Decision #29/09 - Type: Workers Compensation

Preamble

On February 11, 2005, the worker injured his low back in a work related accident. The Workers Compensation Board (“WCB”) accepted the claim for compensation and benefits were paid to February 1, 2008, at which time the WCB determined that the worker had recovered from the effects of his compensable injury. The worker disagreed with the decision and an appeal was filed with Review Office. On February 21, 2008, and September 11, 2008, Review Office confirmed that there was no relationship between the worker’s ongoing complaints of pain and the February 11, 2005, compensable injury. An application to appeal was then filed with the Appeal Commission through the Worker Advisor Office and a hearing was held on January 22, 2009, to consider the matter.

Issue

Whether or not the worker’s ongoing complaints are related to the February 11, 2005 compensable injury; and

Whether or not the worker is entitled to wage loss benefits beyond February 1, 2008.

Decision

That the worker’s ongoing complaints are not related to the February 11, 2005 compensable injury; and

That the worker is not entitled to wage loss benefits beyond February 1, 2008.

Decision: Unanimous

Background

The worker reported that he felt a pinch in his low back region on February 11, 2005, while feeding a moulder with wood parts. Initial medical reports diagnosed the worker with a low back strain but a CT scan performed on May 4, 2005, revealed disc herniation at L4-5 with impingement on the thecal sac. The claim for compensation was accepted and benefits were paid to the worker.

File records show that the worker had a 1989 claim with the WCB for a back injury and received full wage loss benefits until late 1992. In a May 24, 1991 report, the treating physician provided the opinion that the worker had chronic lumbar back pain due to spondylosis of the lumbar spine with central lateral disc herniation.

On September 22, 2005, the worker was assessed by a neurosurgeon who arranged for the worker to undergo an MRI examination. This examination was carried out on November 15, 2005, and the results showed the following findings: “Multilevel disc desiccation. At L4-L5, there is central disc protrusion approaching the L5 nerve roots. No definite impingement is identified.”

In a November 17, 2005 report, an orthopaedic surgeon reported that the worker had a CT scan in the spring which showed a significant L4-L5 bulge which was probably more right than left. The more recent MRI scan showed that the disc had pretty much healed up or gone away with no evident compression. The surgeon indicated that the worker’s residual sciatic symptoms may be due to some scarring in the nerve area and that surgery was not indicated.

On December 6, 2005, a neurosurgeon reported that the worker’s clinical presentation was not suggestive of a radiculopathy and there was no radiological evidence of a radicular irritation.

Despite physiotherapy and chiropractic treatment, the worker continued to report no improvement in his symptoms. On February 14, 2006, the worker was assessed by a WCB medical advisor who opined that the worker had non-specific low back pain. He stated that radiologically, the worker had significant degenerative disc disease at multiple levels and had facet joint arthropathy. There was no radiologic or consistent clinical evidence of a radicular process.

On March 28, 2006, the worker was assessed by a physical medicine and rehabilitation consultant. He summarized that the worker did not fit into a specific diagnostic category of low back pain and there were no ominous or neurogenic features.

In a report dated June 20, 2006, the physician from the Pain Clinic reported that the worker’s symptoms were consistent with mechanical back pain.

In a January 22, 2007 report, a second physical medicine and rehabilitation consultant reported that his clinical impression of the worker’s condition was incomplete healing from a work-related central disc herniation at L4-L5. He agreed with the orthopaedic surgeon that there may be some degree of epidural fibrosis. He stated the radicular findings have abated largely but the low back dysfunction is ongoing. He doubted there was much contribution from other lower back structures such as SI or facets. He noted that the soft tissue examination was fairly benign.

A WCB medical advisor reviewed the file on February 19, 2007, and made the following comments:

“There is no objective evidence of a radicular process nor a myofascial/soft tissue injury. The MRI has not demonstrated an enhancement of his degenerative disc disease. An aggravation of degenerative disease would have resolved over the two years since his compensable injury and none of the consultants are suggesting this as the diagnosis.”

In April and May 2007, the worker was treated at the Pain Management Centre with diagnostic injections at the L4-L5 and L5-S1 levels but reported no significant change in his level of pain. In a report dated September 27, 2007, the physician at the Pain Management Centre noted that a recent MRI scan report indicated “…not a lot of difference from the worker’s previous scan. The most significant findings included a small right paracentral disc herniation at L4-L5 but it was not contacting any other roots and did not create either foraminal or central stenosis. At L5-S1 there was a bulge with small annular tears present along with facet joint hypertrophy. There was more on the left than the right. [The worker] has more pain on the left side and most of his problems occur when returning from a flexed position or going into extension. It is highly probable that there is a facet component to his condition.”

