Decision #117/09 - Type: Workers Compensation

Preamble

The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that he was not entitled to partial wage loss benefits beyond December 3, 2008 due to the effects of the muscular injury that he sustained on May 15, 2008. A hearing was held on October 15, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to partial wage loss benefits beyond December 3, 2008.

Decision

That the worker is entitled to partial wage loss benefits beyond December 3, 2008.

Decision: Unanimous

Background

The worker reported that he injured his low back area while employed as a heavy equipment operator on May 15, 2008 from bouncing up and down all day on uneven ground while driving a 40 ton truck and operating heavy equipment. The worker indicated that the pain in his back progressively became worse and he found it hard to walk, as his left leg would go numb in the thigh area.

On May 22, 2008, the worker sought medical attention and was noted to have loss of lordosis in his lumbar spine. The diagnosis rendered was a low back strain and physiotherapy treatment was recommended. A lumbar spine x-ray dated May 22, 2008 revealed mild osteoarthritic changes at L1 to L3 and no suspicion of central spinal stenosis.

On September 8, 2008, a WCB medical advisor reviewed the file information at the request of primary adjudication. He noted that the worker was reporting ongoing low back symptoms in spite of several months of modified duties. It was felt that the worker’s low back symptoms were considered to be prolonged for the diagnosis of a strain. A WCB call in examination and an MRI assessment of the lumbosacral spine were arranged and both took place in November 2008.

Following review of the MRI results and examination findings of November 14, 2008, the WCB medical advisor stated the following:

“…there is no change in the compensable diagnosis which is a muscle strain of the low back. There is no nerve root compression to account for [the worker’s] bilateral reported thigh numbness. On balance of probability it is likely that [the worker’s] ongoing reported low back symptoms are now more related to his pre-existing lumbosacral spine degenerative changes in conjunction with his body habitus, than to the mechanism of injury at the time of the May 15, 2008 CI [compensable injury].”

On November 26, 2008, a WCB case manager advised the worker that partial wage loss benefits would not be paid beyond December 3, 2008 as it was considered that he had recovered from the effects of his compensable injury. On December 2, 2008, the worker appealed the decision to Review Office.

In a decision dated February 18, 2009, Review Office confirmed that the worker was not entitled to partial wage loss benefits beyond December 3, 2008. Review Office was of the opinion that the most probable cause for the worker’s low back complaints was the muscular strain injury sustained on May 15, 2008, given that the worker reported a sudden onset of sharp pain in his low back and as well, the nature of the work that he was performing. Review Office noted that diagnostic testing revealed mild to moderate degenerative changes throughout the worker’s lumbosacral spine which were pre-existing in nature. It found no medical evidence to suggest that there was a relationship between the degenerative changes in the worker’s spine and his employment activities. Review Office also agreed with the opinion of the WCB medical advisor that the effects of the May 15, 2008 muscular strain no longer contributed to the worker’s ongoing complaints and that no contrary medical opinion had been provided.

On May 14, 2009, a worker advisor, acting on the worker’s behalf, asked Review Office to reconsider its decision of February 18, 2009 based on new medical information dated April 22, 2009 which supported that the worker had not fully recovered from the effects of his compensable injury and that he required additional treatment and work restrictions.

In a letter to the worker advisor dated April 22, 2009, a treating sports medicine physician stated:

“…I saw [the worker] once on April 20, 2009. I diagnosed him with mechanical low back pain/osteoarthritis aggravation…Further physiotherapy and if possible a reconditioning program would likely help his symptoms recover further. In terms of relationship between his symptoms currently and his injury, the patient states he will only get low back pain while driving along the rough terrain at work and his symptoms have not settled since the injury of May 15, 2008. It appears his persistent symptoms still relate then. The patient has chronic back pain at this point but clinically appears to be doing fairly well in the office with some tenderness of his lower back with good range of motion and normal neurological testing. I would think potentially with some reconditioning, his back will settle further. In terms of restrictions at this time, I recommended he continue to avoid the impact and jarring that happens with his work as a driver…and continue to avoid heavy lifting at this time.”

