Decision #111/11 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by the Workers Compensation Board ("WCB") which determined that the worker's ongoing back difficulties from May 22, 2009 onwards were not related to his compensable motor vehicle accident that occurred on September 5, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on January 11, 2011 to consider the matter.Issue
Whether or not the worker's back difficulties on May 22, 2009 are related to the compensable injury of September 5, 2008; and
Whether or not the worker is entitled to wage loss benefits beginning May 22, 2009.
Decision
That the worker's back difficulties on May 22, 2009 are not related to the compensable injury of September 5, 2008; and
That the worker is not entitled to wage loss benefits beginning May 22, 2009.
Decision: Unanimous
Background
The worker reported injuries to his left neck and right back region when he was involved in a motor vehicle accident on September 5, 2008 during the course of his employment as a carpenter. When speaking with a WCB adjudicator on September 10, 2008, the worker indicated that he injured his low and mid back area as well as his right shoulder and left neck in the accident. The claim for compensation was accepted based on the diagnoses of strains to both the neck and back and benefits were paid to the worker while he attended physiotherapy treatment.
The worker underwent an MRI of the brain, cervical spine and lumbar spine on December 8, 2008. There was no evidence of an intracranial mass lesion, hemorrhage, infarction or demyelination and no intracranial abnormality. The C5-6 region showed some degenerative spurring bilaterally resulting in mild left and at most moderate right sided foraminal stenosis. At the L5-S1 level, there was mild degenerative narrowing and desiccation of the intervertebral disc. There was central disc bulging versus small shallow central disc herniation without spinal stenosis or nerve root compression. There was a high signal intensity annular tear just to the left of midline at the site of the disc bulge. Mild facet degenerative changes were noted bilaterally. No other significant lumbar spinal abnormality was identified.
An MRI of the right shoulder taken December 8, 2008 showed a Type II acromion and the AC joint was normal. The rotator cuff was unremarkable. The impression was a normal study.
On January 23, 2009, the worker was examined by a WCB medical advisor to clarify the diagnosis and its relationship to the September 5 compensable injury. The medical advisor opined that the worker had objectively recovered from his neck/upper back strain secondary to the motor vehicle accident. The worker continued to be symptomatic in regard to his low back strain. The medical advisor indicated there was no convincing evidence of a lumbar radiculopathy other than strength testing showing 4/5 toe dorsiflexion on the right side. Straight leg raising was negative, the MRI did not show nerve root compression and the worker had no other myotomal or dermatomal deficits. It was suggested that the worker undergo a four week course of work conditioning with the goal of returning him to his full regular work duties.
In March 2009, the arrangements for the four week reconditioning program were confirmed.
On March 12, 2009, the worker advised the WCB that he attended two days of reconditioning and now had difficulties moving. He could barely walk yesterday and could not move his shoulder. The adjudicator encouraged the worker to continue with the program and advised him that non participation in the program may impact his ongoing entitlement to benefits.
On March 12, 2009, the treating physiotherapist advised the WCB that the worker reported extreme pain right from the beginning of the program before trying anything. He could not sit down during his initial assessment and reported that he could not sit for more than 5 minutes yet it was noted that he was able to drive from home to the clinic. The physiotherapist stated that the worker did try everything but he appeared to be in excruciating pain while doing it and then reported extreme pain afterwards.
In a doctor's progress report dated March 12, 2009, it was reported that the worker complained of pain in his low back, neck and that the pain in his right shoulder increased. It was suggested that the reconditioning program needed to be more gradual or on alternate days.
On March 25, 2009, the case manager advised a WCB medical advisor that the worker's treating physiotherapist was requesting an extension of the reconditioning program as the worker's progress had been slow. In a response dated March 27, 2009, the medical advisor stated:
Given the medical information on file including lack of reported progress (ie. documented NPS and DASH scores) in spite of time away from aggravating factors, extensive physiotherapy and little in ways of objective evidence of lumbar radiculopathy, there does not appear to be a medical necessity for further in-clinic treatment after the reconditioning program. It would be expected that the program would incorporate home education and a home exercise program.
