The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ('WCB") which determined that his ongoing low back/hip difficulties are not directly related to the compensable injury he incurred on July 17, 2007. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. An appeal panel hearing was held on October 26, 2010, to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 20, 2009.

Decision

That the worker is not entitled to wage loss benefits beyond August 20, 2009.

Decision: Unanimous

Background

On July 27, 2007, the worker, who was employed as a custodian, filed a claim with the WCB ìn respect of an injury to his right hip that occurred while lifting 3 to 4 boxes full of books from the floor to a table. As the worker twisted to the left, he felt pain in his right hip.

The worker attended at a walk in clinic on July 19, 2007 and was diagnosed by a sports medicine physician with a right hip capsular sprain with avulsion fracture and right lumbar muscle strain. It was recommended that he take a week off work and then return to light duties. The worker's claim for compensation was accepted based on that diagnosis.

The employer advised the WCB on July 26, 2007, that the worker had returned to work, and was performing the majority of his job duties with the exception of lifting which he would not do for the following three weeks. The WCB paid the worker wage loss benefits to July 25, 2007 inclusive.

On March 26, 2008, the worker advised a WCB adjudicator that he continued to have some ongoing pain in his right hip that he related to the July 2007 compensable injury. The worker indicated that he had received no medical treatment since July 2007 but had started to see his family doctor over the previous three weeks. He was seen by a physiotherapist on March 19, 2008 who had diagnosed a right hip strain.

In a further conversation with the adjudicator on April 9, 2008, the worker advised that when the injury first happened in July 2007, the doctor told him that he had pulled a flake of bone off his hip. He said the chip was so small that surgery would not help and eventually it would just be absorbed. The worker indicated that he had not made complaints to anyone at work as he has a high pain threshold and thought the problem would go away. It continued, however, and by the end of the day his hip was very painful. The worker indicated that he was not missing any time from work but was claiming for physiotherapy costs.

A May 5, 2008 x-ray report of the pelvis and right hip including SI joints showed findings of "mild to moderate narrowing of both hip joints in keeping with minor osteoarthritis. Early osteophyte formation is seen at the femoral necks. The sacroiliac joints are normal in appearance bilaterally."

In a note to file dated June 4, 2008, a WCB case manager indicated that the results of the x-ray supported the worker's current complaints and that he was accepting responsibility for the worker's physiotherapy treatment. He stated that on a balance of probabilities, the worker's hip pain was likely related to his original right anterior hip avulsion.

On June 16, 2008, the worker was seen by an orthopaedic specialist for complaints of right groin and buttock pain. The specialist reported that the worker had restricted motion in both hips in the form of limitation of internal rotation. He noted that x-rays of his hip showed:

“degenerative type of narrowing in both hips, more so on the right side. The x-rays of the lumbar spine do show narrowing of multiple disc spaces, more pronounced at L4-5 with vacuum phenomena in keeping with degenerative disc disease.”

He stated that the worker's osteoarthritis was not sufficiently advanced to warrant surgical treatment and recommended that the worker continue with his anti-inflammatory medications, lose some weight and try alternate forms of exercise.

A physiotherapy report dated August 27, 2008 indicated that the worker had right low back pain radiating to the buttock, worse with walking and standing. The physiotherapist advised the worker to decrease his walking time and to limit weights over 15 to 20 lbs.

A progress report from the treating physician dated August 26, 2008 changed the worker's diagnosis to degenerative lumbar spine with right sciatica, and desk duties for the worker were recommended.

The worker informed his case manager on August 28, 2008 that his physician had advised that he was capable of only light duties due to worsening back and hip pain. He could not stand on his feet for more than 30 minutes before his right hip would give out on him. The worker said his job required him to be on his feet for up to 2 hours at a time.

On September 4, 2008, a WCB physiotherapy advisor stated the twisting mechanism of injury likely aggravated the worker's past history of right hip pain with playing tennis and running. He recommended that the extension request for physiotherapy be approved for stretches and strengthening of the right hip.

On September 5, 2008, the WCB case manager met with the worker to advise him that he was extending physiotherapy treatment for six additional treatments. He noted that based on the work restrictions outlined by the treating physiotherapist and given the potential chronicity of the injury, it was "likely in the best interest of the employer to assist [the worker] into an alternate department to avoid future time loss".

On September 8, 2008, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor was of the view that the worker’s current symptoms appeared related to the original mechanism of injury. Given the mechanism of injury, the symptoms reported and the x-rays findings there appeared to be an aggravation of a right hip osteoarthritis. He noted that the osteoarthritis was pre-existing and may be prolonging the worker`s recovery. He stated that the restrictions outlined by the treating physiotherapist (to avoid lifting anything in excess of 20 pounds and to avoid walking/weight bearing activities for more than 30 minutes without sitting down/resting) appeared to be reasonable and should be reviewed in two months.

