006.
On February 13, 2006, the treating physician reported that the worker finished the work hardening program but still had stiffness and pain in his back. On February 24, 2006, the physician commented that the diagnosis still remained that of a sprain but at times there appeared to be discogenic features to the worker’s back on examination. On March 3, 2006, the physician diagnosed the worker with a disc lesion.
A WCB medical advisor examined the worker on March 6, 2006. He indicated in his exam notes that the worker lifted his right knee up straight in front of him and felt his left leg buckle on August 4, 2005 and felt pain into the left buttock, left leg and up the left side of his back to the neck. He fell to the ground at the time and was able to finish his shift. Based on the historical information and examination, the medical advisor concluded that the mechanism of injury appeared to be minor and non-specific and would not be expected to have caused a disc injury. The examination fit mostly with a strain in the low back area. He stated the worker would be fit for a return to full work duties without restrictions over the next 4 to 6 week period.
On March 20, 2006, a WCB case manager advised the worker that there were no findings to support a disability or inability to participate in a graduated return to work program. Therefore, wage loss benefits would be payable from March 8, 2006 to April 2, 2006 based on what he could have earned during the graduated return to work program.
On April 5, 2006, the WCB received a copy of the CT scan report of the lumbar spine that took place on March 30, 2006. It showed a shallow central disc protrusion at L4-5 and L5-S1 level. This contacted both SI nerve roots.
In a May 1, 2006 decision, the worker was advised that the CT scan report had been reviewed with a WCB medical advisor who opined that the mechanism of injury (non-specific history – no acute trauma) would not result in multi-level disc protrusions and that there was no evidence of nerve root irritation at the call-in examination of March 6, 2006. Based on the file evidence, the case manager indicated that the claim had been accepted as a strain/sprain injury of the low back and given the treatment provided, the evidence supported that the worker had recovered from the effects of his compensable injury and that his ongoing findings may be related to multi-level disc protrusions which could not be linked to the compensable injury.
On November 22, 2006, a union representative outlined the view that on a balance of probabilities, the mechanism of injury occurred when the worker lifted his leg onto the power jack, felt a shooting pain down his leg and up his back and then fell to the ground. He said there was significant evidence prior to the CT scan that indicated there may have been a disc injury. The CT scan revealed that there was a disc injury and would explain why all the attempts to treat the worker and to return him to work have failed. He believed that on a balance of probabilities, the worker suffered a disc injury on August 4, 2005.
In a memorandum dated December 6, 2006, Review Office asked primary adjudication to obtain additional information prior to it becoming involved in the worker’s appeal. It stated that the accident description provided to healthcare was somewhat different than what was documented in the correspondence section of the claim. Review Office suggested that the WCB identify the accepted/correct description of accident, contact the witness named by the union representative and get an opinion from healthcare as to whether the diagnosis was consistent with the accident mechanism.
On December 18, 2006, a WCB adjudicator contacted the witness. He stated that he saw the worker step onto his pallet jack and then saw him grab his back. He said it seemed that the worker’s leg gave out and he fell to one knee on the ground. The witness did not think the worker’s foot had slipped as the power jacks have good grips. He noted that prior to the incident, the worker was fine and did not make any complaints while working.
In a decision dated December 21, 2006, the adjudicator indicated that she spoke with the witness and obtained the information that the worker stepped onto a pallet jack when he injured his low back. She indicated that the diagnosis of a low back strain would be consistent with either mechanism of injury, stepping onto or off a pallet jack and there would be no change to her original claim decision.
In a further submission to Review Office dated January 17, 2007, the union representative maintained the position that the worker suffered a disc injury on August 4, 2005 and that the disc injury had not resolved when his benefits were terminated in February 2006.
A medical certificate by the treating physician dated November 1, 2006 stated, “Mechanism of injury could cause a disc injury. Work duties since the time of injury could also lead to progression of a disc injury. Restrictions @ work were not followed according to history provided to me.”
Prior to considering the union representative’s appeal, Review Office asked a WCB orthopaedic consultant to review the file and to answer several questions. On January 25, 2007, the orthopaedic consultant responded to the questions posed by Review Office.
In a decision dated January 26, 2007, Review Office determined there was no entitlement to full wage loss benefits after February 22, 2006. Review Office stated in its decision that the worker had not worked in any capacity after February 22, 2006. It stated that the evidence suggested that the worker “experienced an onset of left back and buttock pain when he stepped up onto a power jack with his right leg, and his left leg buckled. The worker, his union representative, the witness, and the information given by the worker to his doctor support this accident description.”
