Decision #31/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker had recovered from the effects of her compensable injury sustained on January 6, 2005 and that her current symptoms related to pre-existing non-compensable degenerative disc disease. A hearing by teleconference was held on February 17, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond October 9, 2005.Decision
That the worker is entitled to wage loss benefits from October 10, 2005 to January 3, 2006.Decision: Unanimous
Background
On January 6, 2005, the worker injured her low back when she slipped and fell to the ground on two separate occasions and landed onto her buttocks. Prior to the accident, the worker had a history of low back complaints and in May 1998, she had undergone an L5-S1 partial disc excision.
Medical information related to the 2005 accident showed that the worker underwent a CT scan on February 3, 2005. The results were read as follows:
“There is narrowing of the intervertebral disc with associated vacuum phenomenon at the L5-S1 level. There is evidence of a previous discectomy at this level with resultant post-operative left sided pseudomeningocele.”
On April 1, 2005, a WCB medical advisor examined the worker and found that she had positive clinical findings for nerve impingement. The medical advisor stated that the worker’s CT scan showed possible impingement of the S1 nerve root on the left by a meningocele. She stated that it was likely that the work related accident caused an aggravation of the pre-existing condition and the meningocele was a complication of the worker’s previous disc surgery. It was felt that there was ongoing evidence that the aggravation had not yet resolved. The medical advisor suggested a referral to an orthopaedic specialist and that an MRI examination be carried out.
On May 25, 2005, the orthopaedic surgeon outlined his examination findings. His review of the February 3, 2005 CT scan pertaining to the L5-S1 area was “…evidence of bilateral laminotomy consistent with the surgical history. The mild distortion at the left L5-S1 seems very minimal and I am not sure that we can accept that this is a cause of symptoms.” The surgeon stated in his report that the history given by the worker and the findings on examination were very similar to the WCB examination of April 1, 2005. He stated that the diagnosis was not clear but agreed that the left lower limb symptoms were radicular in nature, cause unknown. He indicated that the MRI may provide further information but the usual explanation for these symptoms would be aggravation of mild or moderate post-surgical adhesions around the left S1 nerve root.
On August 8, 2005, the worker returned to work for four hours a day, three days a week.
In a second report dated August 15, 2005, the orthopaedic surgeon reported that he reviewed the MRI report of July 9, 2005. He stated that the examination confirmed the absence of any active lumbar disc herniation at any level and more hopefully indicated minimal evidence of epidural fibrosis at the original operation level and no evidence of recurrent disc herniation. He noted that the disc protrusion/bulge at L4-5 may or may not be clinically relevant in view of the current symptomatology involving the left lower limb. Recommendations were made for a facet joint steroid injection.
On August 23, 2005, the worker advised the WCB that she was leaving Manitoba on September 1, 2005 as her husband had been transferred to British Columbia.
On August 24, 2005, the WCB advised the worker that she was not entitled to further wage loss benefits given that she had voluntarily taken herself out of the workforce and no longer had a loss of earnings. The worker disagreed with the decision and an appeal was filed with Review Office.
On September 22, 2005, a WCB medical advisor made the following comments after a review of progress reports received from the worker’s treating physician in B.C.:
“…there is reported slow improvement in pain complaints. The only objective findings reported were tenderness and neg. [negative] SLR. This suggests to me there is no worsening in her condition & if she was fit to do GRTW [graduated return to work] program as of the end of Aug ’05 when last assessed here, she remains fit to participate in a similar program in her new location. Further physio may be of benefit & a further course is reasonable.”
On October 7, 2005, Review Office determined that the worker was entitled to further wage loss benefits as the worker’s post-accident earning capacity had not returned to its pre-accident level when she moved to B.C. Based on Review Office’s decision, the worker was paid wage loss benefits from September 1, 2005 to October 9, 2005 inclusive.
On October 19, 2005, the worker advised the WCB that she began working on September 26, 2005 as an admissions clerk on a casual basis. As she was given a lot of hours during her training period, the worker’s symptoms flared up with pain in her back, radiating to below her knees. The duties involved twisting and reaching while seated and frequent rising from her chair.
On November 1, 2005, the worker submitted that she continued to have wage loss as she attempted a return to work and re-injured/strained her low back.
A WCB review officer spoke with the worker on December 8, 2005. The worker indicated that she was scheduled to see a neurosurgeon but an appointment date had not yet been confirmed.
