Decision #160/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision that was made by the Review Office of the Workers Compensation Board ("WCB") that his current difficulties were not related to his compensable injury of August 26, 2010. A hearing was held by teleconference on October 18, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits and services.

Decision

That the worker is not entitled to further benefits and services.

Decision: Unanimous

Background

On August 30, 2010, the worker filed a claim with the WCB for injury to his back/spine that he related to his job duties on August 26, 2010.

The worker spoke with a WCB adjudicator on September 17, 2010 to discuss his claim. The worker noted that he had a history of back problems and the recent workplace incident brought on a sudden increase in discomfort. The worker advised the adjudicator that his prior back problems were the result of a workplace accident that was never reported about 12 years ago.

On September 24, 2010, a CT scan was taken of the worker's cervical spine and lumbar spine. The cervical spine CT report indicated there was no suspicion of disc protrusion, nerve root compression, spinal stenosis or facet joint arthropathy at C3-C4, C4-C5, C6-C7. There appeared to be effusion of C2 and C3. There was some artifact arising from the worker's shoulders obscuring some visualization of the lower cervical spine.

The lumbar spine CT showed minimal left lateral disc bulge at L2-L3 but no suspicion of nerve root compromise, spinal stenosis or facet joint arthropathy. At L3-L4 there was no suspicion of disc protrusion, nerve root compression, spinal stenosis or facet joint arthropathy. At L4-L5 there was mild left lateral disc bulge but no suspicion of nerve root compromise, spinal stenosis or facet joint arthropathy. At L5-S1, there was no suspicion of disc protrusion, nerve root compression, spinal stenosis or facet joint arthropathy. Incidental note was made of the presence of partial lumbarization of S1 on the left.

A medical report received from the treating physician indicated that the worker was examined on November 26, 2010 for low back pain and tenderness. A referral was made for physiotherapy.

A report from the physiotherapist dated October 15, 2010 indicated that the worker reported a sudden onset of pain when lifting a heavy load at work. He was unable to lift for the remainder of his shift. The therapist's diagnosis was "mechanical back pain - unsure of cause of numbness to leg.". It was indicated on the report that the worker was able to demonstrate lifting 30 lbs with no difficulty however he complained of pain in his back. Objectively, he appeared normal.

On November 26, 2010, the worker told the WCB adjudicator that he has had back problems for the past 12 years. His back always had a constant ache but if he exerted it too much, then the pain level would increase. The worker indicated that his back had been worse since he injured it on August 26, 2010. The pain level increased and he was unable to lift anything without increasing his discomfort level. The pain was in his low back at the spine and he had numbness down the left leg. The worker could not remember the last time he sought medical attention for his back prior to the incident.

On December 10, 2010, a WCB sports medicine advisor reviewed the CT scan findings, the physiotherapy report and the November 25, 2010 report from the treating physician. With regard to the CT scan findings, it was the advisor's opinion that the worker's lumbar spine report did not note a pre-existing degenerative condition or a discogenic/radiculopathic component which may be prolonging recovery. It was the advisor's opinion that based on the reported mechanism of injury, the normal physiotherapy clinical findings and normal CT lumbar spine report, the worker's current subjective report of low back pain was unlikely to be related to the August 26, 2010 workplace injury.

On December 17, 2010, a WCB case manager made the determination that the worker's claim for compensation was acceptable but he was not able to accept any further responsibility for benefits and services. In making his decision, the case manager referred to the opinion expressed by the WCB medical advisor on December 10, 2010. The case manager was of the view that the worker had recovered from his injury and that his current/ongoing issues were related to a separate issue.

On February 15, 2011, the case was considered by Review Office at the worker's request. Review Office confirmed that there was no entitlement to further benefits or services. Review Office indicated in its decision that they had requested a narrative report from the worker's treating physician. On February 8, 2011, the physician noted that the worker was last seen on December 10, 2010 and the diagnosis was lower back pain. The clinical findings included mild tenderness.

Review Office noted that the worker injured his back on August 26, 2010 and there was no evidence on file to suggest that the worker sustained anything other than a strain type injury. The worker had full range of motion of his lumbar spine according to the physiotherapist's October 2010 report. Review Office indicated that it accepted the opinion of the WCB medical advisor and found that "…the evidence on file including the diagnosis, diagnostic test results, minimal clinical findings, evidence of prior low back difficulties and the time that has passed does not support a causal relationship between the worker's current difficulties and the compensable injury of August 26, 2010."

On February 22, 2011, the worker appealed Review Office's decision to the Appeal Commission and a file review was held on June 9, 2011. After the file review, the panel requested additional information from the worker's treating physician. The appeal panel also requested an oral hearing so it would have the opportunity to ask the worker questions pertinent to his claim. A hearing by teleconference was held on October 18, 2011.

