Decision #39/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she had recovered from the effects of her compensable injury and was not entitled to wage loss or medical aid benefits after July 25, 2011. A hearing was held via teleconference on February 2, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits after July 25, 2011.

Decision

That the worker is not entitled to wage loss or medical aid benefits after July 25, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries she sustained in a work-related accident on February 3, 2011 during the course of her employment as a healthcare aide. The worker noted that she has other employment as a cleaner but her injuries had not caused her to miss time from this job.

On February 24, 2011 the worker described the accident as follows to a WCB adjudicator:

Her position was correct, she had one foot forward and was bent at the knees. The bed was up high. The resident is approximately 200 lbs. Worker was holding her with both of her arms. The aide on the other side was doing the care. Worker was holding resident with all her strength. Resident started rolling in the opposite direction away from the worker. Worker had to lunge forward on the bed to bring her back towards herself. Worker was fine holding her, it was when she started jerking/turning away from her that she experienced difficulty.

The worker advised the adjudicator that she waited a day to see if the stiff feeling would resolve. Then on February 5 and February 6, 2011, she rested but experienced more headaches. She noticed her neck was out of place and she felt like she needed an adjustment. As the weeks progressed, she felt pain in her low back. The bottom part of her back was swollen. She felt discomfort and a pinch between her shoulder blades. The worker indicated that she fell in a parking lot approximately 6 to 7 years ago and her symptoms subsided after a few months. She did not have any back issues since that injury.

A chiropractor's first report showed that the worker attended for treatment on February 7, 2011 with complaints of pain in her upper back and neck. The diagnosis was acute thoracic and cervical joint sprain.

The worker was seen by a physiotherapist on February 28, 2011. The diagnosis was thoracic strain with possibility of adhesive capsulitis developing and an SI joint sprain.

An x-ray taken of the thoracolumbar spine dated February 23, 2011 showed slight loss of disc height at L4-5 and osteoarthritis.

A doctor's first report for an assessment on February 23, 2011 described the worker's accident as follows: "Pt. started feeling back pain while was doing her job as a health care aid helping a Pt. to roll over. The pain is a constant on her thoracic and lumbar back. Pt. also has some pain in both shoulders. Denies any neurological symptoms such as numbness, weakness. No saddle anesthesia or incontinence or urinary retention." The diagnosis rendered was "back pain due to degenerative changes probably as the result of heavy lifting."

A doctor's progress report dated March 18, 2011 indicated that the worker was capable of modified work.

The worker commenced modified duties on March 17, 2011. On April 12, 2011, the worker advised the WCB that she continued to have pain in her low back and shoulders. She had pain in her left side along with occasional numbness in her left foot.

On May 11, 2011, a WCB call-in examination took place and the examining medical advisor outlined the following opinions:

  • Based on the workplace incident of February 3, the initial diagnosis appeared to be thoracolumbar strain with possibly mild bilateral shoulder girdle involvement.
  • The natural history of strain injuries is typically for full recovery over a period of days to weeks. Back strains may demonstrate some variation in recovery.
  • The current diagnosis appeared to be non-specific thoracolumbar pain. There was no evidence of radiculopathy, though there was record of a transient period of altered sensation involving the left leg, which was not resolved. A radiculopathy was not present. There was mild persisting bilateral shoulder girdle pain.
  • On balance of probabilities, the thoracolumbar sprain was likely related to the workplace injury. The shoulder symptoms are likely part of the associated symptom complex.
  • There was a pre-existing condition, namely age-related mild degeneration involving lumbar disc degeneration and facet osteoarthrosis. These conditions were likely contributing to the worker's delay in recovery.
  • The compensable injury was still contributing to the worker's current status.

An MRI of the lumbar spine taken June 17, 2011 showed "Mild degenerative disc disease at L4-5 with mild encroachment of the right L4 neural foramen. No definite nerve root compression and no significant central spinal stenosis."

A doctor's progress report dated July 7, 2011 indicated that the worker seemed to be suffering from LS spine arthritis and that this situation usually took a long time to heal, if ever.

In a decision dated July 13, 2011, the worker was advised that her claim was reviewed in consultation with a WCB medical advisor and it was determined that she had recovered from the effects of her February 3, 2011 workplace injury and that any ongoing difficulties were unrelated. The worker was advised that the WCB was unable to accept responsibility for wage loss benefits or further medical treatments beyond July 25, 2011. On August 9, 2011, the worker appealed the decision to Review Office.

On October 13, 2011 Review Office confirmed the decision made by primary adjudication that the worker had recovered from the effects of her compensable injury and was not entitled to wage loss or medical aid beyond July 25, 2011. Review Office based its decision on the opinion expressed by the worker's treating physician dated July 7, 2011 and the opinion expressed by the WCB medical advisor on July 12, 2011. On November 15, 2011, the worker appealed Review Office's decision 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.