On May 19, 2009, Review Office wrote to the worker advisor stating that the previous Review Office decision would remain unchanged. Review Office indicated that the submitted medical evidence did not alter its previous finding that the worker’s ongoing episodic low back complaints were more reasonably associated with degenerative changes in his lumbosacral spine than to his May 15, 2008 compensable injury. On May 25, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable legislation:

The issue before the panel is whether or not the worker is entitled to partial wage loss benefits beyond December 3, 2008. 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.

Worker’s position:

The worker was assisted by a worker advisor at the hearing. It was the worker’s position that he had not recovered from the May 15, 2008 injury and that he was entitled to benefits beyond December 3, 2008. The worker relied on a medical report from a sports medicine physician dated April 22, 2009 which attributed the worker’s ongoing low back symptoms to an aggravation of his pre-existing osteoarthritis condition on May 15, 2008. The sports medicine physician recommended that the worker continue to avoid jarring and to receive additional physiotherapy and reconditioning.

Employer’s position:

A representative from the employer was present at the hearing. The employer based its position on the opinion of the WCB medical advisor who stated that the worker had a pre-existing condition. It was submitted that there was no specific incident at work and that the back strain should have resolved. Any ongoing symptoms were related to the worker’s pre-existing condition.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his lower back after December 3, 2008 are related to the injuries he sustained in the workplace accident of May 15, 2008. On a balance of probabilities, we find that the worker’s current difficulties are attributable to an aggravation of the osteoarthritic degenerative changes in his lumbosacral spine. As the aggravation was caused by the workplace accident, the worker is entitled to partial wage loss benefits beyond December 3, 2008.

In coming to our decision, the panel relies on the following evidence:

  • The worker’s evidence at the hearing was that at the current time, when he is sedentary, he does not experience significant pain in his back. If, however, he attempts anything beyond his physical restrictions (such as lifting or walking too far), he gets jarring pain in his back, on the left side, just over the belt line. This pain may then radiate across his back;
  • The left sided location of this pain is consistent with the worker’s reports of pain throughout his claim;
  • The worker states that he could not return to his pre-accident employment at this time as the impact and jarring would cause his symptoms to flare;
  • Although the WCB medical advisor ultimately concluded that the compensable diagnosis was a muscle strain of the low back, he acknowledged in his November 14, 2008 call-in report that the prolonged symptoms and intensity made this diagnosis unclear;
  • There appears to be concurrence between the WCB medical advisor and the worker’s sports medicine physician that the worker’s present complaints are related to the osteoarthritic degenerative changes in the worker’s lumbosacral spine, as shown in the MRI. The difference in their opinions is whether or not the complaints are a continuing aggravation of the degenerative condition, or whether they are unrelated to the May 2008 workplace incident;
  • The WCB medical advisor acknowledged that the worker’s elevated body mass index is likely playing a role in the prolongation of the worker’s reported low back symptoms;
  • The worker has received minimal physiotherapy treatment and no reconditioning since the time of his accident;
  • Given the worker’s physical stature, the lack of active treatment, and the worker’s evidence that he experiences pain in the exact same area whenever he tries to bend or lift, the panel accepts that the worker’s current symptoms are a continuation of the injuries he suffered in the May 2008 workplace incident.

Overall, the panel is satisfied on a balance of probabilities that the worker’s ongoing low back difficulties are a work related aggravation of a pre-existing condition. Although the worker alleged at the hearing that the pre-existing osteoarthritic condition is related to his work duties as an underground miner for 28 years, the worker advisor confirmed that they were not arguing this point at the hearing, and indeed, this issue is not before the panel as it has not been previously considered by the WCB.

The panel therefore finds that partial wage loss benefits are payable beyond December 3, 2008. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of December, 2009

Back