Decision #66/10 - Type: Workers Compensation
Preamble
The worker is presently appealing decisions made by the Review Office of the Workers Compensation Board (“WCB”) which determined that there was insufficient evidence to relate his current back complaints to his compensable work accident of June 13, 1997 and that his claim for an accident occurring February 5, 1998 was not acceptable. A hearing was held on May 26, 2010 to consider these matters.Issue
Claim for accident occurring June 13, 1997
Whether or not the worker’s back complaints are related to the June 13, 1997 compensable injury; and
Claim for accident occurring February 5, 1998
Whether or not the claim is acceptable.
Decision
Claim for accident occurring June 13, 1997
That the worker’s back complaints are not related to the June 13, 1997 compensable injury; and
Claim for accident occurring February 5, 1998
That the claim is not acceptable.
Decision: Unanimous
Background
Claim for accident occurring June 13, 1997
On August 6, 1997, the worker filed a claim with the WCB for an accident that occurred at work on June 13, 1997 when he slipped off the ladder of a cement truck. On his application for compensation, the worker stated “…I had my right hand on the ladder, my left foot on my chute when I slipped off.” The worker reported injuries to his left leg, knee and calf. The claim was accepted by the WCB as chronic fibromuscular pain and sprain to the left calf.
At a WCB call in examination on November 12, 1997, the worker complained of pain in his left and right thighs as well as occasional pain in his back area and left hip. The worker indicated that he would experience more back pain with prolonged standing, walking and sitting and that his back pain started sometime in July or August after his compensable injury. Following the assessment, the medical advisor indicated that he was not able to make a tissue-specific diagnosis for the worker’s ongoing back and leg problems.
In a decision dated December 9, 1997, the worker was advised by primary adjudication that based on the November 12, 1997 call in which noted findings of no tissue-specific diagnosis for his ongoing back and leg problems, the WCB was of the opinion that he had recovered from the effects of his accident and was fit to return to full duties as a driver. The decision that the worker was not entitled to benefits beyond December 9, 1997 was confirmed to the worker on May 29, 1998.
On May 27, 2005, an advocate for the worker advised the WCB that the worker attended a neurologist in 1998 and was not able to return to work based on the neurologist’s findings. The worker was therefore claiming entitlement to compensation benefits.
Primary adjudication requested and received medical information from the worker’s treating physicians dating back to April 7, 1998 and also obtained information from the worker regarding his ongoing left leg and back difficulties.
In a decision dated June 23, 2005, primary adjudication advised the worker that the WCB remained of the opinion that there was no relationship between the June 13, 1997 workplace injury and his symptoms from December 1997 and beyond.
On October 4, 2005, the case was reviewed by a different WCB case manager who outlined the opinion that the medical information did not establish a cause and effect relationship between the accident of June 13, 1997 and the worker’s lower back symptoms. The case manager commented that there was no mention of low back problems until the worker saw his doctor on October 9, 1997 which was almost four months after the accident. The physician reported that the worker’s low back symptoms were related to him bouncing on a truck for years.
On November 5, 2005, the advocate for the worker requested a Medical Review Panel (“MRP”) pursuant to subsection 67(4) of The Workers Compensation Act (the “Act”). The request for an MRP was denied by primary adjudication and Review Office. The worker appealed the decision to the Appeal Commission and a file review was held on September 15, 2006.
On October 26, 2006, the appeal panel, under Order No. 165/06, determined that there was no difference in medical opinion to warrant the convening of an MRP. The appeal panel stated, in part:
“…we do not see a difference in medical opinion between the treating doctors and the WCB medical advisors. Indeed, all of the doctors (the treating physicians and the WCB medical advisors) suggest that the worker’s back complaints are due to degeneration. Further, while the WCB medical advisors clearly state that they do not feel that these degenerative changes were caused by the workplace injury, there is no clear opinion based on a full statement of facts expressed by the worker’s treating physicians.”
On June 25, 2008, the worker’s advocate wrote to Review Office to appeal the decision made by primary adjudication that there was no relationship between the worker’s low back symptoms and the June 13, 1997 compensable left leg injury. As new medical evidence was attached to the submission and had not been considered by primary adjudication, Review Office referred the file back to that department to review the evidence and make a finding.
In a decision dated July 8, 2008, primary adjudication indicated to the worker that it reviewed the evidence referenced by the advocate in his June 25, 2008 submission (i.e. 1998 reports from a neurologist and 1998 CT scan results) along with the June 26, 2006 medical report (from an occupational health physician). The adjudicator indicated that she found no evidence to suggest that the worker’s pre-existing spinal stenosis was aggravated or enhanced by his workplace injury of June 13, 1997 and therefore no change would be made to the previous WCB decision. The worker’s advocate disagreed with the decision and the case was returned to Review Office for consideration.
On October 15, 2008, Review Office confirmed that the evidence did not establish that the worker’s back condition commencing in October 1997 had a relationship to his left leg injury of June 13, 1997. In reaching its decision, Review Office relied on the following evidence:
· the worker provided a legal declaration during the first month of his claim that he injured his left knee and calf in the accident. There were no signs of back complaints until October 1997. When asked what he related his back complaints to, the worker indicated it was through three decades of driving a truck and being bounced around.
