Decision #56/09 - Type: Workers Compensation
Preamble
On January 15, 2008, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred at work on January 11, 2008. The claim for compensation was accepted and the worker was paid benefits. On November 27, 2008, Review Office determined that the worker was entitled to wage loss and medical aid benefits after August 18, 2008. The employer disagreed with that decision and an appeal was filed with the Appeal Commission. A hearing was held on April 16, 2009 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after August 18, 2008.Decision
That the worker is entitled to wage loss and medical aid benefits after August 18, 2008.Decision: Unanimous
Background
The worker reported to the WCB that he began to notice symptoms in his low back around January 11, 2008 which started as a dull ache and gradually worsened to a jabbing pain in his back. The worker indicated that his job duties as a carpenter’s helper consisted of bending, kneeling, carrying and nailing wood while building concrete forms. Some shoveling was also performed. The worker indicated that he reported his back difficulties to his foreman on January 13, 2008. The worker acknowledged that he had some low back pain on and off for approximately one year. His back would usually bother him for a day or two and then the pain would subside.
The employer confirmed that the worker reported a low back injury to his foreman on January 13, 2006. “Back started to hurt on Friday and continued to get worse. [Worker] says he doesn’t really know how he hurt it.”
Medical reports from the family physician showed that the worker sought treatment on December 27, 2007 with a three week history of progressive low back pain with sciatica symptoms in the right leg and referred pain from the right low back to just below the right knee. There was pain and tenderness at L4-L5 and at the sciatica nerve distribution right buttock. The diagnosis was lumbar back pain at L4-L5 with sciatica symptoms right leg in L2-L4 dermatomal distribution.
An x-ray report related to the lumbar spine dated December 27, 2007 revealed mild spondylosis.
A progress report from the family physician dated January 12, 2008 showed that the worker complained of persistent low back pain and the diagnosis was acute low back strain.
On January 14, 2008, the family physician reported that the worker had severe low back pain over the past few days with referred pain into both upper legs. There was limited lumbar spinal movements with tenderness at L4-5 bilaterally and positive straight leg raising on the right at sixty degrees. The diagnosis given was severe lumbar back pain with sciatica symptoms bilaterally to the upper legs, L3-4 dermatomal distribution. The pain did not extend below the knees. It was suspected that the worker had a disc herniation at the L3-L4 level.
An MRI of the cervical and lumbar spines was taken on January 22, 2008. The impression read: “Central disc osteophyte complexes indenting the spinal cord at C2-C3 and C4-C5 and a right central disc osteophyte complex indenting the right side of the spinal cord at C5-C6.”
On January 31, 2008, the worker’s claim for compensation was accepted based on the diagnosis of a back strain with sciatica.
On February 11, February 28 and March 31, 2008, the family physician diagnosed the worker with chronic lumbar pain with symptoms of sciatica in the right leg.
A WCB medical advisor reviewed the file on April 4, 2008 at the request of primary adjudication. With regard to diagnosis, the medical advisor indicated that the worker had longstanding mild degenerative changes in his lumbar spine. He stated the family physician suggested that the worker had a right radiculopathy but the MRI did not identify a disc herniation with nerve root compression. In the absence of any definite diagnosis of disc herniation and root compression, it appeared that the pre-existing condition was responsible for the worker’s current clinical status.
A WCB call in examination took place on June 11, 2008. It was concluded from this assessment that the worker’s current status was pre-existing lumbar disc degeneration and facet osteoarthritis at L4-5 and L5-S1. Work restrictions related to the worker’s pre-existing condition were outlined.
On June 24, 2008, the employer was advised that 50% of the total costs of the claim would be removed from the firm’s experience, given that there was evidence of a pre-existing condition which contributed to the worker’s time loss from work.
On July 23, 2008, the file was reviewed by the WCB orthopaedic consultant who assessed the worker on June 11, 2008. He noted that the compensable diagnosis was a low back strain with sciatica, the latter involving the worker’s right lower extremity. By the time of the June 11, 2008 assessment, the worker’s right sided sciatica had resolved. In his opinion, the pre-existing condition was recurrent mechanical low back pain on the basis of lumbar spondylosis, degenerative disc disease and facet joint osteoarthritis. He felt the pre-existing condition likely impacted on the worker’s duration of recovery from the January 28, 2008 low back strain. Preventive work restrictions were outlined.
