Decision #48/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed a decision made by primary adjudication, ultimately that the physical restriction of no prolonged sitting was appropriate in relation to the compensable injury sustained on October 9, 2007. A file review was held on March 28, 2011 to consider the matter.Issue
Whether or not the worker's identified restrictions are appropriate.Decision
That the worker's identified restrictions are appropriate.Decision: Unanimous
Background
On October 9, 2007, the worker injured his left hip, ribs and back in a work related accident. His claim for compensation was accepted based on the diagnoses of right hip muscle strain and bruised ribs. The worker also has a prior claim with the WCB for a left ankle injury that occurred in 1980.
At a WCB call-in examination on February 5, 2008, the worker indicated that his ribs felt better but he continued to have tailbone pain. The medical advisor diagnosed the worker with coccydynia along with an aggravation of lumbar degenerative disc disease.
An MRI of the lumbar spine and coccyx dated February 16, 2008 confirmed multi-level degenerative disc disease with several disc herniations. The coccyx appeared relatively unremarkable.
On February 26, 2008, a WCB medical advisor noted that the degenerative changes noted on the MRI may be accounting for some of the worker's ongoing symptoms and may have been aggravated by the compensable injury. The pain into the tailbone region could still be from coccydynia and this can be present despite a normal MRI.
At a second WCB call-in examination held on October 20, 2008, the worker noted that he was able to increase his work duties to eight hours per shift of modified duties but then was cut to half-time shifts because of a previous unrelated ankle injury. He said he still had constant, mainly aching type of pain primarily in his tailbone area. The medical advisor noted there was no radicular-type pain or any neurological symptoms. The pain was aggravated if he walked or sat for too long. Following the assessment, the medical advisor indicated that the aggravation of the pre-existing degenerative disc disease appeared to have resolved and the ongoing diagnosis related to the October 2007 injury would be coccydynia. With regard to this diagnosis/condition, it was felt that the worker required workplace restrictions with no lifting greater than 20 pounds, no prolonged sitting and the ability to work with the spine in a neutral position and change position as needed. The restrictions were to be reviewed in 3 to 6 month's time.
In a report to the WCB dated November 6, 2008, the family physician noted that the worker had chronic back pain and discomfort in his coccyx consistent with coccydynia and had an ongoing claim related to his left foot. The physician indicated that the combination of the worker's back and foot have resulted in his inability to function in his current job without significant restrictions.
On October 5, 2009, a WCB physiotherapy consultant stated that he discussed the worker's file with a senior WCB medical advisor. He indicated that the compensable diagnosis was coccydynia and that the aggravation of the lumbar degenerative disc disease had resolved as per the October 28, 2008 exam. It was indicated that the restriction of no prolonged sitting should be made permanent. Other restrictions were related to the pre-existing degenerative disc disease.
In a letter dated October 5, 2009, the worker was advised that his permanent physical restriction related to the workplace injury was "no prolonged sitting."
In a letter to the WCB dated October 27, 2009, the family physician asked the WCB to re-evaluate the worker's restrictions. The physician noted that at the present time, the worker's left foot injury caused him significant pain, difficulty with ambulation without a cane and some instability in the left foot. With regard to the 2007 claim, the worker continued to have chronic back pain and pain into the coccyx area. The worker had difficulty in sitting for prolonged periods of time but he also noted that ambulation through walking, using stairs, coughing and sneezing and lifting of any significant weights resulted in increasing back pain and prevented him from performing activities.
On November 2, 2009, the WCB physiotherapy consultant stated: "The compensable diagnosis on this claim resulting in restrictions is coccydynia. The restriction related to this diagnosis relates to prolonged sitting. The worker has chronic back pain and pre-existing osteoarthritis. His altered gait may be aggravating his low back. I would not change the restrictions as related to this claim."
On November 3, 2009, the worker was advised by the WCB that there would be no change in his permanent restriction. On December 6, 2009, the worker appealed the decision to Review Office.
