Decision #69/11 - 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 February 6, 2006. The claim for compensation was accepted and the worker was paid benefits to June 18, 2007 when it was determined by Review Office that he had recovered from the effects of his compensable injury. The worker disagrees with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on December 1, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after June 18, 2007.

Decision

That the worker is entitled to wage loss and medical aid benefits after June 18, 2007.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on February 6, 2006. The worker reported that he slipped on ice in the employer's parking lot which made his low back sore. He continued working and a few hours later he caught his right foot on a pallet and pulled his back even more. The worker sought medical treatment and was diagnosed with a back strain by his attending physician and multiple vertebral subluxations associated with low back pain by a chiropractor. The claim for compensation was accepted and benefits were paid to the worker. On April 11, 2006 the worker returned to work at 5 hours per day. The WCB authorized four additional weeks of chiropractic treatment to support the return to work. On April 21, 2006, a WCB medical advisor indicated that there should be no need for treatment after April 24, 2006.

On April 27, 2006, the chiropractor reported that the worker re-injured his back in a fall at work on April 24, 2006. The worker complained of mid back pain, left SI joint pain, and a sore left thigh, hip, knee and ankle.

On May 5, 2006, a physiotherapist reported that the worker complained of sharp aching in his low back with radiation, greater on the left than the right.

On June 21, 2006, the treating physician reported that the worker reinjured his low back at work on June 13, 2006 when moving a load of steel on a wagon. A referral to a sports medicine specialist was arranged.

When seen for treatment on August 28, 2006, the sports medicine specialist diagnosed the worker with mechanical back pain and lumbar facet injury secondary to arthrofibrosis.

On September 8, 2006, the worker was discharged from physiotherapy and the therapist's diagnosis was discogenic lumbar spine.

A CT report of the lumbar spine dated September 21, 2006 stated there were no abnormalities at L3-L4. The disc at L4-L5 was narrowed. There was a moderate sized central disc protrusion with minimal compression of the thecal sac and L5 roots bilaterally. No central or foraminal stenosis was identified. The L5-S1 level was unremarkable.

A WCB medical advisor reviewed the file on October 11, 2006 and stated that the compensable diagnosis was a back strain and possible lumbar disc protrusion.

On October 18, 2006, the attending physician suggested that an MRI be arranged because of the CT scan findings. It was reported that the worker had chronic back pain.

In a report dated October 25, 2006, a pain management specialist was of the impression that the worker had been suffering from a form of chronic post-traumatic mechanical low back pain with associated disc protrusion at the L4-L5 level.

On November 1, 2006, the worker advised his case manager that he was scheduled for an MRI on November 2, 2006. He stated that he was barely able to manage working four hours a day due to pain.

The MRI findings of November 2, 2006 revealed moderate degenerative narrowing and dessication at the L4-5 level. There was a tiny central protrusion and associated annular tear at the L4-5 level. The L5-S1 level was well preserved with no significant disc protrusion identified.

In a report dated November 16, 2006, the pain management specialist indicated that he reviewed the MRI findings and confirmed that the worker was suffering from a chronic mechanical low back pain likely secondary to the disc bulge and annular tear at the L4-L5 level. This was associated with muscle spasm. It was recommended that the worker undergo a trial of myofascial local anesthetic injections. The treatment was authorized by a WCB medical advisor on December 22, 2006.

A WCB medical advisor reviewed the file on November 30, 2006 and was of the opinion that the compensable diagnosis related to the February 6, 2006 injury was an annulus tear at the L4-5 disc. The medical advisor also was of the view that the worker should move forward with his graduated return to work as mobilizing and strengthening was essential for his recovery.

Arrangements were made for the worker to see a WCB medical advisor as he was not reporting any improvement with the injections he received from the pain management specialist.

On April 4, 2007, the examining medical advisor noted that the worker's symptoms had improved since mid February of 2007 which he related to the physiotherapy treatments he received from a second physiotherapist. The worker reported increased mobility and decreased pain but expressed some reservation about increasing his work or general activities too quickly. The clinical examination showed full active range of motion of the lumbosacral spine, negative dural tension testing in the standing, seated, supine and prone positions and a normal neurological examination of the lower extremities. The worker had increased symmetric deep tendon reflexes in the lower extremities and increased ankle clonus bilaterally. The increased reflexes were unrelated to the work-related injury reported and their clinical significance was unknown. There was some local tenderness on palpation of the central, lower and lumbosacral spine, but no significant soft tissue symptoms reported. The medical advisor noted there were possible barriers to a successful return to work including workplace issues with co-workers and a fear of re-injury by the worker. The medical advisor recommended that the worker undergo a four week work hardening program followed by a return to work to his previous work activities.

