Decision #46/11 - Type: Workers Compensation

Preamble

The worker has a compensable claim with the Workers Compensation Board in relation to a back injury that occurred in the workplace on October 31, 2007. By September 2009, it was determined by the WCB that the worker was ready to commence a graduated return to work program with the expectation that he would eventually return to his pre-accident duties.

The worker subsequently claimed that he was entitled to full wage loss benefits after November 3, 2009 due to a downturn in his back condition and that his current neck and right shoulder complaints were related to the exercises he performed during a WCB sponsored work hardening program. The worker also claimed that he was not capable of returning to his full regular duties as of February 20, 2010. The worker's appeals on these issues were denied by primary adjudication and Review Office. The worker disagreed and a hearing was held on January 5, 2011 to consider these matters.

Issue

Whether or not the worker is entitled to full wage loss benefits effective November 3, 2009;

Whether or not the worker's right shoulder/neck condition is related to the low back injury of October 31, 2007; and

Whether or not the worker is entitled to wage loss benefits beyond February 19, 2010 in relation to his compensable low back injury of October 31, 2007.

Decision

That the worker is not entitled to full wage loss benefits effective November 3, 2009;

That the worker's right shoulder/neck condition is not related to the low back injury of October 31, 2007; and

That the worker is not entitled to wage loss benefits beyond February 19, 2010 in relation to his compensable low back injury of October 31, 2007.

Decision: Unanimous

Background

While employed as a long distance truck driver on October 31, 2007, the worker was turning a crank handle on a load when he felt a sharp pain in his back. The claim for compensation was accepted based on the diagnosis of mechanical low back pain with nerve root irritation.

Subsequent file records showed that the worker's low back complaints continued and he was treated by a neurosurgeon and a physical medicine and rehabilitation specialist. Following a 10 week work hardening program that commenced on November 3, 2008, it was determined by the WCB that the worker's back condition had improved and that he no longer had a loss of earning capacity beyond January 30, 2009 nor did he require work restrictions. The worker appealed the decision to Review Office and then to the Appeal Commission. Under Appeal Commission Decision No. 80/09, it was determined by the panel that the worker was entitled to wage loss benefits beyond January 30, 2009, that he was not totally disabled and that he was capable of returning to some form of full time employment but not as a long distance truck driver.

On August 31, 2009, a WCB case manager outlined the following temporary work restrictions for the worker's low back with a review in 3 months time:

  • no repeated bending, stooping or crouching;
  • no weights greater than 10 pounds; and
  • sitting as tolerated for 45 minutes to one hour with intermittent breaks of 5 to 10 minutes.

On September 3, 2009, the WCB case manager wrote to the worker and provided him with details of his return to work program with the accident employer. The return to work program was to commence on September 21, 2009 where the worker would start work at 4 hours per day during weeks 1 and 2, and then increase to 8 hours per day by week 7.

In a memo dated September 9, 2009, the case manager wrote that he spoke with the worker. The worker advised that he went to the hospital on September 8 because of severe swelling of his feet and ankles and for a rash on his legs. The worker indicated that he started taking Celebrex a few days prior after he ran out of Advil. The Celebrex was left over from earlier on in his claim. The worker said he was prescribed pain medication as well as Prednisone to help address bleeding under his skin.

In another memo dated October 9, 2009, the case manager noted that he spoke with the worker who advised that the swelling he referenced in September had gotten worse for no apparent reason. His ankles, feet, hands and knuckles were all swollen and painful. The worker indicated that he was seen by 3 hospital doctors on October 1 who took some pictures and 6 vials of blood. The worker indicated that there was a possibility that his recent medical set back may be connected to the Celebrex he was taking. He said his doctor told him he was unable to perform light duties at that time.

In a rheumatology report dated October 1, 2009, it was reported that the worker had diffuse bilateral low limb non-blanching, palpable purpura. It was indicated that the underlying etiology of the vasculitis was unknown.

On November 26, 2009, the worker told his case manager that he had an upcoming MRI arranged for his right shoulder. The worker indicated that since participating in a WCB sponsored work hardening program, he had increasing pain in his neck and down his right arm. He had pain in his right elbow and his thumb, index and middle fingers were all numb. The pain in his neck and arm was now rivaling the pain in his low back. The worker indicated that the x-rays of his neck demonstrated degenerative discs. He believed that the exercises he performed during his work hardening program caused his neck problems.