In an adjudicative decision dated August 12, 2008, it was indicated to the worker that based on the opinion expressed by the WCB orthopaedic consultant, it was determined that he had recovered from his compensable injury of January 11, 2008 and that his ongoing difficulties were related to his non-compensable pre-existing conditions. The worker was advised that wage loss benefits would be paid to August 18, 2008 inclusive.
On September 15, 2008, a worker advisor provided the WCB with a report from an orthopaedic specialist dated September 2, 2008 which outlined the opinion that the worker had an acute disc herniation at L5-S1 which was caused by his compensable work injury. Based on this opinion, the worker advisor asked the WCB to reconsider the adjudicative decision dated August 12, 2008.
Following consultation with WCB healthcare, the worker was advised that the decision made on August 12, 2008 would remain unchanged. On November 7, 2008, the worker advisor appealed the decision to Review Office.
On November 27, 2008, Review Office directed that the WCB’s healthcare management services arrange for the worker to be assessed by an independent neurosurgeon with back specialty given the contrasting opinions and findings between the WCB orthopaedic consultant and the worker’s orthopaedic specialist, in addition to the different interpretations of the MRI findings. In the meantime, Review Office determined that the worker was entitled to wage loss and medical aid benefits after August 18, 2008 and that these would continue pending receipt of the independent neurosurgeon’s report.
In a WCB memorandum dated December 2, 2008, it was documented that the worker was paid benefits from August 19, 2008 to September 30, 2008 inclusive.
On December 11, 2008, the employer appealed the WCB’s decision to charge it with 50% of the costs of the claim and asked for 100% cost relief. The employer noted that the injury is pre-existing by the worker’s own admission and that the employer should not be responsible for an injury that happened before the worker was in their employ.
On December 18, 2008, the Appeal Commission’s assistant registrar contacted the employer to clarify the issue(s) that the employer wanted to appeal. Following the discussion, Review Office was asked to clarify the basis on which they reinstated the worker’s wage loss benefits. Review Office later clarified that it found a cause and effect relationship continued and therefore the worker was entitled to receive further wage loss and medical aid benefits after August 18, 2008. Based on this determination, the issue was framed to reflect this issue and a hearing was arranged.
Reasons
This is an appeal made on behalf of the employer. The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after August 18, 2008.
At the hearing of the appeal, both the worker and a representative of the employer made oral submissions. The employer stressed the importance safety plays in the lives of its employees. The panel notes that this issue was not in question in this appeal. The employer’s position with respect to the specific issue on this appeal was that by August 18, 2008 the worker had recovered from the effects of his compensable injury. It was the employer’s position that any ongoing symptoms the worker was experiencing were related exclusively to a pre-existing back condition. Accordingly, the employer submitted that it should no longer be held responsible for any portion of the worker’s ongoing compensation costs.
In response, the worker acknowledged the existence of a pre-existing back condition. In his testimony, he further acknowledged having experienced back pain in the past from time to time. He specifically testified, however, that in the past the pain always resolved. Further, he stated that he had never had sciatica or referred pain into his right leg, prior to the occurrence of the compensable injury.
The injury which was accepted as compensable by the WCB was diagnosed as a lumbar strain with clinical signs of sciatica.
On August 12, 2008, the worker was advised by his case manager that the WCB had determined that the worker had recovered from his compensable injury and that his ongoing difficulties were related to his non-compensable pre-existing conditions. Benefits were to cease after August 18, 2008.
In making this decision the case manager relied on the medical evidence of the WCB medical consultant including the latter’s opinion provided on July 24, 2008. The consultant indicated that by the time he assessed the worker on June 11, 2008 the worker’s right sided sciatica had resolved. The physician supported this opinion as follows:
- as per [the worker's] June 11 statement, there had been no reference of pain into the leg for over a month, indicating resolution of the right sided sciatica; and
- the examination findings indicated that signs of sciatica had also resolved, with bilateral 70º straight leg raise, negative Lasègue sign, and no abnormal neurological findings.
Further, in the WCB consultant’s opinion there did not appear to have been any specific single injury which resulted in the worker’s current condition. The WCB consultant also reviewed the MRI which was taken of the worker’s spine after the compensable injury occurred. His interpretation was that the MRI did not identify a disc herniation. In the absence of any definite diagnosis of disc herniation and root compression, he was of the opinion that the pre-existing condition was responsible for the worker’s current clinical status.