In a letter dated March 30, 2009, the WCB confirmed to the worker that based on the opinion of the WCB medical advisor, there was no objective medical evidence supporting the necessity of further in clinic treatment. The worker was advised that in the opinion of the WCB, he was capable of returning to work full time hours and duties effective April 8, 2009 and that he would no longer have a loss of earning capacity beyond April 7, 2009, which was the end date of his reconditioning program.
On April 2, 2009, the treating physician reported that the worker's lower back remained painful. He also had right lower rib pain when sitting down. A referral to a pain clinic was suggested for nerve blocks. A graduated return to work at 2 to 3 hours a day and increased as tolerated was suggested. In a further report dated April 16, 2009, the physician noted that the worker tried to work at 2 to 4 hours before experiencing severe pain in low back and right lower ribs.
On April 18, 2009, the WCB medical advisor stated that he was unable at this time to explain the persistence of the worker's symptoms as related to a pathoanatomical lesion in spite of physiotherapy, analgesic use and removal from aggravating factors. He felt there was no medical contraindication to gradual return to duties. The referral to the pain clinic and treatments proposed would purely be for possible symptom relief and would not preclude the proposed return to full function.
Based on the medical advisor's opinion, the worker was advised on April 20, 2009 that there was no relationship between his current symptoms and the workplace injury and that no change would be made to the previous decision to end compensation benefits.
On May 7, 2009, Review Office determined that the worker was entitled to partial wage loss benefits beyond April 7, 2009, based upon his initial return to work on a four hour per day basis. Review Office based its decision on file information which indicated that the worker's physician recommended a graduated return to work and that the physiotherapist who supervised the reconditioning program did not support a return to full time regular duties.
On May 25, 2009, the worker left a message on voice mail that he woke up on Friday morning and could not move. He went to a hospital emergency facility and was given a note to be off work for a week.
The hospital report showed that the worker was diagnosed with a low back strain. The worker reported a lifting injury occurred on May 21, 2009.
On May 25, 2009, the WCB case manager called the worker. The worker indicated that a new injury happened at work on May 21, 2009. He said that something must have happened at work to hurt his back which was why he could not move when he woke up Friday morning. The worker later indicated that his back problem was related to his September 5, 2008 work injury.
On June 1, 2009, the case manager advised the worker that a WCB medical advisor reviewed the hospital report and a report from his treating physician dated May 27 and that it was the WCB's opinion that there was no new medical evidence to support a relationship between his current symptoms and the September 5, 2008 work injury. The worker was advised that the WCB was unable to consider further medical costs or wage loss benefits for the time he missed from work since May 22, 2009.
In a report to a worker advisor dated August 24, 2009, the treating physician reported that the diagnosis of the worker's low back difficulties was that of a lumbar strain that had resulted in persisting segmental myofascial pain in his lower back, right flank and right side of his chest. The physician stated that in his opinion, there was a continuing causal relationship between the worker's current diagnosis and the work related accident on September 5, 2008. The physician further stated: "Workers Compensation Board based their opinion that [the worker] has recovered from his compensable injury on the fact that his clinical signs on examination are unremarkable. This unfortunately ignores the fact that he has been having ongoing pain since the date of his accident. Some of his pain symptoms have improved over time, like neck pain and shoulder pain that he also had initially. The lower back, right-sided chest and flank pain has been persistent since the accident."
On October 2, 2009, a WCB medical advisor stated:
The proposed diagnosis of chronic myofascial pain syndrome has been proven to have poor intra-rater reliability. The presence of myofascial tender points or segmental sensitization can be considered subjective and is variable from examiner to examiner. The causation of such tender points or taut bands is multifactorial and not established in the medical literature.
