Decision #35/09 - Type: Workers Compensation

Preamble

This case was previously the subject of a file review at the Appeal Commission to consider the issue as detailed below. In Appeal Commission Decision No. 116/03, it was determined by an appeal panel that the worker was not entitled to benefits beyond March 23, 2001. With the assistance of legal counsel, the worker requested reconsideration of Decision No. 116/03 pursuant to section 60.10 of The Workers Compensation Act. On March 28, 2008, the Chief Appeal Commissioner granted the request for reconsideration and a hearing was held on August 28, 2008.

Following the hearing the panel sought additional medical information from three treating physicians. This information was later received and was provided to the interested parties for comment. At the request of the worker, the hearing reconvened on January 29, 2009 to allow the interested parties an opportunity to make oral submissions on the new medical material.

Issue

Whether or not the worker is entitled to wage loss benefits for recurrent time loss from work commencing March 23, 2001.

Decision

That to date, the worker is not entitled to wage loss benefits for recurrent time loss from work commencing March 23, 2001.

Decision: Unanimous

Background

On November 26, 2000, the worker was helping his employer lift a 350 pound spring when he pulled his right groin muscle and low back. When seen for treatment at a local hospital facility and later by his treating physician, the worker was diagnosed with a right groin injury and 2 degrees nerve entrapment (radiculopathy). The claim for compensation was accepted and the worker was paid benefits up to early January 2001 when it was determined by the treating physician that he could return to a lighter type of work.

In late March 2001, the worker advised the Workers Compensation Board (the “WCB”) that he had been limping for the last week when he noticed a lump on the right side of his groin area and decided to go see a physician. He attributed his current difficulties to his injury of November 26, 2000. The worker denied any new accidents or injuries and advised that he had been performing light duty work which required no lifting. He reported that he had been laid off by his current employer on March 23, 2001.

By report dated April 5, 2001, the treating physician indicated that the worker was seen on March 29, 2001 as a result of acute right abdominal pain which he described as exacerbated by lifting and bending approximately one week prior. The treating physician summarized that the worker had variable symptoms of right groin and low back pain and that he requested a general surgical opinion as there were some aspects of the worker’s symptoms that were somewhat confusing.

On April 10, 2001, the general surgeon examined the worker’s abdomen and found it to be normal. There was some tenderness in the right groin below the inguinal ligament but there was no evidence of any hernia or swelling in the region. The surgeon commented that he could not detect a hernia and that the worker’s pain was most likely muscular in origin.

On April 20, 2001, a WCB medical advisor reviewed the medical reports and opined,

“The clmt [claimant] appears to have had pre-x groin pain and swelling – saw [doctor] in Jan/00. Work related injury in Nov/00 – same pain with slight swelling: This tends to suggest aggravation of a pre-x problem. Has had some healing but the natural history of these types of problems tend to be – injury with healing, re-injury with healing, etc. The usual healing time is 2-3/52. [doctor] approved a RTW [return to work] Jan. 4/01. I feel that this clmt’s injury has resolved.”

By letter dated May 15, 2001, the worker was advised by primary adjudication that wage loss benefits would not be reinstated as there were no objective findings to confirm that he had an injury other than the initial diagnosis of a right groin injury which had resolved.

On May 11, 2001, the worker was seen by a different physician and was diagnosed with the following conditions:

  1. Right adductor strain/tendonitis;
  2. L.M. strain; and
  3. Sacroiliac ligament sprain.

The new medical information was reviewed by a WCB medical advisor on June 6, 2001. He stated the new information did not alter his previous opinion. On June 7, 2001, the WCB case manager advised the worker that no change would be made to the decision dated May 15, 2001.

On August 22, 2001, legal counsel for the worker appealed the case manager’s decision of June 7, 2001 and submitted a June 12, 2001 medical report for consideration. The treating physician stated, in part, that his working diagnosis of low back strain/sprain, and right upper thigh adductor strain tendonitis was based on his physical examination findings of May 11, 2001. He advised the worker to stay off work and to ask the WCB to reinstate his benefits.

