Decision #117/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that determined she had recovered from the effects of her two compensable accidents and that she was not entitled to wage loss benefits after January 1, 2010. A hearing was held on May 11, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after January 1, 2010.Decision
That the worker is not entitled to wage loss benefits after January 1, 2010.Decision: Unanimous
Background
The worker reported that she injured her back on April 25, 2005 when she slipped and fell down a flight of concrete stairs. When seen for treatment on the same day, the treating physician diagnosed the worker with a contused sacrum and physiotherapy treatments were arranged.
On August 15, 2005, the worker was seen by a WCB medical advisor who noted that the worker's back pain was improving but she continued to complain of significant coccydynia. It was felt that this diagnosis was consistent with the reported mechanism of injury. The medical advisor outlined treatment suggestions and felt that the worker could commence a return to work on a graduated basis with restrictions.
Subsequent medical information showed that the worker underwent two diagnostic procedures. A bone scan dated September 16, 2005 showed no abnormalities and the sacrum and coccyx showed no evidence of fracture. On December 29, 2005, an MRI of the coccyx showed fluid at the very tip of the coccyx which was often seen in coccydynia. The changes were reported as being relatively subtle and clinical correlation was suggested. The lower lumbar region demonstrated a posterior annular tear at L5-S1 with only shallow associated posterior disc protrusion. There was no significant nerve root compression.
On January 5, 2006, the worker advised the WCB that she was still experiencing ongoing pain and discomfort. She was only working a few hours a week.
On February 25, 2006, the worker was assessed at a pain clinic and it was reported that the diagnosis was consistent with coccydynia. The report further stated: "…the patient's coccyx is immobile. The patient also has a component of pain in her right buttock and leg which may be related to either a bulging disc, a tight piriformis muscle, or a myofascial abnormality secondary to her ongoing coccygeal pain."
A consultation report from a surgical centre dated May 27, 2006 indicated that the worker would undergo a cortisone injection into her sacrococcygeal ligament in an attempt to treat her coccydynia. The report also noted that in addition to coccydynia, the worker had some sacroiliac joint dysfunction as a result of her initial injury.
On September 1, 2006, the worker advised the WCB that her condition was the same as it was prior to the cortisone injection.
On September 29, 2006, an MRI of the coccyx indentified no significant abnormalities.
On October 11, 2006, a WCB medical advisor recommended a Functional Capacity Evaluation ("FCE") to determine the worker's work capabilities.
An FCE was done on October 26, 2006. On November 9, 2006, a WCB medical advisor reviewed the FCE results and recommended restrictions to avoid lifting over 20 pounds and the ability to change positions as needed. She indicated that the restrictions could become permanent if there was no change to the worker's clinical status.
File records showed that the employer accommodated the worker's restrictions and the worker progressed to a .6 EFT. The worker was paid partial wage loss benefits by the WCB as she was unable to return to full time employment. Her restrictions became permanent in October 2008.
On October 6, 2008, the worker was walking down stairs and when she turned the corner, she slipped on water. The worker landed onto her right wrist with her left leg out in front of her. The worker was diagnosed with a low back and neck sprain and physiotherapy treatments were arranged.
On December 23, 2008, an MRI was taken of the lumbar spine. The results read: "A traumatic-type lesion is not identified. A minimal right-sided disc protrusion with annular tear is demonstrated for the L5-S1 disc but, the clinical relevance is uncertain."
In a progress report dated January 9, 2009, the treating physician reported that the worker's right neck was better but her back was the same.
Following a WCB call-in examination held on January 22, 2009, the medical advisor noted there was no evidence of any nerve impingement but it was possible that the annular tear on MRI was contributing to the worker's mechanical-type pain. It was felt that the mechanism of injury did not likely cause the tear as these are generally on a degenerative basis but it could have aggravated it. It was felt that the worker's pre-existing condition had delayed recovery from her compensable injury. The medical advisor said she reviewed the worker's previous MRI but the lumbar area was not included, just the sacrum and coccyx. She was unable to say if the worker's previous injury caused the disc pathology. The medical advisor recommended that the worker gradually increase her hours at work and that she should limit lifting to under 20 pounds, to sit as tolerated and be able to get up as needed to walk about. It was recommended that the worker complete her current course of physiotherapy and then progress to a reconditioning type program.