At the request of Review Office, a WCB orthopaedic consultant reviewed the medical information and opined the following on January 3, 2006:
· that the worker, on January 6, 2005, suffered a possible disc injury at L4-L5 as noted on the MRI performed on July 9, 2005 without significant neurological involvement. Subsequent symptoms in the left leg do not correlate with the report.
· degenerative disc disease at L4-L5 and L5-S1 may contribute to her back symptoms.
· the worker was capable of performing a desk job on a full time basis and surgical intervention did not appear to be indicated.
The next medical information on file was from the treating physician in B.C. who saw the worker in November 2007 and on a number of occasions in 2008. He reported that the worker was experiencing low back pain with radiation down the left leg.
A hospital emergency report dated June 14, 2008, showed that the worker was seen for lower back and leg pain/numbness. The diagnosis recorded was a lumbar strain.
On July 11, 2008, a WCB case manager advised the worker that the current medical information was limited and therefore she was unable to determine a cause and effect relationship between her current condition and the compensable injury from 2005.
On January 12, 2009, the treating physician reported that the worker had been under his care since 2005 and for the past 3 years she had significant exacerbation relating to her low back. The worker experienced paresthesia involving both her legs with restricted flexion and extension of her lumbar spine and slightly decreased leg raises bilaterally. He noted that a CT scan taken July 25, 2008 showed minimal facet joint arthrosis and ligamentum flavum hypertrophy at L4-5, as well as laminectomy at L5-S1 with associated minimal circumferential disc bulge. He reported that an MRI scan taken October 29, 2008 showed similar findings. The physician was of the opinion that the worker’s significant back pain with paraesthesia down her legs was related to her original work injury.
A WCB medical advisor reviewed the file on February 4, 2009 and outlined the opinion that the worker’s current clinical symptoms and objective information was consistent with degenerative lumbar disc disease. He noted that the CT scan and MRI confirmed the degenerative disc disease with no evidence of disc herniation or nerve root compression. There was evidence of post surgical changes at L5-S1 on the imaging studies consistent with the previous imaging studies performed in Manitoba and related to the previous L5-S1 surgery performed in 1998. There was no convincing evidence of disc protrusion related to the January 2005 compensable injury throughout the course of the claim. He was unable to relate the worker’s current symptoms to the work injury of January 7, 2005.
In a letter dated February 4, 2009, the worker was advised that the WCB was not accepting responsibility for her ongoing back problems as it was felt that there was no convincing evidence to show that they were related to the workplace accident from 2005.
The worker provided the WCB with a report from the neurosurgeon whom she saw on September 12, 2006. On March 3, 2009, the worker was advised by her WCB case manager that the new information did not alter the decision made in July 2008 or February 2009. On March 11, 2009, the worker appealed the decision to Review Office.
On March 26, 2009, Review Office determined that there was no entitlement to wage loss benefits beyond October 9, 2005 and that the worker’s ongoing back problems were not related to the January 6, 2005 work injury. Review Office indicated that in its opinion, the worker did not have a loss of earning capacity directly related to the compensable injury. It felt that the worker’s symptoms were related to degenerative disc disease which was a pre-existing condition, related to the 1998 surgery. On July 17, 2009, the worker appealed Review Office’s decision to the Appeal Commission and an oral 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. 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 and participated in the hearing by teleconference. She submitted that prior to her workplace accident in January 2005, everything was fine. She admitted that she had a previous discectomy at the L4-L5 level, but she had recovered fully from that procedure. When she fell twice in January, 2005, she reinjured the area and has continued to have problems ever since. The WCB had provided her with a letter stating that she should be able to increase her work every week by two hours per day, but she was not able to meet that goal right from the beginning. She had a lot of difficulty getting back to work in a sedentary position. After she moved to British Columbia in September 2005, she has continued to have back problems. She has tried to work full time, but has not been able to maintain work at that level. She is currently in a 0.7 position. When she attempted to work full time, she regularly had to miss one or two days per week. As a result, she had many days without pay. It was the worker’s position that her inability to work full time was the result of her January 2005 workplace injury and that she ought to be entitled to wage loss benefits for her time loss from full time work.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond October 9, 2005. In order to decide the appeal, the panel must determine whether or not the worker continued to suffer a loss of earning capacity after that date as a result of the workplace accident. On a balance of probabilities, the panel finds that from October 10, 2005 to January 3, 2006, the worker continued to suffer limitation in her ability to work full time as a result of her compensable injury. The panel further finds that by January 3, 2006, the worker recovered from the effects of the workplace accident and any ongoing problems with her back are not work related. The worker is therefore entitled to wage loss benefits beyond October 9, 2005 and up to and including January 3, 2006.
