Decision #76/09 - Type: Workers Compensation

Preamble

On February 2, 2005, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred at work on January 16, 2005. The claim for compensation was accepted and benefits were paid to the worker to July 5, 2006 when it was determined by primary adjudication and confirmed by Review Office that the worker’s ongoing back difficulties were related to degenerative disc disease and not his compensable injury. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on November 25, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after July 5, 2006.

Decision

That the worker is not entitled to wage loss benefits after July 5, 2006.

Decision: Unanimous

Background

The worker reported to the WCB that he was working on a 12 foot step ladder on January 26, 2005 when the step ladder went sideways and he fell backwards. On January 27, 2005, the treating physician reported the areas of injury to be the worker’s low back and upper shoulders. The diagnosis rendered was a back strain. The claim for compensation was accepted and benefits were paid to the worker.

X-rays of the lumbosacral spine dated February 17, 2005 revealed deformity of the L4 vertebral body anteriorly most likely the result of an old injury. There was narrowing of the intervertebral disc space at L3-4 level. Small anterolateral osteophytes were seen with no evidence of a disc fracture. The dorsal spine x-rays showed no evidence of bone or joint abnormality.

As the worker’s back pain continued despite physiotherapy treatment, a WCB physiotherapy consultant suggested that the worker undergo a CT scan. This assessment took place on July 5, 2005. The report stated,

“At L3-L4, the disc is markedly narrowed and degenerative. There is diffuse annular disc bulging along with a tiny central protrusion. No nerve root compression or spinal stenosis is identified. A Schmorl’s node is present in the superior end plate of L3. There is also an old anterosuperior end plate compression fracture on the left at L3. Pedicles are intact.

At L4-L5, there is broad-based central disc protrusion with mild compression of the anterior surface of the thecal sac. No central or foraminal stenosis is identified.

At L5-S1, the disc is degenerative and narrowed. Posterior ridge osteophytes are present at this level. There is mild retrolisthesis of L5 on S1. Broad-based central/left paracentral disc protrusion is present with approximately 1 cm. caudal migration of disc material and mild compression of the thecal sac and left S1 root at its origin. No central or foraminal stenosis is identified.”

Following a WCB call in examination on August 10, 2005, the WCB medical advisor reported that the worker showed no evidence of abnormal pain behavior. He had marked loss of lumbar lordosis with marked paraspinal spasm in the low back. There was reduction in range of movement of the lumbar spine. There was some evidence of radiculopathy on the left leg with evidence of loss of muscle strength and reduction of reflexes at the knee. The medical advisor commented that the disc protrusion at left S1was in keeping with the clinical findings and the pain described by the worker. Two weeks of restrictions were outlined and a referral to a physical medicine and rehabilitation specialist was suggested.

A September 24, 2005 report from the physical medicine and rehabilitation specialist outlined his examination findings and noted that the worker presented with lumbosacral and left lower limb pain. The CT demonstrated multilevel discopathy with the most prominent finding at L5-S1. There was a disc herniation with caudal migration affecting the left S1 nerve root. Transforaminal injections were suggested as a form of treatment.

In a follow-up report dated April 9, 2006, the physical medicine and rehabilitation specialist reported that the worker’s response to a second S1 tranforaminal epidural injection performed on March 7, 2006 was the same as the previous injection on January 10, 2006 with no lasting effects. Based on the worker’s lack of improvement with treatment, surgical intervention was suggested around the S1 root.

Following a WCB call-in examination on May 17, 2006, the WCB orthopaedic consultant felt that the worker’s present clinical findings were not consistent with a disc protrusion, that the degenerative disc disease at L3-L4 and L5-S1 were pre-existing and that the deformity of the L3 or L4 vertebral body reported on x-ray and CT scan were unlikely to be due to the work related injury. He felt there was no objective evidence that the worker was unable to perform light duties and he did not believe that surgery would help the worker. Restrictions related to the worker’s degenerative disc disease were considered appropriate for a three month period.

On June 28, 2006, the worker was advised of the WCB’s position that his symptoms at the time of the call in examination on May 17, 2006 were more consistent with degenerative disc disease rather than a disc protrusion and therefore wage loss benefits would to be paid to July 5, 2006 inclusive and final. On November 21, 2006, the worker appealed the decision to Review Office.

