Decision #36/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board

("WCB") dated December 16, 2009, in which it was determined that the worker's compression fracture at L1 was not the result of the February 11, 2009 compensable workplace injury or related chiropractic treatment. The worker disagreed with the decision and appeal was filed with the Appeal Commission. A hearing was held on September 8, 2010 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's L1 compression fracture.

Decision

That responsibility should not be accepted for the worker's L1 compression fracture.

Decision: Unanimous

Background

The Employer's Accident Report indicated that the worker injured her low back region on February 11, 2009 due to the following work related accident:

[worker] attempted to lift a box (weighing approximately 8 to 9 lbs) of connectors…She is unable to bend her knees and was lifting with her back. She didn't notice any pain until two days later when her lower back was sore. She will see a chiropractor this weekend, but will not miss work because of it. Please note that [the worker] has permanent restrictions prior to Feb 11 incident and one of her restrictions is weight limit of less than 1 lb.

A chiropractor's first report for an examination dated February 17, 2009, indicated that the worker lifted a box and had severe ache to the low back. Under objective findings, the chiropractor noted palpatory findings of spasm, fixation and edema at C2, 3, 4, 7, T2, 6, 7, 12 and L4 and L5. The diagnosis rendered was acute onset chronic lumbosacral facet syndrome with myofascial pain irritation and kinetic chain dyskinesias.

On June 11, 2009, the employer called the WCB on behalf of the worker. The employer noted that the worker still had back pain and felt it was related to chiropractic treatment that she had been receiving. The employer stated, "Since approximately March chiropractic treatment has been hurting and pain seems to be moving. She said that her chiropractic adjustment it feels like she was kicked. Chiro keeps changing positions and back feels worse. Currently she has pain from mid back down to just above her bum." The adjudicator suggested that the worker seek treatment from another chiropractor or a physiotherapist.

On June 17, 2009, the worker attended a different chiropractor for treatment and he diagnosed the worker with acute/moderate lumbosacral spinal facet sprain/strain.

In a note to file dated June 24, 2009, a WCB adjudicator recorded that she spoke with a WCB chiropractic consultant who felt that the worker should discontinue chiropractic treatment until the call in exam that was scheduled for July 2, 2009.

The worker was seen by the WCB chiropractic consultant on July 2, 2009. During the interview portion of the examination, the worker indicated that the chiropractor that she first saw for treatment wanted to adjust all areas of her spine but she only let him adjust her low back as this was where it hurt. Under opinions and recommendations, the consultant stated: "it is unclear exactly what the cause of this lady's low back pain was. However, there is certainly a great deal of tenderness over the spinous processes of L2 and L3 and I am suspicious of the presence of a compression fracture."

The worker underwent lumbosacral spine x-rays on July 2, 2009 which showed a moderate recent compression fracture at L1, degenerative disc disease at multiple levels and shallow lumbar scoliosis. Bone scan test results taken July 22, 2009 revealed increased tracer uptake in L1 suggesting the presence of a recent compression fracture. The report further stated: "Exact dating is not possible but this level of activity would be compatible with the provided date of injury (February of 2009)."

In a note to file dated July 22, 2009, the WCB chiropractic consultant stated,

Last week, I discussed findings from call-in exam with [the second treating chiropractor]. He stated that he had only examined the lumbo-sacral and sacro-iliac region as claimant had only complained of problems in this area. He stated that he had not looked at the upper lumbar region.

Last week I discussed findings of the call-in exam with [the first treating chiropractor]. He stated that claimant was a very difficult patient. She would not let him treat her the way he wanted to treat her. He stated that any adjusting he did was done very lightly.

When speaking with a WCB adjudicator on August 4, 2009, the worker noted that after her work injury of picking up a box, she felt a click in her low back and had mild pain of mid low back (around L3). The worker said she could not remember exactly but believed that she first started having pain at L1 after approximately four weeks of chiropractic treatment (approximately March). She first felt pain at L1 when in the chiropractor's office. The chiropractor pressed down with his thumbs in the area.

In a decision dated August 7, 2009, it was determined by the WCB that the worker's low mid back fracture was not directly related to her work injury of February 11, 2009. The decision noted that a compression fracture was usually the result of a forceful traumatic event.

On October 22, 2009, a worker advisor asked Review Office to reconsider the decision of August 7, 2009. The worker advisor stated:

While there is no evidence to confirm the etiology of the worker's L1 compression fracture, we suggest that, based on the available evidence and chronological order, it is reasonable to conclude that the fracture was either the result of the compensable injury (but only became symptomatic with manipulation), which is consistent with the bone scan results, or the result (sic) chiropractic treatment itself, as supported by the worker's own testimony.

We submit that, if not caused by the initial compensable injury, [the worker's] fracture is still compensable as a further injury under WCB policy 44.10.80.40, because there may be a causal relationship between the further injury and the original compensable injury. In this worker's case, we suggest that part iii of the policy would apply.

