Decision #157/11 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") in relation to her claim for a slip and fall injury that occurred on May 16, 2007. A hearing was held on September 27, 2011 to consider these matters.Issue
Whether or not the worker is entitled to wage loss benefits beyond November 10, 2009;
Whether or not the worker is entitled to medical aid benefits beyond January 12, 2010;
Whether or not responsibility should be accepted for the worker's January 13, 2010 back surgery; and
Whether or not the worker's average earnings have been correctly calculated.
Decision
That the worker is not entitled to wage loss benefits beyond November 10, 2009;
That the worker is not entitled to medical aid benefits beyond January 12, 2010;
That responsibility should not be accepted for the worker's January 13, 2010 back surgery; and
That the worker's average earnings have been correctly calculated.
Decision: Unanimous
Background
On May 16, 2007, the worker injured her low back when she slipped and fell on liquid on the floor at work. The worker had two other claims with the WCB for back injuries sustained in 1994 and 2001.
A CT scan dated September 7, 2007 of the lumbar spine revealed Grade 1 spondylolisthesis at the L4-5 level and no compromise of the central canal or nerve foramina. The L5-S1 level demonstrated a small central disc protrusion without compromise of the central canal or contact with the S1 nerve roots.
At the request of primary adjudication, the worker's three compensation files were reviewed by a WCB medical advisor on October 1, 2007. In response to a question posed by the adjudicator, the medical advisor stated the diagnosis related to the 2007 claim was a back strain and possible aggravation of the worker's pre-existing degenerative lumbar spine disease.
At the request of the family physician, the worker was referred to a neurosurgeon who arranged for an MRI assessment. The MRI results dated September 26, 2007 showed mild anterolisthesis of the L4-5 with some bulging of the disc. The neurosurgeon then scheduled the worker to undergo lumbar zygo-apophyseal facet joint injections which occurred in November 2007, April 2008 and August 2008.
In a report to the WCB September 15, 2008, the neurosurgeon stated that the MRI of September 2007 did not show any abnormal findings that could be etiologically related to the numbness of the worker's left thigh. He recommended that the worker undergo a neurological and neurophysiological evaluation.
On September 26, 2008, the worker was seen by a WCB medical advisor who was unable to provide an anatomic diagnosis for the worker's ongoing back and left leg pain. It was suggested that the worker be referred to a physical and rehabilitation medicine consultant and to have a repeat MRI to be certain that a new pathology had not occurred to explain the worker's persistent pain and disability.
An MRI report dated October 10, 2008 stated: "There has been no interval change in the appearance of the lumbar spine when compared with the previous examination of September 2007. No significant interval progression of degenerative change seen at the apophyseal joints. A spondylolysis is suspected at L4 with a resultant anterolisthesis as described."
On October 14, 2008, the worker requested further wage loss benefits from the WCB for her concurrent employment at the time of her compensable injury. The worker advised that at the time of her claim, she had been working 48 hours bi-weekly providing respite services for a special needs individual. The worker indicated that the work did not create any issues with her compensable injury as her daughter had been assisting with all the heavy duties for the client. The worker indicated that she did not report this income on her income tax as it was like babysitting. The case manager advised the worker that she would contact the concurrent employer to obtain wage information.
On October 17, 2008, the concurrent employer indicated that the worker last worked for them on July 8, 2007. The worker was paid $480.00 bi-monthly (48 hours of work done over two weekends per month).
In a November 25, 2008 report, the second neurologist reported that the worker presented with left leg paresthesias. Following the examination, he stated that there was no definite clinical evidence by history or examination to suggest a specific radicular injury and that electrodiagnostic testing did not reveal any significant neuropathic abnormality. He suspected that the worker's pain was predominantly musculoskeletal with some left leg myofascial radiating discomfort. There was no clear peripheral neuropathic etiology for her subjective sensory loss. The specialist indicated that aside from aggressive weight loss and physical conditioning, he would not suggest any further investigations unless the worker had neurologic progression.
On December 10, 2008, the case manager spoke with the concurrent employer. She was told that the worker did not provide formal notice when she left their employment. The worker's client indicated that the worker was selling her home and moving. The employer indicated that the worker never disclosed that she had a back injury and if she had, they would have addressed her capabilities with the worker.
On December 11, 2008, the physical medicine and rehabilitation consultant indicated that the worker was in favor of proceeding with a trail of diagnostic injections to determine whether her pain was coming from her facet joints, sacroiliac joint or her spinal nerves.
