Decision #114/10 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she no longer had a loss of earning capacity due to her compensable back injury after August 5, 2009. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on October 21, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 5, 2009.

Decision

That the worker is not entitled to wage loss benefits beyond August 5, 2009.

Decision: Unanimous

Background

On August 21, 2007, the worker filed a claim with the WCB for low back pain that she related to her work activities as a home care attendant. The claim for compensation was accepted based on a diagnosis of a low back strain and benefits were paid to the worker.

The worker subsequently underwent several laboratory investigations which revealed the following:

  • August 16, 2007 x-rays of the lumbosacral spine showed evidence of lumbar spondylosis.

  • December 27, 2007 bone scan results: "Recent fracture of T7 approximately. Suspected fracture of T10. The bone scintigraphy cannot make the difference between a pathologic and a post-traumatic fracture. It is recommended to repeat the bone scintigraphy in six to twelve months for follow up. Severe added lower thoracic arthrosis. Moderate to severe lower lumbar and lumbosacral arthrosis. Mild to moderate added cervical, thoracic and lumbar arthrosis".

  • March 3, 2008 x-ray of the thoracic spine results: "Dorsal kyphosis is present. No paravertebral soft tissue swelling is seen at the lower thoracic region. No fracture of the lower thoracic vertebral bodies is demonstrated. Spondylosis is seen in the mid and lower thoracic region. The discs are satisfactorily maintained".

  • July 14, 2008 bone scan results: "No scintigraphic evidence of bone metastasis. No scintigraphic evidence of fracture in the thoracic spine. Moderate mid and lower thoracic arthrosis. Moderate to severe lower lumbar and lumbosacral arthrosis…New rib fracture in the anterior arch of the 5 and 9 left ribs approximately, in line vertically and probably benign…".

On July 29, 2008, a WCB medical advisor reviewed the file and outlined the opinion that the worker's ongoing difficulties were related to a pre-existing condition and that she had recovered from the effects of her low back injury. Based on this opinion, the case manager determined that the worker's entitlement to wage loss benefits would end November 4, 2008. The worker disagreed that she had recovered from her injury and an appeal was filed with Review Office.

On January 5, 2009, Review Office determined that the worker was entitled to wage loss benefits beyond November 4, 2008. In reaching its decision, Review Office placed weight on the following opinion expressed by a WCB orthopaedic consultant dated December 24, 2008 "… the compensable diagnosis appeared to be an aggravation of pre-existing degenerative joint disease of the lumbar spine and that based on the medical reports from the attending doctor, the aggravation of the lumbar spine condition had not resolved. The Review Office accepts the expressed opinion of the WCB orthopaedic consultant".

In a letter dated January 13, 2009, the WCB case manager clarified to the worker that "the original work place accident has been accepted as a low back strain with an aggravation of your low back degenerative changes".

The worker was examined by a WCB orthopaedic consultant on July 2, 2009. On July 28, 2009, the worker was advised that wage loss benefits would be paid to August 5, 2009 as it was determined that the original work place injury had resolved. The case manager relied on the following examination notes that were outlined by the WCB orthopaedic consultant:

  1. Current symptoms are caused by degenerative joint disease of the lumbar spine and to a lesser extent, the thoracic spine.
  2. Osteoporosis was evidenced by the previous bone scans, with vertebral compressions related to osteoporosis rather than trauma.
  3. Current medication is appropriate.
  4. General lack of conditioning is noted.

Both the osteoporosis and the degenerative joint disease of the spine pre-existed the compensable injury of August 15, 2007.

The present symptoms are consistent with the natural progression of the degenerative joint disease of the lumbar and thoracic spines.

In early August 2009, the worker appealed the above decision to Review Office. The worker contended that she was still experiencing pain and restricted movements stemming from her compensable work place injury and that her work place injury had not resolved.

On August 26, 2009, an advocate representing the employer submitted to Review Office that there was no reason to overturn the WCB's decision to end responsibility for the claim. The submission was forwarded to the worker for comment and on September 10, 2009, the worker provided Review Office with a rebuttal submission.

In a decision dated September 22, 2009, Review Office confirmed that the worker was not entitled to wage loss benefits beyond August 5, 2009. Review Office concurred with the opinion expressed by the WCB orthopaedic consultant dated July 2, 2009 and found no causal relationship between the worker's current symptoms and the August 15, 2007 work place accident. Review Office's opinion was that the aggravation of the worker's pre-existing degenerative joint disease of the lumbar spine had resolved.

On July 22, 2010, the worker advisor asked Review Office to reconsider its decision of September 22, 2009 based on new medical information arising from the 2010 consultation the worker had with an orthopaedic surgeon. The orthopaedic surgeon ordered further imaging studies and the results of an MRI that was done on June 15, 2010 showed the following findings:

"L4-L5: There is moderate facet joint osteoarthritis and a small right-sided disc protrusion into the right neural foramen. This may be contacting the right L-4 nerve root."

In his report of June 15, 2010, the orthopaedic surgeon noted that the MRI scan of the lumbar and thoracic spine showed absolutely no sign of any acute fracture. There was chronic osteophytosis and even spontaneous fusion between the upper thoracic spine. The report talked about a small disc herniation at L4-5 which was irrelevant. The surgeon advised the worker that there was nothing to do except continue physiotherapy. He noted that the worker was "adamant that this is still caused by her previous injury but there is no distinct correlation of this on these MRI scan views."

The worker advisor felt that the new diagnosis of a small right sided disc protrusion at L4-L5 matched the mechanics of injury, the initial doctor's report and the ongoing lumbar difficulties that the worker had reported throughout the course of her claim.

