Decision #84/11 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") when it determined that the worker continued to experience the effects of his compensable injury after November 23, 2009 and that his loss of earning capacity was due to the effects of this injury. The employer disagreed with this finding and an appeal was filed with the Appeal Commission. A hearing was held on May 16, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after November 23, 2009.Decision
That the worker is entitled to wage loss benefits from November 23, 2009 to March 1, 2010.Decision: Unanimous
Background
On August 25, 2009, the worker injured his low back, groin and left hip region during the course of his employment as a labourer.
On August 31, 2009, the worker attended a chiropractor for treatment. He noted that the worker was stretching his leg to the left while standing on a paver and felt his back and leg "pop." The diagnosis was a left sacroiliac joint sprain and left psoas strain.
The worker's claim for compensation was accepted and wage loss benefits were paid to the worker for September 3 and September 4, 2009.
On November 13, 2009, the worker advised primary adjudication that his left hip and knee have not been the same since a prior WCB claim in the spring of 2008 and if he does certain things he has to watch how he walks on unleveled ground or lifting. He had been going to a chiropractor on and off to adjust his hip. The worker noted that he took a couple of sick days to rest up on September 3 and 4 due to his left hip and groin bothering him. He said he kept on working after the incident but it got worse and worse so he saw his chiropractor on August 31. He then returned to light duties on September 8 so he was off his feet. He had a hard time walking or standing.
In a progress report dated November 16, 2009, the treating chiropractor reported that the worker was still having difficulties at work with occasional limping.
On November 23, 2009, the treating chiropractor noted that the worker re-aggravated his low back when knelt down at home and felt sharp pain. The worker had difficulty with his left hip and pain down to the shin.
On November 24, 2009, the worker saw his family physician for left hip and knee pain. The diagnosis outlined was a left hip strain. The physician indicated that the worker suffered an exacerbation of pain and had been seen at a hospital emergency facility.
On November 24, 2009, the worker told a WCB case manager he aggravated his left hip and knee again on November 21, 2009 when he bent down and something gave out. The worker noted that he was at home when he knelt down for 30 seconds while he was playing with his 3 year old child and when he got back up, something let go and he reinjured his left hip, left knee and left groin. The worker noted that the original injury was to his left hip, left knee and left groin. He said the same areas were aggravated on November 21. The worker noted that he had been having good and bad days with his left hip since the original injury and it was getting worse. He has had left knee pain since the original injury.
The worker advised the case manager that his left hip/groin/knee difficulties have been aggravated at work a few times. Once, he was on a loader and he stepped down and it felt bad the next day. Another day he was driving a truck and he was doing some patching and it felt bad. He did not fill out a green incident report nor did he remember the dates but he told his supervisor.
An MRI dated December 15, 2009, revealed an L4-L5 small to moderate left central disc protrusion.
On December 29, 2009, primary adjudication asked a WCB medical advisor to review the file information which included hospital, chiropractic and physician reports as well as an MRI assessment. The medical advisor was asked to provide an opinion as to whether the worker's further problems were related to the original compensable injury. In response dated February 16, 2010, the medical advisor stated:
"The current dx [diagnosis] is a lumbar disc protrusion L4-L5.
The first report that provides information supporting the dx of a disc is from the physiotherapist from an exam dated November 30, 2009. This is some 3 months after the workplace injury. From review of the correspondence section I note that the worker had an injury at home on November 21 where he bent down to play with his 3 year old child. It is much more likely that this mechanism (bending of the spine) would have caused the disc injury rather than the work place injury (legs being split apart).
Disc pathology can refer pain to the groin, but when examined by the chiropractor on November 16 there was a negative SLR [straight leg raising] which supports no dural tension and no significant disc pathology at that time.
The dx of the initial work place injury would not have predisposed to the development of the disc injury."
The medical advisor was also asked to provide an opinion as to whether a medical condition has been determined to date that accounted for the worker's current medical status in relation to the August 25, 2009 compensable diagnosis or any further compensable diagnosis. The medical advisor responded:
"The current medical status is not accounted for by the August 2009 injury:
· The current dx is different than the initial dx.
· The initial dx would be expected to resolve in 4 to 6 weeks and we are now 6 months post injury.