A WCB medical advisor reviewed the file on December 23, 2008 noting that the worker had not recovered from the fall that occurred at work. He thought that the degenerative osteoarthrosis seen on MRI and x-rays was pre-existing and likely contributing in a significant fashion to the duration of the worker's recovery.
On January 22, 2009, the physical medicine and rehabilitation consultant outlined the opinion that the medial branch block injections that the worker had were negative, suggesting that her pain was not coming from her facet joints.
A WCB case manager wrote the worker on March 6, 2009 to advise that her claim for concurrent earnings in relation to her May 16, 2007 work injury was not acceptable. The case manger made the determination that respite services was in fact "likened" to foster parents' programs and therefore these earnings were not to be considered when calculating her post accident earning capacity. On March 23, 2009, the worker's union representative appealed the decision to Review Office.
In a decision dated April 21, 2009, Review Office referred to WCB Policy 44.80.10.10, Average Earnings. It noted that at the time the worker terminated her concurrent employment, she was performing her pre-accident duties with the accident employer as she had been authorized by her physician to return to work on May 28, 2007. The medical report of June 21, 2007 did not indicate that the worker was not capable of working or that she required any work restrictions. The concurrent employer was unable to confirm that the worker stopped working due to a back injury. As there was no evidence to support that the worker was unable to perform the duties of her concurrent employment due to her compensable injury, Review Office confirmed that the worker's average earnings had been correctly calculated.
On June 1, 2009, the physical medicine and rehabilitation consultant reported that he was referring the worker to an orthopaedic surgeon, noting that the worker had spondylolisthesis at L4-5 with some instability and had intermittent nerve root symptoms in addition to relatively persistent low back pain.
On October 5, 2009, the neurosurgeon indicated that the worker may be a candidate for surgery related to spondylolisthesis and a follow up MRI was recommended.
On January 11, 2010, the neurosurgeon noted that the worker had spondylolytic spondylolisthesis of L4 on L5 and she suffered from low back pain. The worker had some degree of pain behavior with positive Waddell signs and had significant objective findings which included a positive straight leg raise and a very typical pain profile. The neurosurgeon anticipated that given that this was almost a grade 2 spondylolisthesis, one could expect further deterioration in time. The proposed surgery was a standard lumbar fusion of L4-L5. On January 13, 2010, the worker underwent lumbar decompression and fusion at L4-5.
On February 25, 2010, a WCB orthopaedic consultant reviewed the file information and gave the following opinions:
- The initial diagnosis of the May 16, 2007 injury appeared to be a low back strain; and
- The current diagnosis was "status post-spinal fusion L4-5". The surgery related to the worker's pre-existing condition of L4-5 spondylolisthesis, which was not aggravated or enhanced by the workplace injury.
On February 26, 2010, the orthopaedic consultant wrote to the neurosurgeon to advise that the WCB was unable to accept financial responsibility for the surgery and subsequent management as the surgery was performed for the pre-existing condition of L4-5 which, on a balance of probabilities, was not affected by the compensable injury of this claim.
On March 5, 2010, the worker was advised by the WCB that no responsibility could be accepted for her ongoing low back difficulties and the surgery of January 13, 2010 as it was felt that they were related to her pre-existing diagnosis of spondylotic spondylolisthesis. This decision was appealed by the worker's union representative to Review Office. The union representative's position was that the worker's pre-existing condition was enhanced as a result of the May 2007 fall.
In a decision dated August 30, 2010, Review Office determined that wage loss benefits were not payable beyond November 10, 2009, that medical aid benefits were not payable beyond January 12, 2010 and that responsibility was not accepted for the worker's back surgery on January 13, 2010.
Review Office made reference to specific file evidence to show that the worker had a pre-existing back condition that was symptomatic prior to the workplace accident in 2007. Review Office agreed with the opinion expressed by the WCB orthopaedic consultant that "The current diagnosis relates to surgery for a pre-existing condition of L4-5 spondylolisthesis, not aggravated or enhanced by the workplace injury."
Review Office did not find evidence to support that the worker's condition of spondylolisthesis at L4-5 was altered prior to or after the May 2007 accident or that the small central disc herniation at L5-S1 seen on imaging studies was causally related to the May 2007 accident.
Review Office accepted the WCB orthopaedic consultant's opinion that the May 2007 accident resulted in a lower back strain and that the worker had recovered from the effects of this injury.
Review Office indicated that time loss from work beyond November 10, 2009 was directly related to the proposed back surgery and as the back surgery was not accepted, there was no entitlement to benefits beyond this date. It found that the worker was not entitled to medical aid benefits after January 12, 2010 as the worker's medical needs beyond this date were related specifically to the back surgery and its effects. On February 11, 2011, the worker's union representative appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.
