Decision #77/12 - Type: Workers Compensation

Preamble

This worker's appeal deals with decisions made by Review Office of the Workers Compensation Board ("WCB") related to wage loss benefits and a permanent partial impairment award in relation to the worker's claim for low back difficulties that occurred in the workplace on June 28, 2010. A hearing was held on May 8, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 10, 2011; and

Whether or not the worker's permanent partial impairment award of 1.70% should be reduced 50%.

Decision

That the worker is not entitled to wage loss benefits beyond June 10, 2011; and

That the worker's permanent partial impairment award of 1.70% should be reduced 50%.

Decision: Unanimous

Background

The worker reported to the WCB that he was injured on June 28, 2010 when he lifted a garbage can that was half full and heavier than he thought and he felt the muscles pull in his low back. The compensable diagnosis was an L1 compression fracture as noted by a WCB orthopaedic consultant on December 16, 2010.

In February 2011, the worker's treating physician was of the opinion that the worker was capable of modified duties with restrictions to avoid any form of bending or lifting. The worker returned to modified duty work but complained of soreness in his low back and leg. A four week reconditioning program ending June 10, 2011was arranged with the goal of returning the worker to full time employment.

On June 13, 2011, the worker underwent a CT assessment of his lumbar spine which revealed the following findings:

At L2-3 level there is no evidence of disc herniation, spinal stenosis or nerve root involvement.

At L3-4 level, there is mild diffuse annular disc bulging. There is facet hypertrophy and O.A. changes and ligamentum flavum hypertrophy. Together this results in mild central stenosis.

At L4-5 level, there is degenerative disc narrowing. Diffuse annular disc bulging is present with facet hypertrophy and O.A. changes and ligamentum flavum hypertrophy. Together this results in moderately severe acquired central stenosis.

At L5-S1 level, there is degenerative disc disease and vacuum. There is central disc protrusion approaching the thecal sac. No definitive nerve root involvement. There is no spinal stenosis.

On June 23, 2011, a WCB medical advisor made the following comments after his review of the worker's file:

  1. The current diagnosis appears to be non-specific low back pain. There are reports of ongoing pain and the absence of findings suggestive of nerve-root irritation. The recent CT scan of the lumbar spine does not demonstrate evidence of nerve-root compression.

  1. The compensable diagnosis is an L1 compression fracture. Symptoms from this condition are predicted to resolve over 3-6 months. The recent reports from physiotherapy and the treating physician note right leg pain and numbness. These symptoms would not be accounted for by the workplace injury and may correlate with the recently obtained CT scan. The CT demonstrated acquired spinal stenosis at the L4-L5 level which could be associated with the symptoms as reported by the worker.

  1. It appears that the current symptoms are not accounted for by the effects of the June 2010 workplace injury and therefore the compensable restrictions do not continue to be appropriate.

  1. The L1 compression fracture may result in a measureable loss of passive range of motion of the thoraco-lumbar spine. A PPI assessment could be performed at any time.

On July 5, 2011, the worker was advised of the WCB medical opinion that was outlined on June 23, 2011. The case manager indicated that based on this opinion and the CT scan results of June 13, 2011, she was unable to establish that his current low back and right leg difficulties were related to the compensable injury of June 28, 2010. It was felt that the worker had recovered from the effects of his compensable injury and was not entitled to further benefits.

On August 16, 2011, the worker appealed the above decision to Review Office stating that he continued to have a lot of pain in his low back and leg. Included with the appeal was a report from his family physician dated July 27, 2011 which stated:

It is my understanding that [the worker's] claim with WCB has been discontinued on the basis that his compression fracture should have healed and that his symptoms were thought to be largely from spinal stenosis at this point. It is my opinion, however, that given [the worker's] underlying degenerative changes in his spine, that he likely in addition to the L1 compression fracture, [the worker] suffered an aggravation to his underlying degenerative discs and facet joint osteoarthritis which has continued to this point. Therefore, on these grounds, I was hoping WCB would reconsider this decision to terminate his claim…

On October 13, 2011, the WCB case manager wrote the worker to clarify her decision of July 5, 2011. She stated that any entitlement to wage loss benefits after June 10, 2011, were not approved, as, in her opinion, there was no further loss of earning capacity as the worker was deemed capable of returning to full regular duties after the reconditioning program concluded on June 10, 2011. It was felt that the worker's ongoing signs and symptoms were unrelated to his June 28, 2010 compensable injury. The worker appealed the decision to Review Office.