On June 14, 2007, the case manager advised the worker that arrangements were made for him to return to work on June 18, 2007 at his regular work schedule. The return to work would be in the dispatching office. Effective June 18, 2007, he would be placed back on payroll with his employer.

A June 15, 2007 discharge report in regard to the work hardening program stated: "[the worker] in the last two weeks of program felt that his pain was too great for him to return to his work. He felt that more rehab would be required. Despite his apprehension and increased reports of pain, [the worker] demonstrated improved function based on objective measurement. In fact his functional abilities exceeded that of his job."

In a report dated July 5, 2007, the pain management specialist reported that the worker responded favorably to a combination of local anesthetic injections, physical therapies and oral medications. The worker was advised to continue with his current program and to include home TENS when this was available as this had been beneficial in the past. The worker was advised to increase his medication if he found it necessary. The worker was discharged from the pain clinic and was advised to follow up with his family physician.

On August 2, 2007, the worker spoke with a WCB case manager indicating that he returned to work on June 18, 2007 in dispatch and was managing. He was having some discomfort related to his initial injury but was trying to work through the pain. On July 25, 2007 he experienced a significant increase in pain and missed his entire shift on July 26, 2007 and had to leave work early on July 30, 2007 due to pain. The worker expressed the opinion that he had never fully recovered from his initial injury.

On August 3, 2007, the case manager advised the worker that he was unable to accept responsibility for his recurrent disability where there had been no new accidents or incidents at work.

The worker had a bone scan performed on September 13, 2007, the results of which were normal.

In a report dated December 6, 2007, the pain management specialist noted that the worker was seen in follow up with high-intensity low back pain. The pain was aggravated by cold weather and was alleviated by warm weather. Recommendations were made for changes to his medication intake and to see a clinical psychologist for assistance with pain coping techniques.

On January 11, 2008, the worker was advised by his case manager that the WCB was unable to accept responsibility for his time loss from work due to temperature changes and that the decision made on August 3, 2007 was confirmed.

In a March 10, 2008 report, the clinical psychologist felt that the worker had adjustment related difficulty associated with his pain symptoms. The worker had a chronic depressive disorder in general remission with his pharmacotherapy. It was recommended that the worker undergo 8 to 12 sessions to focus on coping with his underlying pain, and develop strategies for maintaining a sustainable lifestyle within the context of his medical condition.

In a March 10, 2008 report, the pain management specialist indicated that the worker was seen in follow up and had ongoing low back pain ranging between 3 and 9 out of 10 in intensity. The pain was localized to the midline with intermittent radiating down both legs. Treatment recommendations were outlined.

On June 11, 2008, x-rays of the lumbosacral spine revealed mild disc narrowing at L4-5 and L5-S1. The posterior alignment was anatomic and the SI joints were clear. There was mild disc narrowing.

On August 21, 2008, the treating physician outlined the position that the worker was not capable of working at his current position due to several factors. He had a chronic back problem that was being followed by the pain management specialist and had a major mood disorder.

On August 25, 2008, the worker underwent a repeat MRI and the results were reported as showing mild diffuse disc bulging at L4-5.

In a report dated August 26, 2008, an orthopaedic surgeon reported that in his opinion, due to the worker's persistent mechanical back pain, an L4-5 anterior discectomy and a Prodisc replacement was recommended.

A WCB orthopaedic consultant reviewed the file on October 8, 2008. He stated that the proposed surgery for L4-5 prosthetic disc arthroplasty was controversial and the long term outcomes were yet not known. A second surgical opinion was suggested. The consultant felt that the worker's symptoms of low back pain and leg pain were related to the February 6, 2006 compensable injury and that the compensable injury was contributing to his current inability to work.

On October 22, 2008, a neurosurgeon reported that he saw the worker. He reported that the clinical presentation suggested mechanical/musculoskeletal pain with no obvious signs of radiculopathy. There was some clinical evidence of a potential impairment of the upper motor neuron. The specialist also opined that the disc arthroplasty may address the low back discomfort but the symptoms experienced by the patient would probably persist.

In a report dated October 30, 2008, the pain management specialist indicated that the worker continued to take his oral pharmacological agents and remained functionally disabled and unable to work.

On December 13, 2009, an MRI of the cervical spine showed minimal degenerative changes at C3-4. The MRI of the thoracic spine showed no remarkable abnormality. The spinal cord intensity was normal throughout and there was no evidence of spinal cord compression.

In a follow up report dated January 27, 2009, the neurosurgeon stated that he discussed the recent radiological findings as well as therapeutic options with the worker. The neurosurgeon was of the view that surgical intervention would only address the worker's lumbosacral discomfort but the cramping of his thighs and legs would probably persist.

