Decision #103/10 - Type: Workers Compensation
Preamble
The worker suffered injury to his mid back in a work related accident on November 20, 2007. His claim for compensation was accepted and benefits were paid to April 1, 2009, when it was determined by primary adjudication and the Review Office that the worker had recovered from the effects of his injury. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on September 29, 2010 to consider the matter.Issue
Whether or not the worker is entitled to benefits beyond April 1, 2009.Decision
That the worker is not entitled to benefits beyond April 1, 2009.Decision: Unanimous
Background
During the course of his employment as a carpenter on November 20, 2007, the worker reported that he injured his middle back due to the following accident:
"I was carrying a power trowel (concrete) (approx 200 - 250 lbs) with four of us and I was walking backwards and I stepped in a hole on uneven ground and I was turning my body to the left to see where I was going and I felt a sharp pain in my middle back and it almost dropped me to my knees."
When seen by a chiropractor on November 20, 2007, the subjective complaints outlined were mid to low back pain and spasm, limited mobility and inability to perform daily activities. The diagnosis was thoracolumbar spasm/strain with resultant thoracolumbar subluxation complex.
The claim for compensation was accepted and benefits were paid to the worker. In a follow-up report dated January 2, 2008, the chiropractor noted that the worker was continuing to experience symptomology of mid to low back pain at fluctuating intensity, severe symptoms upon coughing and sneezing, episodic pain radiating to left lateral rib region, symptoms aggravated with sitting and limited ability to perform daily activities.
On January 24, 2008, a bone scan was carried out and the results showed mild thoracic arthrosis and mild inflammatory degenerative changes of the left ankle.
A physiotherapy report dated February 25, 2008 reported pain and stiffness to the mid back and radiation to low back and neck. The diagnosis was thoracic strain with cervico vertebral restriction.
On March 17, 2008, the treating physician reported that the worker had a normal MRI except for benign hemangiomas. Objective findings were tenderness of left spine about T10-T12. There was normal range of motion. The physician assessed the worker with pain NYD [not yet diagnosed] and a referral to a specialist was arranged.
In a report dated May 28, 2008, the specialist stated that the worker complained of left peri-scapular pain radiating around to the anterior chest and into the left shoulder region. The worker's pain was not bad at rest but he had considerable pain upon activity. Examination revealed multiple soft tissue tender spots over the left hemithorax. Range of motion of the left shoulder and neck was full. The specialist indicated that the worker appeared to have soft tissue pain.
On June 26, 2008, the worker was assessed by a WCB medical advisor who indicated that the diagnosis appeared to be a soft tissue injury to the left chest area and to the muscles of the left side of the back. It was unclear why the worker had very little response to physiotherapy and chiropractic therapy and the healing had been so slow. The medical advisor indicated that there did not appear to be a pre-existing condition that was prolonging recovery. Work restrictions were outlined as well as the recommendation for the worker to see a rehabilitation specialist to clarify the current diagnosis.
On July 31, 2008, the worker was seen by a physical medicine and rehabilitation specialist and was assessed with myofascial left shoulder and chest wall pain of moderate severity. A trial of trigger point injections, acupuncture and a work hardening program was suggested and arranged.
On November 3, 2008 x-rays were taken of the left ribs and fractures were identified at the anterior ends of the 9th and 10th ribs.
A Work Hardening Program Discharge Report dated November 17, 2008 indicated that the worker's status was "unchanged" and his demonstrated strength ability at the start of the program of "medium" was the same at the end of the program.
A bone scan dated November 13, 2008 showed left sided rib fractures secondary to trauma.
On December 12, 2008, the treating physician indicated that the worker suffered fractured ribs while at physio one month ago. He still had increased pain to the lateral chest wall and left shoulder.
On December 16, 2008, the WCB medical advisor noted the radiological findings of November 13, 2008 and outlined two month restrictions for the worker.
The WCB accepted responsibility for the worker's broken ribs. In a memo to file dated December 18, 2008, the case manager indicated that the worker would be given time to heal and the case should be reviewed again in the middle of February 2009.
