Decision #44/09 - Type: Workers Compensation
Preamble
The worker sustained multiple injuries in a work related accident on August 22, 1989. His claim for compensation was accepted by the Workers Compensation Board (“WCB”) and benefits were paid. The worker is presently appealing the WCB’s decision that his ongoing low back difficulties are not related to his compensable injury. An application to appeal was filed with the Appeal Commission and a hearing was held by teleconference on February 10, 2008 to consider the matter.Issue
Whether or not the worker’s low back difficulties are related to the August 22, 1989 compensable injury.Decision
That the worker’s low back difficulties are not related to the August 22, 1989 compensable injury.Decision: Unanimous
Background
The worker reported to the WCB that he slipped off the bucket of a machine and fell to the ground on August 22, 1989. Medical information revealed that the worker suffered a laceration to his forehead, a fracture to his nose and fractures to two transverse processes of the lumbar spine and spinous processes. The worker also had a bruise to his right elbow, low back and interscapular area.
On September 28, 1989, the worker was involved in a non-work related motor vehicle accident and suffered a fracture to his left humerus.
Based on information received from the family physician, the worker was advised on February 5, 1990, that he was considered to be recovered from the effects of his August 22, 1989 compensable accident and that any disability beyond October 30, 1989 was the result of his motor vehicle accident and was not a WCB responsibility.
On April 29, 1991, the worker was assessed by a WCB impairment awards medical advisor. The worker indicated that he had recurrent lumbar pains but the discomfort was not overly severe. He thought his back pain may have been more related to the motor vehicle accident than to his compensable injury.
On November 18, 1992, the worker was again assessed by the WCB impairment awards medical advisor. The worker complained of frontal headaches on a daily basis and that he was receiving chiropractic treatments with regard to his neck and back. Following his examination of the worker, the medical advisor indicated that the worker’s main loss of range of motion in his back was backward extension. The worker reported pain radiating down his lateral right leg and pain and tenderness was present in the sacroiliac joint. The medical advisor outlined the opinion that the worker’s lumbar fractures which involved two transverse processes and one spinous process are usually of no consequence and required no special treatment as they usually heal with or without bed rest. The medical advisor referenced the worker’s motor vehicle accident of September 28, 1989. He stated that full details of the accident were not given by the worker but the worker stated that he sustained a fractured left humerus and a further strain to his low back. The medical advisor indicated that the left humerus injury was not compensable and it was not possible to separate the effects of either accident upon the worker’s low back. The examination of November 18, 1992 showed a loss of lumbar range of motion of only 45 degrees out of an expected 240 degrees.
On December 24, 1992, the case was considered by Review Office based on an appeal submission from the worker’s solicitor. Review Office determined that the worker was entitled to a 10.6% permanent impairment rating effective October 31, 1989. This included 5.6% for loss in range of motion to the worker’s lumbar region and 5% for cosmetic impairment and diminished sensory loss to the forehead.
For the next 10 years, there was no activity on the WCB file. In September 2003, the worker contacted the WCB to advise that he was having significant headaches as well as low back pain and that he wanted to re-open his claim.
Medical information was requested and received from a chiropractor and a general practitioner. An x-ray of the lumbar spine dated September 30, 2003 showed “Mild degenerative disc disease at L4, L5.” Also received was an x-ray report of the lumbosacral spine dated August 25, 1989. It showed “…undisplaced fractures in the transverse processes of L2 and 3 on the right as well as a fracture of the spinous process of L2. No other fractures are seen.”
A WCB medical advisor reviewed the file on February 9, 2004 and was unable to relate the worker’s current difficulties to his compensable injury.
On March 5, 2004, a WCB case manager notified the worker that medical information was obtained from a chiropractor and a practitioner but the information did not provide enough clarification to confirm the current diagnosis of his low back problems and the cause of his headaches. Without further information, the WCB was unable to relate the worker’s ongoing problems to his 1989 claim.
The WCB file then became inactive for a period of almost 3.5 years. In November 2007 the worker contacted the WCB indicating he would like to re-open his claim. The worker was advised that new medical evidence would have to be obtained.
