Decision #40/11 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for a low back injury that occurred at work on December 8, 2008. His claim for compensation was accepted and the worker was paid wage loss benefits to July 24, 2009, when it was determined that he had recovered from the effects of his injury. The worker disagreed and an appeal was filed with Review Office. On October 8, 2009, Review Office concluded there was a lack of medical evidence to substantiate an ongoing physical cause for the worker's complaints and decided that the decision to end wage loss benefits was appropriate. The worker subsequently appealed the decision to the Appeal Commission and a hearing was held on February 8, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond July 24, 2009.Decision
That the worker is not entitled to wage loss benefits beyond July 24, 2009.Decision: Unanimous
Background
The worker reported that he injured his low back at work on December 8, 2008 due to the following incident:
I was lifting stock with my machine and I was on that machine for a bit and at around 6 PM I felt a pain in my back and it went down my left buttocks and about 6:30 the pain was increasing and by 7:30 the pain was down my left leg, I got up as I couldn't handle that pain anymore so I had to leave work around 8 PM. I work nights at my job and there were no supervisors on at that time so I filled out a green card.
The worker indicated that he sought medical treatment at the first opportunity. His last day at work was on December 11, 2008.
In the employer's accident report, the employer noted that the worker felt pain in his low back, down his left leg and buttocks while lifting stock on December 8, 2008. The worker had been on light duties at the time. The employer questioned the validity of the claim given that the worker continued to work on December 9, 10 and 11 for 10 hour shifts each day.
When speaking with a WCB adjudicator on January 7, 2009, the worker stated that he injured his back about 15 years ago and was scheduled for surgery but he refused it. He had been on a WCB claim and had missed about one year of work. The worker indicated that he had no problems with his back since then but there were days when his back was sore from hard work. The material he lifted at work at the time of the accident weighed between 10 to 15 kilos.
The worker's claim for compensation was accepted based on the diagnosis of a possible left sided disc protrusion pending the results of an MRI examination.
On January 29, 2009, an MRI of the lumbar spine showed the following findings:
The L3-4 level appears normal.
The L4-5 level demonstrates a right lateral protrusion. This appears to contact but not deviate the right L5 root. The foramina and central canal are well maintained.
The L5-S1 level demonstrates a small central protrusion and associated annular tear. The central canal and foramina are well maintained.
As the worker continued to complain of back pain, he was assessed by a WCB medical advisor on April 7, 2009. The advisor noted that the worker presented with low back, left buttock and left leg pain that was difficult to explain on an anatomical basis. There was no clear evidence of a specific anatomic nerve root lesion based on his review of the MRI evidence. The worker appeared to have significant ongoing pain and reported dysfunction. The medical advisor reported that based on the absence of clinical radiculopathy supported by imaging evidence, a work hardening and/or reconditioning program was appropriate.
In a letter dated June 23, 2009, a WCB case manager outlined a four week work hardening program schedule that would run from June 26 to July 24, 2009. The worker was advised that he would continue to receive wage loss benefits to July 24, 2009 as it was felt that he would have recovered from the effects of his December 2008 work injury by the conclusion of the program.
The work hardening discharge report dated July 24, 2009 indicated that at the conclusion of the program, the worker did not demonstrate the ability to perform his job demands. He was self limiting his functional tasks due to pain and was not observed to show physical range of motion or strength limitation.
A doctor's progress report from the treating sports medicine physician dated August 20, 2009, reported that the worker tried to return to work but his pain was worse. It indicated that the worker suffered from chronic pain and limited mobility.
A WCB orthopaedic consultant reviewed the file on August 24, 2009. He noted that there was significant discrepancy between the findings at the WCB call in examination in April and the attending physician's opinion that the worker was incapable of returning to work. He noted that the MRI report of a disc protrusion at L4-5, reported to involve the right L5 root, and the minimal findings at L5-S1 level, were not consistent with the continuing diagnosis provided by the attending physician of a lumbosacral disc protrusion. A second call in examination was suggested to establish a diagnosis of the compensable injury, a diagnosis of the worker's current condition, the need for further treatment and an assessment of return to work capacity.
The worker was assessed by the WCB orthopaedic consultant on September 1, 2009. Under opinion and recommendations, the consultant reported that his examination failed to identify a pathoanatomic abnormality to explain the worker's continuing statements regarding pain and loss of function. He noted that the examination identified significant symptom amplification. He noted that there was no single injury at the time of the compensable injury and when examined a week later on December 15, 2008, the examination identified "tender lumbar" and "spasm." This suggested a possible strain and that a reasonable recovery would have been anticipated within a few weeks.
In a second decision dated September 14, 2009, the worker was advised that based on the WCB call in examination findings of September 1, 2009, no change would be made to the earlier decision to end his compensation benefits. On September 21, 2009, the worker appealed the decision to Review Office.
On October 8, 2009, Review Office determined that the worker was not entitled to wage loss benefits beyond July 24, 2009. Review Office relied on the WCB examinations of the worker that took place on April 7, 2009 and September 1, 2009 in which neither of the WCB consultants were able to correlate the worker's complaints to the results of the diagnostic tests performed and both concurred that there was no identifiable anatomic-based pathology to account for the worker's ongoing subjective complaints. When the worker was examined on September 1, 2009, his presentation suggested a strong element of symptom amplification.
