Decision #148/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that she had recovered from the effects of her compensable injury by July 20, 2009. A hearing was held on June 29, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and/or medical aid benefits beyond July 20, 2009.Decision
That the worker is not entitled to wage loss and/or medical aid benefits beyond July 20, 2009.Decision: Unanimous
Background
The worker filed a claim with the WCB for a right low back injury that occurred in the workplace on October 18, 2008. The worker reported that she was pulling a cart product through doors when she struck the lower right side of her back on the handle of another shopping cart that weighed about 150 pounds. The worker reported that her condition gradually became worse and her last day of work was October 30, 2008. The claim for compensation was accepted by the WCB and benefits and services were paid to the worker. The diagnosis rendered by the treating physician was a contusion to the right sacroiliac area and he queried nerve root compression.
Subsequent file records showed that the worker saw a physiotherapist on November 4, 2008 with complaints of pain in the right low back which felt like "shocks and zapping" that ran down to the leg/foot. The diagnosis rendered was a right low back contusion and sacroiliac joint sprain.
On January 28, 2009, a CT scan of the lumbar spine showed the following findings:
Broad based posterior bulging of the L4-5 disc, with a mild combined spinal stenosis and possible compression of the origin of the right S1 nerve root. Right paracentral disc protrusion at L5-S1 with compression and displacement of the right S1 nerve root, and a 2cm lucent lesion involving the left side of the L5 vertebral body. Possibilities include a Schmorl's node, intraosseous ganglion, hemangioma, or osteoblastoma. An MRI scan of the lumbar spine is recommended.
The worker's file was reviewed by a WCB medical advisor in March 2009. The medical advisor opined that the compensable injury diagnosis was a disc protrusion at the right L5-S1 displacing the right S1 nerve root. There was disc degeneration at this level as well as spinal stenosis.
An MRI of the lumbar spine was carried out on March 9, 2009. The results were read as showing mild degenerative changes at the L4-5 and L5-S1 levels.
On April 17, 2009, the worker was seen by a neurosurgeon at the request of her family physician. The neurosurgeon indicated that he could not detect any obvious radiological correlation for the symptoms described by the worker. He said that most of the lumbosacral discomfort seemed to be musculoskeletal while the radiating components extending to the right leg did not necessarily have a radicular character. He recommended that the worker undergo a neurological and neurophysical evaluation.
The worker was assessed by a WCB medical consultant on May 5, 2009. In his examination notes, the consultant noted that the worker had no evidence of radicular pain but had evidence of pain in the lumbosacral junction particularly on the right side. He noted that the worker experienced some degree of reduction of strength in the right leg but no evidence of any neurological effect. A bone scan was ordered as the consultant had some concerns regarding the direct trauma effect of the injury.
A bone scan was carried out May 11, 2009. The report indicated the scan was essentially normal and noted: "Scintigraphy is generally unhelpful in assessing disc herniation. The lucent lesion in L5 identified on the CT is not active scintigraphically suggesting a benign etiology."
The worker's file and imaging results were reviewed by a WCB orthopaedic consultant on May 21 and May 28, 2009. On May 21, 2009, the orthopaedic consultant noted that the mechanism of the work related injury was blunt trauma to the low back region which would result in a soft tissue contusion. This would not result in a radiculopathy.
In his May 28, 2009 memo, the orthopaedic consultant opined that the abnormalities reported on CT and MRI were pre-existing and not related to the work injury. Further, there were no signs of aggravation or enhancement of the pre-existing conditions.
In a decision dated July 13, 2009, the worker was advised that in the opinion of her WCB case manager, any ongoing difficulties that she had were no longer related to the October 18, 2008 injury and therefore wage loss benefits and medical expenses were not payable beyond July 20, 2009. In making her decision, the case manager relied on the opinion of the WCB orthopaedic consultant that the worker had the following non-work-related conditions: a cyst on her lower spine, degenerative disc disease, evidence of a previous back surgery and possible stenosis. The case manager indicated that the only condition that was related to the injury was a soft tissue contusion (bruise) and since eight months had passed since this condition began, the WCB determined that the effects of the bruise had now resolved.
On July 14, 2009, the worker advised her case manager that she never had surgery and never had back problems before. The worker indicated that she had burning in her right thigh and that the symptoms had always been on the right side.
In a note to file dated July 21, 2009, the WCB orthopaedic consultant indicated that a laminectomy was reported in the CT scan report of January 28, 2009. He stated: "If the claimant did have a contusion, the "other conditions" would not have had an impact on the recovery from the contusion."
In January 2010, the worker asked the WCB to reconsider the decision to end her benefits on July 20, 2009. Submitted with the appeal was an MRI report of the lumbar spine dated October 2009, a report from the neurosurgeon dated October 9, 2009, and a report from a health center dated November 4, 2009.