The case was considered by Review Office on September 14, 2001. It confirmed primary adjudication’s decision that the worker was not entitled to wage loss benefits for time loss commencing on March 23, 2001 in relation to his November 2000 work injury. Review Office noted that the worker’s injury was diagnosed as a muscular strain and he was found fit to return to work on January 8, 2001. He did not seek further medical attention for ongoing complaints until the end of March 2001 when he complained of right low groin pain associated with his injury. In the opinion of Review Office, the medical evidence supported that the worker had recovered from the effects of his November 2000 injury and that his recurrent time loss from work could not be reasonably associated with this injury.

On May 1, 2002, legal counsel for the worker submitted new information to the WCB for consideration. These consisted of diagnostic test results ranging from January 28, 2002 to March 27, 2002, a report by an orthopaedic specialist dated April 2, 2002 and from another physician dated April 23, 2002.

With respect to a CT scan performed on March 27, 2002, it was reported that the worker had a broad based right paracentral and right posterior disc herniation with compression of the right S1 root and to a lesser extent the exiting right L5 root.

On April 2, 2002, the orthopaedic specialist reported that the herniation found on the CT scan was causing poor shock absorption and mechanical lumbar back pain. Although there was the potential for nerve root entrapment on the right, there was clinically no evidence of this. If the worker developed more leg symptomatology in keeping with nerve root entrapment, surgery may be beneficial. If it was predominantly back pain, the worker should carry on conservatively.

In a report dated April 23, 2002, the physician reported that he saw the worker on January 29, 2002, February 22, 2002, March 7 and 21, 2002 and April 5, 2002. In his opinion, since January, 2002, the worker’s disc herniation was consistent with a disc protrusion, and was caused by his workplace injuries.

On May 24, 2002, Review Office noted that there was no medical indication of a condition occurring at the time of the injury on November 15, 2000 which would lend credibility to a diagnosis of a disc herniation. Review Office concluded that the worker’s wage loss commencing on March 23, 2001 had no relationship to this particular claim.

On June 26, 2003, legal counsel appealed Review Office’s decision to the Appeal Commission and a file review was arranged. In its decision dated October 10, 2003, the appeal panel determined that the worker’s physical difficulties in March 2001 were not a recurrence of his November 16, 2000 compensable injury. It based its decision on the following findings:

  • the worker had been cleared by his treating physician to return to work on January 4, 2001;
  • the worker worked for approximately 3 months before being laid off in March 2001; and
  • he did not seek any medical attention during the 3 month period.

On October 18, 2007, legal counsel requested reconsideration of Decision No. 116/03 and in support of the request, submitted new information, which included a medical report dated March 5, 2007 by the worker’s treating physician.

On March 28, 2008, the Chief Appeal Commissioner determined that the March 5, 2007 medical report was sufficiently new, substantial and material such as to warrant a reconsideration and directed that the Appeal Commission rehear the matter. A new hearing took place on August 28, 2008.

Following the hearing, the appeal panel requested additional information from three physicians who treated the worker. This information was later received and was forwarded to the interested parties for comment. On January 29, 2009, the hearing reconvened at the worker’s request to allow an opportunity to verbally comment on the new information which was obtained by the panel.

Reasons

Worker’s submission:

The worker was represented by legal counsel who submitted that when the matter appeared before the previous panel of the Appeal Commission, it was accepted at that time that the worker had some sort of muscular or ligamentous injury which ought to have resolved within a fairly limited period of time. What has become clear over time is that in fact, the worker suffered a hernia and a disc herniation while working for the accident employer. There have been problems with diagnosing the worker’s injury, however the new medical opinion dated March 5, 2007 clarifies that the hernia and disc herniation resulted from the November 15, 2000 accident. These types of injuries do not heal in the same way as muscular injuries, and it was the worker’s position that he is still suffering the results of those injuries and ought to be entitled to wage loss benefits from March 23, 2001. He has not been able to go back to work since that date.

Applicable Legislation:

Pursuant to section 37 of The Workers Compensation Act (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. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.

