Decision #15/10 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his current back, neck, left leg and gastrointestinal complaints were not related to his 1992 compensable injury. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on July 30, 2009 to consider the matter.Issue
Whether or not the worker’s current back, neck, left leg and gastrointestinal complaints are related to the September 1992 compensable injury.Decision
That the worker’s current back, neck and gastrointestinal complaints are not related to the September 1992 compensable injury.
The issue regarding the left leg was withdrawn by the worker.
Decision: Unanimous
Background
The worker reported injuries to his back and neck from the following work related accident that took place on September 4, 1992:
“I was working on a glue lam beam. My ladder was against the beam. The beam moved causing my ladder to slip. I lost balance and fell. I hit my neck on an eves trough, my head hit a brick wall. I landed on my back on a pile of lumber.”
When seen for treatment following the accident, the worker was diagnosed with a small hematoma of the occiput, multiple right leg bruises, stiffness in the neck and back and a possible compression fracture of T11. The claim for compensation was accepted and benefits were paid to the worker.
On January 11, 1993, the worker was assessed by a WCB medical advisor who was of the opinion that the compensable injury appeared to be cervical and lumbosacral contusions with a suspected fracture of T11. It was felt that the worker’s compensable injury was complicated by muscle stiffness and general cardiovascular deconditioning which was secondary to his sedentary activities over the last three to four months. He noted that the acute injury to the worker appeared to have healed and he was primarily limited by lack of flexibility. Recommendations were made for the worker to undergo 4 to 6 weeks of work hardening which included hamstring flexibility, abdominal muscle strength, lumbodorsal fascial work, etc.
In early June 1993, the worker returned to work in a different province and did not attend work hardening treatment.
The worker subsequently wrote to the WCB stating that he worked from June 2 to June 12 and was flown to a hospital for tests and x-rays due to recurring back problems and severe abdominal pain.
On July 11, 1993, the worker underwent a laparotomy, reduction of the left colon and spleen from the chest into the abdomen, splenectomy, left thoracotomy and repair of diaphragm. The WCB accepted responsibility for the surgery and the worker returned to full-time regular duties in January 1994.
On July 31, 2002, the worker advised the WCB that he was having further medical difficulties which he related to his 1992 claim. The worker said he was experiencing nausea, tiredness, little strength, continuous diarrhea, depression, and a feeling of pressure or weight on his stomach. He said his symptoms had worsened since 1998.
A medical report dated July 30, 2002, indicated that the worker was diagnosed with possible irritable bowel syndrome and he was referred to a gastroenterologist for consultation.
In a report dated September 19, 2002, the gastroenterologist reported that the worker may have bile salt diarrhea and that a colonoscopy was being arranged. In a further report dated February 4, 2003, the specialist indicated that the worker cancelled two scheduled appointments for a colonoscopy and that no further appointments were being booked.
On February 10, 2003, a WCB case manager advised the worker that no decision could be made on his claim without the colonoscopy results. The worker was instructed to contact the WCB once he had his colonoscopy.
On May 25, 2004, the worker advised the WCB that he had been working out of town and was unable to make the previously scheduled colonoscopy appointments. As his condition was getting bad again, the worker indicated that he had another appointment for July 8, 2004.
On June 21, 2006, the worker sustained a right shoulder laceration/left leg cellulitis in a work related accident.
On October 4, 2006, a WCB internal medicine consultant reviewed all file information which included reports from the attending physician and the gastroenterologist. In his opinion, the diaphragmatic hernia was a result of the fall the worker sustained in September 1992. He also felt that the worker’s gastrointestinal (“GI”) symptoms were unrelated to the fall and subsequent herniation and surgery. It was his opinion that the trauma sustained by the worker did not cause varicose veins found on both legs. He indicated that a splenectomy made one susceptible to certain infections.
In a decision dated November 6, 2006, a WCB case manager determined that the worker had recovered from his original compensable injury involving the neck, low back, diaphragmatic hernia and the July 12, 1993 surgery and that the worker’s current neck, low back and GI difficulties were not related to the compensable injury. The decision was based on the opinion outlined by the WCB internal medicine consultant dated October 4, 2006. On November 13, 2006, the worker disagreed with the decision and an appeal was filed with Review Office.
In February 2007, the worker was awarded a Permanent Partial Impairment (“PPI”) award of 4%.
Following consultation with the WCB’s healthcare branch, the worker was advised on February 13, 2007, that the medical information on file did not establish a cause and effect relationship between his accidents of June 21, 2006 or September 4, 1992 and the difficulties he was experiencing after November 19, 2006.
On March 8, 2007, Review Office determined that the worker’s current back, neck, left leg and GI complaints were not related to his September 1992 accident. Review Office indicated that there was no recent medical information pertaining to the worker’s back or neck and that the information during the period 1993 to 2006 showed the worker had extensive contact with the healthcare system and very little of it was regarding his back and/or neck. Review Office was of the opinion that the weight of evidence did not support that the worker suffered long term injuries to his back and neck related to his 1992 accident.
