Decision #42/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that by February 2004 he had recovered from the effects of his compensable injury suffered in June 2002. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on February 10, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 2, 2004.Decision
That the worker is not entitled to wage loss benefits beyond February 2, 2004.Decision: Unanimous
Background
The worker filed a claim with the WCB for an elbow and back injury that occurred at work on June 26, 2002. On the day of accident, the worker reported that he was driving a power lift and when he turned the corner he smashed into a guard that fit around a pole. The worker said he was thrown about 20 feet and landed at the shipping door and hurt his elbow and back.
When seen for treatment on July 4, 2002, the treating physician reported that the worker was thrown 20 feet from a moving power lifter which suddenly stopped. The diagnosis was a musculoligamentous back strain and right elbow contusion. The physician reported that the worker had a motor vehicle accident in 1996 and that he had recurrent back spasms.
X-rays were taken of the right elbow and lumbosacral spine on July 4, 2002. No abnormality was seen in the elbow. The lumbosacral spine showed an articulation in the right transverse process of L1. Vertebral height, alignment and disc spaces appeared normal.
On July 8, 2002, the worker's claim for compensation was accepted based on the diagnosis outlined by the treating physician on July 4, 2002 and benefits were paid to the worker.
A physiotherapist's first report dated July 23, 2002 indicated that the worker had pain mainly at the thoracic spine on the left of the lumbosacral spine. The diagnosis was lumbar/thoracic strain.
On October 11, 2002, a CT scan showed a small central and left sided L4-5 disc herniation.
On January 20, 2003, the worker was examined by a WCB medical advisor. Under impression and recommendations, the medical advisor indicated that the worker continued to report central low back pain with radiation to the left buttock. The clinical examination demonstrated no convincing signs of disc herniation or nerve root compression. Neurological examination was unremarkable. The worker displayed significant abnormal pain behaviour throughout the examination and appeared pain focused.
On January 27, 2003 the worker had a bone scan and the results were normal.
Surveillance of the worker was conducted on February 14 and 15, 2003.
A physiotherapy report dated February 25, 2003 diagnosed the worker with a strain of the pelvic/sacral ligaments, likely disc herniation with L2 nerve root involvement.
On March 28, 2003, the physiotherapy discharge report indicated that the worker had pain and tightness to the lumbar spine and significantly decreased tolerance for activities including activities of daily living.
On April 29, 2003, the worker was advised that wage loss benefits would be paid to May 7, 2003 inclusive as it was felt by the WCB that he had recovered sufficiently to return to his pre-accident duties. The decision was based on the weight of medical evidence including history of injury, expected symptom duration, diagnostic imaging, surveillance and results of the WCB call-in exam.
The worker was seen by a physical medicine and rehabilitation specialist (physiatrist) for treatment on July 17, 2003. In his report of July 24, 2003, the specialist felt that the most probable diagnosis was a left L5 or S1 radiculopathy which was likely secondary to discopathy. He opined that on a balance of probabilities, the worker's current symptoms and restrictions were related to his workplace injury.
On August 19, 2003, a worker advisor asked primary adjudication to consider the July 24, 2003 physiatry report and to reinstate the worker's benefits on a retroactive basis.
On October 10, 2003, a WCB medical advisor indicated that the July 24, 2003 report provided insufficient objective information to change his earlier opinion. On October 15, 2003, the worker was advised that there would be no change made to the decision of April 29, 2003 on the basis that there was no new medical evidence to support that his current condition was related to the effects of the June 2002 workplace injury.
On June 14, 2006, the Worker Advisor Office submitted to the WCB a June 1, 2006 report from an occupational health physician for consideration. The specialist diagnosed the worker with pain of myofascial origin from the left gluteus minimus and quadratus lumborum and related structures that he felt were consistent with the compensable injury. It was submitted that this medical report supported that the worker was unfit to return to his pre-accident duties as of May 7, 2003.
In a report dated August 14, 2006, the treating physician noted that she saw the worker on December 13, 2005, February 6, 2006 and May 4, 2006 and she prescribed medication for disc protrusion and back pain for the worker. When seen on June 14, 2006, the worker had a severe exacerbation of his back pain which caused him to collapse in his back yard on June 2, 2006. The worker was examined and was felt to have myofascial spasm. An x-ray taken June 15, 2006 showed no joint or disc abnormalities. On June 19, 2006, the aggravation from June had improved spontaneously although the worker still had chronic stiffness of his back with difficulties bending at the waist. The physician indicated that the worker was currently unable to sit longer than one hour or perform a job that required repetitive bending and he was unable to lift greater than 20 pounds.
On September 21, 2006, a WCB medical advisor reviewed the file and the following opinions were outlined:
- the information on file supported an accident related diagnosis of a low back strain rather than a lower lumbar radiculopathy.
