Decision #67/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that a cause and effect relationship could not be established between his current low back condition and the November 26, 2006 low back strain. A hearing was held on March 12, 2012 to consider the matter.Issue
Whether or not the worker's back condition is related to the November 26, 2006 compensable injury.Decision
That the worker's back condition is not related to the November 26, 2006 compensable injury.Decision: Unanimous
Background
The worker filed a claim with the WCB for injuries to his right shoulder, back, hip and leg that he related to the following work-related accident that occurred on November 28, 2006:
I opened up the second trailer door and the washing machine fell about 10 to 12 feet down and hit me on my back. It knocked me to the ground. I fell straight down onto my knees. I took the force of the washing machine on my right shoulder.
A chiropractor's first report dated December 4, 2006 confirmed the mechanism of injury as described by the worker. The diagnosis was acute myofascial spasm of the cervical and thoracic spine and lumbar joint dysfunction. The worker returned to work on December 18, 2006 and was discharged from chiropractic treatment on December 20, 2006.
On February 26, 2008, the worker contacted the WCB to advise that he did not sustain a new injury but has had ongoing pain since he was injured in November 2006. The worker stated that he had pain in his hips, low back and neck that would increase after days of heavy lifting. The worker noted that he mentioned his ongoing difficulties to his supervisor on numerous occasions. The worker said he went for chiropractic treatments in 2007 but could not remember the name of the chiropractor.
Subsequent file information showed that the worker was going to call the WCB with the name of his chiropractor so that his claim could be adjudicated. On March 14, 2008, the worker was advised by letter that no further action would be taken until he contacted the WCB with the requested information.
On January 24, 2011, the worker provided the WCB with details of his ongoing pain complaints, the nature of his job duties and the medical treatment he received. The worker requested wage loss benefits, travel expenses to attend medical appointments and coverage for prescriptions.
On February 4, 2011, the employer's operations manager provided the WCB with details of the worker's job duties. He could not recall the worker asking for a block of time off due to a sore back nor did he notice anything unusual with the worker since his return to work.
Medical information obtained by the WCB consisted of a hospital emergency report and discharge summary, a consultation report by a neurosurgeon as well as MRI results.
On March 2, 2011, a WCB orthopaedic consultant reviewed the worker's file and stated the diagnosis of the worker's current symptoms was probably Grade I spondylolisthesis at the L4-5 level caused by the developmental anomaly of bilateral L4 pars interarticularis defects. The consultant was of the opinion that the current symptoms were entirely related to pre-existing spondylolisthesis at the L4-5 level.
On March 4, 2011, the worker was advised that the WCB was unable to accept responsibility for his recent time loss from work or for his back surgery. It was the case manager's position that the worker's current disability which resulted in surgery was the result of an underlying or pre-existing condition and its progression was not enhanced by the accident at work.
In a letter to the WCB dated April 26, 2011, the attending physician wrote that the worker's L4 spondylolisthesis which required surgical correction was most likely a chronic injury which was recently exacerbated. He noted that a review of the worker's medical chart going back to 1994 indicated no previous complaints of back pain until the most recent history. In a letter dated May 5, 2011, the worker was informed that the April 26, 2011 report provided no new medical information that would warrant a change in the previous WCB decision.
On September 27, 2011, the worker appealed the WCB's decision that he was not entitled to further benefits. On October 11, 2011, a WCB Review Officer spoke with the worker to clarify his appeal.
In a decision dated November 17, 2011, Review Office determined that the worker's current low back condition was not related to the November 26, 2006 compensable injury. Review Office relied on the WCB orthopaedic consultant's opinion of March 2, 2011 in making its determination. On December 10, 2011, the worker appealed the decision to the Appeal Commission and a hearing was held on March 12, 2012.
Following the hearing, the appeal panel decided to obtain additional information from two chiropractors whom the worker attended for treatment. On April 12, 2012, the Appeal Commission provided the interested parties with copies of the chiropractic reports for comment. On May 8, 2012, the panel met further to discuss the case and rendered 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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
The WCB has accepted the worker's claim arising from his November 2006 workplace accident. The key issue to be determined by the panel deals with causation and whether the worker’s current back condition arose out of and in the course of his employment. As it is acknowledged that the worker has a pre-existing condition, WCB Policy No. 44.10.20.10, Pre Existing Conditions may be applicable.
Worker's Position
The worker attended the hearing and explained his reasons for appealing the Review Office decision. He also answered questions posed by the panel.
The worker described the accident. He said that he was unloading a trailer and a washing machine weighing about 300 pounds fell on his shoulder. His back twisted and his legs could not hold the force so he fell down. He noted that the forms from the clinic that he attended after the accident referred to shoulder, neck and lower back problems. He advised that x-rays were taken of his shoulder and neck but not of his lower back.
Regarding his return to work, he advised that this chiropractor knew he needed to return to work for financial reasons, so he cleared him. He said he told the chiropractor that he drives a truck, but did not advise him that this involves unloading trailers. Regarding treatment, he said that the chiropractor focused on his neck and shoulder but did provide some treatment to his hip. He stopped seeing the chiropractor after he returned to work.
