Decision #80/12 - Type: Workers Compensation
Preamble
This appeal deals with the worker's entitlement to wage loss benefits beyond February 2, 2004 in relation to his claim with the Workers Compensation Board ("WCB") for a back injury that occurred at work on June 26, 2002. The issue related to further wage loss benefits was previously heard at the Appeal Commission level and a decision was reached on April 8, 2011 under Decision No. 42/11. The worker then requested reconsideration of the decision pursuant to section 60.10 of The Workers Compensation Act (the "Act"). His request was granted a new hearing took place on June 6, 2012.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 2, 2004.Decision
That the worker is not entitled to wage loss benefits beyond February 2, 2004.Decision: Unanimous
Background
On February 10, 2011, a hearing took place at the Appeal Commission to determine whether or not the worker was entitled to wage loss benefits beyond February 2, 2004. A complete background of the case leading up to the hearing can be found under Appeal Commission Decision No. 42/11 and will not be repeated in its entirety at this time.
Briefly, the worker sustained injuries to his elbow and back in a work-related accident that occurred on June 26, 2002. The claim for compensation was accepted based on the diagnosis of a musculoligamentous back strain and right elbow contusion. Subsequent reporting by a physiotherapist diagnosed the worker's back condition as a lumbar/thoracic strain (report dated July 23, 2002) and a strain of the pelvic/sacral ligaments, likely disc herniation with L2 nerve root involvement (report dated February 25, 2003). On April 29, 2003, the worker was advised of the WCB's decision that he was not entitled to benefits beyond May 7, 2003 as it was felt that he had recovered sufficiently from his injuries to return to his pre-accident duties.
On August 19, 2003 and June 14, 2006, the Worker Advisor Office submitted information to the WCB to support that the worker was entitled to further compensation benefits. The information consisted of a report from a physiatrist dated July 24, 2003 and from an occupational health physician dated June 1, 2006. The physiatrist's opinion was that the probable diagnosis was a left L5 or S1 radiculopathy which was secondary to discopathy. The occupational health physician opined that the worker had pain of myofascial origin from the left gluteus minimus and quadratus lumborum that was consistent with the compensable injury. After consulting with a WCB medical advisor on September 21, 2006 the worker was advised by initial adjudication that no change would be made to the decision of April 29, 2003.
In 2007, the WCB received an MRI report of the lumbar spine dated December 5, 2003 which was read as follows:
"Very shallow left posterior L4-L5 disc herniation, diminished from before. Left posterior L5-S1 disc herniation, which has developed in the interval since the last study."
On May 24, 2007, the WCB's Review Office determined that the worker was entitled to wage loss benefits from May 8, 2003 to February 2, 2004. Review Office accepted that the worker herniated his L4-L5 disc in the June 2002 accident but found that if the herniation caused any nerve root compression, the extent was not significant and it quickly abated. It noted that in September 2003, the worker received an injection at L5-S1 rather than L4-5. It felt that the L5-S1 protrusion was not the result of the June 2002 accident as it was not present on the October 2002 CT scan.
An MRI taken January 27, 2010 showed as follows:
The L2-3 and L3-4 levels appear normal.
The L4-L5 level demonstrates a minimal central protrusion and annular tear. This does not compromise the central canal, L5 roots or foramina.
The L5-S1 level demonstrates a shallow central protrusion as well. This does not compromise the S1 root central or foramina.
On May 6, 2010, Review Office confirmed that the worker was not entitled to further benefits beyond February 2, 2004. It felt that the annular tear noted at the L4-5 level was a new finding and that it was not related to the worker's compensable accident. It noted that the worker did not have any ongoing signs and symptoms consistent with a disc injury at L4-5 and the presence of minimal imaging findings was of limited importance.
On November 18, 2010, Review Office considered a report from the occupational health physician dated August 26, 2010 which stated: "…my findings on this occasion are relatively few, he is not currently experiencing significant back discomfort. I maintain that the primarily (sic) cause of his lumbosacral pain is likely soft tissue in origin involving the muscles of the hip girdle and lower lumbar region that, when irritated by extension and rotation efforts, are prone to spasm. I do not find that his symptoms are explained by an L4-L5 disc lesion."
Review Office stated that the occupational health physician's findings in 2006 and 2010 were in part different. It felt that any soft tissue injury suffered by the worker as a result of his accident over eight years ago had long since resolved. It stated that the doctor's findings were not consistent with a state of total loss of earning capacity.