As such, given the poor intra-rater reliability in establishing the proposed diagnosis, the difficulty in establishing causation in myofascial pain syndrome, and the writer's inability to establish a particular pathoanatomical diagnosis related to the compensable injury to explain [the worker's] symptoms; the writer is unable to establish a causal link to the compensable injury of September 5, 2008.
Based on the above WCB medical advisor opinion, the worker was advised on October 5, 2009 by his case manager that no change would be made to the previous decision. On December 1, 2009, a worker advisor appealed the case manager's decision to Review Office.
On January 14, 2010, Review Office determined that the worker's back difficulties on May 22, 2009 did not have a relationship to the September 5, 2008 compensable injury and that the worker was not entitled to benefits beginning May 22, 2009.
Review Office stated in its decision that it agreed with the WCB medical advisor's opinion of October 2, 2009. Review Office was of the view that whatever was producing the worker's subjective complaints of pain by May 22, 2009 did not have a relationship to the strain-type injury of September 5, 2008. It stated that the worker's speculation that something must have happened at work to cause his pain when he awoke on May 22 did not meet the definition of an accident. It was unable to conclude that the work duties performed by the worker on May 21, 2009 was a recurrence of the compensable injury or a compensable aggravation. He simply woke up on May 22 with back pain and it noted that this was consistent with the worker's prior complaints, that being ongoing back symptoms. On September 10, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on January 11, 2011.
Following the hearing, the appeal panel requested medical information from the treating physician as well as reports from the pain clinic. This information was later received and was forwarded to the interested parties for comment. On June 27, 2011, the panel met further to discuss the case and render its 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.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years. 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 attended the hearing accompanied by a worker advisor. It was submitted that when the worker attempted a return to work in April of 2009, he had not recovered from the accident and his work duties on May 21, 2009 caused a flare up of the unresolved compensable condition. After performing duties on May 21 which involved standing on a four foot ladder and leaning over to be able to reach the area he was working on, the worker felt a pinching feeling. The next day the pain was worse and it was located in the same area as it had been after the September 5, 2008 accident. He went off work on May 22, 2009 and remained off for approximately seven weeks. He had since returned to work with the accident employer, who had been cooperative in making modifications to accommodate the worker's back problems.
The worker described treatment he had been receiving at a pain clinic since approximately January 2010. He described receiving injections in his back which were effective in relieving his back pain. The treatments were supposed to last three months, but he would typically get about two months of pain relief. For the first few days after the injections, he would be very sore and have a hard time moving around, but he would gradually feel better and better and this relief would continue until the two months were up. The treatment plan was to continue with these injections for the present time and in the future, some longer term treatments could be tried.
Unfortunately, at the time of the hearing, a medical report from the pain clinic was not available.
It was submitted on behalf of the worker that there was a continuing causal relationship between the worker's current diagnosis and the work related motor vehicle accident of September 5, 2008. The treating physician's report of August 24, 2009 was relied upon for its opinion on the continuing causal relationship and its conclusion that what had started out as a strain had resulted in a chronic myofascial pain syndrome.
Following the hearing, the panel requested updated medical information regarding the worker's back condition, particularly as it related to the treatments he had been receiving from the pain clinic. By report dated February 15, 2011, the treating physician described the worker's attendances from July 2009 to December 2010. He expressed the opinion that the worker had chronic, non-specific mechanical lower back pain.
By report dated May 2, 2011, a pain management specialist detailed the treatment the worker received at the pain clinic and attached copies of previous correspondence regarding the worker. In a consultation letter dated January 22, 2010, the attending anesthesiologist expressed the opinion that the worker was suffering from mechanical low back pain from possible facet arthropathy and that they would be proceeding with bilateral L4-5 and L5-S1 medial branch blocks. In a letter dated December 17, 2010 from the pain management specialist to the worker advisor, he stated: "This gentleman has found significant benefit with intra-articular steroid injections for his mechanical low back pain. Mechanical low back pain is a common disease exacerbated by a whiplash type motion or accidents … It is not unexpected that this gentleman will suffer with mechanical low back pain for the rest of his life. He will require modified duties with regards to meaningful employment. He will also need repetitive ongoing injection therapy as well as medical therapy potentially for the remainder of his life.