On December 18, 2007, a physical medicine and rehabilitation consultant from the Pain Management Centre stated, “…I assessed him for the possibility of further treatment by paraspinous blocks and needling of ligaments and muscles as requested. I do not feel that this approach to treatment is warranted in his case.”

On January 17, 2008, a WCB medical advisor reviewed the file information at the request of primary adjudication. He indicated that the diagnosis for the worker’s ongoing reported back symptoms were “non-specific back pain” given that the worker’s treating physicians could not find objective evidence of a specific pathologic process generating his symptoms. When asked by primary adjudication whether there was a causal relationship between the diagnosis and the worker’s compensable injury of February 11, 2005, or September 19, 1989, the medical advisor responded as follows:

“[Treating physician] reported very mild back pain and normal ROM on Oct 17, 2000 therefore this injury had materially resolved. His current symptoms are not related to the Sept 18, 1989 injury.

There is no objective clinical or radiologic evidence of a pathologic process related to the Feb. 11, 2005 injury.

The balance of probability does not favor a relationship of his current symptoms to either C/I”.

In a letter dated January 17, 2008, the worker was advised that wage loss benefits would be paid to February 1, 2008, inclusive as it was determined by the WCB case manager that the worker had recovered from the effects of his February 11, 2005, injury. This decision was based on the opinion expressed by the WCB medical advisor on January 17, 2008.

At the worker’s request, the case was considered by Review Office on February 21, 2008. Review Office agreed with the position taken by the WCB case manager and medical advisor that no physician had found clinical objective medical evidence relating the worker’s injury of February 11, 2005, to his subjective complaints of pain. Therefore, Review Office agreed that the worker was not entitled to wage loss benefits beyond February 1, 2008.

On August 13, 2008, a worker advisor provided Review Office with a report from the family physician dated July 6, 2008 to support the position that the worker’s condition beyond February 1, 2008, was directly related to his February 11, 2005, compensable injury. The worker advisor also noted that since the family physician imposed current workplace restrictions, there continued to be a loss of earning capacity as a result of the compensable accident and therefore wage loss benefits remain payable in accordance with subsection 39(2) of The Workers Compensation Act.

In a September 11, 2008 decision, Review Office confirmed that the worker’s ongoing subjective complaints did not have a relationship to the injury of February 11, 2005, and that wage loss benefits were not payable beyond February 1, 2008. In making its decision, Review Office considered the findings of a physical medicine and rehabilitation consultant dated March 28, 2006, the opinion by the WCB medical advisor on February 19, 2007, and the September 27, 2007, report from the Pain Management Centre. Review Office was satisfied that the specialists involved in this claim did not have an explanation for the worker’s ongoing subjective complaints of pain multiple years after the date of trauma. From a neurological standpoint, none of the specialists felt that there was any neurological compromise. It stated that the report from the family physician did not provide rationale to support his position that there was objective evidence for the worker’s symptoms. On September 25, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

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.

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 the worker continued to have symptoms which were related to the workplace accident and injury of February 11, 2005. Prior to the 2005 accident, the worker had very mild low back pain which did not restrict him functionally and the range of motion in his back was normal. He was able to perform his work duties with the accident employer. Following the accident, he had decreased flexion of the lumbar spine and decreased lateral bending. Since the accident, he has not returned to his pre-accident state with a normal range of motion. The worker’s attending physician, who has full knowledge of the worker’s pre and post condition, provided a report dated July 6, 2008, which fully supports the position that the symptoms continue to be related to the workplace accident of February 11, 2005. With respect to the issue of wage loss benefits beyond February 1, 2008, the attending physician also supported permanent workplace restrictions which were considered to be directly related to the February 2005 compensable accident. Overall, it was submitted that the evidence does support that the worker’s current inability and disability continues to be related to his workplace accident of February 11, 2005.

The Employer’s Position

A representative from the employer was present at the hearing. The employer’s representative confirmed that they supported the WCB’s initial decision to cease payment of wage loss benefits past February 1, 2008, and that the worker’s complaints could not be directly linked to the February 11, 2005, compensable injury. The employer felt that the WCB achieved its responsibility in fully examining the worker’s medical condition in order to make a justified decision. No additional information needed to be offered by the employer.