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.
Section 45 of the Act deals with the calculation of average earnings. Subsection 45(1) of the Act provides:
Calculation of average earnings
45(1) The board shall calculate a worker’s average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just, but the amount of average earnings shall not exceed the maximum annual earnings established under section 46.
WCB Policy 44.80.10.10 Average Earnings (the “Average Earnings Policy”), sets out the method by which the WCB initially establishes average earnings. The Average Earnings Policy provides for the inclusion of earnings from all the occupations in which the worker was employed at the time of the injury. It also provides: "Income from concurrent employment is only included in average earnings when the worker's ability to earn that income is affected by the compensable injury."
The Worker’s Position
The worker attended the hearing accompanied by a union representative. The submission made on behalf of the worker was that she had a pre-existing condition which was affected by her fall in 2007. The worker had a previous WCB claim in 1994 and imaging results from that file demonstrated a mild grade 1 spondylolisthesis at the L4-5 level. Following that claim, the worker had been capable of performing the duties required of her. It was only following her fall in 2007 that she became unable to fulfill her duties. It was submitted that the worker's complaints and the medical findings from the date of the fall until the date of her surgery had not changed appreciably. A progression from a grade 1 to a grade 2 spondylolisthesis was documented and the WCB medical advisor stated that progression in an adult is rare. This would support that the fall enhanced the worker's spinal condition. It was submitted that the WCB had provided the worker with benefits for over two years and it was only when there was a poor prognosis that the WCB reversed its support and declared the worker's benefits and services had been the result of administrative error.
The worker advisor noted that contrary to the bleak prognosis, the worker in fact had recovered from the surgical procedure and had returned to work in her same position with the employer. She was able to perform her full duties and had not had any time loss related to her back condition since her return to work.
With respect to the appeal regarding calculation of average earnings, it was submitted that the decision made by Review Office was in error. The facts relied upon by the worker were as follows:
- She had been approached about selling her home prior to the workplace injury. She agreed with the realtor to sell, provided she could find a two bedroom apartment in the community. At no time did she ever plan on leaving the community, but she was willing to downsize as her children had left home.
- The concurrent employment was a permanent part-time job which she had done for approximately 10 years. She performed respite work by caring for an individual every second weekend in her home.
- The money the worker received was tax-free as it was deemed to be similar to babysitting.
- Following her fall at work, the worker was able to perform the required duties as a respite worker up until July 2007, but only with the assistance of her daughter. The reason the worker was able to continue to provide respite services was that her daughter assisted her with the physical aspects of the job until a suitable replacement could be found.
- The worker denied the accuracy of the information on file from the concurrent employer which stated that the worker was leaving the position since she was moving. This was not correct and the worker did not know where this information came from. In fact, the worker provided five weeks' notice to the concurrent employer following her fall so the system could find a capable replacement.
It was submitted that it was not coincidence that the worker left the concurrent employment at the time of the compensable injury. She had been providing services for ten years and had no reason to terminate this employment. She had developed a relationship with the family and the individual she had been caring for and with the assistance of her daughter to perform the heavy work she was able to continue to provide the service for a period of time until a suitable replacement had been located.
The Employer’s Position
An advocate represented the employer at the hearing. Based on the evidence available, the employer agreed with the WCB that the worker had essentially recovered from her 2007 work injury. It was submitted that there was no solid evidence to indicate that the workplace accident and injury were severe enough to cause either permanent disability on their own, or to have permanently accelerated or enhanced the worker's pre-existing degenerative condition. While the worker may have ongoing symptoms and disability, the evidence did not connect it to a continuation of the 2007 work injury. A logical explanation for her symptoms would appear to be the "normal" deterioration of the worker's degenerative condition.
On the issue of calculation of average earnings, the employer took no position and deferred to the WCB in that regard.
Analysis
Nature of compensable injury
The first three issues before the panel deal with the worker's entitlement to benefits beyond certain dates, ranging from November 10, 2009 to January 13, 2010. In order for the worker's appeals on these issues to be successful, the panel must find that by late 2009/early 2010, the worker had not recovered from the effects of the injury she sustained in the May 2007 workplace accident. We are not able to make that finding.
There are extensive medical reports and investigations on the worker's WCB file. After initially accepting the worker's claim, it would appear that the WCB was prepared to continue benefits until a clear diagnosis for her condition was established. It was only after numerous investigations that the WCB concluded that the worker's pre-existing spondylolisthesis was the discrete cause of the worker's ongoing back pain and dysfunction. The panel agrees with this conclusion.