Following a hearing held at the Appeal Commission on February 10, 2011, the appeal panel determined that the worker was not entitled to wage loss benefits beyond February 2, 2004 under Decision No. 42/11. The decision stated in part:
"... When an MRI was performed on December 5, 2003, the L4-5 herniation was found to have diminished since the CT scan. A new finding of a left posterior L5-S1 disc herniation was identified. As this herniation had developed in the interval since the last study in October 2002, we do not consider it to have been caused by the workplace accident of June 2002.
…In the panel's opinion, there is insufficient evidence to satisfy us on a balance of probabilities that the back symptomatology which the worker experienced from and beyond February 2, 2004 was caused by the June 2002 accident at work. The worker's evidence is that his worst problems are caused by the severe episodes which he periodically experiences. Although the worker denied having experienced these episodes prior to the accident, the first report from the worker's treating physician indicated that his back recurrently spasms ever since a motor vehicle accident in 1996. When asked about this at the hearing, the worker indicated that he had had only two back spasms before the workplace accident and that they were very minor in severity, akin to a calf spasm. The panel does not accept that the recurring back spasms were as minor as described by the worker as it seems unlikely that the treating physician would reference the condition, or indeed, even be aware of the back spasms, if they were as minimal as the worker described.
The bases for the occupational health physician's comments on causation are consistency of the low back complaints to the mechanism of injury, and a temporal relationship between back complaints and the workplace accident. The panel finds that this is insufficient to satisfy us that there exists a causal relationship, particularly given that the complaints of back spasms pre-dated the accident."
On June 8, 2011, the worker requested that Appeal Commission Decision 42/11 be reconsidered pursuant to section 60.10 of The Workers Compensation Act (the "Act"). On February 9, 2012, the Chief Appeal Commissioner granted the request for reconsideration and directed that Appeal Commission Decision 42/11 be reconsidered. It was felt that the review and re-interpretation of the October 2002 CT and the December 2003 MRI by an independent radiologist dated May 30, 2011 met the legal test.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
The worker is appealing the WCB decision that his loss of earning capacity after February 2, 2004 was not related to his workplace accident. 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.
Worker's Position
The worker was represented by a worker advisor who made a presentation on the worker's behalf. The worker answered questions asked by his representative and the panel.
The worker advisor submitted that a relationship exists between the worker's ongoing difficulties to his central low back and specific left-sided symptoms into the left buttock and into the left thigh and his workplace accident of June 26, 2002. She noted that the initial and compensable diagnoses were confirmed as musculoligamentous back strain and right elbow contusion by the family physician's report dated February 4, 2002, and that the WCB accepted the diagnosis as related to the workplace accident, with the resolution of the right elbow contusion.
She stated that the evidence on file continues to support that the compensable injuries continued to be a major contributing factor to the worker's constant low back pain and left-sided symptoms which have been confirmed beyond February 2, 2004.
The worker advisor referenced the family physician's report of May 23, 2012 in which the physician comments on the worker's back spasms. The family physician commented that the symptoms experienced after the motor vehicle accident were not to the extent or the severity that he has been experiencing since the 2002 workplace accident.
The worker advisor submitted that, in accordance with subsections 4(1), 4(2) and 39(2) of Act, the evidence supports a relationship exists between the worker's workplace accident, his compensable injuries, his ongoing symptoms; and therefore the worker is entitled to benefits beyond February 2004.
The worker testified that his back has not improved since the June 2002 workplace accident. He continues to suffer the same pain. He described the pain as being on the central left side of his back, down his left buttock and thigh. The worker explained that he occasionally suffers from acute pain. When he has an acute incident he finds even lying in bed to be painful. At these times he is unable to do anything. He said the most recent acute incident occurred in September 2011. At this time his pain was so great that paramedics were called. After the incident he had to use 2 canes to move around. He said the acute stage usually lasts about 1 month.
With respect to his current ability to work, the worker said that he thought he could do work that accommodated his condition. He confirmed that in 2011 he worked on a road construction crew. He worked from June to early September when he injured himself swinging a hammer. The worker said that he was hammering a pin with a large hammer and missed the pin, hitting his knee. He has not worked since this accident. He advised that he received 7 weeks of wage loss benefits from the WCB for this accident.
The worker said that the only other employment he has had since the 2002 workplace accident was working in a customer service position at an auto dealership for approximately 8 months in 2003. He said he had to quit this job due to pain from his workplace injury.