On November 30, 2006, Review Office determined that the worker was not entitled to wage loss benefits after July 5, 2006. In rendering its decision, Review Office noted that the last time the worker saw his physician was in 2005 and that the worker cancelled his scheduled appointment for June 21, 2006 with the neurosurgeon and had not attended for his November 21, 2006 appointment. Review Office indicated that since it had no medical information or investigative findings to consider following the case manager’s decision of June 28, 2006, it accepted the opinion made by the WCB orthopaedic consultant that the worker’s present clinical findings were not consistent with a disc protrusion. On August 13, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel arranged for the worker to be assessed by an independent medical examiner. This examination took place on June 3, 2009 and the examination report was forwarded to the interested parties for comment. On June 22, 2009, the panel met to render its final decision on the issue under appeal.

Reasons

Applicable legislation:

The issue before the panel is whether or not the worker is entitled to wage loss benefits after July 5, 2006. Under subsection 4(1) of The Workers Compensation Act (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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was self represented at the hearing. He submitted that he was legitimately injured at work and that he should be compensated. He continues to have problems with his back which affects his ability to work. He noted that he does not label himself as a totally handicapped person, but the problems with his back interfere with his life and he can’t live normally. He does try to work and he takes on jobs when he can, but every so often his back starts to hurt again and he becomes unable to work. He has not been able to hold a job since his accident and was seeking extra help from the WCB.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the continuing difficulties the worker experiences with his back are related to the injuries he sustained in the workplace accident of January 16, 2005. While we do not doubt that the worker continues to experience pain and limitation, the question is whether these difficulties are the result of his workplace accident, or whether they are attributable to degenerative changes in the worker’s back. On a balance of probabilities, we find that the difficulties are attributable to chronic degenerative changes in the worker’s lumbosacral spine.

A difficulty the panel had in considering the worker’s claim was the lack of evidence concerning his medical condition since mid 2006. Although the worker’s medical progress was closely followed and documented from the time of the accident in January 2005 to approximately May, 2006, unfortunately, after his WCB benefits ended, so did the medical reports. When the worker appeared at the hearing in November, 2008, he advised that he had not been to a doctor in the two years since his claim ended. He did not have a family physician. At the hearing, the worker advised that he continued to have symptoms, with some good days and some bad. He could engage in physical activities such as vacuuming or cleaning windows, but if he moved the wrong way, it would trigger the pain, and then he would be incapacitated for two to three weeks. He would have crippling pain in his lower back and spasm down his leg to his heel which prevented him from sitting, standing and walking for any great length of time.

Following the hearing, the panel referred the worker for further diagnostic testing. An MRI was performed on May 7, 2009 and the report indicated the following:

T1 and T2 sagittal and T2 axial images of the lumbar spine have been obtained. There is loss of normal lordosis.

Severe multilevel lumbar disc desiccation and degenerative disc narrowing is present. At L1-L2 and L2-L3 disc desiccation and disc space narrowing is present.

L3-L4 shows severe degenerative disc space narrowing. A small right posterior paracentral disc herniation is superimposed upon degenerative disc narrowing and annular bulging. Bilateral apophyseal joint osteoarthritis is present.

L4-L5 shows a shallow broad based central disc herniation, degenerative disc narrowing and diffuse anular bulging, and bilateral apophyseal joint osteoarthritis.

At L5-S1 there is degenerative disc narrowing and a moderate central disc herniation, slightly more prominent to the left of midline. Minor indentation on the thecal sac is produced. Bilateral apophyseal joint osteoarthritis is present and there is bilateral fairly severe foraminal encroachment. In addition, a right sided foraminal component of the disc herniation is noted.

IMPRESSION: Multilevel fairly severe degenerative disc and facet changes as described.

The panel also referred the worker to an orthopedic specialist for an independent medical examination. On June 3, 2009, the worker was interviewed and examined. In a report dated June 4, 2009, the independent medical examiner concludes that:

  • The most probable diagnosis of the worker’s current low back condition is chronic degenerative changes in the lumbosacral spine with mechanical low back pain.
  • The diagnosis is supported by the MRI imaging studies and the fact that there is only minimal tenderness across the lower lumbosacral spine.
  • The etiology of the current low back condition is the degenerative changes in the lumbosacral spine and discs and mechanical low back pain.
  • The worker’s present condition is not a result of his injury of 16 January 2005.

Based on the MRI imaging results and the unequivocal opinion of the independent medical examiner (whose opinion the panel accepts), we find that the worker’s current back condition is not related to his workplace accident of January 16, 2005, and that he is not entitled to wage loss benefits after July 5, 2006. The worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of July, 2009

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