· The mechanism of injury would not be expected to cause the current dx.
· There is a reported mechanism of injury at home that would more likely cause the current dx.
· Report from the chiropractor dated November 16, 2009 indicated the worker was improving and able to perform regular duties at work. When next seen by the physician on November 24 it is reported that he is unfit for work. This suggests that something occurred between November 16 and 24 which caused the disability and this is noted to be the incident at home."
The medical advisor was asked to comment on whether further clinical or diagnostic testing needed to take place. He responded that:
"The worker has already had an MRI of the spine which showed the disc protrusion. He also had an MRI of the hip which was reported as normal. As such, there is no structural abnormality of the hip that was a direct result of the workplace injury."
On March 12, 2010, primary adjudication advised the worker that it was of the opinion that his current medical status was not accounted for by the August 2009 injury. It was felt that the secondary non compensable incident at home caused the current diagnosis of a lumbar disc protrusion at L4-L5. The worker was advised that the WCB was unable to accept any time loss for the period beginning November 24, 2009 and beyond. On October 2, 2010, the worker appealed the decision to Review Office.
In a submission to Review Office dated November 3, 2010, the employer's advocate outlined the view that no change should be made to the decision of March 12, 2010. The advocate submitted that the information on file clearly established that the worker's current condition was not consistent with the details of his original accident, the worker's condition was not consistent with the diagnosis as established in the original claim and there was an intervening event responsible for causing the current condition.
On November 30, 2010, Review Office determined that the worker was entitled to wage loss benefits after November 23, 2009. Review Office made reference to certain evidence on file to support that the worker continued to experience the effects of his compensable injury after November 23, 2009 and that his loss of earning capacity was due to the effects of this injury.
In particular, Review Office noted that the worker's description of what occurred on November 21, 2009 was when "he got back up" he aggravated the same areas of the August 2009 injury. The WCB medical advisor based her opinion on a different mechanism "where he bent down to play…" This mechanism was not what was reported to the adjudicator and thus Review Office did not attach weight to the WCB medical advisor's opinion. It noted that the medical advisor based her opinion on the belief that the worker was working full regular and unrestricted duties on a daily basis but this was not the case. The worker only worked regular duties periodically. On December 17, 2010, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The employer is appealing whether the worker is entitled to benefits after November 23, 2009.
In deciding appeals, 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 a time as the worker’s loss of earning capacity ends.
Employer's Position
The employer was represented by its Manager, Supportive Employment/Disability Management and the WCB Coordinator.
The coordinator stated that the employer believes Review Office erred in its decision. She submitted that it did not conduct a full investigation and did not give relevant information appropriate consideration in arriving at its decision. She said Review Office completely disregarded the WCB medical advisor's opinion and disregarded board policy in overturning the primary adjudication decision.
The manager submitted that the issue in this case revolves around an incident that occurred at the worker's home on November 21, 2009 and whether the circumstances surrounding the incident meet the test under board policy 44.10.20.50.10, the Recurring Effects of Injuries.
The manager noted that the board policy provides, in part, that the distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or whether an intervening incident, event or exposure contributed to the injury. The WCB will consider that the current loss of earning capacity results from a new and separate incident if the loss of earning capacity has no relationship to a previous illness or injury. He noted that the policy goes on to say if there was an intervening incident, event or exposure deemed capable of either causing the injury or aggravating a previous susceptibility to the injury, the WCB will also consider the current loss of earning capacity the result of the new and separate accident.
The manager submitted that the information on file clearly establishes; firstly, that the worker's current condition is not consistent with the details of the original accident; secondly, that the worker's condition was not consistent with the diagnosis established in the original claim; thirdly, that there was an intervening incident deemed capable of causing the current condition.
The manager submitted that the worker had an incident at home on November 21 where he bent down to play with his child. He said it is more likely that this mechanism, i.e. the bending of the spine, would have caused the disc injury rather than the workplace injury, where his legs had split apart. He said the medical on file clearly establishes that the worker's current problems are not consistent with the diagnosis established in the original claim.
Worker's Position
The worker attended the hearing with his union representative who made a submission on the worker's behalf. The worker answered questions posed by the panel.