At the hearing, the worker indicated that she still experiences pain and limitation in her lower back area. She has to be very careful with her activities and she no longer participates in the sporting activities which she used to do, such as golf and curling. She is unable to work full-time hours as this will exacerbate the pain in her back. On a daily basis, she manages the pain with pain medication, and if she has a significant flare up, then she goes to the emergency department for an injection of painkiller.
The panel considered whether or not the worker’s current condition and inability to work full time can be related back to the compensable injury of January 6, 2005. On a balance of probabilities, we have concluded that it cannot. In coming to this conclusion, the panel relied on the following:
- Three WCB medical advisors reviewed the file and their assessment was that the work related accident caused an aggravation of a pre-existing condition. None found evidence of significant neurological involvement resulting from the accident and the most current review dated February 4, 2009 concluded that there was no convincing evidence of radiculopathy and the imaging results confirmed degenerative disc disease with no evidence of disc herniation or nerve root compression. It was noted that the current clinical symptoms and objective information were consistent with degenerative lumbar disc disease and the medical advisor was unable to relate the worker’s current symptoms to the work injury of January, 2005;
- The September 12, 2006 report from the treating neurosurgeon in British Columbia indicated: “She had ligament injury to the lumbar spine as a result of the fall at work in January 2005. The treatment is conservative. There is no surgical abnormality.” This confirms the WCB medical advisors’ assessment that there was no neurological involvement resulting from the workplace accident;
- At the hearing, the worker indicated that in her discussions with her treating neurosurgeon, she was told that the current cause of her low back problems is disc degeneration and that due to scar tissue in the area, the neurosurgeon would not be able to perform a further operation on her lower back.
Although the panel finds that the worker’s current condition is not attributable to the compensable injury, we do acknowledge that there is medical evidence to support that by October 9, 2005, she was not yet capable of resuming work on a full time basis due to the effects of the workplace accident. The worker’s evidence was that almost immediately after she moved to British Columbia in September, 2005, she secured employment as a registration clerk. She worked 4 hours per day, 3 days per week at this position which, according to the worker’s evidence, was only about 50 percent sedentary. The other half of the time she was required to get up and walk to different parts of the building.
A doctor’s progress report from the worker’s physician in British Columbia dated September 7, 2005 indicated that at that time, she was still suffering from back muscle spasms with sciatica. He provided an estimated date of recovery of November 30, 2005. Subsequent progress reports dated September 14, October 5, October 26, October 28, November 1, November 8, November 17, and November 30 documented a gradual return to work.
The WCB’s decision that the worker was not entitled to wage loss benefits beyond October 9, 2005 was premised upon a projected graduated return to work schedule which had the worker fit to resume regular duties on a full time basis as of October 10, 2005. Based on the reports from the attending physician in British Columbia, the panel has some reservations as to whether or not the worker could have met this timeline. We are therefore prepared to grant the worker wage loss benefits beyond October 9, 2005.
The comprehensive review of the medical reports by the WCB orthopedic medical advisor on January 3, 2006 notes that by that date, there was no contraindication to resumption of a sedentary desk job position on a full time basis. He also noted that pre-existing degenerative disc disease at L4-L5 and L5-S1 may be contributing to the worker’s symptoms.
Based on the foregoing, the panel finds that the worker is entitled to further wage loss benefits from October 10, 2005 to January 3, 2006. By January 3, 2006, the panel finds that the worker was able to resume her pre-accident sedentary duties on a full time basis. Any further symptoms she was experiencing at that time were attributable to her pre-existing degenerative disc disease.
The panel notes that the amount of wage loss for October 10, 2005 to January 3, 2006 must be calculated with reference to the worker’s actual earnings during that period, plus her availability to report for work. Although the worker was only able to work part time hours in British Columbia, she earned a significantly higher wage than what she was paid for her full time work in Manitoba, and therefore her actual loss of earnings may be minimal. The panel also notes that the WCB file indicates that from October 13 to October 20, 2005, the worker was away on travel. As the worker was not available for work those days, she is not entitled to wage loss benefits for that period of time.
The worker’s appeal is therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of April, 2010