Based on its review of the reports submitted by the gastroenterologist in September 2002 and December 2004 along with the opinion expressed by the WCB internal medicine consultant in October 2006, Review Office concluded that the weight of evidence favored the position that there was no relationship between the worker’s GI complaints and his 1992 accident.
Review Office noted that the worker developed cellulitis of his left leg after cutting his shoulder in June 2006. The worker related the fact that he developed cellulitis at least in part to the previous removal of his spleen. Review Office accepted that the removal of the worker’s spleen may leave him at greater risk of some infections however it did not accept that he was more likely to develop cellulitis. Review Office based its opinion on the comments made by the WCB internal medicine consultant in October 2006.
In April 2008, the worker’s representative provided Review Office with a report from an occupational health physician dated January 3, 2008. Review Office then referred the case to a WCB medical advisor to provide an opinion as to whether or not there was any relationship between the worker’s current left leg cellulitis, his recent and/or current low back and neck pain and his recent and/or current GI complaints to his 1992 accident. On April 28, 2008, the medical advisor outlined the following opinion:
· the worker’s left leg cellulitis was not probably causally related to the splenectomy and therefore was not probably related to his compensable injury;
· the worker’s current low back pain diagnosed as Scheuermann’s disease was not probably causally related to the 1992 event; and
· the diagnosis of myofascial pain was a medical diagnosis which was purported to have been caused by trauma, exposure to cold, emotional tension and overwork. It was difficult to ascribe it to one episode of trauma from 16 years ago.
Based on the above medical opinion, Review Office confirmed on May 20, 2008, that the worker’s current back, neck, left leg and GI complaints were not related to his September 1992 accident.
Review Office considered the case again on December 18, 2008 as new information was received from a physiatrist dated October 21, 2008. Review Office stated,
“There is now substantial information available pertaining to the worker’s current back and neck complaints. They are considered to be related to myofascial pain. It is noted that he also has complaints in the abdominal and chest areas which are consistent with myofascial pain (e.g., the presence of taut bands).
Review Office is of the opinion that the weight of evidence continues to support the position that the worker’s current musculoskeletal complaints, considered to be myofascial pain, are not a sequela of his 1992 accident. As such, there is no entitlement to benefits in this regard.”
On April 27, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was held.
Following the July 30, 2009 hearing, the appeal panel requested additional information from the treating physiatrist. A report was later received from the physiatrist and the report was forwarded to the interested parties for comment.
On October 7, 2009, the panel met again to discuss the case and decided to write to the gastroenterologist that the worker was seeing in October 2009 with regard to bowel function. Reports from the gastroenterologist dated October 16, 2009 were received and were provided to the interested parties for comment. On January 6, 2010, the panel met to render its final decision on the issue under appeal.
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. Under subsection 4(1) of 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.
The Worker’s Position
The worker was self represented at the hearing. He stated that the basis of his appeal was that he suffered an injury in 1992 when he fell. He blacked out and was taken to hospital. The problems he is currently experiencing have developed since the accident. In 1993, he had major surgery where they removed parts of his spleen, parts of the pancreas, colon, small and large intestine and part of his lung that had collapsed. After he healed from the surgery, he returned to work in construction as he was told that he would be all right to continue with physical labour. He was able to work relatively uneventfully for seven or eight years, until in 2001, he began to experience problems, especially gastrointestinal. The worker submitted that when a person has a serious injury like the one he suffered, and then returns to the job and performs that job for another ten years, wear and tear is put on the body and the worker felt that this describes his current situation.
Analysis
The issue before the panel is whether or not the worker’s current back, neck and gastrointestinal complaints are related to the September 1992 compensable injury. In order for the appeal to be successful, the panel must find that the September 1992 accident either caused or contributed to the symptoms currently complained of by the worker. Although the appeal initially included left leg complaints, this issue was withdrawn by the worker at the hearing.
Neck and Back Complaints
On the day of the accident on September 4, 1992, the worker was taken to the local hospital. The doctor’s first report from that attendance indicated a diagnosis of: “Hematoma occipital, multiple bruises, neck, (right) leg.” During the initial period following the accident, the worker complained of pain in his neck and lower back. X-rays taken September 10, 1992 indicated no significant abnormalities in the skull, no soft tissue, bony, disc or articular abnormality to the cervical spine, a very minor stable compression fracture of the body of T11 and the lumbo-sacral spine readings were unremarkable.
On January 11, 1993, the worker was assessed by a WCB medical consultant at a call-in examination. At that time, the worker reported having problems with his lower back which was his biggest complaint. After examination, the WCB medical consultant concluded that the compensable injury to the worker appeared to be cervical and lumbosacral contusions, with a suspected compression fracture at T11 and that the acute injury appeared to have healed. The opinion was that the worker’s compensable injury had been complicated by muscle stiffness and general cardiovascular deconditioning which was secondary to sedentary activity over the 3-4 months since the injury. It was felt that the worker was primarily limited by the aforementioned lack of flexibility.