Analysis:

To find that the worker is entitled to wage loss benefits for recurrent time loss from work commencing March 23, 2001, we must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity as a result of his compensable injury. The worker’s claim was accepted by the WCB based on a diagnosis of a pulled right groin muscle and a lower back strain. In the panel’s opinion, by March 23, 2001, the worker had recovered from the effects of his compensable lower back injury and therefore no further wage loss benefits are payable in respect of this injury. The panel agrees with the WCB that the low back condition was limited to a strain-type injury and we do not accept that the L5-S1 disc herniation which was diagnosed in 2002 resulted from the November 2000 accident.

With respect to the right groin, the panel finds that the worker’s injury was more serious than a pulled groin muscle and that in fact, he suffered a femoral hernia, which was not formally diagnosed until November, 2005. Although the femoral hernia has not been surgically repaired, the panel finds that to date, the symptoms related to the femoral hernia have not caused any impairment to the worker’s earning capacity, and therefore at present there is no further entitlement to wage loss benefits in respect of this injury.

In coming to our decision, the panel gave specific consideration to the general practitioner’s report of March 5, 2007, which was the new, substantial and material evidence which gave rise to this reconsideration of the previous appeal panel’s decision. With respect to the lower back injury, the report adds no new information regarding the etiology of the worker’s current back complaints. Following the hearing, the panel requested clarification from the general practitioner as to the examination findings and other information he reviewed prior to preparing the report and forming his opinion. By his response letter dated December 22, 2008, it would appear that the general practitioner based his opinion on the history as stated by the worker and CT scans dated March 27, 2002 and June 13, 2002. All of this material was before the first Appeal

Commission panel and was considered by it. After conducting our own review of the medical information contained in the WCB file, we agree with the first appeal panel’s reasoning. In particular, we rely on medical information from late 2000 to early 2001 where the worker was cleared by his treating physician to return to work on January 4, 2001 and did continue to work without complaint to his doctor until being laid off in March, 2001. Although the CT scans performed in 2002 subsequently diagnosed the worker as having suffered a L5-S1 posterior disc protrusion and ossification of the ligamentum flavum, we find that these conditions were not present in early 2001 and were not sustained in the November, 2000 workplace accident.

As noted earlier, the femoral hernia was not diagnosed until November, 2005. On multiple occasions in 2001 and 2002, the worker was examined by physicians and specialists, none of whom detected the presence of a hernia. Nevertheless, the worker has consistently complained of pain in the same right groin area. The worker’s evidence at the hearing was that right from the beginning, he felt a lump in that area, despite the fact that none of the doctors were later able to elicit any evidence of a hernia. It is the panel’s understanding that after the onset of a hernia, it is possible that an individual may have no further symptoms for a variable period of time. Others may have continuing discomfort or pain, but without any bulging. Typically over time, a hernia will gradually enlarge and may be accompanied by increased bulging or swelling.

The heavy lifting job duty which the worker was performing on November 15, 2000 is the type of precipitating event which is commonly associated with the development of a hernia. The worker claims to have detected a lump at the time, and has consistently complained of pain in that region. On a balance of probabilities, the panel finds that the femoral hernia diagnosed in November 2005 is related to the workplace accident of November 2000, and the worker is entitled to compensation related to this injury.

On reviewing the evidence, however, the panel finds that since March 23, 2001, the worker has not suffered a recurrent loss of earning capacity related to the hernia. When questioned by the panel at the hearing, it was evident that it is the symptoms related to the worker’s spine which are causing him the most difficulty. When asked about his present condition and what he is able to do, the worker primarily referred to the effects of his spinal injuries. His ability to stand, walk and sleep depends on the condition of his spine and the extent of his pain associated with the spine. He stated: “Depends on how the spine is going. I can be at a low level to a high level. It is not stable.” Although the worker did reference the fact that he has a constant pain in his groin, the panel’s impression was that this pain is not incapacitating. As a result, we find that to date, the worker has not suffered any recurrent time loss due to the hernia injury.

The panel therefore finds that:

  • The worker sustained a femoral hernia in the workplace accident of November 15, 2000.
  • The worker continues to suffer from the effects of this compensable injury.
  • Since March 23, 2001, the effects of this compensable injury have not caused the worker to suffer any loss of earning capacity.
  • To the date of this decision, the worker is not entitled to wage loss benefits for recurrent time loss from work.

The worker’s appeal is allowed in part.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of March, 2009

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