In a decision dated October 17, 2011, Review Office confirmed that the worker was not entitled to wage loss benefits beyond June 10, 2011. Review Office referred to WCB medical opinions on file to support its conclusions that any aggravation of the worker's pre-existing condition would have resolved by June 2011 and that the worker's left and right leg symptoms would not be accounted for by the June 2010 workplace injury. It found that the worker had recovered from his accident to the point that his compensable injury was no longer contributing to a material degree to his loss of earning capacity.

On October 19, 2011, a WCB physiotherapy consultant noted the following:

On review of the complete file there is considered to be a major pre-existing condition related to the PPI [permanent partial impairment]. This is substantiated by the following:

- The July 2, 2010 x-ray report documents L4-5 disc space narrowing consistent with degenerative disc disease with facet OA changes.

- The June 13, 2011 CT scan documents acquired spinal stenosis at the L3-4 and L4-5 levels. It also documents degenerative disc disease from the L3-4 level to the L5-S1 level.

- Any potential deficit of passive thoraco-lumbar mobility is likely accounted for in relation to the combined effect of the L1 compression fracture and the noted pre-existing degenerative disc disease and spinal stenosis.

Evaluate passive thoraco-lumbar mobility.

The worker was assessed on November 16, 2011 by the WCB physiotherapy consultant for the purpose of establishing a permanent partial impairment ("PPI") award. It was concluded from the assessment that the worker's PPI rating was 1.7%. The PPI of 1.7% was prorated by 50% given that a major pre-existing condition was identified. The total recommended PPI was therefore 0.85%.

On November 24, 2011, the WCB case manager advised the worker that he did not qualify for a permanent rateable impairment as the WCB did not issue PPIs for ratings of less than 1%. The worker disagreed and an appeal was filed with Review Office.

On January 19, 2012, Review Office determined that the PPI rating of 1.70% was correctly reduced by 50%, producing a PPI rating of 0.85% and that the worker was not eligible for a PPI award under subsection 38(2) of The Workers Compensation Act (the "Act"). Review Office was satisfied that the case manager correctly implemented Board Policy and legislation in handling the worker's PPI examination and rating. On February 13, 2012, the worker appealed the decisions made by Review Office and a hearing was held on May 8, 2012.

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(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 resulting from the accident ends.

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") describes how a pre-existing condition may affect entitlement to benefits. With respect to a PPI, the Policy provides as follows:

3. IMPAIRMENT AWARD ELIGIBILITY

If a worker is injured as a result of a compensable accident and the injury results in a rateable impairment, the existence of a pre-existing condition will not negate the worker's entitlement to an impairment award. However, if the worker's impairment (whether caused by the compensable accident or a surgical intervention made necessary by the compensable accident ) is an enhancement of a pre-existing but non-compensable impairment, the worker is eligible for an impairment award based on the difference between the new combined rating and the rating assigned to the pre-existing condition.

4. ASSIGNED RATING FOR PRE-EXISTING CONDITIONS

When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the impairment rating schedule adopted by the WCB. However, when this is not practical, the assigned rating will be determined as follows:

(a) A pre-existing condition which is deemed to be minor will be assigned a 0% rating.

(b) A pre-existing condition which is deemed to be major will be assigned a rating equivalent to 50% of the total combined impairment rating.

Worker’s position:

The worker was self-represented at the hearing. His evidence was that since the injury in June 2010, he has been in quite a bit of pain. He also has trouble walking. His right leg gives out on him after walking approximately 150 yards. He submitted that although he had returned to light duties with the employer, his back was really not any better than it was since he had the injury. He had to watch himself, avoid lifting anything very heavy or doing a lot of bending or twisting. He asked that he be entitled to further benefits from the WCB for his back injury.

Employer’s position:

A representative from the employer was present at the hearing. The employer supported the previous decisions of the WCB and called upon the panel to confirm these decisions. It was submitted that the worker definitely had a problem with his back, but based on the diagnostic testing on file, the problem was caused by serious degeneration. This was noted during medical assessments by the WCB and had not been refuted by any other medical evidence. It was stressed that the worker's integrity was not being questioned, but the employer submitted that the medical evidence just did not support the worker's contention that his bad back was related to work.

Analysis:

There are two issues before the panel. We will address each issue separately.