The worker's right shoulder x-ray dated September 11, 2009 showed no calcific tendonitis and no bone or joint abnormality. An MRI of the cervical spine and right brachial plexus showed a normal MR brachial plexus.

On January 11, 2010, the treating physician stated "This patient was totally disabled on Saturday, November 7, 2009. Estimated time until return to work: indefinite. This information was confirmed on the basis of my direct examination or management of this patient. Additional Notes: bulging disc in neck precludes using pressure washer, or using arms over head for work. Also still has sciatica."

In a letter to the WCB dated January 21, 2010, the worker requested that full benefits be re-instated as of November 3, 2009. The worker noted that he went to the nearest walk-in clinic on November 3 due to a downturn in his back condition. He was prescribed medication for the pain along with heat and rest. After finishing his work hardening program in January 2009, he had discomfort in his right shoulder and arm and assumed it was a strain from the exercises he performed. He thought the condition would correct itself but in the following months his condition progressed to pain radiating from his neck through his shoulder and arm and was accompanied by tingling in his right hand. He said he reported these symptoms to his doctor and the diagnosis was a possible pinched nerve and an appointment for x-rays was made. The worker said that during his appeal with the Appeal Commission on June 10, 2009, he had spoken of his neck, shoulder and arms symptoms in addition to his lower back problem.

A WCB medical advisor reviewed the file on February 3, 2010. He outlined the opinion that:

  • the medical information did not provide adequate information to determine a diagnosis for the worker's right shoulder and neck. It was unlikely that a causal relationship existed between the shoulder and neck symptoms and the 2007 compensable injury;

  • the rash and swelling of the worker's lower and upper extremities (vasculitis) was not related to the 2007 compensable injury;

  • the restriction to prolonged sitting was still required. He recommended that the worker be allowed to get up from a seated position for 5 - 10 minutes after sitting for one hour's duration. No other restrictions were recommended.

In a decision dated February 12, 2010, the case manager advised the worker that:

  • the weight of information failed to support that the November 3, 2009 "downturn in your back condition" either arose out of or in the course of employment and therefore the claim for full benefits as of November 3, 2009 was not acceptable;

  • based on the opinion of a WCB medical advisor, it was not likely that there was a causal relationship between the worker's rash and vasculitis that developed in the fall of 2009 to the workplace injury in 2007;

  • the WCB was unable to relate his right shoulder complaints to his workplace injury. This finding was based on a review of tests and reports which failed to provide a definitive diagnosis to account for his pain, no clear mechanism of injury and no clear pathoanatomical explanation for the worker's symptoms.

  • WCB benefits would be paid to February 19, 2010 inclusive and final based on the weight of information which included the accepted diagnosis, the earlier opinion of the Appeal Commission that the worker was capable of working full time and the opinion of the WCB medical advisor.

On February 15, 2010, the worker appealed the case manager's decision to Review Office. He stated that his sitting tolerance had decreased instead of increased and it was due to his unresolved pain from his October 31, 2007 workplace injury. He was not capable of returning to work performing full duties as a "truck washer" due to his neck, shoulder and arm condition attributed to the work hardening program.

A submission was also submitted to Review Office from the employer's representative dated April 5, 2010. He asked Review Office to uphold the decisions made on February 12, 2010.

On April 13, 2010, Review Office determined that the worker was not entitled to full wage loss benefits effective November 3, 2009. Review Office stated that it could not relate the worker's "downturn" in his back condition to the October 31, 2007 injury. It noted that the worker had significant problems with swelling and a rash in the beginning of November 2009. It noted that the worker, in his appeal submission to his case manager, agreed that his condition was not related to this claim.

Review Office upheld the decision that the worker's right shoulder and neck condition did not have a relationship to the October 31, 2007 work injury. In making this finding, Review Office found no medical evidence to support the worker's shoulder and neck complaints arose through exercises performed at his work hardening program.

Review Office concluded as well that the worker was fit for full regular duties as of February 20, 2010 in relation to his compensable low back injury of October 31, 2007. Review Office noted that the decision of the Appeal Commission dated July 21, 2009 was that the worker needed to work on his sitting tolerance to allow for a full and successful return to the workforce. As the worker received seven more months of coverage through his claim after the Appeal Commission's decision, it was felt that the worker had been given ample opportunity to improve his sitting tolerance. It was felt that with the passage of time, the worker was fit to return to his regular pre-accident employment duties as far as the October 31, 2007 low back claim was concerned.

