Decision #11/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that by September 7, 2009, the worker no longer suffered from the effects of his July 20, 2008 compensable coccyx injury and no longer had a related loss of earning capacity. A hearing was held on December 7, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after September 7, 2009.

Decision

That the worker is not entitled to wage loss and medical aid benefits after September 7, 2009.

Decision: Unanimous

Background

On July 20, 2008, the worker was employed as a security guard when he slipped on some stairs in a parkade and landed on his buttocks. He stated that he also injured his hands from sliding down the stairs. On the same day, the worker was diagnosed with a contusion and a fractured coccyx was suspected. An x-ray taken of the sacrum and coccyx on July 20, 2008 showed that the SI joints and pubic symphysis joints were intact. A definite fracture was not seen. The claim for compensation was accepted based the diagnosis of contusion to the buttocks and benefits were paid to the worker.

A physiotherapist's initial assessment done on August 11, 2008 diagnosed the worker with a coccyx fracture, left rhomboid strain and questioned disc dysfunction.

On September 2, 2008, a CT scan of the lumbar spine and the coccyx was carried out. The results revealed a healing coccyx fracture. At the L3-L4 level, there was a small left paracentral disc herniation without spinal stenosis and without convincing evidence of focal nerve root compression. At the L4-L5 level, there was a broad posterior disc bulging versus a shallow central disc herniation without spinal stenosis or nerve root compression. There was a broad shallow left paracentral disc herniation without spinal stenosis or nerve root compression at the L5-S1 level. No other lumbosacral spine abnormality was identified.

A WCB medical advisor reviewed the file on November 26, 2008 and stated that recovery time from a coccyx fracture would occur over 8 to 12 weeks. If the disc changes were acute ("this is not known"), then recovery would be expected to occur over 3-6 months.

In January 2009, the family physician asked the WCB to arrange an MRI examination as the worker was reporting increased back symptoms. The MRI results dated February 10, 2009 showed minor, non-specific deformity at the tip of the coccyx. There were disc protrusions at L3-4, L4-5 and L5-S1, none of which was associated with nerve root compromise.

On March 13, 2009, the worker was examined by a WCB medical advisor and was found to have decreased range of motion of the spine and decreased straight leg raise. Also observed were pain behaviors including tremulousness, slow gait, decrease in straight leg raise in the supine versus the sitting position, as well as excess sensitivity to light palpation. Axial compression of the head and neck resulted in low back pain complaints. There was mild tenderness without disability noted at the post-coccygeal fracture. The medical advisor opined that the worker was fit to participate in some form of a return to work program. Bearing in mind that the worker was likely significantly deconditioned, it was recommended that the worker return to work gradually at 3 to 4 hours initially where he was walking mainly and sitting and avoiding repetitive bending or lifting and to avoid responding to security calls.

A graduated return to work program was arranged to start on April 6, 2009 and end on May 22, 2009. File records showed that the worker missed a few shifts due to low back and leg pain and the graduated return to work program was stopped by the family physician.

In a report dated May 5, 2009, the treating physiotherapist noted that the worker reported "snapping" his back 5 days ago while getting out of his car. He since had pain in his low back into both buttocks and down the left lateral thigh. The physiotherapist's impression was flare-up of chronic injury and overactive pain response.

In a report dated May 14, 2009, the family physician requested another MRI examination for the worker stating the worker clinically had a disc protrusion/sciatica.

A WCB medical advisor spoke with the family physician on June 3, 2009. Based on his recent examination, the family physician noted that the worker had worsening sciatica and limited range of motion and limited straight leg raise. He felt that the multi-level disc protrusions were responsible for the current findings and that the worker should not continue with his graduated return to work program.

The worker was seen again by a WCB medical advisor on June 22, 2009 who reported that the worker presented with a post-fracture of the coccyx and evidence of low back pain. The examination findings were hard to interpret due to the presence of significant pain behaviors. There were no hard findings of a radiculopathic nature. Recommendations were made for a second MRI and depending on the results, a possible referral to a particular clinic for treatment or to an orthopaedic specialist or physiatrist.