In a letter dated September 12, 2008, the employer advised the worker that his work duties would be adjusted to coincide with the work restrictions prescribed by the WCB. The worker returned to modified duties but discontinued work as of October 17, 2008 due to increased hip pain.

On November 7, 2008, the worker underwent a CT of the lumbar spine. The impression read: "L4-L5 spinal stenosis, secondary to disc degeneration, facet joint osteoarthritis, and a large disc protrusion".

On November 24, 2008, a WCB medical advisor recommended a call in examination given the different diagnoses on the worker`s file. The examination took place on December 5, 2008. At that time the worker reported improvement in his right leg pain and that the pain was mostly centralized to his lower back. Notes of the examination state:

"The compensable diagnosis at this time appears to be a recovering and centralizing right L4 lumbar radiculopathy. This is in light of 4/5 hip flexion on repetitive testing, full hip range of motion, the characteristic radiation of pain, the mechanism of injury, the findings on CT scan, and the persisting symptoms.

The recommendations at this time would include no lifting greater than 25 lbs from floor to waist, and postural changes. At this time, there appears to be no medical contraindication to beginning a return to work within these restrictions. These restrictions should be reviewed in approximately two months. Given the natural history of lumbar disc herniations, the prognosis to full recovery appears to be good with conservative treatment.

A further course of physiotherapy…appear to be reasonable at this time."

On January 7, 2009, the employer notified the WCB that the worker would be returning to work on January 12, 2009 within the specific restrictions outlined by the WCB. In January, February and March 2009, the worker advised the WCB that his pain was getting worse and that it was constant throughout the day.

On April 6, 2009, the worker was seen at the WCB for a second examination by a WCB medical advisor who recommended that he continue working within the previous restrictions outlined by his physiotherapist in February 2009. Following the assessment, the WCB medical advisor noted:

"The compensable diagnosis at this point appears to be a centralizing lumbar radiculopathy. At this examination, there appears to be no further radicular characteristics. This is in light of negative straight leg raise testing, 5/5 hip flexion on repetitive testing and the nature of symptoms at this time. Recommendations at this time would be to continue with the restrictions…to reintroduce a course of six to eight physiotherapy sessions focusing on strengthening with little focus on modality treatments.”

A physiotherapy discharge report dated July 15, 2009 indicated that the worker's recovery was not satisfactory and that he was still limited with walking tolerance.

On August 7, 2009, the WCB medical advisor who had examined the worker in April 2009 stated that:

“Given the findings on file it appears that [the worker] has objectively recovered from the lumbar radiculopathy. . . . [he] may have some residual subjective low back symptoms that on the basis of probabilities is probably related to the degenerative changes of the lumbar spine noted on CT imaging. . . .the [worker's] noted medications at this time would likely relate to the symptomatic pre-existing degenerative changes rather than the compensable injury.”

In a decision dated September 2, 2009, the worker was advised that in the opinion of the WCB, he had recovered from the effects of his compensable injury and he no longer required restrictions in relation to his compensable injury. The WCB therefore was unable to accept further responsibility for any wage loss or medical treatment in relation to his back/hip difficulties. On November 29, 2009, the worker appealed the decision to Review Office.

On January 13, 2010, Review Office determined that there was no entitlement to benefits beyond August 20, 2009. Review Office accepted the opinion provided by the WCB medical advisor that the worker's ongoing symptoms were no longer related to the compensable incident incurred on July 17, 2007. On February 19, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on October 26, 2010.

Following the hearing, the appeal panel met to discuss the case. Prior to rendering a decision on the issue under appeal, the appeal panel requested additional information from the worker's treating physician and asked a WCB medical advisor to clarify his examination findings of December 5, 2008 and April 6, 2009. The requested information from the treating physician and WCB consultant was received and was forwarded to the interested parties for comment. On December 17, 2010, the panel met further to discuss the case and rendered its final decision.

Reasons

While the worker continues to suffer symptoms in his lower back which he describes as starting in his right hip, we find that by August 2009 the worker had recovered from the compensable diagnosis of lumbar radiculopathy. In arriving at that conclusion we have placed significant weight on the opinion of the WCB medical advisor who concluded on August 7, 2009 that the worker had objectively recovered from the lumbar radiculopathy. He found that the worker “may have some residual subjective low back symptoms that on a balance of probabilities is probably related to the degenerative changes of the lumbar spine noted on CT imaging.”

The conclusions of the WCB medical advisor were supported, in our view, by the evidence of the worker that while he initially experienced a shooting pain down his right thigh, which would be characteristic of radiculopathy, that pain was gone by the fall of 2009. Indeed, in December 2008 the worker had reported improvement in his right leg pain and that the pain was mostly centralized to his lower back. We find that the lower back pain which the worker continues to complain of cannot be related to the compensable injury of July 27, 2007. We are therefore unable to find that the compensable injury or the compensable injury in concert with the worker’s pre-existing condition contributed to a material degree to his loss of earning capacity after August 20, 2009.

The worker’s appeal is dismissed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 28th day of January, 2011