We know from the WCB file that the worker subsequently underwent a laparotomy, reduction of the left colon and spleen, splenectomy, left thoracotomy and repair of diaphragm and that this surgery was accepted by the WCB as a delayed diaphragmatic rupture secondary to the trauma of the workplace accident.
At the hearing, the worker’s evidence was that following his recovery from the surgery, he returned to work in 1994. At the time, he did feel some tenderness and some slight pain, but it was nothing that would have stopped him from doing his job as a heavy labourer. He specifically indicated that he had no gastrointestinal problems, that the neck was fine, and that the middle and low back were “pretty good”. The worker agreed that at that time, there was a “closed book” on the injuries.
The panel notes that this history is consistent with the medical records, which indicate a gap in medical treatment between October 1993 and September 2001. It is also consistent with the January 3, 2008 occupational health physician’s report which reported that after October 1993: “… the next several years were relatively uneventful health wise and he managed his work as a construction labourer without undue problems.” According to the occupational health physician, the next indication of medical issues did not arise until approximately 2000.
The medical history given to the treating physiatrist was different. The physiatrist’s report of September 9, 2009 indicated that since the workplace fall in 1992, the worker has had ongoing pain ranging from moderate to severe affecting his head, neck, chest, abdomen, mid and lower back. Given the different history outlined in other medical reports and the worker’s own direct evidence given at the hearing, the panel makes a finding of fact that the worker did not have continuous moderate to severe pain since the time of the accident. We therefore place minimal weight on the physiatrist’s conclusion that the present pain symptoms that the worker is experiencing in his head, neck, chest, abdomen mid and lower back have their source in the fall at work in 1992.
After reviewing the evidence as a whole, we are unable to conclude that the worker’s current neck and back complaints are related to the September 1992 accident. The panel notes that no specific disc lesion was ever found and that by the January, 1993 call-in exam, any acute injury appears to have resolved. There was the complication of the diaphragmatic tear, but this did not affect the neck or back. Given the worker’s evidence that he was able to continue to work as a heavy labourer for over 7 years without record of further complaint, the panel is unable to find a relationship between the worker’s current neck and back complaints and the workplace accident. There is too large a gap in time for us to make that connection. We therefore find that the worker’s current neck and back complaints are not related to the compensable injury.
Gastrointestinal Complaints
The consultative report dated October 16, 2009 from the gastroenterologist to the treating physiatrist (who made the referral) indicated that there were two components to the worker’s abdominal problems: irritable bowel syndrome (IBS) and myofascial abdominal pain. He indicated that it was unclear what component was related to the IBS and what may be related to the myofascial pain, but he thought that the myofascial pain predominated.
In response to the panel’s specific inquiry as to whether there was any relationship between the 1993 surgery and the worker’s current gastrointestinal complaints, the gastroenterologist indicated that is was impossible for him to know whether any of the worker’s complaints now relate to that surgery.
The panel is therefore left to examine the diagnoses of IBS and myofascial dysfunction. With respect to IBS, the WCB internal medicine consultant reviewed the file in late 2006 and performed a literature search. In his memo of October 4, 2006, the internal medicine consultant indicated that he suspected a diagnosis of irritable bowel syndrome at that time, and that this diagnosis would be unrelated to the fall and subsequent herniation surgery. The panel is also unaware of any linkage between a diagnosis of IBS and the injuries the worker suffered in his workplace accident and we therefore find on a balance of probabilities that the IBS is not related to his compensable injury.
With respect to the myofascial dysfunction, the treating physiatrist is of the opinion that there is a causal relationship between the myofascial pain and the workplace accident. As noted earlier, however, the panel has reservations regarding the physiatrist’s conclusions due to his assumption that the worker has experienced continuous moderate to severe pain since the fall in 1992. The panel finds as a fact that the worker did not have significant pain between 1993 and 2001 and we therefore place no reliance on the physiatrist’s opinion as to causation.
In a memo dated December 15, 2008, the WCB medical consultant to the Review Office indicated: “After the claimant’s compensable injury, I personally examined him, and did not identify evidence of probable myofascial pain syndrome at that time (note: the call-in examination was conducted on January 11, 1993). It would therefore appear that the myofascial pain syndrome described by (the treating physiatrist) would have developed after the time of my examination and in relationship to some of the other potential etiologic factors which are articulated by proponents of this syndrome. It is evident that (the worker) has had numerous exposures to cold, as well as heavy work. He has other biomechanical features at this time, such as his knee joint problems, which could perturb his spinal musculature and lead to regional tenderness.” The medical consultant concluded that in his opinion, with a reasonable degree of medical certainty and on the balance of probabilities, the worker’s currently identified myofascial pain syndrome was not causally related to the 1992 workplace accident.
After considering the foregoing, the panel concludes on a balance of probabilities that the worker’s myofascial pain syndrome cannot be attributed to the workplace accident. As neither the IBS nor the myofascial pain was caused by the workplace accident, we are unable to relate the worker’s current gastrointestinal complaints to the September 1992 compensable injury.
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 22nd day of February, 2010