Decision #53/09 - Type: Workers Compensation
Preamble
The worker injured his low back area in a work related accident on April 15, 1991. The claim for compensation was accepted by the Workers Compensation Board (“WCB”) and the worker was paid wage loss benefits to January 29, 1993 when it was determined that he had recovered from the effects of his compensable injury and that his ongoing symptoms were related to a pre-existing condition. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on March 19, 2009 to consider the matter.Issue
Whether or not the worker is entitled to compensation benefits beyond January 29, 1993.Decision
That the worker is not entitled to compensation benefits beyond January 29, 1993.Decision: Unanimous
Background
On April 15, 1991, the worker reported that he injured his right low back area when he slipped while taking a 450 lb. drum of oil off the tailgate of his truck. Following the accident, the worker sought treatment from his family physician and was diagnosed with a back strain. The claim for compensation was accepted and benefits were paid to the worker.
As the worker’s back pain continued despite various forms of treatment, the worker was referred to an orthopaedic specialist and underwent a CT myelogram on March 26, 1992. The results showed no evidence of disc herniation, spinal stenosis or nerve root compression at any of the image levels. There was narrowing of the SI joint bilaterally with a degenerative spur involving the anterior aspect of the right SI joint. No other abnormality was seen.
On June 1, 1992, the worker sought treatment from a chiropractor and was diagnosed with chronic lumbar facet syndrome. Chiropractic x-rays dated June 8, 1992 revealed a slightly short right leg, facet tropism and a mild lumbar list.
On October 9, 1992, the treating chiropractor reported that the worker’s condition had improved by 75% and that a premature return to work exacerbated the worker’s symptoms.
On October 22, 1992, the treating physician stated that the worker was often symptom free but occasionally experienced pain across his low back.
The worker was then assessed by a WCB chiropractic consultant on November 10, 1992. In the consultant’s opinion, the worker had mild residuals of his compensable injury. He did not think the worker would be able to return to his former employment as a truck driver which involved loading and unloading heavy items such as 450 lb. drums but would be capable of other duties. It was indicated that the worker should avoid repetitive twisting and bending for the next two months and should not have to lift over 40 pounds. It was recommended that the worker expand his exercise program as a work hardening process.
On December 21, 1992, the worker was advised that based on the medical reports on file as well as the examination findings of November 10, 1992, it was the opinion of the adjudicator that he was capable of returning to work in alternate duties. Following two months of work restrictions, it was expected that the worker would be capable of returning to his pre-accident employment. The worker was advised that wage loss benefits would be paid to January 19, 1993 inclusive and final.
In an appeal submission dated April 26, 1993, the worker indicated that he had been experiencing pain from his hips down to his legs and that he had to sit down or stand on one leg to relieve the pain. If he sat more than half an hour, he would have a hard time getting up. The worker requested reinstatement of WCB benefits until his pain was completely gone.
On May 6, 1993, the worker advised the WCB adjudicator that he was still off work and that his back pain never got better. He said that he was recently seen by an orthopaedic specialist and that he had an appointment with a neurologist on May 14, 1993. The adjudicator advised the worker that he was diagnosed with a strain and that x-rays showed a pre-existing condition of degenerative disc disease which pre-dated his accident. The worker was advised that it was still the WCB’s decision that he had recovered from the effects of his compensable injury and that his ongoing problems were due to his pre-existing condition.
In a report to the family physician dated May 31, 1993, the orthopaedic specialist outlined his examination findings and concluded that the worker’s main problem was related to sacroiliac joint early degenerative change. He wondered whether the worker was suffering from ankylosing spondylitis, early stage. The specialist expressed the view that the worker should be treated symptomatically with appropriate non-steroidal anti-inflammatory drugs.
In a report to the WCB dated May 14, 1993, the treating neurologist indicated that there were no significant neurological findings and he could find no evidence of an organic basis for the worker’s symptoms.
On August 20, 1993, Review Office determined that the worker was not disabled beyond January 29, 1993 in relation to the accident of April 15, 1991 and that there was no basis for further compensation benefits. Based on the reports from the treating physician and orthopaedic assessments, Review Office was of the view that the worker suffered a muscular strain injury superimposed on some minor degenerative disc disease of the spine. It felt that the effects of the accident caused a temporary aggravation to this underlying condition resulting in symptomatology requiring medical care, and that the effects of the worker’s injury eventually resolved. Review Office concluded that by January 29, 1993, the worker had returned to his pre-accident status and therefore there was no basis for compensation benefits beyond that date.
On April 23, 2008, legal counsel acting on the worker’s behalf appealed Review Office’s decision dated August 20, 1993. In support of his position that the worker was disabled beyond January 29, 1993 due to the effects of his April 15, 1991 accident, legal counsel provided the WCB with extensive medical evidence for consideration. This consisted of reports that were already on the worker’s claim file along with new medical reports subsequent to January 29, 1993. The new evidence revealed that the worker was treated by specialists in orthopaedics, pain management and physical medicine.