On December 16, 2009, Review Office confirmed that responsibility should not be accepted for the worker's L1 compression fracture. Review Office outlined its opinion that the at-work incident of February 11, 2009 was unlikely to have caused the L1 compression fracture noting that the worker was lifting an 8 to 9 pound box and did not notice any low back pain until two days later. Review Office also concluded that chiropractic treatment provided for the compensable injury was not the cause of the L1 fracture based on the treating chiropractor's evidence that the worker did not allow him to treat her as he felt was required and any adjustments that he did were done very lightly.

Review Office noted that the worker did not contact the WCB regarding her back complaints between March 2009 and June 2009 even though she claimed that the chiropractor had injured her in March 2009 while performing a chiropractic manipulation. Based on the worker's failure to apprise the WCB immediately of her claimed subsequent injury with chiropractic treatment and the likelihood that the compression fracture was primarily due to the decreased bone density found in her lumbar spine as noted on x-rays, the worker's appeal was denied by Review Office. On January 13, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 8, 2010.

Prior to deciding the issue under appeal, the appeal panel requested additional information from the worker's treating physicians and a chiropractor. It also arranged for an independent chiropractor to review the worker's compensation claim in regard to the etiology of the worker's compression fracture at L1 and whether it could be related to chiropractic manipulations. The information received by the panel was forwarded to the interested parties for comment and on February 14, 2011 the panel met further to discuss the case.

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Worker’s Position:

The worker was self-represented at the hearing and was provided the services of a translator. The worker's position is that she has suffered a secondary injury as a result of her compensable low back injury. She contends that because of the low back lifting injury she sustained while at work, she had to see a chiropractor. During the course of treatment, the chiropractor made her injury more severe by causing her to suffer a L1 compression fracture.

Analysis:

In order for the worker's appeal to succeed, the panel must find that the worker's L1 compression fracture was caused by either the at-work lifting incident, or by the delivery of chiropractic treatment for the original compensable low back injury. On a balance of probabilities, we are unable to make either of those findings.

In the panel's opinion, the L1 compression fracture did not occur during the course of the worker's employment on February 11, 2009. The worker's evidence at the hearing was that she felt a "click" in her low back, approximately one finger below her waist. After the click, she felt uncomfortable and it became painful whenever she moved. This version differs slightly from the early reports on file which indicated that the worker did not notice any pain at the time of the accident, but two days later her lower back was sore. This discrepancy, however, is not of great importance as the worker's evidence is consistent that subsequently, after receiving chiropractic treatment, her situation became worse and her back pain gradually became more severe.

The panel is of the view that the lifting mechanism of injury is not the type of movement which is likely to cause a compression fracture at L1. The panel also notes that the location of the click felt by the worker in her back on the date of the accident is not located near the L1 vertebrae. Finally, the delayed onset of more significant pain symptoms would suggest that the L1 fracture did not occur while the worker was lifting in the course of her employment. Based on the foregoing, the panel concludes that the L1 fracture did not occur as a workplace injury on February 11, 2009. We find that the workplace injury suffered by the worker was limited to a low back sprain/strain.

The panel next considered whether the L1 fracture could have arisen out of the chiropractic treatment which was provided to the worker to treat her compensable low back injury. The evidence on the WCB file was that the attending chiropractor stated that any adjustments which he performed were done very lightly.

After the hearing, the panel requested further medical information from the worker's treating physicians and chart notes from the attending chiropractor. The medical information, including the attending chiropractor's chart notes, was then provided to an independent third party chiropractor for review and opinion. The panel wanted more information regarding the likelihood that the L1 fracture was caused by chiropractic treatment. In his response dated January 25, 2011, the independent chiropractor advised as follows:

  • The areas where chiropractic treatment was provided to the worker were the spinal levels of T1 prone adjustment, L3 Thompson Drop, L5 Thompson Drop and right sacroiliac joint Thompson Drop;
  • There can be numerous causes of compression fractures. In younger patients, they are often associated with significant trauma such as car accidents, jumps and falls. In older patients, lumbar compression fractures usually occur in the absence of trauma or with minor trauma, such as a fall. These are often associated with osteoporosis and may occur spontaneously. Compression fractures can also result from malignancies and infections;
  • Compression fractures represent an isolated failure of the anterior spinal column due to a combination of flexion and axial compression loading. The clinical history often reveals an axial compression of the trunk such as in a fall on the hind quarter or lifting a heavy object in a forward bent position. Considering that all manipulative loading involves extension as opposed to flexion, it is difficult to reconcile how a manipulation could cause a compression fracture to the anterior spinal column. Significant forces would be required to cause a fracture. Hypothetically, if a fracture were to occur, I would expect that the spinous process or transverse process would fracture before a compression fracture to the anterior column. On the balance of probabilities, I am of the opinion that [the worker's] compression fracture at L1 is not causally related to her chiropractic treatments.

The panel accepts the opinion of the independent chiropractor and therefore finds that the worker's L1 compression fracture is not causally related to the chiropractic treatments she received in respect of her compensable injury. As a result, we find that the WCB should not accept responsibility for the worker's L1 compression fracture. 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 25th day of March, 2011

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