The worker said that he never had back problems before the accident. He advised that he returned to work and over time his back worsened. He acknowledged that he has a pre-existing condition but attributes his back problem to twisting his back in the workplace accident. He said that "My surgeon even says he is definitely sure that even though I was born with this condition, that the onset was brought on by the washing machine falling on top of me."
The worker said that he started seeing a different chiropractor in 1997. He still sees this chiropractor. He said that the current chiropractor continued to treat his hip area. In 2010, his symptoms worsened significantly. An MRI was performed and he was referred to a neurosurgeon.
The worker was asked when the pain commenced, particularly the leg weakness, numbing, tingling, and leg giving out. He said it was less than 6 months prior to the surgery which took place spring 2011. The worker believes the WCB decision is wrong. He notes that his current chiropractor and neurosurgeon support his claim that his workplace injury aggravated his back. The worker advised that after his surgery he returned to truck driving although he no longer unloads trailers by hand bombing.
Employer's Position
The employer was represented by its Safety and Wellness Administrator. The employer representative advised that the employer agrees with the Review Office decision. She noted that the decision was reached after a review of all of the medical documentation on file, after confirming that the worker had been deemed fully recovered from his November 26th injury. She stated that the worker's ongoing back symptoms were due to a pre-existing condition and not due to the effects of the November 26 injury. The worker is not entitled to further benefits and services from WCB.
The representative stated that the compensable injury of November 2006 was for a low back strain and various other injuries. On December 13 the worker was medically cleared to return to pre-injury duties with no restrictions and he successfully did so on December 18, 2006 and was medically cleared by his chiropractor. The representative noted the worker continued working after the accident until one p.m. on Friday, December 1, 2006. On Monday, December 4th, he sought medical attention, received x-rays and was prescribed muscle relaxants. The worker attended chiropractic sessions, starting on or around December 5. On December 13 the treating chiropractor cleared the worker to return on December 18 to pre-injury work with no restrictions. She said that the worker successfully returned to work on the 18th.
The representative noted that in February 2008 the worker contacted the WCB to advise that he was having pain in his hips, lower back and neck. WCB requested the worker provide names of treatment providers he attended. He was unable or unwilling to provide the documentation to confirm that he'd been attending ongoing chiropractic sessions, nor did he provide any information regarding medical attention that he'd been seeking.
The employer confirmed that the worker did not have any workplace injury since 2006 and had been fulfilling his owner-operator contracted duties without further incident. In fact, the workplace reported they were unaware of the worker having any difficulties at that time.
Analysis
The issue before the panel is whether the worker's back condition is related to his November 26, 2006 workplace accident.
For the worker's appeal to be successful, the panel must find that the worker's back condition was caused by the workplace accident or was aggravated or enhanced by the workplace accident. The panel was not able to make this finding.
The panel finds that the worker's current back condition is not related to the worker's work injury. In reaching this decision, the panel has compared the reports of the chiropractor who treated the worker shortly after the accident to the reports of the chiropractor who began treating the worker about one year after the accident. The first chiropractor initially saw the worker on December 4, 2006 and on 10 subsequent occasions until January 9, 2007. He noted on the first visit that the worker had intense spasm in the cervical and lumbar regions. He advised that during the treatment period, the worker seemed to improve in range of motion, function and his pain was diminishing. He noted that the worker returned to regular duties in December 2006.
The second chiropractor first saw the worker in November 2007. He noted the worker complained of low back pain and that examination revealed problems arising from an injury at the L4-L5 and sacroiliac levels. He recorded symptoms of right leg weakness, numbness and tingling, as well as the leg giving out.
The panel notes that the symptoms reported by the second chiropractor, one year later, differ substantially from those recorded and treated right after the accident. The panel is unable to relate the symptoms noted by the second chiropractor to the workplace accident. The panel finds that the delayed onset of symptoms is not consistent with an acute spondylolisthesis occurring a year earlier nor is it consistent with an aggravation or enhancement of the worker's pre-existing condition. The panel also finds that the delayed onset is not consistent with the reports from the first chiropractor that the worker's symptoms improved and that he was able to return to work.
The panel notes that the worker's symptoms worsened significantly in late 2010 which resulted in an MRI, subsequent referral to a neurosurgeon and surgery. The panel is not able to relate this significant increase in symptoms to the 2006 injury. In reaching this conclusion, the panel relies upon the March 2, 2011 opinion of the WCB orthopaedic consultant. The consultant writes, in part, that:
"1. The diagnosis of current symptoms is probably grade I spondylolisthesis at the L4-5 level caused by the developmental anomaly of bilateral L4 pars interarticularis defects.
2. The low back strain caused by the workplace injury of 28-Nov-2006 resolved completely and he was advised by his attending chiropractor to return to work as of 18-Dec-2006. Further low back pain radiating to the right hip and knee was reported by the physician on [January 24, 2011], and right quadriceps wasting and diminished right knee and ankle reflexes were reported. It is probable that current symptoms are entirely related to the pre-existing spondylolisthesis at L4-5 level…"
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of May, 2012