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 appeal was originally scheduled to proceed by way of file review; however after an initial review, the panel felt that there was not sufficient information on the file upon which we could determine the appeal. Accordingly, at the request of the panel, the worker participated in the hearing by teleconference.

The worker described what happened on the day of the accident on August 26, 2010. He was working in a lumber mill and his job was to grade and stack lumber. This required him to lift pieces of lumber and stack them on a rack. The weight of the lumber varied, but the heaviest could weigh up to a hundred pounds. He had been performing these duties for approximately two and a half years. On the day of the accident, the worker was lifting a 16 foot 2 x 10 board and placing it onto a rack. He "bounced" one end of the board to get it onto the rack, and as he did so, he felt a little pinch in his lower back, right on the spine. It was about 11:40 am and he couldn't lift anything after that. Shortly thereafter, he went on his one hour lunch break, and after lunch, he was at a different station which did not require heavy lifting. He was still having trouble with his back, but was able to perform the duties. The worker managed to finish his full shift, and then there was a three day weekend. He relaxed over the weekend, then reported for work the following Monday. He continued to have pain at this time, so he phoned in a claim to WCB.

The employer allowed the worker to move to another position which did not require as much lifting, but his back has continued to get worse. He was, nevertheless, able to continue to work until March 2011, at which time he was terminated. The worker felt that his termination was related to his back injury.

In September 2011, the worker was hospitalized for a condition he felt was related to his back injury. He was taking a walk and had pain in his back. His legs were going weak. He managed to get back to his house and sat down at his table to have something to eat. As he sat at the table, his body went limp and he fell to the floor. He managed to get himself up and eventually drive himself to the hospital. He was admitted for 8 days and advised that he had a CT scan performed. When asked why he was admitted, the worker stated that his doctors told him it was because of stress from back pain.

The worker provided the panel with a copy of a consultation letter from his family physician to an orthopedic surgeon dated October 4, 2011. The letter states:

Thank you for seeing this 48 year old patient with low back pain since August 2010. This happened suddenly at work when lifting a heavy load. Since then he has had low back pain and is unable to go back to work or even on light duties. He had a recent CT scan of his lumbar spine which showed mild narrowing of the left portion of the disc space and osteophyte from L1-L5. There is degenerative changes in the form of mild diffuse disc bulge which abuts the anterior thecal sac on L2-L3 and L3-L4. At L4-L5 there is mild narrowing of the right lateral portion of the disc space, and the diffuse disc bulge, moderate anteriorly and milder posteriorly, indents the anterior thecal sac. There is mild stenosis of the left intervertebral foramen. At L5-S1 there is mild narrowing of the right lateral portion of the disc space. There is also OA of the left L5-S1 facet joint.

There is left-sided spondylolysis at the L1 level. I will fax to you this CT scan for you to review. At this time the patient does clinically show some mild tenderness on the lower lumbar vertebrae. His range of motion is full. Neurovascular is intact. Your consultation and recommendation would be appreciated.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the ongoing difficulties the worker experienced with his back are related to the injuries he sustained in the workplace accident of August 26, 2010. While we do not doubt that at the present time, the worker experiences pain in his low back, the question to be determined is whether these difficulties are the result of his workplace accident. On a balance of probabilities, we find that the work-related back sprain had resolved within a few weeks and that the worker’s current difficulties cannot be attributed to the lifting he was doing at work.

In coming to our decision, the panel relies on the following evidence:


  • The medical chart notes from the family physician indicate that while he initially investigated the possibility of a disc prolapse, the CT scan of September 24, 2010 revealed no nerve compression;
  • The physiotherapist's report of October 15, 2010 indicated reports by the worker of only intermittent pain to central lumbar spine, worse with lifting or prolonged sitting. The examination findings were full functional lumbar and hip range of motion, all pain free. Neurological testing was all clear;
  • The worker's reported complaints of numbness in his legs (left greater than right) are not supported by any clinical neurological findings by his medical practitioners;
  • The family physician was only able to provide a generic diagnosis of lower back pain;
  • The WCB medical advisor's diagnosis was a lumbar strain, which was anticipated to resolve within 4-6 weeks.
  • The worker's evidence at the hearing was that his condition has been worsening, despite the fact that he has not been working since March 2011. This would suggest that the cause for his back condition is not work-related.
  • The most recent medical information is a letter dated October 4, 2011 from the worker's new family physician. The letter refers to degenerative changes in the worker's lumbar spine which were seen in a recent CT scan.

Overall, the panel did not identify sufficient support in the medical evidence to be satisfied on a balance of probabilities that the worker’s ongoing low back difficulties are work related. Rather, we find that the workplace injury was limited to a short term lumbar strain which resolved. It is therefore the panel's decision that the worker is not entitled to further benefits or services. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 30th day of November, 2011

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