    1.  Whether or not the worker is entitled to wage loss benefits beyond June 10, 2011

In order for the worker’s appeal on the first issue to be successful, the panel must find that the difficulties the worker experienced with his back after June 10, 2011 are related to the L1 compression fracture he sustained in the workplace accident of June 28, 2010. While we do not doubt that at the present time, the worker experiences pain and limitation of motion in his low back, the question to be determined is whether these difficulties are the result of his workplace accident, or whether they are attributable to degenerative changes in the worker’s back. On a balance of probabilities, we find that the effects of the work-related L1 compression fracture had resolved by June 10, 2011 and that the worker’s current difficulties are attributable to degenerative changes in his lumbosacral spine.

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

  • The initial diagnosis accepted by the WCB was a lumbosacral strain. The diagnosis of a compression fracture at the L1 level was subsequently accepted as compensable by the WCB. According to a WCB medical advisor memorandum dated June 23, 2011, symptoms from these conditions are typically predicted to resolve over 3 to 6 months.
  • The worker's ongoing symptoms beyond June 10, 2011 consisted primarily of complaints of pain in his lower back and legs. The leg pain is described to be predominantly on the right side and consists of pain and numbness. The panel's understanding is that back pain which radiates down the leg is not generally related to injury or abnormality at the L1 level of the spine. These types of symptoms are neurologically associated with L4-5 and L5-S1 levels. As set out in the May 30, 2011 WCB medical advisor memorandum: "reported right leg symptoms corresponding with L5/S1 distribution." Similarly, the June 23, 2011 WCB medical advisor memo states: "Recent reports from physiotherapy and from the treating physician note right leg pain and numbness. These symptoms would not be accounted for by the June 2010 workplace injury and may correlate with the recently obtained CT scan. The CT demonstrates acquired spinal stenosis at the L4-5 level which could be associated with the symptoms as reported by the claimant."
  • There is significant medical evidence on file identifying extensive degenerative changes in the worker's lumbar spine. As described by the worker's treating physician in his letter of July 27, 2011, the CT scan showed moderately severe acquired central canal stenosis, elements of degenerative disc disease from L3-4, L4-5 and L5-S1 levels as well as facet arthropathy to those same levels. The panel feels that these degenerative changes are responsible for the worker's ongoing symptoms past June 10, 2011.
  • It was suggested by the worker's treating physician that the worker suffered an aggravation to his underlying degenerative discs and facet joint osteoarthritis in the workplace accident. The difficulty with this opinion is that the treating physician has only been seeing the worker for low back pain since April 6, 2011, some nine months after the June 2010 workplace injury. This was when the complaints of leg pain are first reported. Prior to this, there was no mention of leg pain.
  • As of December 8, 2010, the treating orthopaedic surgeon reported that the worker had good motion and no pain. His major complaint at the time was that if he did any lifting, it would bother his back. It would appear that the worker had achieved a substantial recovery as of this date.
  • Given the fact that the complaints of low back pain radiating into the legs were not continuous since the date of the injury, the panel is unable to find that there was a continuing aggravation of a pre-existing condition. Instead, the panel accepts the June 23, 2011 medical opinion that: "It appears that the current symptoms are not accounted for by the effects of the June 2010 workplace injury."

In view of the foregoing, 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. We therefore find that wage loss benefits are not payable beyond June 10, 2011. The worker’s appeal on the first issue is dismissed.

  1. Whether or not the worker's permanent partial impairment award of 1.70% should be reduced 50%.

The second issue before the panel deals with the calculation of the worker's PPI. In order for the worker's appeal to succeed, the panel must find that the Policy was not correctly applied in his case. We are not able to make that finding.

The panel has considered whether the worker is entitled to any change in his rating for loss of passive range of motion in his lumbar and thoracic spine. We could find no error in the calculations, and indeed none was argued by the worker.

With respect to the reduction of 50% on account of a major pre-existing condition, as outlined earlier in this decision, the medical evidence clearly indicates that degenerative changes were present in the worker's lumbar spine. The panel acknowledges and adopts the WCB physiotherapy consultant's October 19, 2011 analysis of the medical evidence and conclusion that there was considered to be a major pre-existing condition that warranted the 50% prorating of the worker's PPI as provided for by WCB policy. As a result, the panel finds that the worker's permanent partial impairment award of 1.70% should be reduced 50%. The worker's appeal on this issue 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 20th day of June, 2012

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