In the October 9, 2009 report, the neurosurgeon indicated that the worker still complained of paravertebral pain and denied any pain extending into the lower extremities. The numbness and tingling sensations of the right foot/leg did not seem to be as relevant today. The MRI of October 1, 2009 showed a small right medial lateral disc protrusion at L5-S1 without any obvious impingement upon the neural structures. The neurosurgeon noted that there was no clinical evidence that the worker underwent a previous lumbosacral surgical intervention. He recommended a follow up MRI for the spring of 2010 and that the worker pursue a regular physiotherapy program.
The file contains a follow-up report from the neurosurgeon dated January 27, 2010, a CT scan of the lumbar spine dated February 2, 2010, and chart notes from the family physician.
On April 29, 2010, the file was again reviewed by the WCB orthopaedic consultant. He noted that the worker never had surgery to her lumbar spine. He indicated that there was no change to his opinions outlined on May 21 and 28, 2009 after his review of the new medical reports.
On May 26, 2010, the worker was assessed by a second WCB orthopaedic consultant. The worker provided the consultant with a further description of her work injury. The examination results revealed non-specific low back pain and right lower limb pain. There was no objective clinical evidence of radiculopathy. He noted that further investigations would be carried out because of an interosseous lesion in the body of the L5 vertebra which was probably not related to any clinical symptoms or to the compensable injury. The diagnosis of the October 18, 2008 injury was thought to likely be a contusion of the lumbosacral spine and right sacroiliac region.
In a memo to file dated May 28, 2010, the second WCB orthopaedic consultant reviewed x-rays of the lumbar spine dated November 3, 2008. He agreed with the radiologist's report that the films revealed no abnormality of alignment, bone, soft tissue shadow, disc or facet joints.
On June 25, 2010, the neurosurgeon reported that the worker was still experiencing low back pain and pain extending into the dorsal aspect of the thigh. The numbness and tingling sensation of the right leg was subjectively unchanged. He indicated that there was no radiological correlation for the sensory deficits experienced by the worker.
On June 30, 2010, an independent radiologist outlined his findings with regard to the worker's CT scans of January 28, 2009 and February 2, 2010 and MRIs of March 9, 2009, April 12, 2009 and October 1, 2009.
A second WCB orthopaedic consultant was asked to review the worker's file in light of the independent radiologist's findings. He also reviewed a surveillance video of the worker's activities. On July 7, 2010, the consultant stated:
The initial diagnosis of the workplace injury of October 18, 2008, was a contusion and strain of the lumbar spine.
A contusion and strain of the lumbar spine would normally be expected to cause low back and radiating lower limb pain, with gradual resolution over a period of a month or two.
Current intermittent symptoms of lumbar pain and radiating right lower limb pain are probably caused by degenerative lumbar disc disease.
Imaging studies also provide a diagnosis of a stable primary bone tumour of the body of L5 vertebra, degenerative disc disease at other levels including L4-5 and T11-T12 and sacro-ileitis. These conditions are unrelated to the CI [compensable injury].
I have reviewed the surveillance video with particular reference to May 13 and 14, 2009 and May 27 and 28, 2010. The physical activities of walking, bending and twisting exceed those demonstrated on physical examination of May 26, 2010. This renders the clinical findings invalid to some degree.
On July 9, 2010, the worker was informed by her WCB case manager that the WCB was still of the opinion that her reported difficulties at this time were not related to the October 18, 2008 work-related injury and therefore no change would be made to the decision to end her WCB benefits. The decision was based on the May 26, 2010 orthopaedic examination opinion, the June 25, 2010 neurosurgeon's findings and the surveillance video activities.
On July 13, 2010, the WCB case manager asked the second WCB orthopaedic consultant to comment on the independent radiologist's findings which stated: "…the most significant findings are the small central right paracentral disc herniation at the L5-S1 level with possible compression irritation of the right S1 nerve root." The consultant responded as follows:
It is probable that episodic low back pain and radiating pain to the right lower limb are associated with the MRI finding of a small right paracentral disc protrusion at L5-S1 level. Such symptoms can occur even in the absence of clinical signs of nerve root deficit. Repeated clinical examinations have not indentified clinical nerve root deficit.
There is no objective medical evidence that the degenerative lumbar disc disease or the disc protrusion is related to the workplace injury.
Typically, a small disc protrusion will be expected to cause intermittent low back pain, with or without radiating leg pain for a year or so, gradually resolving as the disc material shrinks by dessication over time.
On September 7, 2010, a worker advisor requested reconsideration of the decision to end the worker's benefits as of July 9, 2009. The worker advisor contended that the worker's ongoing difficulties had been consistent in nature and location since her workplace accident. This supported that they continued to be causally related to her compensable injury. He noted that there was no evidence that the worker had any difficulties with her back prior to the October 18, 2008 accident. He noted that the worker had a direct blow injury which had sufficient force to cause her to fall to the ground.
On October 7, 2010, the second WCB orthopaedic consultant stated: "The pre-existing degenerative lumbar disc disease is considered to be materially contributing to delay in recovery from the compensable injury."
On October 16, 2010, an advocate for the employer wrote to Review Office. The advocate outlined the position that there was no evidence that the worker's ongoing back problems were caused by her work injury. He felt the work injury was fairly minor in nature and that the worker recovered from that injury within a couple of months of her accident. The Worker Advisor responded to the advocate's arguments in a letter to Review Office dated November 2, 2010.
