Decision #79/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") dated June 8, 2011 which determined that his ongoing difficulties were not related to the effects of his November 20, 2009 workplace accident. A hearing was held on May 24, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after July 14, 2010.Decision
That the worker is not entitled to wage loss and medical aid benefits after July 14, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to his right knee, right low back, head and upper shoulder sustained on November 20, 2009 from the following work-related accident:
…I took a couple of steps backwards and I bumped into something (desk on rollers). I tried to stop myself and ended up falling backwards on top of the small desk and toppled that over and landed on my upper torso and my butt and ended up half way on the desk and hit the back of my head on the desk as well.
The claim for compensation was accepted based on the diagnoses of a neck sprain/strain, lumbar sprain and right knee sprain and benefits and services were paid to the worker while he underwent treatment for his injuries.
On November 27, 2009, the worker saw his family physician and the diagnosis rendered was a whiplash soft tissue injury.
On December 1, 2009, the worker had x-rays taken and the results were read as follows:
Lumbar spine - There was mild narrowing of the L2-3 disc space along with discal degeneration air cleft within. Small end plate spurs were present at multiple levels. No other osseous abnormality was seen.
Cervical spine - There was prominent narrowing of the C5-6 and C6-7 disc spaces with marginal osteophytes. Facet joint OA (osteoarthritic) changes were present at most levels.
Right hip - There was moderately severe OA changes in the hip.
Right knee - There were relatively mild osteoarthritic changes present in the medial and lateral compartments. No effusion was present.
On January 6, 2010, the treating physician reported that the worker continued to suffer from daily headaches as well as neck, shoulder and low back pain and shooting pain from his SI joint down to his heel.
On January 29, 2010, the worker underwent an MRI assessment of his cervical and lumbar spines. The radiological findings were reported as follows:
There is no evidence of significant lumbar disc protrusion. The central spinal canal diameter is well maintained. Disc degeneration at L2-3 through L4-5 with anterior osteophyte formation noted at L2-3. Comparison to a previous examination of September 11, 2007 demonstrates overall little interval change. The L4-5 disc protrusion evident at that time has significantly resorbed although there remains as described diffuse posterior disc prominence that approaches the base of both L5 roots right greater than left. There is no significant interval change in the other disc levels.
The worker was seen at a call-in examination by a WCB sports medicine consultant on February 1, 2010. The consultant reported that the worker's clinical presentation was consistent with non-specific low back pain with no ominous or neurogenic features. He noted that there appeared to be some right-sided radicular symptoms; however, on clinical examination he was unable to identify objective clinical evidence of such radiculopathy. In regard to the worker's neck, there appeared to be no clinical evidence of continuing concussion symptoms. The presentation was consistent with a whiplash associated disorder of the cervical spine. The consultant outlined work restrictions associated with the lumbar and cervical spine with a review of same in one month's time.
A WCB orthopaedic consultant reviewed the worker's file on April 26, 2010. He noted that the worker was referred to a neurologist and to a physical medicine specialist by his attending physician. He felt that the physical medicine specialist referral related to the worker's pre-existing condition of lumbar disc degeneration and was not a WCB responsibility. The referral to the neurologist was for assessment of a possible concussion diagnosis earlier in the claim.
The consultant outlined the opinion that the worker's lumbar sprain had resolved and any continuing symptoms he may have were related to the pre-existing condition of diffuse lumbar disc degeneration. He noted no evidence of any continuing problems with the right knee. The consultant stated that the current restrictions were excessive and new restrictions were outlined.
A CT of the brain was done on April 26, 2010. The results showed no evidence of an intra or extra-axial haemorrhage, mass or space-occupying lesion. The ventricles were normal and no other abnormality was seen.
In a report dated May 11, 2010, the treating neurologist stated that the MRI of the entire spine showed degenerative changes but no definite radiculopathy. He suspected that the worker had clinical evidence of right-sided sciatica and a repeat MRI was being arranged. The neurologist recommended medication for pain management.
On May 12, 2010, a rheumatologist outlined his impression that the worker had low back pain with clinical evidence for a right lumbosacral radiculopathy. He said the worker had an element of improving mechanical neck pain as well as documented osteoarthritis involving his right hip more so than his left knee.
On May 13, 2010, the WCB case manager noted to the file that the worker reported experiencing the same symptoms without much change since the date of his injury. The worker complained of numbness down his right leg, low back pain and headaches.
The worker was seen by the WCB orthopaedic consultant at a call-in examination on June 22, 2010. The consultant was unable to identify any evidence of right lower limb radiculopathy and there was no significant symptom amplification noted. He said the findings at both hips and knees did not appear to be of clinical significance in the worker's symptomatology. The consultant was of the opinion that there was no evidence of a continuing cause/effect relationship between the worker's current symptoms and claimed loss of function and the compensable injury. He rescinded the restrictions related to the worker's cervical spine and upper limb.
On July 12, 2010, the worker was advised that the WCB was unable to establish an ongoing relationship between his current symptoms and the original workplace injury and that wage loss benefits would be paid to July 14, 2010 inclusive. The decision was based on the findings at the WCB call-in examination of June 22, 2010.
File records show that the worker attempted a graduated return to work with his employer but was unable to continue due to excruciating low back pain and shooting pain in his right leg.
On September 2, 2010, the worker underwent an MRI of his entire spine. The radiological results were reported as follows:
Mild-to-moderate neural foraminal narrowing from C3-C4 to C6-C7 resulting from Luschka joint arthropathy and posterior disc osteophyte complexes. There is no evidence of spinal canal stenosis.
