Decision #17/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she was fit to resume her pre-accident duties by July 25, 2009 based on the results of a four week reconditioning program. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on January 13, 2011 to consider the matter.Issue
Whether or not the worker is entitled to medical aid and wage loss benefits beyond July 24, 2009.Decision
That the worker is not entitled to medical aid and wage loss benefits beyond July 24, 2009.Decision: Unanimous
Background
During the course of her employment as a carpenter on February 5, 2009, the worker was helping some co-workers push/pull a roll of carpet through a basement window when she felt a twinge in her lower back. The roll of carpet weighed approximately 300 pounds and the portion held by the worker was estimated to be about 75 pounds. The claim for compensation was accepted based on the diagnosis of a low back strain and benefits were paid to the worker.
Medical reports showed that the worker underwent an x-ray of the lumbosacral spine on April 1, 2009, which revealed disc space narrowing at L5-S1, minimal sclerosis and small osteophytes. The remaining disc and vertebral body heights were well maintained.
On April 29, 2009, a CT scan showed minor diffuse disc bulging at L2-3 and L3-4. There was mild to moderate diffuse posterior disc bulging at L4-5 which did not appear to involve the adjacent dural sac or nerve roots. At L5-S1, there was very minimal diffuse posterior disc bulging. The "Impression" indicated no focal disc protrusion and no evidence of any stenosis involving the central canal, exit foramen or lateral recess. There was mild diffuse lower lumbar facet arthropathy incidentally noted.
In a doctor's progress report dated May 13, 2009, it was reported that the worker had pain in the lumbar spine affecting the left buttock and leg.
On May 13, 2009, a WCB case manager referred the file to a WCB medical advisor to answer several questions pertinent to the worker's case. The case manager noted that the worker reported ongoing pain and noted that her back was "damaged". Reports from the treating physician indicated that the worker reported no improvement in her symptoms and he authorized the worker to be off work for another month. The case manager noted that the worker was on narcotic medication. On June 22, 2009, the medical advisor responded as follows:
- the symptoms/findings were primarily subjective in nature. The diagnosis noted on file was a low back strain which was supported by the unremarkable CT scan findings. It was expected that a low back strain would have recovered by now. The medical advisor felt that the current symptoms/findings were subjective and could not be accounted for on a structural basis.
- the medical information did not preclude participation in a reconditioning program; and
- the diffuse degenerative changes and minor disc bulge at multiple levels were pre-existing conditions that could prolong recovery from a low back strain.
On June 19, 2009, the treating physician indicated that the worker had a stiff back with pain on bending or sitting more than 15 minutes.
On June 22, 2009, the case manager noted to file that arrangements were being made for the worker to undergo a four week reconditioning program as the employer had no light duties available. On June 29, 2009, the worker started the 4 week reconditioning program.
On July 2, 2009 the case manager sent a decision letter noting that the four week reconditioning program was a progressive exercise program to help regain flexibility, strength, endurance and confidence to resume her specific job activities. As it was anticipated she would be at pre-accident status, responsibility for wage loss benefits would be paid to July 24, 2009.
Under "Occupational Therapy Assessment" in the intake assessment report of July 3, 2009, it stated,
"[the worker] states "I have my doubts" when asked about her feelings on her ability to return to her pre-injury employment. She reports that when she has attempted to lift her tool bag which weighs 25 lbs approximately, her pain increases immediately in her low back."
On July 7, 2009, the worker advised the case manager that she was in the second week of her reconditioning program and that her pain was "unbelievable". She described a "knife/stabbing" pain in her right low back/buttock with a "burning" sensation going down her right leg. She was experiencing a "tingling" in her right baby toe. The case manager advised the worker to continue with the program and to see her doctor at the end of the program if she felt that she was still unable to return to work.