A WCB orthopaedic consultant outlined the following opinion on February 11, 2009:

  • there was a low probability that the worker would experience a relief of symptoms should he undergo the L4-5 disc excision and disc pathology;
  • investigations failed to demonstrate pathology that might be responsible for cramping of the worker's lower limbs, proprioceptive disturbance and foot swelling. It was not probable that these symptoms were related to the compensable injury;
  • the mechanism of injury was consistent with a lumbar disc protrusion;
  • it was difficult to state what clinical findings were related to the compensable injury and what were related to some other as yet undefined cause; and
  • restrictions related to a symptomatic lumbar disc lesion would be the avoidance of repeated bending and twisting of the spine, lifting and carrying more than 25 pounds, sustained standing or sitting postures for more than 30 minutes without the opportunity to change position and move around. The restrictions were to be reviewed again in two month's time.

On March 5, 2009, the worker was interviewed by a medical advisor from the WCB's Pain Management Unit ("PMU") and a WCB psychological advisor.

At a PMU case conference held on March 19, 2009, it was determined the worker's psychological factors were pre-existing and were not causally related to the compensable injury.

On March 20, 2009, a case manager asked a WCB medical advisor to review the file and respond to several questions. In a response dated April 15, 2009, the medical advisor noted that with regard to the compensable injury, the mechanism of injury and clinical findings suggested a small L4-5 disc herniation and annular tear. The recent MRI performed on August 25, 2008 demonstrated significant improvement from the MRI done in November 2006. The current diagnosis appeared to be a non-radicular non-specific low back pain with unrelated conditions such as unexplained cramps of the thighs and calves, circumferential intermittent tingling of the feet, swelling of the ankles, ankle clonus, hyperreflexia, and chronic pre-existing depressive illness previously addressed by the PMU.

The medical advisor stated that the ongoing cause and effect was difficult to establish with certainty considering the diagnosis of non-radicular non-specific low back pain (often referred to as mechanical low back pain) and a repeat MRI scan of the lumbosacral spine on August 25, 2008, which demonstrated mild disc narrowing and disc bulging at L4-L5 and disc dessication at L3-L4 and L4-L5. Non-radicular non-specific low back pain did not allow a more specific anatomic diagnosis.

In a decision dated April 16, 2009, the case manager advised the worker that the decision made on August 2, 2007 that he had recovered from his compensable injury and was fit to resume his regular duties would stand. The case manger noted that the medical information since that time detailed a variety of symptoms that could not be related to his compensable injury. The case manager further outlined the decision that the medical and other information on file did not support that the worker's current mental health condition was the result of the workplace accident. On June 3, 2009, the worker's union representative appealed the decision to Review Office.

On June 11, 2009, Review Office found that the worker's continuing loss of earning capacity and symptoms after June 18, 2007 were not, due to the effects of the February 6, 2006 workplace injury. Review Office based its decision on the work hardening discharge report findings, the opinion expressed by the WCB medical advisor on April 15, 2009 and the PMU findings of March 19, 2009. Review Office found the evidence supported that the worker's further time loss was attributed to exacerbations due to temperature changes as described by the worker and to depression that was not accepted by the WCB as being a direct cause of the February 2006 workplace accident. On March 26, 2010, a worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel arranged for the worker to see an independent medical examiner for the purposes of establishing his current medical status. The examination took place in March 2011 and the independent medical examiner's report was forwarded to the interested parties for comment. On April 18, 2011, the panel met further to discuss the case and render its final decision.

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.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. The worker's position was that he continued to suffer from the effects of his compensable accident well beyond June 18, 2007. It was submitted that medical opinions from the family physician, attending specialists and most importantly, the opinion of the WCB's own orthopedic consultant all supported that the compensable area of injury remained in the midline L4-L5 disc level and was related to the February 6, 2006 accident. With respect to entitlement to wage loss benefits, it was submitted that as of February 11, 2009, the WCB orthopedic specialist recommended compensable workplace restrictions related to the worker's lumbar disc which prevented a return to pre-accident duties. Thus the evidence supported that the worker's loss of earning capacity and entitlement to medical aid benefits did not end on June 18, 2007.

The employer’s position:

A representative of the employer appeared at the hearing. The employer's focus was on its obligation to return workers to work as quickly as possible in accordance with its return to work policy and to provide reasonable accommodation as directed by the attending physician. It was submitted that in this case, the employer was advised that after the work hardening program was completed on June 18, 2007, the worker could return to full work status and the employer did provide him with some accommodation at that time with respect to lifting and mobility restrictions. The employer indicated that the worker never did return to full work after that period. There were various periods of long absences, and then the worker applied for short term disability in April 2008, following which there was no further return to work. Due to current economic conditions, the worker remained under layoff, but had rights under the collective bargaining agreement for re-call, should work become available.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits after June 18, 2007. In order for the appeal to be successful, the panel must find that after that date, the worker's compensable injury had not yet resolved and continued to cause a loss of earning capacity. After reviewing the evidence as a whole, we are able to make that finding.