On February 6, 2009, the treating physiotherapist noted low back and groin pain and spasms. The worker had occasional neck stiffness.
A report received from a pain clinic dated April 4, 2009 noted that the worker's previous coccygeal pain did not seem to be a significant problem at the present time. The worker had been experiencing more lower back pain and neck pain since the October 6, 2008 fall. It was suggested that the worker proceed with some diagnostic facet joint injections at the L4-5 and L5‑S1 levels bilaterally to see if this was contributing to her symptoms. If the facet joint blocks did not produce a change in the worker's pain, a referral to a physical medicine and rehabilitation specialist was recommended.
On May 2, 2009, the worker underwent bilateral L4-5 and L5-S1 facet joint injections.
A CT scan of the worker's cervical spine dated May 14, 2009 showed degenerative changes at C4-C5 and C5-C6.
On June 2, 2009, the worker advised the WCB that her neck and shoulder had been painful since her fall but it was her back that was the major concern. On July 8, 2009, the worker indicated that she was struggling with the pain and had not been at work because of it.
On August 26, 2009, the treating physician reported that the worker was having groin spasms and sore upper thighs.
On September 18, 2009, the treating physician noted that the worker continued to struggle with back pain, groin pain, bilateral hip and thigh pain. The groin spasms caused difficulties with mobility.
A WCB call in examination was held on November 5, 2009. The examining WCB orthopaedic consultant concluded that the worker's cervical and lumbar spine pain was related to the diagnosis of nonspecific mechanical pain and it was not possible to correlate the clinical examination to the specific findings on MRI of the lumbosacral disc protrusion. The consultant noted that there were no clinical features pointing to this particular spine level as a pain generator nor were there any neurological abnormalities in the upper or lower limbs. The consultant outlined the opinion that there was no objective medical evidence to relate the worker's ongoing symptoms in her neck and low back with the compensable injuries of October 6, 2008 and April 25, 2005.
In a decision dated December 1, 2009, primary adjudication determined that the worker had recovered from the effects of both the April 25, 2005 and October 6, 2008 work injuries and that benefits would be payable to January 1, 2010 inclusive and final.
On December 22, 2009, the worker's treating physiotherapist wrote to the WCB giving the opinion that the worker had not recovered from the effects of either her 2005 or 2008 injuries. The physiotherapist noted the initial injury of coccydynia and an MRI showing an L5-S1 disc protrusion with annular tear. She indicated that this was clearly not a degenerative condition as the worker had no history of low back pain. The physiotherapist noted that tears of the annulus fibrosis generally do not heal and are at risk for reaggravation. Considering the worker's second fall, it was quite likely that this was the case. The second fall served to further re-aggravate the coccygeal region causing great instability of the pelvic girdle. These injuries coupled together would cause the symptoms complained of by the worker.
On January 21, 2010, the worker was advised by primary adjudication that no change would be made to the decision of December 1, 2009. Primary adjudication noted that the physiotherapist's report was reviewed by the WCB's orthopaedic consultant. It was the consultant's opinion that there were some differences in the reported physical findings of the physiotherapist compared with the findings at the call-in examination. Strength impairment for hip flexion and abduction could be related to the discomfort and thus be subjective in nature. He did not find any instability of the pelvic girdle. The consultant did not agree with the physiotherapist's interpretation that the L5-S1 disc protrusion was not a degenerative condition. The consultant supported the finding of the radiologist dated December 22, 2008, that no traumatic lesion was present.
In a report dated March 15, 2010, a pain management specialist opined that the worker had been suffering predominantly with chronic mechanical neck pain syndrome and chronic mechanical low back pain syndrome with associated cervicogenic headaches. Based on the information he was provided, the specialist said the worker's work-related injuries aggravated her pre-existing neck pain syndrome. The back pain symptoms began as a result of the first work-related fall and were aggravated by the second work-related fall.
On March 18, 2010, the WCB orthopaedic consultant reviewed the March 15, 2010 report. He did not agree with the specialist's opinion that the compensable injury was now causing an aggravation of the spine condition. The consultant noted there was no objective evidence of continued aggravation. Rather, the current symptoms were probably related to pre-existing conditions. He felt there was no additional objective evidence to lead him to change his November 2009 opinion. Based on the consultant's opinion, primary adjudication advised the worker on March 18, 2010 that the decisions of December 1, 2009 and January 21, 2010 were confirmed.