Worker’s position:

The worker was self-represented and participated in the hearing by teleconference. She described what happened on the day of the accident. She was performing patient care with a coworker by supporting the resident on one side while her coworker was on the other side administering personal care. Suddenly, the resident jerked forward and as the worker's arms were around the resident, the worker lunged forward with her. The worker felt a bit of pain at the time, but not to the point where she had to stop work. An accident report was completed and she continued the rest of her shift. As the day wore on, she developed a headache. The day of the accident was a Friday, so the worker had the weekend off. The next morning, she woke up, felt a bit stiff, and continued to have a headache. She made an appointment with her chiropractor, and subsequently took some time off work as the condition seemed to be getting worse. She later went to see a physician as more symptoms were developing. She stated: "there was more tightness and pinching in between my shoulder blades and then it started onto my lower back." The worker was referred to physiotherapy, which she attended regularly.

By March 17, 2011, she started a back-to-work program which had her working four hours per day at the same type of duties she performed prior to the injury. In the second week back, the worker noticed that her lower back was starting to bother her such that it was affecting her sleep and she frequently had to use a heating pad to relieve the pain. At this point, her lower back was giving her more pain than the upper back where the injury initially happened. The worker persisted with her return to work program, but continued to experience low back pain. She also developed some weakness and spasm in her arms, and occasional numbness in her leg. By the time she progressed to six hour shifts, the worker felt that she needed to take some time off as she felt that something was not right. She felt her condition was getting worse, as she felt weak at times and her back was not improving. As of July 13, 2011, she completed her last shift and then took some days off work using her accumulated sick time. She later applied for long term disability benefits, which she continued to receive.

At the time of the hearing, the worker described her condition as "better" but she still had difficulties. She started attending physiotherapy three times per week commencing in November 2011 which had helped. Her back was still sore and she still used the heating pad regularly. The headache was gone and as soon as she stopped work, the problems in her arms and leg stopped. The worker stated: "The lower back - this is where the problems are right now, more so the lower back than where the injury initially happened. So, I don't know if its aggravated to arthritis … I continually need to have heat on it … I have to pace myself on what I can and can't do."

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after July 25, 2011 are related to the injuries she sustained in the workplace accident of February 3, 2011. The question to be determined is whether her ongoing difficulties are the result of her workplace accident, or whether they are attributable to degenerative changes in the worker’s back. On a balance of probabilities, we find that the work-related thoracic and cervical joint sprain had resolved by July 25, 2011 and that the worker’s current difficulties are attributable to degenerative changes in her lumbosacral spine.

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

  • The initial diagnosis of the treating chiropractor on February 7, 2011 was an acute thoracic and cervical joint sprain. The areas of injury checked off by the chiropractor on the Chiropractor's First Report form were the cervical and thoracic back. The lumbar spine was not identified as an area of injury.
  • The Doctor's First Report from an exam done February 23, 2011 indicated that the pain was a constant on the worker's thoracic and lumbar back, with also some pain in both shoulders. The treating physician's diagnosis was: "Back pain due to degenerative changes probably as the result of heavy lifting."
  • The notes by the adjudicator from a telephone conversation with the worker on February 24, 2011 indicate that initially, the areas of injury were neck, headache and tightness mid-back. As the weeks progressed, the worker felt pain in her lower back. At the time of that conversation, the only place the worker felt pain was in her lower back.
  • The worker's evidence at the hearing was that it was her lower back which continued to cause her difficulty and not the original area of injury.
  • X-rays taken February 23, 2011 showed evidence of degenerative changes involving the apophyseal joints from L3 through S1 (ie. the lumbar spine or low back). Similarly, the MRI of June 17, 2011 showed mild degenerative disc disease and bilateral facet arthropathy at L4-5 and L5-S1.
  • According to the WCB medical advisor, the typical recovery period for a strain injury is a period of days to weeks. He also stated that back strains may demonstrate some variation in recovery, which the panel interprets to mean that a back strain may in some cases take longer to recover.
  • As of the time of the call-in examination on May 11, 2011, the worker was reported to have no specific areas of discomfort at the cervical spine, some discomfort at the thoracolumbar spine, and less so at the L5-S1 level. At the shoulders, there was diffuse discomfort felt in the soft tissues about the shoulder girdles bilaterally. The diagnosis at that time was identified as non-specific thoracolumbar pain and mild persisting bilateral shoulder girdle pain.
  • At the hearing, the worker admitted that by July 2011, the pain between her shoulder blades had subsided.

Overall, the panel is of the view that there were two conditions present in the worker's back area. She had a thoracic and cervical joint sprain which caused her to experience symptoms in her shoulders and upper to mid back area. This condition was related to the incident at work on February 3, 2011. In view of the over five and a half month recovery period and the worker's own evidence that by July 2011, her shoulders no longer caused her difficulty, the panel finds that by July 25, 2011, this work-related injury had resolved.

The second condition present in the worker's back was the pre-existing degeneration in her low back, as seen in the imaging reports and described by her treating physician. The panel finds that any complaints of back discomfort after July 25, 2011 were caused by this pre-existing condition and are not related to the workplace accident.

In view of the foregoing, the panel's decision is that the worker is not entitled to wage loss or medical aid benefits after July 25, 2011. 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 22nd day of March, 2012

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