MRI results dated July 8, 2009 showed that the disc at L4-5 was larger on the left side and was now compressing the left L5 nerve root. No other change was noted.

On July 28, 2009, the family physician stated that he reviewed the recent MRI report. He advised the worker that although the L4-L5 disc was larger with his symptom complex, surgery was not indicated and that continuation of conservative management was indicated. The worker was advised to restart physiotherapy on a weekly basis and to be seen again for re-assessment in 3 weeks time.

The file information was reviewed by a WCB orthopaedic consultant on August 19, 2009 and the following opinion was expressed:

"1. The current diagnosis was L4-L5 disc protrusion with L5 nerve root irritation.

2. The MOI [mechanism of injury] was a direct blow causing fracture of the coccyx. There is no medical evidence to demonstrate that the progressive degenerative lumbar disc lesion was caused by the CI [compensable injury].

3. Treatment recommendations are appropriate for the current diagnosis, but cannot be related to the CI diagnosis, on the balance of probabilities.

4. That decision is best left to [treating physician].

5. Patients with low back symptoms such as this are often able to work with lumbar spine restrictions.

6. The fracture of the coccyx has probably healed during the twelve months since injury, so the worker is considered to have recovered from the CI.

7. MRI documented deterioration is related to the natural history of degenerative lumbar disc disease. The degenerative lumbar disc disease probably existed prior to the CI and may not have previously been causing significant symptoms."

On August 28, 2009, the case manager noted to file that the worker had pre-existing lumbar disc degeneration at L3-S1 and the employer was granted 50% cost relief.

On September 11, 2009, the worker was advised that the WCB was unable to accept responsibility for his ongoing difficulties as being related to his workplace injury of July 20, 2008. The decision was based on the opinion expressed by the WCB orthopaedic consultant dated August 19, 2009. The decision was appealed by an advocate representing the worker on October 13, 2009. Included with the submission was a report from the family physician dated September 28, 2009.

On October 22, 2009, a WCB orthopaedic consultant reviewed the new file information and stated,

"1. Information from the worker advocate indicates that the worker has been referred by the family physician to [a neurologist], and also to [a neurosurgeon].

2. The reason for the referral appears to be progressive symptoms of degenerative lumbar disc disease.

3. The degenerative lumbar disc disease natural history is one of progression and there is no medical evidence that it was enhanced by the CI [compensable injury], the diagnosis of which was a fracture of the coccyx."

In a letter to the worker dated October 27, 2009, the case manager indicated that no change would be made to the decision dated September 11, 2009. The case manager stated, "I have reviewed [the advocate's] submission received October 15, 2009 in conjunction with a WCB orthoapedic medical advisor. There is no change to the medical advisor's opinion that "the mechanism of injury on July 20, 2008 was a direct blow causing a fracture of the coccyx. There is no medical evidence to demonstrate that the progressive degenerative lumbar disc lesion was caused or enhanced by the compensable injury." On November 6, 2009, the worker's advocate appealed this decision to Review Office.

On January 14, 2009, Review Office considered the worker's claim which included a submission by an advocate representing the employer dated December 11, 2009 and a further submission from the worker's advocate dated December 21, 2009. Review Office determined that there was no entitlement to wage loss or medical aid benefits after September 7, 2009.

Review Office outlined the view that the compensable injury was a fracture to the coccyx and the evidence supported the fracture did not contribute to the worker's treatment or loss of earning capacity after September 7, 2009. Review Office was of the view that the worker suffered a new injury (the MRI findings of July 8, 2009) caused by the "snapping" action of getting out of his car and that this was not caused by the compensable injury or its associated treatment or the accident event of July 20, 2008. Review Office concluded that the worker no longer suffered from the effects of his July 20, 2008 compensable injury by September 7, 2009 and no longer had a loss of earning capacity. On March 22, 2010, the worker's advocate appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

On November 2, 2010 the worker's advocate provided the Appeal Commission with a report from the family physician dated July 22, 2010 for consideration.