In a report dated July 8, 2009, the reconditioning program's physical medicine and rehabilitation specialist noted that the worker was in the second week of rehabilitation. He indicated that the worker expressed frustration with having to take pain medication due to increased pain levels which she attributed to "doing too much yesterday". The worker said she had some cramping and shooting pains in the right low back and right buttock that were aggravating her. The worker reported that her doctor told her she had a compressed vertebrae in her back and that she had spinal arthritis. The specialist noted that he reviewed the x-ray and CT scan results with the worker which showed some L5-S1 disc narrowing and mild osteoarthrosis (not arthritis which is something different, although related). He said the findings on the CT were quite good with no disc protrusions or herniations, and no narrowing of the central canal, lateral recesses or foramina. Incidental diffuse facet arthropathy was noted.
The specialist reported that he educated the worker on hurt versus harm and told her that aches and pains can normally increase in the initial phase of rehabilitation. He stated there was nothing about the worker's back condition that would suggest that the aches and pains arising in an active rehabilitation program would suggest that the rehabilitation program needed to be stopped.
On July 13, 2009, the treating physician indicated that the worker was attending the work hardening program and was very stiff and painful afterwards.
The Reconditioning Program Discharge Report dated July 27, 2009 stated:
"…Based upon her functional testing and day to day rehab performance, she has shown the ability to sustain daily activities at a level that would be consistent with being capable of returning to her job at this time if she wanted to. She had escalating pain complaints during the rehab that are not consistent with the daily physical tolerance demonstrated in the final functioning testing observed. It is felt that she would be capable of returning to her job at this time if she decided to do so."
In a report to the WCB dated July 22, 2009, the reconditioning program's physical medicine and rehabilitation specialist stated:
"[the worker] continues to talk about her pain in rather dramatic and extreme terms, claiming that the discomforts are getting worse and worse over time. She was educated about hurt vs harm…She continues to steadfastly maintain that something is very wrong with her back and that something has been missed in her back. I cannot agree with that, and I felt that there are likely other issues involved here that are non-anatomical in nature, and perhaps related to her work environment. Her discharge functional testing was done yesterday, and she continues to demonstrate physical ability in the Medium physical demand level, and shows no worsening of objective physical findings after having exerted herself to that level. Her job demands are at the Medium level, and the over-all scenario would be consistent with being able to return to that job at this time if she chose to do so."
In a decision dated July 30, 2009, the case manager advised the worker that based on the results of her reconditioning program, she was fit to return to her pre-accident job as of July 27, 2009. Therefore, there will be no change to the July 2, 2009 decision that responsibility for her claim would end as of July 24, 2009.
In a report to the WCB dated November 4, 2009, the treating physician indicated that physiotherapy and work hardening failed to improve the worker's back pain and she still relied on pain medication. The worker had significant disability with her back with reduced tolerance for sitting, standing and bending. She was unable to lift greater than 10 pounds. The physician did not feel the worker was employable at her previous job where it involved much heavy lifting and bending. It was the physician's opinion that the worker's ongoing back pain was a direct result of the injuries she sustained in February 2009.
On November 9, 2009, the worker appealed the case manager's decision to Review Office. The worker indicated that she was still unable to work after her reconditioning program and was still in a lot of pain and could not stand, walk or sit for long periods of time nor could she bend or lift anything heavy.
On December 17, 2009, Review Office determined that WCB responsibility for medical treatment and wage loss benefits should not extend beyond July 24, 2009. Review Office indicated that it agreed with the position taken by the reconditioning program's physical medicine and rehabilitation specialist and the WCB case manager. Review Office was of the opinion that whatever was producing the worker's current subjective complaints of pain, did not have a relationship to a low back strain occurring on February 5, 2009. On May 13, 2010, the worker 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. This case deals with a request by the worker for ongoing benefits. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 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 attended the hearing with her spouse. The worker made a brief presentation and answered questions from the panel.
The worker advised the panel that she does not feel that her condition has been properly diagnosed. She feels that she has never healed from the workplace injury and remarked that she is still in pain 24 hours per day.