· the neurologist’s report of April 16, 1998 outlined the view that the numbness and weakness experienced by the worker was due to multiple root entrapment secondary to spinal stenosis. Review Office felt that the incident on June 13, 1997 did not cause the spinal stenosis and indicated that there was no medical evidence on file that the June 13 incident aggravated or enhanced the worker’s pre-existing spinal stenosis.
· based on comments made by the worker’s physiotherapist, Review Office found that the worker’s limp pre-dated the June 13, 1997 injury.
· with regard to the June 22, 2006 report from the occupational health physician, Review Office stated that there was no indication in this report from the physician that the worker’s back condition was related to the incident on the ladder of June 13, 1997.
On November 17, 2009, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was requested.
Claim for accident occurring February 5, 1998
On August 26, 2005, the worker, through his advocate, filed a claim with the WCB for a low back injury occurring February 5, 1998. The accident description was described as follows:
“I slipped off ladder on my cement truck, when I was trying to clean my barrel on the cement truck. I had my right hand on the ladder, my left hand on my chute when I slipped off, in addition to 33 years of banging around in cab – non-specific.”
Medical information on file consisted of reports from the worker’s treating physician, treating neurologist and laboratory investigations dating back to 1997. Also on file was a physical demands analysis for the occupation of a cement truck driver.
On October 20, 2005, the file information was reviewed by a WCB orthopaedic consultant and the following opinions were outlined:
· the diagnosis was lumbar disc degeneration, facet degeneration and hypertrophy and acquired spinal stenosis. This was a pre-existing condition.
· the neurologist reports suggested a diagnosis of compromised left lower lumbar nerve roots arising out of the condition of spinal stenosis. The neurologist made no suggestion of a diagnosis of lumbar disc herniation which might suggest a more recent event.
· after review of the physical demands analysis, the orthopaedic specialist noted: “There are many activities in the “heavy” category, none of which individually could be considered as contributory to the development of lumbar disc degeneration and spinal stenosis.”
On October 13, 2005, a WCB case manager advised the worker that no responsibility would be accepted for his claim as it was felt that his difficulties were more likely related to a pre-existing lumbar disc disease than to a compensable condition. In making her decision, the case manager considered the following evidence:
· the first note of back complaints with the treating physician was on October 9, 1997;
· an x-ray of the lumbosacral spine dated October 14, 1997 showed narrowing of the intervertebral disc spaces at L4-5 and L5-S1 levels consistent with disc degeneration. Scoliosis convex to the left was seen;
· CT scan of March 1998 showing spinal stenosis at L4-5 associated with a small disc protrusion and bony narrowing of the left exit foramen and bilateral exit foraminal stenosis at L5-S1;
· the WCB orthopaedic consultant’s opinion that the worker had lumbar disc degeneration and that there was no objective medical evidence to support that driving a cement truck was the cause of lumbar disc degeneration.
The case manager indicated that she could not accept the claim for the following reasons:
· prior to the June 13, 1997 workplace accident, there was no objective medical evidence or complaints regarding back difficulties and since June 13, 1997, the worker did not return to his position as a cement truck driver;
· after considering the orthopaedic consultant’s opinion, the case manager indicated that she was unable to conclude that the work activities had substantial contributing significance in producing the worker’s symptoms or disability;
· that the worker’s difficulties were more likely related to pre-existing lumbar disc disease which was not a compensable condition under the Act.
On October 17, 2008, the worker’s advocate appealed the above decision to Review Office. The advocate attributed the worker’s low back condition to the effects of driving a cement truck for 33 1/3 years which required braking, clutching, accelerating and a seated position.
On November 26, 2008, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that the worker’s low back condition had been diagnosed as spinal stenosis. It determined that there was insufficient evidence to support a causal relationship between the diagnosis and the worker’s job duties of driving a cement truck. It relied on the opinion expressed by the occupational health specialist and the opinion expressed by the WCB orthopaedic consultant. Review Office found that there was no evidence to support that the worker’s job duties of driving a cement truck aggravated, accelerated or enhanced the worker’s pre-existing condition. This determination was made on the basis that the worker made no low back pain complaints prior to 1997 and he did not return to driving a cement truck after his June 13, 1997 left leg injury. On November 17, 2009, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by 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 assisted by an advocate with the filing of the appeal, but was self represented at the hearing, accompanied by his spouse. The worker’s position as outlined in the Appeal of Claims Decision form was that his back condition was related to the June 13, 1997 workplace injury when he fell from his truck and that after 33 years of driving a cement truck, the worker’s lumbar region was affected by continual strain from long hours of driving and sitting. The worker never operated a cement truck again after the 1997 injury. At the hearing, the worker and his spouse indicated that the worker has had to use his pension funds to support the family. The worker stated that he worked for the employer for 35 years, and now he felt he was left with nothing.