In a report dated March 18, 1999, an orthopaedic specialist reported that the worker’s range of motion to his lumbar spine was about 30 to 40% of normal in all planes with a great deal of pain and hesitation. An x-ray examination showed no abnormalities to the five lumbar vertebrae except for some very minimal degenerative changes which were normal for the worker’s age. The worker had some increased sclerosis around the right SI joint that might be an osteophyte. The specialist indicated that in 1996, a bone scan showed that the worker did not have any evidence of uptake around his back to suggest any tumors or infections and that his work-up, last time he saw, was negative. The specialist stated, “Because of the increased leg pain, I am going to do another CT myelogram to ensure we are not missing anything. In addition, I will scan his SI joints to ensure that nothing sinister is occurring with them. I think this gentleman has been off since about 1991 and I do not think he has improved much since I saw him in 1996. Given this, I think this gentleman is going to be disabled for the rest of his life. I do not think it is likely he will ever recover from his back problems. He is quite limited at this time. I think he has a chronic pain syndrome.”
In a follow up report dated April 7, 1999, the orthopaedic specialist noted that the worker’s CT scan showed some mild stenosis at L4-5 which he did not feel was clinically significant. The worker had some right S1 joint arthrosis with an osteophyte formation, however this was probably not presently very active given the bone scan was negative. The specialist maintained that the worker was totally disabled and thought he suffered from a chronic pain syndrome.
A “Functional Capacity Evaluation Report” dated June 21, 1999, indicated that the worker “was not functioning at a competitive worker level”.
In response to questions posed by the worker’s solicitor, the orthopaedic specialist stated in his report dated September 21, 1999 that: “The symptoms he is presently experiencing are secondary to chronic pain that probably evolved from his injury of April 14, 1991. In terms of the injury suffered in April of 1991, one would expect a full recovery of this type of injury. However, a certain percentage of people do continue to have pain that evolves into a chronic pain syndrome. This gentleman’s disability is secondary to pain. His functional capacities are outlined in the PAR Health Services’ Functional Capacity Evaluation report.”
On December 2, 1999, a Canada Pension Plan Review Tribunal report stated the following: “…the Review Tribunal finds that the Appellant’s condition is both severe and prolonged preventing him from any type of gainful employment. By May 27, 1996, [orthopaedic specialist] had determined that his condition was not operable and “…there was little further they could do for him…” He recommended continuing using the brace as well as exercises and use of the cane. As a result the Review Tribunal deems the Appellant to be disabled as of May 1, 1996. The effective date of the payment of the pension is September 1996.”
The most recent medical evidence is a report from the director of the Pain Management Centre dated August 10, 2007. He indicated that the worker had been seen at the centre since October of 1995 in response to a referral from his orthopaedic specialist. The worker presented with low back pain dating back to 1991 which resulted from a workplace injury. The pain seemed to be localized to the left sacroiliac joint and he received a number of injections to this joint with temporary improvement in his symptoms. The specialist noted that the worker had not had sacroiliac joint injections since 2002 and that the benefit from these injections prior to this time appeared to only last a couple of weeks. He did not believe that further injections were being considered. He stated that pharmacologic management continued to play an ongoing role in the worker’s symptom management.
On July 15, 2008, the Review Office indicated there would be no change to its previous decision of August 20, 1993. Review Office determined that the medical documentation included in the legal representative’s submission did not support a causal relationship between the worker’s symptoms after January 29, 1993 as being related to his April 15, 1991 compensable injury. Review Office confirmed its previous decision that as of January 29, 1993, the worker returned to his pre-accident status and therefore his entitlement to WCB benefits ended. On December 12, 2008, legal counsel 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. As the worker’s claim was made in 1991, his benefits are assessed under the Act as it existed at that time (the “1991 Act”). Under subsection 4(2) of the 1991 Act, 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 was represented at the hearing by legal counsel. The submission made on behalf of the worker was that the injuries sustained by the worker on April 15, 1991 changed his life drastically. Prior to the injury, he was gainfully employed in a physically demanding position. Since the accident, he has developed a chronic condition which prevents him from returning to work. His medical treatment providers support that the cause of his continuing problems was the incident on April 15, 1991. Most notably, the opinion of the orthopedic specialist dated September 21, 1999 is that it is highly unlikely that the worker will ever improve and that: “The symptoms he is presently experiencing are secondary to the chronic pain that probably evolved from his injury of April 15, 1991.” It was submitted that the worker’s claim is a legitimate one and that his benefits should be restored.
Analysis
The issue before the panel is whether or not the worker is entitled to compensation benefits beyond January 29, 1993. In order for the appeal to be successful, the panel must find that by January 29, 1993, the worker remained disabled from the effects of the injury he sustained in the April 15, 1991 workplace accident. We are not able to make that finding.