In a report dated October 20, 2010, an occupational health physician concluded the following:
By my assessment, the main diagnosis at the time of the injury is contusion in the right lower back; the blow was sustained in the lumbosacral angle involving the right lumbar paraspinals and because of its depth, the ilio-sacral and ilio-lumbar ligaments; irritation on deep palpation and loading the ligament with, e.g., hip flexion was found on exam. Considering the mechanism of injury, there is little to suggest direct trauma to the lower lumbar discal structures.
On December 9, 2010, Review Office determined that there was no entitlement to wage loss and/or medical aid benefits after July 20, 2009 as it was unable to establish from the evidence that the worker's continuing problems and loss of earning capacity were due to the effects of the workplace accident/injury of October 18, 2008. On January 11, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on June 29, 2011.
Following the hearing, the appeal panel met to discuss the case and decided to request additional medical information as well as a copy of the worker's claim with an insurance carrier. The requested information was later received and forwarded to the interested parties for comment. On September 27, 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. 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 was self-represented and accompanied by her sister at the hearing. The worker stated that she injured herself at work on October 18, as reported, and she had a sharp pain and massive bruising in the area. As she continued to work that week, it gradually got worse to the point where she had no stability. She was very weak and had extreme pain and numbness down her legs. Prior to her injury, she had worked for the employer for 13 years and never had problems or missed work. She worked overtime and had full sick time credits saved up. Since her injury, she has had pain which she never had before. The worker disputed that degeneration was the cause of her condition as it does not happen overnight and it was only when she had the work accident that the problems arose.
In response to questions from the panel, the worker described the mechanism of injury of the accident as follows. She was trying to move a dolly full of product. It was very heavy and the only way to move it was to pull backwards on it. The worker was straining herself, pulling the dolly backwards when she collided into a shopping cart which another employee had left just outside the doorway. The ball at the end of the handle of the shopping cart made contact with the worker's back, a few inches to the right of her spine. She later developed a large bruise there which was approximately the size of an apple. After the initial impact, the handle then skipped up her back a couple of times and she also had a smaller bruise on her back near the bottom of her rib cage.
Employer’s Position
An employer advocate was present at the hearing. The employer supported the decision made by the WCB and it was submitted that the worker's ongoing symptoms and related disability were due to her pre-existing degenerative condition and not due to the acute effects of her October 18, 2008 work accident. The work injuries were fairly straight forward in nature and the evidence on file indicated that she recovered from the acute effects of the injury within a few months of her accident. It was submitted that the current back problems were caused by her well- documented pre-existing non-compensable back condition.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss and/or medical aid benefits beyond July 20, 2009. In order for the worker’s appeal to be successful, the panel must find that the low back difficulties the worker has experienced after July 20, 2009 are related to the injuries she sustained in the workplace accident of October 18, 2008. On a balance of probabilities, we find that the work-related contusion and strain of the lumbar spine had resolved by July 20, 2009 and that the worker’s current difficulties are attributable to pre-existing degenerative changes in her lumbar spine.
In coming to our decision, the panel relied on the following:
- The mechanism of injury described by the worker at the hearing was not consistent with a spinal disc injury. The point of contact was not the spine, but rather was the soft tissue area to the right of the spine. There was no direct insult to the spine itself. The panel also notes that the collision was at a low velocity and we therefore find that the impact was not hard.
- The WCB medical advisor confirmed that this type of blunt trauma to the back would be expected to result in a soft tissue contusion. It would not likely result in radiculopathy.
- The October 20, 2010 report of the occupational health physician also confirmed that the main diagnosis at the time of injury was a contusion in the right lower back.
- Following the hearing, the panel requested updated medical information from two specialists who were treating the worker. In a report dated July 13, 2011, the treating physical medicine specialist indicated that the anatomic source of the worker's pain had not been definitively confirmed but that the most likely source of pain was intrinsic disc pain with psuedoradicular referral. It was noted that the worker still had residual small disc herniations at L4-5 and L5-S1 and that it was possible that these lesions were contributing to her symptoms by causing some degree of radicular pain. As noted earlier, these lesions are not consistent with where the worker was struck.
- In a report dated July 15, 2011, the treating neurosurgeon noted that the worker's clinical condition remained fairly stable since her last visit in February 2011. As with previous visits, the neurosurgeon recommended that the worker continue with her present conservative treatment and surgical intervention was not suggested.
- While neither specialist is able to provide a definitive etiology of the worker's back problems, there is no suggestion that an acute soft tissue or muscular injury is the cause or a contributor to the worker's current condition. There is nothing to link the worker's current status to an ongoing injury in the area where she was struck.
- There are numerous imaging reports on file, including an independent radiologist report, which reflect pre-existing degenerative disc disease in the worker's lumbar spine.
For the foregoing reasons, the panel finds that the worker is not entitled to wage loss and/or medical aid benefits beyond July 20, 2009. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of November, 2011