On April 15, 2010, a union representative appealed primary adjudication's decision to Review Office on the worker's behalf. The union representative pointed to file evidence in support that the worker had not recovered from her original injury in 2005 and the 2008 aggravation of her previous condition.
On August 5, 2010, Review Office determined that the worker was not entitled to wage loss benefits after January 1, 2010. Review Office considered the submission that the 2008 accident aggravated pre-existing degenerative changes in the worker's cervical spine. It noted that there was little documentation concerning the cervical area which suggested the aggravation was not severe. It was felt that the compensable aggravation had resolved by early 2009 and any complaints after then were due solely to the pre-existing degenerative changes. Review Office placed weight on the treating physician's report of January 9, 2009 and the physiotherapist's February 8, 2009 report in support of its decision.
With regard to the worker's headaches, right shoulder and SI joint complaints, Review Office felt that any compensable aspect of them had long since resolved. It noted that the documentation did not suggest that any of these areas were a significant component of either of her accidents or treatment thereafter.
Review Office felt that the worker's groin pain was not attributable to one of the worker's other injuries. It was also felt that the groin pain did not result in any loss of earning capacity.
Review Office outlined the opinion that the injury to the worker's coccyx had resolved to the point where it did not cause any loss of earning capacity. In support of its finding, Review Office referred to the report from the pain clinic dated April 4, 2009, the September 29, 2009 MRI of the coccyx and the WCB orthopaedic consultant's opinion of November 5, 2009.
Review Office placed weight on the orthopaedic consultant's opinion (over the physiotherapist's opinion of December 2, 2009) that the abnormal findings at L5-S1 were not caused by either of the worker's two compensable accidents.
Review Office outlined the opinion that the worker's ongoing back complaints were not a sequela of either of her accidents. The decision was based on the orthopaedic consultant's opinion and the fact that the worker's condition had worsened over time. On October 29, 2010, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel requested that the radiologist who read the MRI results of December 23, 2008 elaborate on his findings that "a traumatic-type lesion was not identified." A response from the radiologist was later received and was forwarded to the interested parties for comment. On July 4, 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.
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.
The Worker’s Position
The worker was represented at the hearing by a union representative. The worker's position was that as of January 1, 2010, she continued to suffer from the combined effects of her two workplace injuries. It was submitted that both accidents resulted in injury to her low back area. Her annular tear, which was most likely the source of her ongoing low back difficulties, was sustained in the 2005 accident and was then aggravated by the subsequent accident in October 2008. It was submitted that prior to 2005, the worker had no history of low back pain and her medical record had no notations of any pre-existing condition. The worker had fully participated in all treatment suggestions and cooperated with return to work programs, but had only been able to return to work at a .6 EFT level. Her treating physicians and physiotherapist all supported that her injuries had not resolved. She had continued to have discomfort in the area of her back and neck and she had not made a full recovery when her benefits were terminated on January 1, 2010. It was submitted that the worker remained entitled to ongoing benefits as she had not ever recovered from her workplace injuries.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits after January 1, 2010. Although an Appeal of Claim Decision form was filed only in respect of the 2008 claim, at the hearing, the worker asked the panel to consider both the 2005 and 2008 claims. On review of the Review Office decision of August 5, 2010, it was evident that both workplace accidents were previously considered by the WCB. The panel was satisfied that it had the jurisdiction to consider both accidents, and we therefore agreed to address both claims in our decision.
In order for the appeal to be successful, the panel must find that by January 1, 2010, the worker continued to suffer a loss of earning capacity due to the effects of the injuries she sustained in the April 25, 2005 accident and/or the October 6, 2008 workplace accident. After careful review of all the evidence, on a balance of probabilities, we are not able to make that finding.
The WCB medical file documents a number of medical conditions which have impacted the worker's earning capacity. The panel considered each anatomical area, but we were unable to conclude that any of the conditions affecting the worker's ability to work after January 1, 2010 were related to either of her compensable slip and fall accidents.