In a decision dated January 28, 2010, Review Office determined that the worker's identified physical restrictions of no prolonged sitting was appropriate and related to the compensable injury sustained on October 9, 2007. Review Office indicated that although the worker wanted the WCB to have his two separate claims combined or viewed together this was not the WCB's practice. With regard to the worker's position that his restrictions should specifically include no lifting greater than 5 lbs., no walking greater than 60 meters, avoiding the use of stairs and avoiding walking on uneven ground and/or slippery surfaces, Review Office was of the opinion that medical evidence did not support that these physical restrictions were required as a result of the effects of the October 9, 2007 workplace injury. On September 6, 2010, the worker appealed Review Office's decision to the Appeal Commission and a file review 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 the assessment of restrictions arising from a workplace injury. Subsection 60(1) of the Act provides the WCB with the exclusive jurisdiction to determine all matters arising under the Act. This includes the assessment of restrictions.
When a worker is injured, the WCB assesses the worker's injury to determine whether restrictions need to be placed on the worker's activities. This is required when a worker is returning to work or looking for employment. Restrictions are based on medical information and can be temporary or permanent.
Worker's Position
The worker's appeal form stated "The restrictions WCB stated are incomplete. The workplace restrictions for both claims should be combined. WCB has failed to recognize the full extent of my injuries due to the fall. There was no evidence of disc herniation or symptoms of any back injury prior to the accident on October 9, 2007."
With the appeal form the worker sent a letter and a copy of a letter to Review Office dated February 17, 2010.
In the letter to Review Office the worker submits that none of his back symptoms existed prior to the accident of October 2007. He attributed the symptoms to this accident. He noted that a physiotherapy consultant reviewed the file and stated that his altered gait may be aggravating his low back. He said that the altered gait is caused by his foot injury and that this combines his injuries. He also submitted that the restrictions arising from the October 2007 injury were too limited.
Employer's Position
The employer provided a written submission to the Appeal Commission. The employer advised that it agrees with the decisions of primary adjudication and Review Office.
The employer noted that after the October 2007 injury, an x-ray report provided an overall impression of spinal degenerative changes. The employer submitted that the worker had a well established degenerative back condition prior to the October 2007 accident and there was no evidence to suggest that the disc issues were caused by the accident.
The employer noted that the worker had a work injury to his left ankle with another employer prior to the October 2007 injury. It submitted that while the ankle restrictions may be compensable as they relate to the prior accident and employer, they are not considered compensable with respect to the October 2007 injury.
The employer also submitted that the restrictions being proposed by the worker are more related to the left ankle injury and the pre-existing condition than the compensable coccydynia.
Analysis
In this case the worker is appealing the restrictions that have been identified by the WCB with respect to his 2007 injury. He argues that the restrictions are not sufficient and should be increased. He has asked that the restrictions include restrictions which arise from a previous injury (1980), and that the 1980 injury and 2007 injuries be treated together for the purpose of identifying his restrictions. For the worker's appeal to succeed, the panel must find that the restrictions arising from this compensable injury are not correct. The panel was not able to make this finding.
The panel is not able to agree to the worker's request that in assessing the restrictions for the 2007 injury, it should include the restrictions arising from his 1980 injury. The panel is limited to considering restrictions which arise from the 2007 injury. These are distinct accidents which caused different injuries and resulted in different restrictions.
Regarding the worker's low back complaints and degenerative disc disease, the panel notes the opinion of the WCB medical advisor, based on an October 20, 2008 examination, that the aggravation of the worker's pre-existing degenerative disc disease had resolved. The examination notes indicate that the worker has generally well preserved range of motion of the spine with full forward flexion and negative signs of nerve impingement. The panel is unable to ascribe any restrictions arising from the October 2007 injury for the pre-existing low back condition.
The panel notes that the worker initially reported a left hip and rib injury. In a report dated October 27, 2009, the worker's treating physician confirmed that the worker's rib and shoulder are completely resolved with no sequelae. Accordingly the panel is unable to identify any restrictions for the shoulder and rib injuries.
The panel notes that currently there is only one restriction arising from the 2007 injury. In a memo dated October 5, 2008, a WCB physiotherapy consultant noted that the compensable diagnosis is coccydynia and that the restriction for no prolonged sitting should be made permanent.
The panel finds, on a balance of probabilities, that the worker's identified restrictions are appropriate.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerP. Marsden, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 19th day of April, 2011