Review Office concluded that given the history of the onset of the worker's symptoms which originated without the occurrence of a specific incident and while he was performing modified duties, and the lack of medical evidence to substantiate an ongoing physical cause for the worker's complaints, the decision to end wage loss benefits was appropriate. On October 29, 2009, 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. Under subsection 4(1) of 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.
The Worker’s Position
The worker appeared at the hearing accompanied by a friend/advocate. It was submitted on behalf of the worker that, even to the time of the hearing, the worker experienced constant and severe pain which was the result of the injury that he suffered. Due to his extreme pain, followed by weakness and numbness, he was incapable of fully performing his regular duties at work.
The Employer’s Position
The employer was represented at the hearing by its director/vice president and the plant manager. The employer's representatives indicated that when it came to workers compensation matters, the firm had always deferred to the WCB medical doctors and followed whatever guidelines were imposed. In the worker's case, the firm tried to accommodate the worker and was judicious in the work that they had him perform. The representatives also noted that although the worker ceased employment with the firm in June 2010, the employment ended for reasons not related to the present situation. Aside from those comments, the employer's representatives indicated they had no formal submission but were available to help in answering any questions the panel may have.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond July 24, 2009. In order for the appeal to be successful, the panel must find that by July 24, 2009, the worker remained unable to work due to the effects of the injury he sustained in the December 8, 2008 workplace accident. We are not able to make that finding.
At the hearing, it was acknowledged by the worker's advocate that the case was primarily concerned with medical findings and it was submitted that the reports of the attending sports medicine physician ought to be considered the highest authority, over the treating physiotherapist and over the WCB doctors. The attending physician knew best the worker's injury and any implications the injury may have on the worker's career.
With respect to the question of the presence of pain behaviours, the worker's advocate submitted:
[The worker] does not see a need to respond to the suggestion that he might be amplifying the symptoms of his injury. With the utmost respect, he doesn't find this argument by WCB to be a serious one.
I don’t think that there's a way for them to measure pain. I think that pain is legitimate and I think there's no doubt that he suffered a great deal of pain, that pain affects your performance and that pain is an outcome, a byproduct of a medical condition, a true medical, serious medical condition.
I don't think that anyone can amplify symptoms for seven months to -- WCB will not easily approve someone to be on full wages loss for seven months.
It was also suggested that the worker's claim be considered a repetitive strain injury. The worker's advocate, however, was unable to identify any medical evidence to support this position, which in any event, had not received previous consideration by the WCB. Given the absence of prior decisions on this issue by the WCB, the panel declines to deal with this argument as we are without jurisdiction to do so.
After considering the evidence as a whole, the panel finds that although the worker continued to report pain and limited function beyond July 24, 2009, we do not accept that the workplace incident caused the worker to suffer an injury which would continue to impair his earning capacity past that date. In coming to this conclusion, the panel relied on the following:
- The worker's initial complaints were of gradual onset pain radiating to the left buttock /leg and paresthesia to the left foot. These symptoms are suggestive of a disc injury to the spinal cord. The MRI of January 29, 2009, however, did not demonstrate any spinal anomaly affecting a left sided nerve root. The imaging did not reveal the presence of an injury which could be causing the left sided symptoms complained of by the worker;
- The symptoms were slow to onset on the date of the accident, which would suggest a non-disc related condition;
- In support of his position, the worker relied on medical reports from his attending physician, and in particular, reports dated May 14, 2009 and August 20, 2009. The panel notes, however, that while the attending physician's periodic reports supported the position that the worker continued to be unable to perform his regular duties, he did not give the opinion and supporting rationale that the worker's ongoing disability was causally related to the workplace accident;
- The WCB medical advisor and orthopedic consultant each conducted thorough reviews of the worker's file and performed complete physical examinations of the worker. Both were unable to identify a specific anatomic diagnosis to explain the worker's ongoing pain and loss of function. The panel feels their opinions were comprehensive and considered, and we therefore accept their conclusions that there was no ongoing workplace injury which was causing the worker continued disability beyond July 24, 2009. In particular, the panel notes that Waddell's signs were observed at both call-in examinations. This is to be considered in conjunction with the reports that the worker self-limited while participating in the work hardening program.
At the hearing, it was suggested by the worker's advocate that the panel should consider attending the workplace to get an idea of the duties being performed by the worker. In view of our findings that the evidence does not support there was an ongoing workplace injury beyond July 24, 2009, the panel feels that it is not necessary to attend the workplace to obtain further information regarding the job duties. Evidence regarding the worker's duties obtained from the WCB file and from the testimony at the hearing is sufficient.
Based on the foregoing, the panel finds that by July 24, 2009, the worker was no longer unable to work due to the effects of the injury he sustained in the December 8, 2008 workplace accident. He is therefore not entitled to wage loss benefits beyond July 24, 2009. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 6th day of April, 2011