The panel accepts that at the present time, the worker is disabled from regular employment. His presentation at the hearing in March 2009 suggested that his capacity to work is impaired. A functional capacity evaluation report dated June 21, 1999 determined that the worker was not functioning at a competitive worker level. The panel notes that the work limitations noted in the functional capacity evaluation included not only limitations typically associated with an injured low back (ie. limited ability to push/pull, lift and carry, reduced sitting and standing tolerance) but also included more extensive limitations which would not seem to be related to a back injury, including slow performance during dexterity and coordination activities and reduced cognitive functioning. On November 30, 1999, the Canada Pension Plan Review Tribunal deemed the worker to be disabled as of May 1, 1996, and the panel does not disagree with this finding. The question for this panel, however, is whether or not the worker was disabled in January 1993 and beyond, as a consequence of his 1991 compensable injury.
In his submission to the panel, legal counsel for the worker relied heavily on the medical reports of the orthopaedic specialist dated March 18, 1999 and September 21, 1999 to establish that there is continuity between the worker’s April, 1991 mechanical back injury and his current chronic pain syndrome. After reviewing the evidence, the panel is not prepared to rely on these reports to reach that conclusion.
At the hearing, the panel inquired as to whether or not the orthopaedic specialist was provided with the worker’s WCB medical file, which covered the period April 1991 to May 1993. Legal counsel could not confirm that the orthopaedic specialist had had the opportunity to review this material prior to forming his opinion. The panel notes that in the report by the orthopaedic specialist dated January 29, 1998, the reported history included the following statements:
- This gentleman was referred to me on May 8, 1996 and was seen for ongoing back pain. He was an old ex-trucker who was off because of back pain;
- He had not worked since 1991 being five years from the time of his injury that I saw him;
- He tried to catch an oil drum that was quite heavy;
- He was treated with Robaxacet, physio and chiropractic manipulations which did not help;
- His pain is a constant 6/10, left side being more severe than the right
- He states he cannot sit longer or stand longer than 20 minutes at a time;
- He is limited to 10 minutes of walking;
- Overall, he has had no improvement since the time of his injury (emphasis added).
This history outlined by the orthopaedic specialist differs in many important respects from the information contained in the WCB file. The WCB file reflects that the worker did return to work for the accident employer in August, 1992, although he did not return to his former position as a truck driver. The worker performed light duties which involved processing empty one litre plastic bottles. He worked full time at these light duties until September 29, 1992, at which time he was laid off due to shortage of work. In a letter to the WCB from the worker dated September 11, 1992, he indicated that he was having a hard time standing at work and that when he stood for more than 4 to 5 hours, he would have trouble with pain in his legs and his sides. As a result, the WCB reinstated his wage loss benefits after he was laid off at the end of September.
The WCB medical file documents that after he commenced chiropractic treatment, the worker experienced significant improvement. At a call-in examination on November 10, 1992, the WCB’s chiropractic consultant found that the worker had only mild residuals of his compensable injury of April 15, 1991. While the chiropractic consultant did not think that the worker would be able to return to his former employment as a truck driver who was required to load and unload heavy items such as 450 lb drums, he was of the opinion that there were many other things that the worker could do. He recommended a two month restriction on repetitive bending and twisting, and to avoid lifting over 40 lbs. No other restriction or disability was indicated.
In October, 1992, the treating chiropractor reported a 75% overall improvement since commencing treatment in May, 1992. By December 23, 1992, the treating chiropractor reported that the worker appeared to have reached a plateau of approximately 80%. The subjective complaints were limited to periodic low back and leg pain, dependent upon activity “and, it seems, a lack thereof.”
On May 14, 1993, the worker was examined by a neurologist who found no neurological defect and no evidence of an organic basis for his reported symptoms. The neurologist noted that as the worker undressed and redressed he was able to stand, flex his hip, and stand on each leg to replace his pants without any apparent pain or discomfort. He was also able to sit and fully flex his spine and touch his toes without any apparent discomfort. The neurologist was of the view that no further treatment was indicated.
Examination on May 31, 1993 by an orthopaedic surgeon detected no neurologic abnormality. The orthopaedic surgeon opined that any ongoing pain complaints were related to sacroiliac joint early degenerative change, which was reflected in earlier diagnostic tests.
The panel notes that there is considerable evidence that the worker is suffering from a number of other non-compensable medical conditions which could be the cause of his current level of disability. As noted earlier, there is evidence of degenerative changes in the worker’s spinal column which are part of the normal aging process. The materials submitted on behalf of the worker reference cardiovascular and diabetic issues. There is indication that the worker suffered a stroke in 1996, and at the hearing, it was confirmed that the worker has suffered mild or “mini-strokes” in the past, and had a fairly significant stroke in 2007.
In the panel’s opinion, the medical evidence from the months preceeding and following the termination of benefits on January 29, 1993 suggest that during that period, the worker had essentially recovered from the effects of his April 15, 1991 injury and was able to resume earning income at that time. There was certainly no evidence of continuous debilitating symptoms and disability, which is what the orthopaedic specialist appears to have based his 1999 opinion upon. The panel therefore does not accept the orthopaedic specialist’s opinion that the worker’s current disability is related to the compensable injury and instead we prefer the more proximate evidence which suggests that the worker was fit to return to work and earn income as of January 29, 1993.
We therefore find that the worker is not entitled to compensation benefits beyond January 29, 1993. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 30th day of April, 2009