On a balance of probabilities, the panel finds that the May 16, 2007 workplace accident caused the worker to suffer a back strain which resulted in muscular back pain, but eventually resolved. The worker's ongoing difficulties which eventually led to her January 13, 2010 back surgery were attributable to her pre-existing spondylolisthesis.
The doctor’s first report of May 17, 2006 reported objective findings of severe tenderness over the lower back with reduced range of motion in all directions, positive straight leg raise test and a limping gait. There was no indication of symptoms radiating into the legs. The worker missed two days of work, then tried to return to work on May 22, 2007. The pain was still severe, so she went off work again. The worker returned to her regular duties on May 28, 2007. It is somewhat unclear from the file the extent to which the worker was able to continue to work after that date, and at the hearing, she could not recall her work pattern for June 2007. She believed that there was some modification of her duties and that she was not always able to work full time She did firmly recall that in July, 2007 she took her pre-booked vacation time and spent most of it resting her back.
The worker confirmed that she first started getting numbness in her leg in August 2007, a couple of weeks after she returned to work after vacation. She experienced an onset of leg numbness when she woke up in her bed on a Saturday morning and all of a sudden she had pain down to her ankles. This was almost four months after the work-related fall. This numbness continued to plague the worker until the January 13, 2010 surgery for lumbar decompression and fusion level L4-5.
At the hearing, the worker indicated that her neurosurgeon advised her that the instability in her spine (which she described as a loose disc plate which was moving and pinching the nerve) was the cause of her leg problems. He therefore proposed the surgery which consisted of a decompression of the nerve and a fusion to stabilize the disc plate. The worker successfully underwent the procedure and the panel was very happy to hear that since the surgery, the worker has had no numbness whatsoever in her leg and she has not had to take anything more than simple ibuprofen since two weeks post-op. She still has to perform exercises and stretches to maintain the flexibility in her back, but she has been able to return to her regular full-time job with minimal restrictions.
The file material reflects longstanding degenerative issues in the worker’s low back. The imaging records from 1994 indicated the worker had a grade 1 spondylolisthesis. The panel understands this to be a non-work-related condition. At the hearing, the worker's representative submitted that by the time of the surgery, there had been a progression of the spondylolisthesis which he suggested was attributable to the workplace fall. The worker's evidence was that the fall had "knocked" her spine and thus caused the disc plate to move. The difficulty, however, with this assertion is that the symptoms of leg numbness did not appear until several months after her fall. If the worker's pre-existing spondylolisthesis had been made worse by the work accident, we would have expected the symptoms of numbness to the legs to appear sooner. She would not have been able to continue working for the last few days in May, all of June and part of July and August. The delay of time between the fall and the onset of the symptoms makes the causal connection less probable.
The panel also notes that the CT and MRI imaging reports do not identify that there has been progression of the spondylolisthesis post-accident, nor is there a medical opinion on the file which links the spondylolisthesis to the compensable injury or supports that there has been an aggravation or enhancement.
Overall, the panel is of the view that the evidence does not support that the worker continued to suffer from the effects of her May 2007 workplace fall in late 2009/early 2010. Instead, we find that the worker’s compensable injury was limited to a back strain of limited duration and that her ongoing back pain and leg numbness which led to the January 13, 2010 back surgery were attributable to her pre-existing spondylolisthesis. The worker's appeals on the first three issues are therefore dismissed.
Calculation of Average Earnings
The remaining issue before the panel is whether or not the worker's average earnings have been correctly calculated. The issue concerns whether or not the worker's income from concurrent employment as a respite caregiver should have been included in her average earnings.
As noted earlier, the Average Earnings Policy provides: "Income from concurrent employment is only included in average earnings when the worker's ability to earn that income is affected by the compensable injury." Accordingly, in order for the worker's appeal to succeed, the panel must find that the worker's ability to earn income as a respite caregiver was affected by her compensable injury. We are not able to make that finding.
As outlined previously, the panel finds that the worker's compensable injury was limited to a back strain. While we accept that the back strain was symptomatic and caused the worker pain in the initial weeks following the workplace fall, the worker continued to earn respite income during that period of time (albeit with the assistance of her daughter). The panel finds that by the time the worker ceased earning income as a respite caregiver, it was the advancement of her non-compensable pre-existing condition which was causing her disability, and not the work-related back strain. As a result, we cannot conclude that the worker's ability to earn respite income was affected by the compensable injury and therefore her concurrent income should not be included in her average earnings. The worker's appeal on this issue is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 23rd day of November, 2011