On March 18, 2009, a WCB medical advisor reviewed the claim at the request of the case manager. In his opinion, the likely compensable diagnosis for the injury of November 20, 2007 was a muscular strain of the upper back and left chest. It was indicated that the usual recovery period for an injury of this type would be from 8 to 12 weeks and that the March 5, 2008 MRI and the bone scan from January 24, 2008 did not explain the prolonged recovery. It was felt that the worker would have recovered from the left-sided rib fractures and from the left chest strain. The worker's upper back and left chest strain from November 20, 2007 was unlikely to be a probable cause of any current disability.
On March 25, 2009, the case manager advised the worker that after consulting with the WCB's healthcare medical advisor, it was determined that he had recovered from his muscle strain injury and that his ongoing complaints were not related to the original injury. Benefits would be paid to April 1, 2009 inclusive.
When speaking with his case manager on March 30, 2009, the worker stated that his arm at this point was so sore that he could not lift it and that he was completely and totally disabled. The worker related his ongoing problems to the muscle strain injury of November 20, 2007.
On May 15, 2009, the treating physician reported that the worker still had pain to his shoulder and tingling to his left hand. The worker was sleeping poorly and used Tylenol #3 and heat. Vibration sense, reflexes and power were normal bilaterally. The worker had multiple trigger points to the biceps head and left parascapular muscles.
On June 16, 2009, a sports medicine physician reported that it was his clinical impression that the worker had a chronic post-traumatic myofascial pain of the left side of his neck and trapezius muscle area. The worker was going to be assessed for possible myofascial trigger point injections.
A July 13, 2009 medical report from a pain management specialist stated that the worker had been suffering predominantly from chronic post-traumatic mechanical neck pain syndrome. It stated that the worker's headaches appeared to be cervicogenic in nature and likely secondary to the dystonic paracervical muscles identified. The worker also appeared to suffer from a left median nerve radiculopathy that may be part of a left sided carpal tunnel syndrome. The reports stated that all of this was complicated by the rib fractures.
On September 3, 2009, the worker was interviewed at the WCB's Pain Management Unit ("PMU"). At a subsequent case conference held on October 15, 2009, it was determined that the worker did not meet the diagnostic criteria for a Pain Disorder or a Mood Disorder. There was some concern about the worker's use of certain medications and the worker was advised to continue using his upper extremities and to stay conditioned.
On October 20, 2009, the WCB medical advisor opined that there appeared to be no probable basis that the workplace injury of November 20, 2007 was the cause of the worker's current symptoms reported to the physician in his July 13, 2009 report.
In a decision dated October 20, 2009, the case manager advised the worker that after a review of the medical report of July 13, 2009 and the recommendations made by the PMU, no change would be made to the decision dated March 25, 2009.
On November 30, 2009, a worker advisor submitted to Review Office that the worker's ongoing left sided mid back, left shoulder and left sided neck pain were causally related to the November 2007 compensable injury. The worker also felt that he was not capable of performing his heavy pre-accident duties in the construction industry due to his ongoing symptoms.
On January 14, 2010, Review Office determined that the worker was not entitled to benefits beyond April 1, 2009. Based on a review of file information, Review Office was of the opinion that the worker sustained a strain/sprain injury as a result of his workplace accident on November 20, 2007. When considering the diagnosis and the duration of time that had passed since the workplace accident, it felt that, on a balance of probabilities, the worker had recovered from the effects of his compensable injury. Review Office could not find a relationship between the worker's specific left shoulder and chest complaints noted in the May 2008 medical report and the workplace accident. Review Office was also of the view that the worker had recovered from the effects of his rib fractures. It noted the October 15, 2009 findings of the PMU and concluded that the worker had recovered from the effects of his compensable injury. On January 21, 2010, the worker advisor 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 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 represented at the hearing by a worker advisor. It was the worker's position that his ongoing left-sided neck, left shoulder, left-sided mid back and chest wall difficulties were related to the November 20, 2007 injury and he should be compensated beyond April 1, 2009. Prior to the accident, the worker had no difficulty with his neck, left shoulder, left chest wall or upper back and he led an active lifestyle. It was argued that the worker consistently reported left-sided symptoms of neck, shoulder, mid back and chest wall since the workplace injury. The 2009 reports from the sports medicine physician and pain management specialist provided clinical evidence that the worker continued to suffer from ongoing neck and left-sided upper extremity symptoms. Overall, it was submitted that the evidence supported that the worker had not recovered to his pre-accident status and that the WCB should accept ongoing responsibility.