Review Office indicated that it did not accept that the worker experienced an injury to a disc on August 4, 2005. This was supported by the emergency physician’s exam findings immediately after the work injury, the opinions expressed by the WCB medical advisor in March and April 2006 and the orthopaedic consultant in January 2007 which indicated that the mechanism of injury would not have caused a disc injury. Review Office noted that the WCB orthopaedic consultant opined that the CT scan findings were indicative of pre-existing early degenerative changes at two levels, which was supported by the worker’s clinical history of symptoms. It did not find any evidence that the pre-existing degenerative changes were aggravated or enhanced by the work event of August 4, 2005.
On August 9, 2007, the union representative asked Review Office to reconsider its previous decision. He submitted additional information to support the position that the opinion expressed by the WCB orthopaedic consultant to Review Office was flawed. He also contended there was a strong possibility that the first compensable back injury in 2003 caused an injury to one or more of the worker’s discs that led to a further injury in 2005 that ultimately resulted in his herniated discs.
On October 2, 2007, Review Office referred the file back to the WCB orthopaedic consultant to review the information submitted by the union representative and to provide his further opinion. The orthopaedic consultant commented that the protrusions noted on the CT scan are the result of multi-level degenerative discs regardless of the worker’s age and that normal discs do not protrude. He said the mechanism of injuries in 2003 and 2005 are unlikely to damage normal intervertebral discs. He said the mechanism of injury described in 2005 was unlikely to have enhanced the pre-existing degenerative changes reported on the CT scan. In his opinion, there was no conclusive evidence to support that the worker had an injury to either disc on either claim.
In a decision dated October 10, 2007, Review Office confirmed its earlier decision that the worker was not entitled to full wage loss benefits after February 22, 2006 and there was no further entitlement to medial aid benefits. It was of the view that the submitted evidence did not support a direct cause and effect relationship between the worker’s back symptomatology and the August 2005 work injury. It found no evidence to suggest the worker experienced a single or multi-level disc injury at the time of his slip and fall on August 4, 2005. It did not feel that the mechanism of injury caused either a multilevel disc injury or enhancement of a pre-existing degenerative condition (stepping up onto a power jack). There was no radiological evidence to support an enhancement of any pre-existing condition.
In a further Review Office decision dated October 10, 2007, it determined that there was no entitlement to wage loss or medical aid benefits after November 18, 2003. It stated that it was unable to find any evidence to support that the worker developed degenerative changes to his spine as a result of the August 2003 work injury. The medical evidence immediately following the August 2003 accident up to the time the worker returned to work in November 2003 suggested the worker’s injury was a contusion. There was no other evidence to suggest a more significant injury arose out of the slip and fall of August 2003. It accepted the opinion of the WCB orthopaedic consultant who stated the mechanism of injury in 2003 was unlikely to have damaged normal intervertebral discs or created the subsequent changes of multi-level degenerative discs.
In December 2007, the union representative appealed Review Office’s decisions to the Appeal Commission and an oral hearing was held on May 7, 2008.
Following the hearing, the appeal panel requested to have the worker examined by an independent medical examiner and to undergo a lumbar spine CT scan. The examination by the independent medical examiner took place on August 8, 2008 and the final report along with the July 16, 2008 CT scan findings were forwarded to the interested parties for comment. On September 18, 2008, the panel met to further discuss the case and rendered its final decisions.
Reasons
Applicable Law
The Appeal Commission and this panel are bound by the Act, regulations and policies of the Board of Directors of the WCB.
This case deals with 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. Subsection 27(1) provides that the WCB may provide a worker with medical aid to cure or provide relief from a workplace injury.
Worker’s Position
The worker was represented by a union representative who made a presentation on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative noted that the appeal deals with accidents from 2003 and from 2005.
The worker’s representative noted there was some confusion regarding the mechanism of injury of the 2005 accident. The worker described the accident. He explained that he lifted his right leg to climb on to a machine and something popped on the left side and he felt a pain shoot up his back and down his leg to his knee and then the knee buckled and he fell to the ground, landing on his butt. He acknowledged that he continued to work after the accident and saw a doctor on the following Sunday.
The representative noted that the worker participated in a work hardening program and that there were problems with the program. He noted that the worker and treating physician reported the program was causing the worker pain. However, the WCB terminated benefits at the conclusion of the program.
The worker’s representative noted that the two Review Office medical consultants concluded that the mechanism of injury could not have caused a disc lesion but that the treating physician disagreed with these physicians.