The Employer’s Position
An advocate appeared on behalf of the employer at the hearing. The employer’s position was that all of the treating physicians agreed that the worker’s back problems were due to severe pre-existing degenerative disc disease. There was a multitude of medical evidence on file indicating that the worker’s back complaints were not associated with either the specific injury to his left leg or the years of truck driving. As the evidence did not show a cause and effect relationship to either a specific incident or to the worker’s job duties, it was submitted that the panel should deny the appeals.
Analysis
Claim for accident occurring June 13, 1997
The first appeal before the panel is whether or not the worker’s current low back complaints are related to the June 13, 1997 compensable injury. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries he sustained in the June 13, 1997 workplace accident. We are not able to make that finding.
Several medical practitioners, including the WCB medical advisors, the worker’s treating neurologist, and the occupational health physician consulted by the worker, have identified spinal stenosis of the lower lumbar spine as the worker’s principal diagnosis. X-ray reports from October 1997 and CT imaging from March 31, 1998 confirm degenerative narrowing and spinal stenosis at the L4-5 level of the worker’s lumbar spine. The spinal stenosis was described by the treating neurologist in his report of April 16, 1998 as being “moderate to severe.”
The panel considered whether the June 13, 1997 incident could have contributed to the development of the worker’s spinal stenosis. We were unable to establish any such relationship. The June 13, 1997 incident was described as a slipping accident. At the hearing, the worker explained that he was on the ladder attached to the cement truck and was cleaning the inside of the fin. He held a hose in one hand, and the other hand was on the ladder. He had his left foot on the ladder and his right foot on the chute when his left foot slipped. He fell downwards and his rear struck the running board. He was still holding on to the ladder, so he did not fall to the ground. He immediately felt pain and had difficulty walking. He went to his family doctor for medical treatment. The doctor’s first report from the attendance on June 13, 1997 indicated a diagnosis of “chronic fibromuscular pain and spasm of the left calf muscle." There was no reference in the subjective complaints or objective findings sections of the report to any low back pain.
In the panel’s opinion, the mechanism and area of injury from the June 13, 1997 incident would not have contributed to the development of L4-5 spinal stenosis. We therefore find that the worker’s back complaints are not related to the June 13, 1997 compensable injury. The worker’s appeal of this issue is denied.
Claim for accident occurring February 5, 1998
The second appeal before the panel is whether the worker’s claim related to his low back condition should be accepted. In order for the worker’s appeal to be successful, the panel must find the worker’s job duties over many years either caused or contributed to his spinal stenosis. After reviewing the evidence, we are not able to make that finding.
The orthopedic consultant to the WCB indicated in his memorandum of October 20, 2005 that he had reviewed the physical demands analysis for the occupation of cement truck driver and that while many of the activities were in the “heavy” category, none of the duties could be considered as contributory to the development of lumbar disc degeneration and spinal stenosis.
Similarly, in a memorandum dated October 28, 2005, the sports medicine consultant to the WCB considered the “ongoing clutching and driving” duties of a cement truck driver and indicated that there was no evidence in the medical literature of long term driving or long term clutch use as a cause/effect for the development of spinal stenosis. He indicated that: “unless there is major alteration to structure of lumbosacral spine through fracture/dislocation or acute herniation or surgical instrumentation, most spinal stenosis is a combination of degenerative changes such as DDD (degenerative disc disease), facet OA (osteoarthritis) and hypertrophy of the ligamentum flavum over a period of time.”
The medical report of the occupational health physician submitted by the worker’s advocate also does not definitively support a causal relationship between the spinal stenosis and the job duties. The report references some studies which suggest a possible association with whole body vibration/prolonged sitting with greater levels of low back pain and sciatica from lumbar disc degeneration, but then states: “It is not possible to state with any confidence that his occupation was the actual cause of his back condition, given the prevalence of degenerative lumbar changes throughout the older population irrespective of occupational groups.”
In view of the foregoing medical evidence, the panel finds that there is not a causal relationship between the job duties the worker performed over the years and his spinal stenosis.
The occupational health physician also identified a secondary diagnosis of muscular restrictions and myofascial pain affecting the left hip region. He then indicated that this diagnosis was likely a chronic feature relating to occupational overuse. He also acknowledged, however, that it was possible that the muscle hypertonus was secondary to the underlying spinal restrictions and were protective in nature.
It is notable that after the June 13, 1997 incident, the worker never returned to driving a cement truck. There were no complaints of inability to perform his job duties due to muscular restrictions prior to the June 1997 slipping incident and the complaints of back pain did not develop until October 1997. An injury from occupational overuse would be one which develops progressively over a number of years. Given the absence of symptoms for the secondary diagnosis prior to the June 13, 1997, we are unable to attribute this condition to occupational overuse. The panel finds on a balance of probabilities that the muscular restrictions and myofascial pain were more likely secondary to his non-compensable spinal stenosis.
It is therefore the panel’s decision that the worker’s claim is not acceptable. The appeal on the second issue is denied.
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 July, 2010