In answer to questions, the worker said that he uses significant pain medications on a daily basis. He listed the medications and their frequency of use.
Regarding current medical treatment, he noted that he has an examination scheduled with his family physician and that his physician may refer him to another specialist. He also said that he has another MRI scheduled related to symptoms in his upper back and numbness in his fingers.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond February 2, 2004. For the worker’s appeal to be accepted, the panel must find that the worker's back problems after February 2, 2004 are related to the workplace injury sustained on June 26, 2002. The panel is unable to make that finding. The panel is not able to find that the workplace injury contributed in a material degree to the worker's inability to work.
Regarding the worker's workplace injury, the panel finds that the worker initially sustained a musculoligamentous back strain and right elbow contusion. The panel notes that this diagnosis was provided by the family physician on July 4, 2002. The panel also notes that in September 2006 a WCB medical advisor commented that the worker's condition is non-specific left low back/buttock pain. The panel finds this to be an accurate description of the condition at that time.
The panel considered the new evidence, specifically the May 30, 2011 review (re-interpretation) of the October 2002 CT and the December 2003 MRI. The review concludes that the diagnostic tests found the worker has an L4-5 disc protrusion and an L5-S1 disc protrusion. The panel accepts this evidence, however; attaches no significance to this evidence as there is a lack of consistent neurological findings since the injury. The panel finds that the new evidence does not support a finding that the worker's back difficulties after February 2, 2004 are due to the workplace injury. It is the panel's view that, notwithstanding the diagnostic tests, the evidence of neurological problems is inconsistent and does not provide an explanation for the worker's loss of earning capacity. The panel relies on the following findings from medical examinations and diagnostic tests:
· January 20, 2003 examination by WCB Medical Advisor concluded that "Today's clinical examination demonstrated no convincing signs of disc herniation or nerve root compression. The neurological examination was unremarkable. "
· October 14, 2003 examination by physical medicine and rehabilitation specialist noted "On examination today, left straight leg raise testing was negative and there was no pain or 'noise' with hip internal and external rotation." The report also notes that the worker reported no benefit related to the L5-S1 transforaminal epidural corticosteroid injection. The panel notes that a negative response to the injection does not support an L5-S1 injury.
· June 1, 2006 report of occupational medicine physician that reports "I did not find indications of neurologic involvement in the lumbar spine, nerve roots and legs at the time of the examination when he was not having a pain flare up."
· August 26, 2010 report of occupational medicine physician. On examination the physician found no signs of S1 joint dysfunction and commented that "I do not find that his symptoms are explained by L4-L5 disc lesions."
· January 2010 MRI which found that the reported protrusions do not compromise the nerve. The MRI found:
"The L4-L5 level demonstrates a minimal central protrusion and annular tear. This does not compromise the central canal, L5 roots or foramina.
The L5-S1 level demonstrates a shallow central protrusion as well. This does not compromise the S1 root, central or foramina."
The panel notes that a third MRI was conducted in September 2011 and notes that there has been no clinical correlation of the MRI findings. The panel finds that there has been a lack of neurological signs reported throughout the claim and notes that no neurological treatment was commenced after the recent MRI.
The worker indicated that the most severe symptom from his injury are the spasms (episodes) that he experiences. He described his most recent episode which occurred in September 2011. The episodes are debilitating, he is unable to move and has had to go to the hospital for treatment due to the severity of the pain.
The panel is not able to relate these current episodes to his workplace injury. Firstly, the panel notes that the worker had episodes prior to the workplace injury. These occurred after a 1996 motor vehicle accident and resulted in the worker seeking medical attention for the episodes on two occasions. Secondly, the panel notes there were significant periods after the workplace injury when the worker had no recorded episodes and received no treatments for his injured back. The records show that he was seen on February 2, 2004 by a physiatrist and then not seen again until December 13, 2005 when he was seen by his family physician. This is a period of almost two years with no documentation of symptoms or treatment.
Finally, the panel notes that the worker has demonstrated that he is capable of working. As recently as the summer of 2011, the worker performed manual employment on a road construction crew. While the panel acknowledges the worker's evidence that he worked with pain, it notes that he was able to work until he sustained an unrelated workplace accident.
The panel finds, on a balance of probabilities, that the worker's loss of earning capacity after February 2, 2004 is not related to his workplace injury. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerB. Simoneau, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of June, 2012