In January 2008, a treating physician reported that the worker was treated for pain, swelling and stiffness in both knees and he never complained of back or neck symptoms that were related to his injury in 1989.
On March 20, 2008, the worker was advised of the WCB’s position that there was no relationship between his current symptoms and the 1989 compensable injury.
Subsequent reports consisted of a lumbar spine CT scan dated April 4, 2008. At the L3-4 area, there was mild facet joint osteoarthritis and mild diffuse bulging of the intervertebral disc. The L4-L5 region showed a moderate facet joint osteoarthritis and possible small left central disc protrusion. The L5-S1 region revealed moderate facet joint osteoarthritis and mild diffuse bulging of the intervertebral disc.
On May 1, 2008, a chiropractor reported that the worker presented himself for examination on May 1, 2007. With regard to back complaints, the worker complained of pain and stiffness in his low back that went down both legs. The worker showed decreased range of motion in his lumbar spine in all directions with pain. The chiropractor commented that the worker was seen for assessment 1 to 3 times per month on an as-needed basis.
On October 14, 2008, the worker was advised that no change would be made to the previous decision. It was still the WCB’s position that an ongoing relationship did not exist between the worker’s current low back complaints and the August 22, 1989 injury. On October 24, 2008, the worker appealed the decision to Review Office.
On November 18, 2008, Review Office was unable to relate the worker’s low back problems which he brought to the WCB’s attention in November of 2007 to his compensable low back injury of August 22, 1989. Review Office stated there was no clinical objective medical evidence to relate the worker’s current low back complaints to his August 1989 injury. It referred to the opinion expressed by the WCB medical advisor who examined the worker on November 18, 1992 that the fractures found on the x-ray report would require no special treatment as they usually would heal with or without bed rest. It stated that the worker’s physician indicated that the worker’s main complaints of recent years had been his knee and not his low back. After its review of all the evidence, Review Office agreed with the position taken by the WCB medical advisor and case manager.
On December 29, 2008, the worker appealed Review Office’s decision to the Appeal Commission and submitted further medical information from his treating physician and a chiropractor. On November 28, 2008, the treating physician stated, “He complain (sic) of chronic back pain and it is possible that it can be related to his old injury.” On December 16, 2008, the chiropractor concluded her report by stating, “[the worker’s] history of trauma to his lower back and neck has significantly altered the biomechanics of his spine causing his current symptomatology to be ongoing and relief is only temporary.” On February 10, 2009, a hearing was convened via teleconference to determine whether the worker’s low back difficulties are related to the injury he sustained in the workplace on August 22, 1989.
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. As the worker’s accident occurred in 1989, his benefits are assessed under the Act as it existed at that time (the “1989 Act”). Under subsection 4(1) of the 1989 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. According to subsection 4(2), a worker who suffers a personal injury by accident is entitled to compensation for so long as the injury disables the worker.
The Worker’s Position
The worker and his spouse participated in the hearing by teleconference. It was argued that the worker has low back symptoms which have been with him since his fall of August 22, 1989. He had no back pain and was fully functional prior to the fall. The force of the fall caused the fractures in the L2-L3 vertebrae. The force then traveled throughout the spine and could have caused the bulging discs at L4-L5, the area closest to the fractures. In other words, the force there was not strong enough to cause a fracture, but may have been strong enough to damage or weaken the discs, resulting in the bulging. It was noted that only x-rays were taken after the fall, and x-rays would not have detected bulging discs. It was only after years of back pain that the worker went for an MRI in April, 2008. It was at that time that the disc injuries were identified.
Overall, it was submitted that the worker was fully functional before the accident, and since the accident, he has not been able to function in the same way. His current low back symptoms should be considered related to the August 22, 1989 compensable injury.
Analysis
The issue before the panel is whether or not the worker’s current low back complaints are related to the August 22, 1989 compensable injury. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries he sustained in the August 22, 1989 workplace accident. We are not able to make that finding.