Analysis

The issues before the panel are whether or not the worker’s ongoing complaints are related to the February 11, 2005 compensable injury and whether or not the worker is entitled to wage loss benefits and services beyond February 1, 2008. In order for the appeal to be successful, the panel must find that by February 1, 2008, the worker had not recovered from the effects of the injuries he sustained in the February 2005 workplace accident. We are not able to make that finding.

On reviewing the medical evidence, the panel finds that the February 11, 2005, workplace accident caused the worker to suffer a lumbar strain and a disc herniation at L4-L5. The doctor’s first report indicated subjective complaints of pain in the low back with no radiation and objective findings of decreased lumbar lordosis and decreased range of motion. The chiropractor’s first report from an examination on February 14, 2005, indicated: “Pain is located at the L4-5 spine vertebral level and left PSIS (posterior superior iliac spine). Patient described the pain as ‘feeling like a nerve’. No referred pain noted.”

The CT Scan of May 4, 2005, confirmed a disc herniation at L4-L5 which was central and impinged on the thecal sac.

Although the worker has reported a continuity of pain from the time of the February 2005 accident to the present, the panel notes that the description of the pain as documented in the medical reports has changed over time. As noted earlier, the first reports from February 2005 indicated low back pain in the L4-5 area with no radiation. In September 2005, the pain was described to the neurosurgeon as “a tightening sensation which is fairly dull and localized at the lumbosacral junction. It has a tendency to radiate into the gluteal region, right more than left … It extends on the right side dorsally to the thigh, leg and heel. On the left side it may extend into the lateral aspect of the thigh.” By December 2007, it was reported by the Pain Management Centre consultant that a pain diagram drawn by the worker showed diffuse pain throughout the thoracic region beginning below the tips of the scapulae to involve the entire lumbar region and into the sacrum. He also had pain in the right thigh and leg as well as in the left thigh. Thus, while the pain was originally localized in the L4-5 area, it has since spread to involve the worker’s entire back. The widespread and varied nature of the pain would suggest that the source of the pain is the degenerative changes seen throughout his vertebral column, rather than the L4-L5 herniation which was seen in May 2005.

The panel notes in particular the absence of positive radiologic findings from September 2005 onwards. Although the worker reported to the neurosurgeon on September 22, 2005, that he felt pain radiating to his legs, on examination, the straight leg raise test was bilaterally negative. The medical report of the orthopaedic surgeon dated November 17, 2005, opines that by that date, the herniated disc injury had essentially resolved. In 2006 and 2007, the worker was examined by four physiatrists, all of whom found that there were no longer any neurogenic features to the worker’s condition and basically concluded that the worker’s symptoms were consistent with mechanical back pain. There are also no findings that the worker’s pain is muscular in origin and in fact, muscular/ligamentous injections were not pursued because the worker had little confidence that this treatment would be of any benefit since he felt his pain was coming from the spine.

The file material does reflect longstanding degenerative issues in the worker’s low back. At the hearing, the worker acknowledged that his low back symptoms may date back as far as 1984.

X-rays taken shortly after the accident on March 8, 2005, show small anterior osteophytes at several levels in the mid spine, and are stated to be consistent with mild degenerative change. The MRI scan of November 2005 shows multi-level disc desiccation. The extent of the worker’s degenerative disc disease was described by the WCB medical advisor in February 2006 as being “significant” and the worker was also noted to have facet joint arthropathy.

In December 2007, a treating physiatrist noted that the MRI scan demonstrated L4-5 disc desiccation, right paracentral disc herniation with no root encroachment, bulge and small annular tears along with facet joint hypertrophy. The physiatrist stated: “He may have intradiscal pain generators as well in keeping with MRI evidence of disc desiccation and annular tears as well as small herniations.” The panel agrees with the physiatrist’s comments and is of the opinion that the worker’s current ongoing symptoms are related to the identified desiccation, annular tears and small herniations, all of which are associated with degenerative disc disease. We find that the lumbar strain and L4-L5 herniation injury which the worker suffered in February 2005 was short term in nature and resolved over time. It is therefore the panel’s decision that the worker’s ongoing complaints are not related to the February 11, 2005, compensable injury and the worker is not entitled to wage loss benefits beyond February 1, 2008. The appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of February, 2009

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