The Employer’s Position
A representative from the employer was present at the hearing. The employer's position was the WCB was correct in determining that the evidence did not support a continued causal relationship between the workplace accident and the worker's current difficulties. A review of the claim showed that after the initial back-related symptoms had subsided, the bulk of the worker's complaints and symptoms in the medical reports are related to his shoulder and thoracic back area. The initial workplace injury was essentially diagnosed as a sprain/strain and as such, was expected to result in full recovery. According to the medical evidence on file, recovery from the initial injury seemed to have occurred.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits and services beyond April 1, 2009. In order for the appeal to be successful, the panel must find that by April 1, 2009, the worker continued to suffer from the effects of the injuries he sustained in the November 2007 workplace accident. We are not able to make that finding.
At the hearing, the worker described the initial symptoms which he felt immediately after the accident. He stated that he felt a "big muscle spasm" which spread horizontally across his chest and went around to his back and into his shoulder blade. It felt like there was a knot in his shoulder blade. The pain took the wind right out of him and he had to sit down. He went to a chiropractor on the day of the accident and started attending for regular chiropractic treatment. The chiropractor tried to manipulate his muscles to get the shoulder to loosen up. The worker did not obtain relief from the treatments and he continued to have pain in the left shoulder muscles, shoulder blade and along the left side of his neck. The pain also caused the worker to suffer from headaches.
When asked to describe his current symptoms, the worker's response was that the pain was: "exact same as ever." He is always in pain and wakes up 3 to 4 times per night. He takes painkillers to keep going, but tries not to take too many. He feels that his left arm is useless as he has very little strength in the arm and is unable to raise it more than 45 degrees.
Although the worker's recollection at this time is that the shoulder, upper back and neck conditions which are currently causing his pain and reduced functionality have been present since the workplace accident, the panel finds that this is not supported by the medical records. A review of the medical reports and other documents from the period of time immediately following the workplace accident indicate that the injury complained of was in the middle to low back. In particular, the panel notes the following:
- The treating chiropractor's first report of November 20, 2007 indicates: "Patient's symptoms include: mid to lower back pain and spasm, limited mobility and unable to perform daily activities." The diagnosis was thoraco-lumbar sprain/strain. There is no mention of difficulty in the upper back, neck or shoulder.
- The Doctor's First Report from the worker's family physician dated January 2, 2008 diagnosed a back strain and indicated: "pain to mid back, about T10, worse with cough, sneeze, sitting, walking ok mostly, radiates to left flank."
- The worker was referred for assessment by a physical medicine specialist on May 28, 2008. In his examination, the specialist noted that the range of motion of the worker's neck and left shoulder were both full, thus suggesting that the pain was not focused in these areas.
After reviewing the medical evidence, the panel is unable to find a continuity of symptoms from the date of the accident to the present time. We find that the area of the worker's pain and reduced functionality has changed from his mid to lower back area, to his upper left extremities. Given the change in location of the difficulties and the fact that the mechanism of injury is consistent with a strain type of injury to the mid to low back, the panel is unable to conclude that the worker's current symptoms are caused by the workplace accident.
The panel considered whether the rib fracture injury which the worker sustained in November 2008 during WCB sponsored chiropractic treatment was still symptomatic and a contributor to the worker's current decreased functionality. It is the panel's finding that by April 1, 2009, this injury had essentially resolved. The worker's own evidence was that the only pain he still experienced in respect of the rib fractures was a pinch in his chest muscles every now and then. In the panel's opinion, the five months of recovery time was sufficient for this injury to heal completely and therefore by April 1, 2009, the rib fracture had no further impact on the worker's earning capacity.
The panel notes that we do not doubt that the worker is experiencing pain and limitation in his left shoulder, neck and arm. Unfortunately, however, we are unable to find on a balance of probabilities that these difficulties are attributable to the workplace accident of November 20, 2007. We find that the mid to low back condition which the worker originally complained of has now resolved, and that the worker's current complaints are related to a condition which independently developed sometime after the workplace injury was sustained.
For the foregoing reasons, the panel finds that the worker is not entitled to benefits beyond April 1, 2009. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 2nd day of November, 2010