The medical evidence from the time of the August 22, 1989 workplace accident indicates that in addition to very severe lacerations to his face, the worker also suffered injury to his lumbar spine. An x-ray taken August 25, 1989 showed undisplaced fractures in the transverse process of L2 and 3 on the right as well as a fracture of the spinous process of L2. No other fractures were seen. As noted by the worker’s wife at the hearing, no MRI or CT scan was taken at the time.
The worker’s evidence at the hearing was that prior to the accident, he had no difficulties with his lower back and he was fully functional. Following the accident, he was able to return to work in 1990 as a truck driver. The panel notes that his return to work was delayed by injuries he suffered in a motor vehicle accident, which did not include any direct injury to the lower back. The worker was able to keep working until 1998, at which time the pain from his low back prevented him from continuing. The worker stated that he had pain throughout his years working as a truck driver, but he simply worked through the pain until he could not do so anymore. At the hearing, the worker described the pain as a constant aching pain, like a toothache, in the lower back which then creates stiffness in the hips. The pain is largely localized around the belt line, although sometimes he has a sharp pain going down his legs. He cannot stand long because his back hurts, nor can he sit or lay down in bed for very long, because of the pain. The pain and stiffness has become worse and worse as the years go by.
The more recent medical reports on file describe the worker’s current condition as follows:
- The September 29, 2003 report from the treating chiropractor diagnoses the worker’s back problems as: “bilateral sacroiliac joint subluxation with associated muscle hypertonicity.” The worker has been treated for this condition since July 31, 2000.
- The CT scan of April 4, 2008 indicated mild facet joint osteoarthritis at L3-4, and moderate facet joint osteoarthritis at L4-5 and L5-S1.
- The CT scan of April 4, 2008 also showed mild diffuse bulging of the intervertebral disc at L3-4, a possible small left central disc protrusion at L4-5, which is slightly indenting the thecal sac and mild diffuse bulging of the intervertebral disc at L5-S1.
On a balance of probabilities, the panel is unable to relate these conditions to the workplace injury of August 22, 1989. With respect to the multi-level facet joint osteoarthritis, it is notable that the one area on the CT scan which showed no abnormality was L2-3, which was the location of the undisplaced fractures the worker suffered in the 1989 accident. If the osteoarthritis was caused or accelerated by the compensable injury, it would be expected that the osteoarthritis would be present at the L2-3 facet joint. As the CT scan indicates there is no abnormality at the L2-3 level, the panel finds that the fractures suffered by the worker in the August 1989 accident have resolved and are no longer causing any of the worker’s symptoms.
With respect to the soft tissue findings, namely the sacroiliac joint subluxation and the disc bulging/protrusion, we have given consideration to the worker’s argument that there was a “ripple effect” and that injury to the soft tissues occurred on impact. We have difficulty accepting the argument.
At the hearing, the worker was asked about the mechanism of injury and how he fell on the day in question. The worker did not have much memory of the incident, but indicated that he fell out of the bucket of a loader and to the ground. The lacerations to his face were probably caused by contact with the ladder as he fell. The undisplaced fractures were caused when he hit the ground. The worker believed that he landed on his back on the ground.
Given this mechanism of injury, the “ripple effect” does not appear plausible. The manner in which the worker hit the ground was such that the main force or contact point of the fall was felt at L2-3. That is where the fractures occurred. If there was a continuing “ripple” from the point of impact, one would have expected it to be a horizontal load and move forward into the chest, rather than a vertical load. In other words, the force would not be expected to travel along the spinal column from L2-3 down to the sacrum. Further, the severity of the worker’s symptoms is worse lower on the spine, rather than higher. One would expect that the symptoms would be worst at the point of impact, then become less pronounced as the distance increases. The panel again notes that L2-3 showed an essentially normal study, with no bulging of the disc. Contrast this to the chiropractor’s findings, where the subluxation was identified as being in the sacroiliac joint.
For the foregoing reasons, we are unable to relate the worker’s current low back difficulties to the compensable injury of August 22, 1989. The worker’s appeal is therefore dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of March, 2009