She expressed concern about treatment she received while in a reconditioning program arranged by the WCB. She said that her physical ability declined while in the program. With respect to the tests that were conducted to determine her ability to work, she feels the tests did not represent the conditions in her workplace. She stated that her work is much heavier than considered by the testing in the reconditioning program.
The worker also submitted an MRI report dated February 12, 2010 that she felt supported her position. The report noted that "At the L5-S1 level, there is a shallow left foraminal protrusion and associated annular tear. This does not appear to contact or affect either L5 or S1 roots. The central canal and foramen are well maintained."
The worker advised that she worked for a small construction firm performing duties including; sanding and painting, dealing with garbage at worksite, picking up materials, finishing cabinets in spray booth, lifting large containers of paint, demolition, installing doors, and building fences. She said that she cannot return to this type of work in her current physical condition. She advised that she resigned from her position with the firm.
The worker indicated that household duties, such as vacuuming and washing floors cause pain. The pain is a burning pain in the lower back. She said it can feel like a blow torch. She also said that she sometimes has pins and needles down her right leg which stop at her knee. As well, she advised that when she gets the burning pain in her lower back, her foot swells, she gets tingling in the foot and her toes turn purple.
When asked about a diagnosis for her condition, she stated that she is not sure what her diagnosis is. She said that her treating physician told her that her back will heal but did not provide a diagnosis. She advised that her physician did not explain the April 1, 2009 x-ray which referenced small osteophytes.
The worker indicated that she now walks with a cane, she began using the cane after she completed the reconditioning program. She said that her condition worsened after the reconditioning, she had back seizures and slipped on ice so started to use a cane. She said that she has difficulty walking distances.
In answer to a question, the worker provided a list of her current medications.
In addition to her presence before the panel, the worker's written appeal letter of April 2, 2010 was on file and was available to the panel in considering the worker's appeal.
Analysis
The issue before the panel was whether the worker is entitled to medical aid and wage loss benefits beyond July 24, 2009. For the worker's appeal to be accepted, the panel must find that the worker requires medical aid and continues to suffer a loss of earning capacity as a result of the workplace injury. The panel was not able to make this finding. The panel finds that the worker's current symptoms and loss of earning capacity are not related to the workplace injury.
The panel notes that the compensable diagnosis arising from the injury was a strain/sprain type of injury to the worker's back. The worker has complained of symptoms which are not consistent with this diagnosis and are not supported by the clinical findings on the worker's file. Neither the April 1, 2009 x-ray of the lumbosacral spine nor the April 29, 2009 CT of the lumbar spine explain the worker's current complaints and symptoms. With respect to the CT, it found no disc protrusion or nerve root irritation.
At the hearing the worker referred to the MRI report of February 2010. The panel notes that the MRI report found a shallow left foraminal protrusion and associated annular tear which did not appear to contact or affect the L5 or S1 roots. It also noted that the central canal and foramen are well maintained. The panel is not able to relate the worker's current symptoms to this report.
In answer to questions at the hearing, the worker reported her pain level in numerical values varied. She reported the pain level as 8/10 in February 2009, as 6/10 in April 2009, as 3/10 on June 25, 2009. On the day of the hearing the worker reported her pain level as 3/10. The panel notes that at intake into the reconditioning program she reported her pain level as 3/10 and at 10/10 two weeks earlier. The panel is unable to attach weight to the worker's reported pain levels as they appear to vary widely without clinical/medical explanation.
Finally, the panel notes the worker's evidence regarding her inability to return to her pre-accident job and the significant deterioration in her condition. The worker rated her job at the heavy demand level, yet the rating pursuant to the Dictionary of Occupational Titles is medium physical demand level. The panel does not agree with the worker's rating for her job. The panel obtained information from the worker at the hearing on her job duties but is unable to find that the duties are heavy demand as suggested by the worker. Given the findings in the Reconditioning Program Discharge Report, which the panel accepts, the panel finds that the worker was fit to return to her pre-accident employment. The panel is unable to attribute her current symptoms and loss of earning capacity to her workplace injury.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerM. Bencharski, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of February, 2011