- based on the video surveillance of February 14 and 15, 2003, the worker was seen getting in and out of his car, bending, reaching and twisting and walking with all movements in a fluid and unrestricted fashion, not in a manner that would be anticipated in the presence of significant back discomfort or a clinically significant radiculopathy.
- the current diagnosis was one of non-specific left low back/buttock pain.
- the evidence did not support a cause-effect relationship between the compensable injury and the current findings.
On September 25, 2006, the WCB case manager advised the worker that she was unable to rescind the decision made on April 29, 2003. On March 15, 2007, the worker appealed the decision to Review Office.
Medical information submitted in April and May 2007 included a MRI report of the lumbar spine dated December 5, 2003 which revealed the following impression: "Very shallow left posterior L4-L5 disc herniation, diminished from before. Left posterior L5-S1 disc herniation, which has developed in the interval since the last study."
At the request of Review Office, a WCB medical advisor reviewed the new medical information on May 14, 2007. He stated that the reports from the physiatrist did not provide information that was substantially different than the information that was available in the file on September 21, 2006. The medical advisor therefore was of the view that the opinions expressed on September 21, 2006 were sound and remained unchanged.
On May 24, 2007, Review Office determined that the worker was entitled to wage loss benefits from May 8, 2003 to February 2, 2004. Review Office stated that it accepted that the worker herniated his L4-5 disc in the June 2002 accident. However, if the herniation caused any nerve root compression, the extent was not significant and it quickly abated. When seen on September 16, 2003, the worker received an injection at L5-S1 rather than L4-5. Review Office considered that this was because at that time the L5-S1 disc protrusion he had developed was dominating his presentation. The L5-S1 protrusion was not a result of the worker's June 2002 accident as it was not present at the time of the October 2002 CT scan. Review Office indicated that it could not relate the doctor's June 1, 2006 findings of "pain of myofascial origin" report to the June 2002 accident. It did not find any relationship between the worker's periodic episodes such as he suffered on June 2, 2006 to the June 2002 accident.
Review Office concluded that as of February 3, 2004, the worker had recovered from the effects of his June 2002 accident at least to the point where it no longer played a material role in any loss of earning capacity he had. Therefore the worker was entitled to benefits from May 8, 2003 to February 2, 2004 inclusive.
On December 10, 2009, the worker called the WCB to advise that his situation had worsened. He had numbness in his left leg into his toes and had another MRI scheduled.
An MRI taken January 27, 2010 revealed the following findings:
The L2-3 and L3-4 levels appear normal.
The L4-L5 level demonstrates a minimal central protrusion and annular tear. This does not compromise the central canal, L5 roots or foramina.
The L5-S1 level demonstrates a shallow central protrusion as well. This does not compromise the S1 root central or foramina.
On May 6, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond February 2, 2004. The only new evidence provided by the worker was the January 27, 2010 MRI reading to support his position that he had not healed. Review Office indicated that its previous decision was not that the worker had healed, but rather that "on a balance of probabilities as of February 3, 2004 the worker had recovered from the effects of his June 2002 accident at least to the point where it no longer played a material role in any loss of earning capacity he had." Review Office referred to the January 27, 2010 MRI and stated:
"…At the compensable L4-5 level, it was read as showing a "minimal central protrusion and annular tear. This does not compromise the central canal, L5 roots or foramina." The annular tear is a new finding and Review Office did not consider it to be related to the worker's approximately eight year ago accident. Additionally, as detailed in its previous decision, the worker did not have any ongoing signs and symptoms consistent with a disc injury at L4-5. The presence of minimal imaging findings is of limited importance. Such findings do not necessarily result in any symptoms…Review Office is of the opinion that there is no basis to change its previous decision, that being that the worker has no entitlement to wage loss benefits beyond February 2, 2004."
A May 26, 2010 report from the treating physician revealed that the worker was examined on May 19, 2010 and he described difficulty with bending at the waist and the inability to lift greater than 10 lbs. without discomfort in his back. The physician felt that the worker had general loss of range of motion, there was loss of muscle tone and strength throughout his spine. It was felt that the worker was still disabled because of his back and also because of a recent knee injury that was still awaiting evaluation.
On July 2010, Review Office advised the worker that in its opinion, the findings outlined in the May 26, 2010 report from the treating physician did not relate to the 2002 accident and there was no basis to change its previous decision.
A report from the occupational health physician dated August 26, 2010 indicated that the worker was not currently experiencing significant back discomfort. He said the primary cause of the lumbosacral pain was likely soft tissue in origin involving the muscles of the hip girdle and lower lumbar region that, when irritated by extension and rotation efforts, were prone to spasm. He did not find that his symptoms were explained by a L4-L5 disc lesion.