On July 28, 2010, Review Office determined that the new medical evidence did not support that the worker was disabled beyond August 5, 2009 in relation to the effects of the workplace accident of August 15, 2007. Review Office was of the opinion that the cause of the worker's current symptoms were degenerative disc disease of the thoraco-lumbar spine and that the aggravation of the worker's pre-existing degenerative joint disease had resolved. Based on these findings, Review Office indicated that no change would be made to its decision of September 22, 2009. The worker subsequently appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable legislation:

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond August 5, 2009. 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 participated in the hearing via teleconference and was assisted by a worker advisor. It was submitted that the worker had not recovered from the effects of her August 15, 2007 workplace injury and that there was a causal relationship between her current symptoms and the compensable injury. Prior to the injury the worker was a very physically active person and had no previous back difficulties or pain. Even though the medical assessments revealed that the worker had a significant pre-existing back condition, the worker was asymptomatic of this condition prior to August 15, 2007. At the time of the hearing, the worker continued to be very restricted as a result of her back condition and she had not returned to her pre-accident status. It was submitted that the orthopedic surgeon's reports of February 3, 2010 and June 15, 2010 supported that the worker still had an ongoing aggravation related to the compensable injury and that the WCB should resume their responsibility.

Employer’s position:

An employer advocate was present at the hearing. The employer supported the decision made by the WCB and it was submitted that the evidence on file indicated that the worker had recovered from the acute effects of her workplace injury and that her ongoing symptoms were most likely related to her documented pre-existing degenerative condition. As such, the worker no longer had any loss of earning capacity as a direct result of her workplace injury. It has been almost three and a half years since she was injured and the evidence indicated that any aggravation from the work injury on her pre-existing condition had long since resolved.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker has experienced with her back after August 5, 2009 are related to the injuries she sustained in the workplace accident of August 15, 2007. While it is evident that the worker has never been able to return to her pre-accident status, the question to be determined is whether her difficulties are the result of her workplace accident, or whether they are attributable to degenerative changes in the worker’s back. On a balance of probabilities, we find that the work related low back strain had resolved by August 5, 2009 and that the worker’s current difficulties are attributable to degenerative changes in her lumbar and thoracic spine.

At the hearing, it was repeatedly emphasized that prior to the workplace injury, the worker was physically active and was able to perform all of her homecare job duties, which included working with heavy care clients. She had a long history with homecare, working for over 26 years in the area, and at the time of the injury, she averaged working between 40 to 48 hours every two weeks. The worker's evidence was that on the day of the accident, she was doing exercises with a client on a low bed. She was helping the client do exercises by lifting his leg when she felt a terrible pain in her back. She never let on that she was hurt and finished her shift as best she could. After she was done, she went home, took some ibuprofen and lay down with a heating pad. At 4:00 pm, she went back to work and helped with dinner and evening care with her clients. The next day, she tried to go back to work, and in fact she did help a client to shower, but she soon realized that she was "in trouble," and went to see her doctor. At that time, she had pain from her shoulder blade right down through her tailbone. The pain had gotten worse and she knew that she could not keep going.

In September, 2007, the worker received physiotherapy treatment which she said: "kind of helped me. I wasn't cured but it gave me some relief." She could walk better but the pain was not gone. The pain did not completely go away and she was still unable to do her activities like she used to do. After the physiotherapy was complete, the worker said that she did not receive any more treatment for about three years. More recently, in June 2010, she started physiotherapy again and had noticed "a touch" of improvement in her back. The treatments seemed to be loosening her back and giving her more movement.

Overall, the worker's evidence was that her physiotherapy in 2007 helped her feel "a touch better" but since then, she has been at a standstill and her condition has pretty much remained the same. In the panel's opinion, while this may be the worker's recollection at this time, the medical records do not reflect a static unchanging condition. At the call-in examination of November 15, 2007, the worker described her abilities as follows: able to walk around her house; she can sit up to a maximum of two hours at a time; she has to stop and rest after doing less than one flight of stairs; she is awakening with back pain; changing her position in bed seems to aggravate her back pain; she is able to do some of the lighter laundry, cooking and cleaning duties at home. One and a half years later, at the call-in examination of July 2, 2009, the worker described her activity as: lifting weights which are light at the most; pain prevents her from sitting more than an hour; washing and dressing increase the pain and she finds it necessary to change her way of doing it; walking is possible only for a very short distance without any walking aids; she does not use a cane; standing is limited to 15 minutes without increasing pain significantly; sleeping is reduced by less than one-half because of pain; extra pain occurs when travelling; hardly any social life because of the pain; husband contributes to 50% of the cooking in the home and does all of the laundry and floor cleaning.

The panel is left with an impression of a slowly worsening condition, which is consistent with the natural progression of degenerative disease. At the time of the accident, the worker was 75 years old, so it would not be unusual for her pre-existing degeneration to become increasingly symptomatic. In the panel's opinion, the weight of the medical opinion is that the worker's current symptoms are attributable to degenerative disease and that the work related low back strain which aggravated the pre-existing condition has resolved. The worker advisor submitted that the most current orthopedic surgeon's report supports an ongoing aggravation related to the compensable injury, but the panel does not accept this interpretation. The report of June 15, 2010 states: "The patient obviously was adamant that this is still caused by her previous injury but there is no distinct correlation of this on these MRI scan views." We do not interpret this as support for the worker's position.

The panel therefore finds that the difficulties the worker experienced with her back after August 5, 2009 are not related to the injuries she sustained in her workplace accident. As a result, the worker is not entitled to wage loss benefits beyond August 5, 2009. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of December, 2010

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