Review Office indicated that whatever was producing the worker's subjective complaints of an inability to return to even modified duties as of February 20, 2010 did not have a relationship to the October 2007 low back condition. On April 21, 2010, the worker appealed Review Office's decisions to the Appeal Commission and an oral hearing was held on January 5, 2011.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information consisting of a report from a specialist that the worker was seeing for treatment in January 2011 and the results of a January 14, 2011 MRI assessment. This information was later received and was forwarded to the interested parties for comment. On April 5, 2011, the panel met further to discuss the case and rendered its final decisions.

Reasons

Applicable Legislation

There are three issues under consideration in this appeal. Two issues deal with the worker's entitlement to wage loss benefits. A third issue deals with the relationship between the worker's low back injury and subsequent symptoms or injury.

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(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 time as the worker’s loss of earning capacity ends.

The WCB Board of Directors established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which deals with further injuries occurring after a compensable injury.

Worker's Position

Issue No. 1:

The worker advised that his back worsened about November 3, 2009 and that he was not able to work. He asked for full wage loss effective November 3, 2009 rather than the partial wage loss that he had been receiving up to this time.

The worker attributed the worsening of his back to the fact that he could not use two medications for his back injury. He said this was due to a possible allergic reaction to these drugs which resulted in vasculitis in his legs. He felt that being unable to use the drugs was the cause of the increased pain. The worker said the vasculitis did not cause the increase in pain on November 3, 2009. He did not recall a specific incident that increased the pain.

He described his pain before November 3, 2009, in the 7/10 range, on November 3, 2009, in the 8/10 - 9/10 range and at the hearing in the 6/10 to 7/10 range.

The worker referred to medical notes from his treating physician and a walk-in clinic physician in support of his position that he was totally disabled as of November 3, 2009.

Issue No. 2:

The worker argued that the right shoulder/neck injury occurred while he was involved in a WCB sponsored work hardening program. He attributed the pain to a bulging disc. He advised that he first felt pain in his shoulder/neck after completing the work hardening program. In answer to questions by the panel, the worker acknowledged that he could not recall any specific event during the program where he felt a pain in the shoulder/neck area or where he stressed this area. He also acknowledged that the pain did not arise until after he had completed the program.

In support of his position, the worker referred to an MRI report dated December 16, 2009 which noted "The C6-7 level, demonstrate a shallow right paracentral and foraminal disc protrusion. There is minimal effacement of the ventral CSF collar, but no significant compromise of the foramina is evident…The lower levels visualized appear normal." The MRI report also noted a "normal brachial plexus."

Issue No. 3:

The worker submitted that he is entitled to wage loss benefits beyond February 19, 2010 in relation to his compensable low back injury of October 31, 2007. He noted that his partial wage loss benefits were terminated effective this date. He indicated that he cannot perform the duties offered by the employer.

The panel reviewed the job description for the modified duties position which the employer had offered to the worker. The worker identified concerns regarding the specific duties. He indicated his understanding was that he was to wash trucks "…which I don't 100 percent agree that I am capable of doing according to the job bank description of washing trucks."

In answer to a question, the worker advised that his pain level at this hearing was the same as the pain level at his hearing 2009.

Employer's Position

The employer was represented by an advocate who provided a submission on behalf of the employer. The employer representative referred to Appeal Commission Decision 80/09 which he said determined that wage loss benefits were payable beyond January 30, 2009 based on a finding that the worker continued to experience some limitation from his compensable low back pain, but that the worker was not totally disabled, was capable of working full time but not at his pre-accident duties. He noted that the modified duties which accommodated the worker's restrictions were agreed to by the WCB and that a graduated return to work plan was to start on September 21, 2009. He noted that the worker did not attend on that date due to a rash and swelling, and never returned to work.

On Issue No. 1, the representative advised that the employer agrees with the Review Office that there is no basis to pay full wage loss benefits as there is no evidence the worker was injured at work nor that the worker's back condition was caused by the 2007 injury.

On Issue No. 2, the representative noted that the WCB medical adviser did not find a medical relationship between the right shoulder and neck symptoms and the 2007 back injury.