In a decision dated November 18, 2010, Review Office indicated that the occupational health physician's findings in 2006 and 2010 were in part different. Review Office was of the opinion that any soft tissue injury suffered by the worker as a result of his accident over eight years ago had long since resolved. It felt that the doctor's current findings were not consistent with a state of total loss of earning capacity. On November 22, 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. 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. 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 self represented at the hearing. He submitted that since the accident at work on June 26, 2002, he has never really been the same. Prior to his injury, he was a very healthy person who played and coached sports at an elite level. Since the accident, he has been limited in what he can do. His main problem is that he has severe episodes of back pain which occur periodically. There is no specific pattern to them, but when they occur, he becomes incapacitated for up to eight days. He will experience an excruciating pain through the central and left side of his back, which continues through his buttocks and down his left leg to around the knee area. This pain will make him drop and he becomes scarcely able to perform activities of daily living. The worker estimated that these major episodes started about two to three weeks after the accident. He denied ever having experienced them before. The worker felt that the WCB was mistaken in its assessment that he had fully recovered and was able to resume his pre-accident job duties. He stated that although he had loved his job in distribution, there was no way he could ever do that work again.
Analysis:
In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his back after February 2, 2004 are related to the injuries he sustained in the workplace accident of June 26, 2002. On a balance of probabilities, we are unable to make that finding.
In a case such as this one where a significant amount of time has passed since the initial injury, we are faced with the challenge of determining the worker's status at a particular point in time approximately seven years ago. People's recollections of what happened so long ago become less reliable and therefore the panel tends to place more weight upon the reports which were prepared closer to when the events occurred.
When the medical reports from the first few months after the accident are reviewed, the initial diagnosis was a musculoligamentous back strain and right elbow contusion. The physiotherapist's initial assessment form also identified the diagnosis of "lumbar/thoracic strain." In her report of September 3, 2002, the treating physician indicated that there may be a change in diagnosis and suspected a left L5-S1 disc protrusion. The subsequent CT scan of October 11, 2002, however, showed only a very small central and left sided herniation at L4-5. At L5-S1, the disc was diffusely a little prominent, but without lateralization. At the call-in examination on January 20, 2003, the WCB medical advisor was unable to find any convincing signs of disc herniation or nerve root compression. He indicated that the neurological examination was unremarkable. Thus, there was no clinical correlation for a disc injury, despite the abnormality at L4-5 which showed up on the CT scan.
When an MRI was performed on December 5, 2003, the L4-5 herniation was found to have diminished since the CT scan. A new finding of a left posterior L5-S1 disc herniation was identified. As this herniation had developed in the interval since the last study in October 2002, we do not consider it to have been caused by the workplace accident of June 2002.
The MRI performed January 27, 2010 demonstrated minimal central protrusion and annular tear, with no compromise of the central canal, L5 roots or foramina at L4-5, and a shallow central protrusion with no compromise of the S1 root, central or foramina at L5-S1. In other words, there did not appear to be any abnormality which would cause neurologic pain. The worker's evidence, however, was that he continued to suffer from the same pain since the time of the accident. This would suggest to the panel that his symptoms are not caused by any type of disc injury.
The explanation for the worker's pain proposed in the occupational health physician's reports of June 1, 2006 and August 26, 2010 is that the cause is "soft tissue in origin involving the muscles of the hip girdle and lower lumbar region that, when irritated by extension and rotation efforts, are prone to spasm." With respect to causation, he states in his June 1, 2006 report: "This is consistent with his injury event; myofascial pain and irritation with active use may often result from injury. There is continuity of his back complaint over the course of time since his June 2002 injury."
In the panel's opinion, there is insufficient evidence to satisfy us on a balance of probabilities that the back symptomatology which the worker experienced from and beyond February 2, 2004 was caused by the June 2002 accident at work. The worker's evidence is that his worst problems are caused by the severe episodes which he periodically experiences. Although the worker denied having experienced these episodes prior to the accident, the first report from the worker's treating physician indicated that his back recurrently spasms ever since a motor vehicle accident in 1996. When asked about this at the hearing, the worker indicated that he had had only two back spasms before the workplace accident and that they were very minor in severity, akin to a calf spasm. The panel does not accept that the recurring back spasms were as minor as described by the worker as it seems unlikely that the treating physician would reference the condition, or indeed, even be aware of the back spasms, if they were as minimal as the worker described.
The bases for the occupational health physician's comments on causation are consistency of the low back complaints to the mechanism of injury, and a temporal relationship between back complaints and the workplace accident. The panel finds that this is insufficient to satisfy us that there exists a causal relationship, particularly given that the complaints of back spasms pre-dated the accident.
For the foregoing reasons, the panel finds that the worker is not entitled to wage loss benefits beyond February 2, 2004. 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 8th day of April, 2011