No significant abnormality is seen within the lumbar or thoracic spine. The appearance is unchanged since the MRI of the cervical and lumbar spine performed January 29, 2010.
A report from the family physician dated December 14, 2010 was placed on file. He noted that the worker had good range of motion of the cervical and lumbosacral spine, yet had numbness down the right calf and ankle.
In a report dated December 9, 2010, the treating neurologist stated:
In conclusion, he has improved and is back at work. In hindsight, his problems were likely related to the known degenerative changes seen on his MRI of the LS spine. The mild changes of denervation seen on EMG likely relate to some mild radiculopathy, which is resolving.
On January 8, 2011, an orthopaedic specialist submitted a narrative report outlining his examination findings of the worker on August 6, 2010, August 13, 2010, September 24, 2010 and December 3, 2010. At the last appointment, the specialist noted that the worker had returned to full-time work and now felt good except for right calf tingling and numbness which had persisted since the injury. The specialist concluded that the worker had significant improvement in his right SI radiculitis and in his mechanical and discogenic low back pain.
On March 18, 2011, the WCB orthopaedic consultant reviewed the new medical information and stated:
- the diagnosis of the compensable injuries has repeatedly been stated as soft tissue strain injuries to the neck, low back and right knee. At the call-in examination of June 22, 2010, it was my opinion that the worker had recovered from these injuries. No new injury has been reported by the worker and the reports on file have not provided a new diagnosis to explain the worker's continuing symptoms.
- the reports do not support a continuing pain generator in the low back or legs relating to the workplace injury and in general, the clinical findings correspond closely to those of the call-in examination nine months ago.
- the medical information does not support the need for restrictions in relation to the workplace injury.
- the compensable injury did not cause an aggravation or enhancement of the worker's pre-existing lumbar disc degeneration.
- the pre-existing condition of degenerative osteoarthritis of the right hip joint was neither aggravated nor enhanced.
On April 19, 2011, the case manager advised the worker that the decision of July 12, 2010 was being upheld as the WCB orthopaedic consultant opined that the medical information did not support any continued or ongoing cause and effect relationship to his current issues and the original compensable injury. On April 29, 2011, the worker appealed the decision to Review Office.
On June 8, 2011, Review Office determined that the worker was not entitled to wage loss and medical aid benefits after July 14, 2010. Review Office relied on various medical reports on file from January 29, 2010 onwards as well as the opinions expressed by the WCB orthopaedic consultant to conclude that the worker's continuing disability, loss of earning capacity and requirement for medical aid were not due to the effects of his workplace accident of November 20, 2009. On January 8, 2012, 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 at the hearing. As set out in his Appeal of Claims Decision form, the worker's position was that he was entitled to benefits beyond July 14, 2010 because he was still suffering from symptoms from his workplace fall. He submitted that in July, he attempted a graduated return to modified work in an office, but only managed to work for one day due to severe lower back pain with shooting pain and numbness going into his right leg and foot. It did not matter whether he sat or stood. The pain was excruciating. The worker immediately attended his doctor's office and informed the doctor of what he was experiencing. The worker did not return to the modified office duties position and instead used his own sick and vacation time. While at home, the worker did exercises and stretching and worked his way up to swimming and walking. He continued to be off work until his back and leg issue subsided and in September, 2010, he returned to his regular workplace on a graduated return to work. Eventually he was able to return to work on a full time basis with no restrictions.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after July 14, 2010. In order for the worker’s appeal to be successful, the panel must find that as of July 14, 2010, the November 20, 2009 workplace injuries continued to be symptomatic and to cause the worker to suffer a loss of earning capacity. On a balance of probabilities, we find that the work-related soft tissue injuries had resolved by July 14, 2010 and that the worker’s ongoing difficulties at that time were attributable to pre-existing degenerative changes in his lumbar spine.
In coming to our decision, the panel relied on the following:
- The mechanism of injury was a fall backwards. The diagnoses accepted as compensable were a neck sprain/strain, lumbar sprain and right knee strain.
- At the hearing, the worker acknowledged that his neck/headache and right knee issues had all resolved by July 14, 2010. The area which remained problematic was the lower back and right buttock, with symptoms extending down the right leg.
- The diagnosis applicable to this area was a lumbar sprain, which is a soft tissue injury. There was no indication that the workplace accident caused the worker to suffer any other more significant injury to the structures in this area, such as a disc herniation or nerve root compression.
- The worker received benefits for almost eight months, which should be more than sufficient time for a lumbar sprain to resolve.
- The worker continued to complain of low back pain and radiating pain into his right leg beyond July 14, 2010. MRI imaging, however, indicated significant pre-existing lumbar disc degeneration at multiple levels of the worker's lumbar spine. Both the WCB orthopaedic consultant and the treating neurologist identified the right leg pain as being related to these degenerative changes.
- The panel also notes that the right leg pain did not arise until approximately four to six weeks following the acute accident. This delayed onset would further support that the right leg pain was not caused by the workplace injuries, but rather suggests it was a product of the natural progression of degeneration in the worker's low back.
- The WCB orthopaedic consultant recommended removal of lumbar spine restrictions in April, 2010. The family physician's handwritten report of June 29, 2010 also advised a return to work with no stated restrictions. In view of the lack of restrictions, the panel finds that the worker had no further loss of earning capacity and was able to return to regular employment by July 14, 2010.
For the foregoing reasons, the panel finds that the worker is not entitled to wage loss and medical aid benefits after July 14, 2010. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 28th day of June, 2012