At the hearing, the worker described his current symptoms as back pain located in the lower back, just below the belt line area. Upon waking in the morning, there was not much pain and it was mostly only stiffness. As he started to become more mobile, however, the pain would increase to a dull ache, and sometimes he would have a sharp, non-radiating pain in the area. He was unable to sit or stand for very long, and he had difficulty walking. Often, specifically when his back was bothering him more, he would also experience cramping, leg pains and numbness and tingling in his feet, mostly on the right side, but also sometimes on the left. This condition developed soon after the injury. When asked to compare his physical condition now to the way it was in March 2008, the worker's evidence was that it was virtually unchanged. He had good days and bad days, but unfortunately, there were more bad days than good.

Following the hearing, the panel requested an independent physical medicine and rehabilitation specialist (physiatrist) with no prior involvement in the claim to conduct a comprehensive review of the medical file, physically examine the worker and provide an opinion as to a probable diagnosis, etiology of the low back condition and leg and foot symptoms, and physical restrictions. The independent physiatrist produced a 14 page report dated March 23, 2011 which made the following conclusions:

  1. Notwithstanding the repeated observation of normal spinal nerve function, it is still possible that the worker has spinal nerve pain, otherwise known as radicular pain. The source of his pain is most likely emanating from the L4-5 disc space.
  2. Based on evidence currently available, there appears to be a medically probable cause and effect relationship between the worker's current medical condition and the workplace incident of February 6, 2006.
  3. The precise etiology of the worker's lower limb symptoms is unconfirmed. They are likely due to either radicular pain or pseudoradicular pain as a consequence of pain referral from the L4-5 disc space. Given the likelihood that the L4-5 disc space injury is causally linked to his 2006 workplace injury, the concomitant lower limb referral symptoms are causally linked as well.

The panel is of the view that the independent physiatrist conducted a thorough analysis of the worker's condition and we see no reason to vary from his conclusions. The panel therefore accepts the opinion of the independent physiatrist that the worker's current symptoms remain causally related to the June 2006 compensable injury.

The finding that the worker's compensable injury remains symptomatic entitles the worker to further medical aid benefits beyond June 18, 2007. The second level of the inquiry must ask whether the compensable injury caused the worker to suffer a loss of earning capacity beyond that date.

The panel agrees with the worker advisor's submission that the February 11, 2009 restrictions recommended by the WCB orthopedic advisor should be relied upon to establish the worker's functional limitations. The restrictions were outlined as follows:

Restrictions applicable to a symptomatic lumbar disc lesion would be:

(a) Avoidance of repeated bending and twisting of the spine;

(b) Avoidance of lifting and carrying more than 25 lbs; and

(c) Avoidance of sustained standing or sitting postures for more than 30 minutes without opportunity to change position and move around.

When the worker first returned to the workplace in June 2007, he was cleared for his regular duties but was provided accommodated work by the operations manager. The accommodated work was in a dispatch position. The worker was later moved back to a stockroom position. The employer's evidence was that both of those positions were capable of accommodating the February 11, 2009 restrictions. The job requirements were outlined by the employer at the hearing and the worker did not dispute the descriptions.

In the panel's opinion, the evidence supports the finding that the worker continued to suffer a loss of earning capacity beyond June 18, 2007 and that this loss of earning capacity continued until the worker's physical restrictions were outlined on February 11, 2009. As there was work available within the worker's restrictions, the worker's loss of earning capacity ended as of that date. It follows that the worker is entitled to further wage loss benefits beyond June 18, 2007, but only up to and including February 11, 2009.

Although work restrictions were recommended by the WCB orthopedic consultant in February, 2009, by the time of the independent medical examination in March 2011, the physiatrist opined that physical restrictions were not medically required at that stage of recovery for the worker's ongoing low back and lower limb symptoms. The physiatrist indicated that the potential indication for considering workplace restrictions was the worker's report of ongoing intermittent low back and lower limb pain. Basing restrictions on an individual's subjective complaints alone, however, is not based on medically objectifiable data. The worker's physical examinations repeatedly demonstrated normal spinal and neurologic function. The symptoms seemed to occur spontaneously and repeatedly resolved over time. There was no specific activity or postural relationship to pain. As such, the physiatrist opined that there was no obvious link between physical restrictions and prevention of pain. The physiatrist did recommend physical rehabilitation of the worker's condition comprised of reconditioning exercises, the goal of which would be to improve function and hopefully raise the worker's threshold to the onset of pain symptoms. Given the worker's extended absence from the workplace, the panel agrees with this recommendation and feels that it would be beneficial if the WCB could provide the worker with some support in this regard.

For the foregoing reasons, the panel finds that the worker is entitled to wage loss and medical aid benefits after June 18, 2007. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 6th day of June, 2011

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