Reasons

Applicable legislation:

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits beyond September 7, 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was assisted by an advocate at the hearing. It was submitted that the worker was a 35 year old male who had no history of back problems prior to the accident. He had worked as a health care aide from 2001 to 2006 which involved significant heavy lifting without any issues. To suggest that the worker was suffering from degenerative disc disease did not make sense and the medical reports of the worker's treating physician were relied upon to state that the worker's symptoms were consistent with the work related injury and his disability was related to same. To the extent that there was a pre-existing disc condition, it was submitted that this condition was aggravated and enhanced by the work-related fall, and the worker's claim for benefits should continue.

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 compensable injury was diagnosed as a fractured coccyx. There were no findings of radiculopathy or disc related pathology following the incident. Diagnostic imaging and clinical evaluation showed that this fracture had healed. The worker remained on benefits for fourteen months, which was a more than adequate period in which to recover. It was submitted that the worker's current problems were due solely to his pre-existing condition and there was no evidence that this condition was in any way enhanced by the compensable incident. It was therefore asked that the panel confirm the decision of the WCB.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the low back difficulties the worker has experienced after September 7, 2009 are related to the injuries he sustained in the workplace accident of July 20, 2008. On a balance of probabilities, we find that the work related coccygeal fracture had resolved by September 7, 2009 and that the worker’s current difficulties are attributable to pre-existing degenerative changes in his lumbar spine.

In coming to our decision, the panel relied on the following:

  • The diagnosed injury from the fall down the stairs at work was a stable coccygeal fracture. The emergency room notes from the date of the accident showed no sciatica, no radiation, no weakness and no paraesthesia, thus showing no indication of a neurologic injury at that time.
  • Subsequent imaging reports from a CT scan in September 2008 and MRI in February 2009 both show disc protrusions, but none are associated with nerve root compromise.
  • The March 13, 2009 call-in examination by the WCB medical advisor notes there are no convincing abnormal neurologic findings, but does identify some observed pain behaviours, with inconsistent straight leg raise results, excess sensitivity to light palpation, and low back pain complaints on axial compression of head and neck. The worker was considered fit to participate in a return to work program with a need for reconditioning.
  • In the panel's opinion, there was a marked change in the worker's symptoms following the incident in May, 2009 when the worker was in his car. At the hearing, the worker's advocate submitted that there was no new accident at that time and the worker's evidence was that he was just in his car and his pain increased so much that he was unable to get out of the car. The physiotherapist's report of May 5, 2009, however, states: "[Worker] reports 'snapping' of his back 5 days ago while getting out of car; since then he has pain in low back into both buttocks and down left lateral thigh." The treating physician's progress report indicates: "increased symptoms - changed position (out of the car); not able to move… cancel RTW program." The panel finds that the medical providers' notes prepared at the time are a more reliable record of what occurred.
  • Due to the increased symptoms following the May 2009 car incident, the worker discontinued participation in the return to work program and was subsequently diagnosed as suffering from an L4-5 disc protrusion with L5 nerve root irritation. In the panel's opinion, this diagnosis was the cause of his ongoing low back difficulties after September 7, 2009 and is not related to the workplace injury he suffered when he fell in July 2008.
  • The panel accepts the August 19, 2009 opinion of the WCB orthopaedic advisor and therefore finds that by September 7, 2009, the compensable coccygeal fracture had resolved and that the documented deterioration of the lumbar disc degeneration was not causally related to the compensable injury.

For the foregoing reasons, the panel finds that the worker is not entitled to wage loss and medical aid benefits after September 7, 2009. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of February, 2011

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