As set out above, this medical opinion was relied on by the adjudicator in making the original determination that the worker had recovered from the compensable injury and that benefits would not be paid past August 18, 2008 inclusive.
The adjudicator’s decision was overturned, however, by Review Office in a decision given on November 27, 2008. In that decision, the Review Office found that as of August 18, 2008 there continued to be a cause and effect relationship between the compensable injury and the worker’s symptoms.
The panel agrees with that determination. We find that the symptoms which were caused by the worker’s compensable injury had not resolved by August 18, 2008. We have reached this decision based on the following assessment of the evidence.
Worker’s Testimony
In his oral evidence at the hearing of this appeal, the worker stated that he had had back pain in the past off and on but never to the extent that he experienced after the compensable injury and specifically never pain that had refused to go away. He testified that maybe once every three or four months his back would hurt for a day or two and then the pain would go away. Starting in January 2008, however, the pain got intensively worse and never left. Further, he stated that when he did have low back pain prior to the compensable injury, it was not always accompanied by pain into his right leg.
The worker was specifically asked by the panel about the reference in the WCB medical consultant’s report to the worker having said in June of 2008 that he had not had referral of pain into his right leg for over a month. The worker acknowledged that he probably had not had pain for that period because he had not been doing anything and had basically been relaxing and taking it easy. He did not do any work in the month prior, May of 2008. Further, he testified that although he may have been free of pain in his right leg for about a month in June 2008, the pain returned some time between June and September.
The worker also confirmed that when he did have pain prior to the compensable injury, including in December 2007, he never missed a day of work on account of that pain.
With respect to the mechanics of the injury itself, the worker testified that there was a specific instance during which he felt severe pain, specifically when he bent over and picked up some rebar. He testified that that pain was different than the pain he had experienced in December of 2007. He said it was definitely worse.
The decision of primary adjudication in this matter as stated above, relied heavily on the opinion of the WCB medical consultant dated June 11, 2008. That physician stated that in his opinion there did not appear to have been any specific single injury which resulted in the worker’s current condition. In our view, however, based on the evidence as reported in various medical reports in the file, including the examination notes of the WCB consultant and the report of an orthopedic consultant dated September 2, 2008, along with the worker’s oral testimony at the hearing, the worker has consistently indicated that the injury occurred during a specific work related activity, i.e. when he bent over to pick up the rebar.
Further, the WCB medical consultant, in reaching the conclusion that the worker’s compensable injury had resolved, relied on the worker’s statement that as of June 2008 the worker had not had right leg pain for approximately one month. We are satisfied, however, that the evidence discloses that that relief from pain was short lived.
The worker testified at the hearing that the pain which radiates into his right leg came back some time after June and stayed. This is supported by various reports in the medical evidence on file. For example, in a report dated September 2, 2008 from an orthopedic consultant, that physician confirmed that by September of 2008 the worker was continuing to experience symptoms of sciatica. Among other things, that physician specifically indicated that nerve tension signs confirmed positive straight leg raise test at 60º bilaterally. The femoral stretch test was somewhat positive causing pain in the lower back as well.
Further, the panel notes that the chart notes from the worker’s general physician report severe lower back pain with sciatica involving the right leg in medical visits dated June 23, 2008, July 16, 2008, September 17, 2008 and October 22, 2008.
It is clear from this medical evidence therefore, that the worker’s sciatica had not in fact resolved by August 18, 2008.
Finally, we note that in his report of September 2, 2008, the orthopedic consultant expressed the opinion that the MRI scan evidenced an obvious central disc herniation at L5-S1 which “certainly could fit in with the patient’s history of intense pain after bending over and lifting something in January of this year”. This opinion is in contrast with the opinion of the WCB medical consultant who interpreted the MRI as showing no signs of disc herniation.
We note that this matter has been sent back by the Review Office for further adjudication based on Review Office’s request for receipt of further medical evidence. For the purpose of this appeal, however, being the appeal of the Review Office’s finding of ongoing entitlement past August 18, 2008, we find, based on the totality of the evidence that as of August 18, 2008, the worker was indeed entitled to compensation and medical aid benefits.
The employer’s appeal is therefore denied.
Panel Members
S. Walsh, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
S. Walsh - Presiding Officer
Signed at Winnipeg this 4th day of June, 2009