With respect to the complaints regarding neck and shoulder pain, headaches and arm numbness, the panel notes that after the 2005 fall, there was no medical reporting of neck problems. The worker's evidence at the hearing was that she did experience difficulties in the neck area, and particularly, increased headaches, but she did not mention them as the more severe injury was to her coccyx and the focus was on treatment of this area. At the hearing, the worker also acknowledged that due to a whiplash injury sustained in a 1992 motor vehicle accident, she did previously suffer from headaches, although they became more severe after the 2005 slip and fall.
While the panel accepts that the worker did suffer from increased headaches and neck pain as a consequence of the 2005 fall, we find that these difficulties were not so severe as to cause the worker to suffer a loss of earning capacity. The lack of reporting of these symptoms to medical practitioners suggests that the symptoms were not so severe as to require medical attention.
After the worker's second fall in 2008, the medical reports reflect the presence of acute symptoms in the worker's neck area and she was diagnosed as having suffered a cervical sprain. This aggravation, however, would appear to have settled within a few months. The January 9, 2009 doctor's progress report indicates the right neck is better. The cervical strain is not mentioned in the call-in examination notes of January 22, 2009. The physiotherapy report of February 6, 2009 indicates only occasional neck stiffness. In the panel's opinion, by early 2009, the worker's acute cervical strain had resolved and the subsequent issues she experienced with her neck and shoulder are not related to her compensable injuries. We note that the mechanism of injury for the 2008 fall was a slip on a wet floor, and we do not see a significant jolt or jerking of the neck which would be expected to cause a more serious neck injury. The panel also notes that the CT scan of May 2009 showed degenerative changes in the right sided C4-5 and C5-6 facet joints and we find that these are the more likely reason for the worker's right sided neck pain. Finally, as noted earlier, the worker had a history of a whiplash injury from a motor vehicle accident in 1992, and she had had fluctuating symptoms in her neck since that time. In the panel's opinion, any injury to the worker's neck and shoulder area had resolved by early 2009 and did not affect her earning capacity after that date.
With respect to the worker's coccyx, the panel accepts that the worker suffered a significant injury to this area which, as of January 1, 2010, had not yet resolved. The worker's evidence at the hearing was that the residual disability she suffered from this injury was the inability to sit for an extended period of time. Her ability to bend and to stand was not affected by her coccyx condition. While the panel accepts that her coccyx was still symptomatic, we find that this did not cause her to suffer a loss of earning capacity. The panel notes that the worker's job does not involve prolonged sitting and that any discomfort can be relieved by a change in position, which the worker is able to do. We therefore find that no further wage loss benefits are payable in respect of this condition.
The low back condition was identified by the worker as the most significant of her conditions. She described the pain as a band across her lower back and that she would further experience pain in her buttock and down her leg, which caused spasms in her groin area.
The source of the pain in the worker's lower back area was suggested by the union representative to be the annular tear at L5-S1. It was further submitted that the annular tear was an acute injury caused by the 2005 fall, which was then aggravated by the second fall in 2008. The panel gave careful consideration to this submission, but we were unable on a balance of probabilities to conclude that the tear was acute in nature. The panel noted the radiologist's comments in the 2008 MRI report that: "a traumatic-type lesion is not identified." We requested clarification of this finding from the radiologist and in his response received June 10, 2011, the radiologist clarified that the annular tear noted in the worker's MRI was a concentric annular tear, the accepted etiologies of which were co-existing degenerative disc changes and chronic trauma relating to daily activities of a weight-bearing and twisting nature. He indicated that although a radiologist cannot categorically admit or deny an acute traumatic origin, concentric annular tears are generally classified as degenerative phenomena.
The panel notes that degenerative changes have been identified in the worker's spine. Diagnostic facet joint injections performed in May 2009 were met with some success and treatment by rhizotomy was to be considered. This would suggest that degenerative facet changes may have been contributing to the worker's ongoing low back discomfort.
In view of the radiologist's comments, the combined presence of degenerative changes with the annular tear leads the panel to conclude, on a balance of probabilities, that degenerative changes are the more likely cause of the worker's ongoing low back symptoms and consequent loss of earning capacity. While we acknowledge that the evidence is not overwhelming, there simply was not enough evidence of traumatic origin to satisfy us on a balance of probabilities that the annular tear was caused by the 2005 compensable fall, or enhanced by the subsequent fall in 2008.
We therefore find that the worker is not entitled to wage loss benefits after January 1, 2010. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 25th day of August, 2011