The worker’s representative made a further submission dated September 5, 2008 upon receipt of the independent medical examiner’s opinion. He submitted that this physician’s opinion supports the opinion of the treating physician. He noted the physician’s findings that the CT of March 2006 was caused by the August 2005 accident and that the worker did not have a pre-existing condition.
Employer’s Position
Neither the 2003 accident employer nor the 2005 accident employer participated in the appeal.
Analysis
There are three issues before the panel. The first two issues arise from the 2005 claim. The final issue arises from the 2003 claim.
Issue 1
The panel was asked to determine whether the worker is entitled to wage loss benefits after February 22, 2006. For this appeal to be successful, the panel must find that the worker’s loss of earning capacity after this date was caused by the 2005 workplace injury. In other words, the panel must find that the worker’s inability to work after February 22, 2006 was due to the injuries he sustained in the 2005 accident. The panel finds, on a balance of probabilities, that the worker is entitled to wage loss benefits after February 22, 2006.
In making this decision, the panel relies upon the opinion of the independent medical examiner dated August 8, 2008. The panel notes that this physician found that:
· it is probable that the worker’s workplace injury in August 2005 caused the abnormalities identified on the CT of March 2006. He stated that a simple, relatively benign force could lead to the final amount of disc protrusion or disc material protrusion thereby aggravating a nerve and causing radicular pain.
· the worker was consistent in his reporting of the radicular quality of the pain
· the persistence of the worker’s symptoms despite pharmacologic and rehabilitation interventions is difficult to explain
· the abnormalities identified on the CT scan of March 2006 are not the cause of his current ongoing symptoms
· the CT of March 2006 does not mention any approaching of the L4-5 disc to the left L5 nerve root as suggested in the CT of April 2008, therefore this represents an interval change that occurred after the incident report and CT of March 2006
· the July 2008 CT scan is most representative of the worker’s current symptoms
· the current diagnosis is:
1. mechanical low back pain
2. suspected component of left greater trochanteric bursitis
The panel notes this opinion is consistent with the November 21, 2007 opinion of the treating physician.
Although the panel finds that the worker is entitled to wage loss after February 22, 2006, the panel agrees with the opinion of the independent medical examiner that the worker’s current symptoms and diagnosis are not related to the worker’s August 2005 injury. The panel also agrees with the independent medical examiner’s opinion that the abnormalities identified on the CT of March 2006 are not the cause of the worker’s current wage loss.
The worker’s appeal of this issue is allowed.
Issue 2
The panel was asked whether the worker is entitled to further medical aid benefits in relation to the August 4, 2005 injury. For the appeal of this issue to be successful, the panel must find that the worker continued to have symptoms from the 2005 injury. The panel finds, on a balance of probabilities, that the worker continued to have symptoms from this injury after February 22, 2006. In reaching this decision, the panel relies upon the opinion of the independent medical advisor noted above. However, the panel also agrees with the independent medical examiner’s opinion that the worker’s current symptoms are not related to the March 2006 CT findings.
The worker’s appeal of this issue is allowed.
Issue 3
The final issue is whether the worker is entitled to wage loss or medical aid benefits after November 18, 2003. For this appeal to be successful, the panel must find that the worker’s loss of earning capacity after November 18, 2003 was caused by the worker’s August 2003 injury. In other words, the panel must find that the worker was unable to work after this date as a result of the August 2003 injury. With respect to medical aid benefits, the panel must find that the worker’s symptoms after this date were due to the August 2003 injury. The panel was not able to make these findings.
On balance of probabilities and after considering all the information, the panel finds that the worker is not entitled to wage loss or medical aid benefits after November 18, 2003 on the 2003 claim.
Information on the worker’s file shows that the worker received wage loss benefits from August 29, 2003 to November 15, 2003, after which he returned to work. The worker did not contact the WCB after this return to work. The worker did not seek medical attention for his back after his return to work until the 2005 injury occurred.
In reaching this decision, the panel notes and relies upon the opinion of the independent medical examiner who wrote that the worker’s complaint that his back bothered him since the 2003 injury is not substantial enough to link the 2003 injury and the 2005 injury. The physician found that between the two injuries, the pattern of pain is not consistent and the mechanism of potential injury is very different. As well, this physician found that at the time of the 2003 injury the worker did not have a pre-existing condition and did not have a pre-existing condition in August 2005 as a result of the August 2003 injury.
The worker’s appeal of this issue is denied.
Panel Members
A. Scramstad, Presiding OfficerB. Simoneau, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of October, 2008