The union representative stated that the worker has consistently reported the mechanism of injury and that his symptoms were consistent and were consistently reported, although it is evident that they did wax and wane over time. The November 21 incident that occurred at home is irrelevant in this case and based on WCB Policy 44.10.80.40 the further injury is compensable as the cause of the further injury is predominantly attributable to the compensable injury. When the November 21 incident occurred there was no evidence of recovery.
The representative noted there was attendance at a chiropractor on November 23 and 24 and that it was after the November 24 visit that there was an exacerbation of the worker's symptoms. She noted this is consistent with Part 3 of the policy which provides that where further injury arises out of the delivery of treatment for the original compensable injury, the further injury is compensable.
The representative noted that in November when the incident occurred the worker was working light duties. She noted that he was working light duties almost right after the original injury and never returned to full duties prior to the November 21 incident. She also advised that the worker was using a combination of vacation time, a stat holiday and banked time to allow him to recover and try to continue at work during November. She said that even though the worker was working light duties he continued to struggle.
The worker provided a detailed description of the accident and his symptoms.
Regarding the November 21 incident the worker said that "…I knelt down and got back up and that's when the pain aggravated, while I was playing Lego blocks with my son." He said he felt sharp pain down his left leg and shin. He described it as a throbbing pain and was worse than normal.
The worker reviewed a journal of his work assignments from September to November 21. He noted all the jobs involved light duties. The worker advised that he returned to work on March 1, 2010 and has been working light duties since that time.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond November 23, 2009. In order for the employer’s appeal to be successful, the panel must find that the worker's loss of earning capacity after November 23, 2009 is not the result of the compensable injury. The panel finds, on a balance of probabilities that the worker's loss of earning capacity after November 23, 2009 was caused by the compensable injury, and finds that the worker is entitled to wage loss benefits until March 1, 2010.
There was significant discussion at the hearing around a difference between the diagnosis for the original injury which occurred on August 25, 2009 and the diagnosis after an incident which occurred on November 21, 2009. The employer pointed out that the original diagnosis made by the treating chiropractor on August 31, 2009 was a left sacroiliac joint sprain and left psoas strain while the diagnosis after the November 21, 2009 incident was a lumbar disc protrusion.
After considering all the evidence, including medical reports, diagnostic tests and the reported symptoms, the panel finds, on a balance of probabilities that the diagnosis of the injury had not changed. In reaching this conclusion, the panel notes that the worker has multi-level degenerative changes in the lumbar spine and a lumbar disc protrusion as noted in an MRI dated December 15, 2009. The panel finds this to be a pre-existing condition. The panel finds that the worker aggravated his pre-existing condition in the work accident of August 25, 2009. The panel notes that the Chiropractor's First Report dated August 31, 2009, records "pain radiates down leg to knee/groin." These symptoms noted in August are consistent with the disc injury that is diagnosed after the November 21, 2009 incident.
The panel attaches little weight to the opinion of the WCB medical advisor. The medical advisor's opinion is based on the assumption that the first indication of a disc injury was in the report by a physiotherapist from an exam dated November 30, 2009. The panel disagrees with this assumption. We find the first indication of a disc injury to have been in the Chiropractor's First Report dated August 31, 2009, prior to the second incident of November 21, 2009.
The panel does not find the November 21, 2009 incident to be significant and or an intervening event. The incident resulted in an exacerbation of symptoms. The panel notes that the worker's symptoms varied, with both improvements and increased symptoms many times during the claim and that the incident was one more variation.
The panel concludes that the file information does not support a finding that the worker had recovered from the injury by November 23, 2009. The worker continued to work light duties and did not return to regular employment. In addition the panel notes the worker's evidence at the hearing that he used vacation, banked overtime and a stat holiday so that he could continue to work.
The panel notes that the worker returned to full time employment on March 1, 2010. The panel also notes the report of the physical medicine and rehabilitation specialist who saw the worker on May 10, 2010 and confirms that the worker's "…presentation and physical examination are in favour of mild degenerative disc disease with no evidence of radiculopathy." The panel finds that the aggravation of the worker's pre-existing condition which resulted from the compensable condition had resolved by May10, 2010. The worker is entitled to wage loss benefits up to this date.
The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of June, 2011