On Issue No. 3, the representative stated that the employer does not find objective evidence justifying ongoing restrictions and entitlement to wage loss related to the initial diagnosis of mechanical low back pain in relation to the 2007 injury.

Analysis

Issue No. 1: Whether or not the worker is entitled to full wage loss benefits effective November 3, 2009.

For the worker's appeal on this issue to be successful, the panel must find that the worker suffered an aggravation of the October 2007 injury. The panel was not able to make this finding. The panel finds that the increased pain reported by the worker is not a result of the October 31, 2007 injury.

The panel relies upon the following information in arriving at its conclusion:

-the worker was not participating in WCB sponsored activities on or around November 3, 2009.

-the worker could not identify any specific incident which was responsible for the reported increase in pain.

Throughout the claim, the worker has reported a high level of pain in his lower back. The evidence does not support a finding that the increased pain on November 3, 2009 is related to the workplace injury.

While not attributing the increased pain directly to his vasculitis condition, the worker advanced the theory that the increased pain and disability arose from his inability to use two medications. He stated that an allergic reaction to these medications caused the vasculitis condition, which in turn prevented him from using the medications. The panel notes the medical information on file does not support this theory.

As well, the panel was not able to find that the vasculitis was caused by an allergic reaction to the medications. The panel relies upon the report of the WCB medical advisor dated February 3, 2010 which notes there are many etiologies for the condition and that the cause remains uncertain. The medical advisor comments that a causal relationship to the workplace injury is not supported.

The panel also notes the report of the neurosurgeon dated February 11, 2011 states that a recent MRI of the lumbosacral spine showed evidence of a Grade I spondylytic spondylolisthesis with no significant signs of a radicular irritation. The neurosurgeon comments that the MRI findings are not specifically post-traumatic.

The panel finds, on a balance of probabilities, that the worker is not entitled to full wage loss benefits effective November 3, 2009.

The worker's appeal on this issue is denied.

Issue No. 2: Whether or not the worker's right shoulder/neck condition is related to the low back injury of October 31, 2007.

For the worker's appeal on this issue to be successful, the panel must find that the worker's right shoulder/neck condition was caused by or resulted from the low back injury of October 31, 2007. The panel was not able to reach this conclusion. The panel finds, on a balance of probabilities, that this condition is not related to the October 31, 2007 injury.

The panel relies upon the following information in making this decision:

· The worker did not report any incident while involved in the work hardening program and told the panel that he could not recall a specific incident.

· The symptoms arose after completing the work hardening program.

· Neither the September 11, 2009 x-ray report nor the December 16, 2009 MRI report are supportive of a traumatic injury to the shoulder/neck area.

· The work hardening program did not involve activities which placed the shoulder /neck area at risk of injury.

· There is no medical support from any physician for the worker's position that the injury occurred during the work hardening program.

The worker's appeal on this issue is denied.

Issue No. 3: Whether or not the worker is entitled to wage loss benefits beyond February 19, 2010 in relation to his compensable low back injury of October 31, 2007.

For the worker's appeal to be successful on this issue, the panel must find that the worker was unable to work as a result of the compensable low back injury.

The panel notes that since Appeal Commission Decision No. 80/09, the worker has complained of pain. The panel also notes that the worker did not participate in the modified duties and the return to work offered by the employer. When asked about the modified duties, the worker appeared to have little knowledge of the position that was offered, but was able to provide a description of a position with a job bank; however, the panel notes that this position description did not include his employer's agreed modifications. The panel finds that the evidence does not demonstrate intent on the part of the worker to participate in the return to work.

At the hearing, the worker indicated that his pain level at this hearing was about the same as his pain level at the 2009 hearing. The panel is unable to find there is a change in his condition as a result of the workplace injury.

Finally the panel notes that the MRI of January 14, 2011 identifies a degenerative condition in the lumbar spine. In a report dated February 11, 2011 the neurosurgeon notes most of the worker's symptoms are mechanical/skeletal and that he cannot detect any obvious clinical or radicular irritation. In summary, including the analyses for the two previous issues, the panel does not find, on a balance of probabilities, a compensable medical condition (or associated restrictions) affecting the worker's ability to work in the modified duties offered by his employer as of February 19, 2010.

The worker's appeal on this issue is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of April, 2011

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