In the May 2, 2011 report, the pain management specialist confirmed that the worker had incompletely treated mechanical low back pain and that he would likely suffer with this for the rest of his lift. Repetitive injection therapy was likely going to be required. He then stated: "As he gets older, the osteoarthritis in his lower back will inevitably worsen."
When asked to comment on the new medical information, the worker advisor submitted that the current diagnosis of mechanical lower back pain developed out of the injuries the worker sustained on September 5, 2008. Medical literature was identified which stated that causes of mechanical low back pain generally are attributed to an acute traumatic event, but may also include cumulative trauma as an etiology. It noted that the pathophysiology of mechanical low back pain is complex and multifaceted. Multiple anatomic structures and elements of the lumbar spine are all suspected to have a role. According the author, "Of all cases of mechanical LBP, 70% are due to lumbar strain or sprain…" It was submitted that although the January 22, 2010 incident identified that the pain is from possible facet arthopathy, the worker was only 30 years old when the accident occurred and had been active and able to perform heavy construction work until he was injured. It was also noted that the MRI of December 8, 2008 showed only mild degenerative changes in the lumbar spine. It was submitted that this level of degeneration was unlikely to cause the degree and persistence of the worker's symptoms.
Employer's position:
The employer's safety coordinator appeared on behalf of the employer at the hearing. The employer did not take a formal position but was generally supportive of the worker's claim. The safety coordinator advised that there was a definite difference between the way the worker was before the accident and after. When he returned to work, he did not seem to be ready to come back to the type of work that he previously performed. He was not the person who they hired originally. Since his return to work, the employer had been doing what it could to accommodate the worker to help him stay at work.
Analysis:
The stated issues for the panel are whether or not the worker's back difficulties on May 22, 2009 are related to the compensable injury of September 5, 2008 and whether or not the worker is entitled to wage loss benefits beginning May 22, 2009.
In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his back after May 22, 2009 are related to the injuries he sustained in the workplace accident of September 5, 2008. On a balance of probabilities, we are unable to make that finding.
Initially, it was submitted that the worker had suffered a strain which resulted in a chronic myofascial pain syndrome. The updated medical information received by the panel made no mention of myofascial pain syndrome as the cause of the worker's ongoing back difficulties, and in fact, with the updated information, the attending physician changed his diagnosis to mechanical low back pain. The panel therefore finds that the worker is currently suffering from mechanical low back pain.
The worker advisor submitted that the mechanical back pain was likely caused by the compensable injury (lumbar back strain). We are unable to accept this submission. In the panel's opinion, degenerative processes (in particular, facet arthropathy) are the cause of the worker's current back difficulties. This was the etiology suspected by the attending anesthesiologist and the success of the medial branch block treatments tends to confirm that facet joint arthopathy is causing the pain. It is the panel's understanding that medial branch block injections can be used as a diagnostic indicator as to the source of back pain. If the injections are successful, this suggests that the facet joints are likely the primary generator of the low back pain. The pain management specialist also identified that the worker has osteoarthritis in his lower back and stated that it will inevitably worsen as the worker gets older.
The WCB medical advisor's memos of January 23, 2009, May 29, 2009 and October 2, 2009 repeatedly indicated he was unable to establish a pathanatomical diagnosis related to the compensable injury to explain the worker's ongoing symptoms. The panel accepts this opinion and further notes that there is no medical opinion which relates the worker's current mechanical low back pain to the workplace accident.
Based on the foregoing, the panel is not convinced on a balance of probabilities that the difficulties the worker experienced with his back after May 22, 2009 are related to the compensable injury he sustained in the workplace accident of September 5, 2008. The worker is therefore not entitled to wage loss benefits beginning May 22, 2009 and the worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 9th day of August, 2011