Decision #85/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his ongoing back complaints were not related to his compensable injury of January 19, 2010. A hearing was held on April 26, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond April 13, 2010.Decision
That the worker is not entitled to wage loss benefits beyond April 13, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for back and neck pain that occurred on January 19, 2010 from the following work-related activities:
I was underneath in a crawl spaced doing insulation and vapor barrier. While in the crawl space, I developed back and neck pain. I was in the crawl space off and on for 6 hours. The crawl space had approximately 3 feet of space and I am 5'9.
The worker's claim for compensation was initially denied by primary adjudication but was accepted by the WCB's Review Office on September 30, 2010. Review Office was of the opinion that the diagnosis provided on February 2, 2010 of a muscular strain was causally related to the work activities performed by the worker on January 19, 2010.
On October 5, 2010, the WCB case manager spoke with the worker to enquire as to what benefits he was expecting from the WCB now that his claim had been accepted. The worker indicated that he wanted wage loss benefits from January 2010 onwards until he could return to work and to cover the costs of his physiotherapy treatments.
Medical information on file showed that the worker attended a chiropractor on February 4, 2010. The diagnosis outlined was spinal segmental dysfunction lumbar (mechanical low back pain).
On April 13, 2010, the treating physician reported that the worker was seen for ongoing low back pain with improvement of upper back pain. The physician noted that range of motion was decreased in the worker's low back.
The worker attended physiotherapy treatments from February 10, 2010 to April 17, 2010.
An MRI report of the lumbar spine taken July 19, 2010 stated: "All three nerve root contacts its [sic] far left lateral disc protrusion as it exits the neuro-foramen. No other significant abnormality is seen."
On October 26, 2010, a physical medicine and rehabilitation specialist (physiatrist) reported that he saw the worker on October 26, 2010. He assessed the worker with chronic pain disorder with widespread pain affecting his entire spine. He noted that the worker had a prior history of being off work for two years with back and neck pain without a specific diagnosis. He noted that the worker's body mass index and sedentary lifestyle were likely the primary factors perpetuating his condition.
On January 12, 2011, the worker's WCB case manager referred the file to a WCB medical advisor to provide a medical opinion on the possible diagnosis of the worker's back pain and the natural history for the diagnosis. On January 12, 2011, the WCB medical advisor responded as follows:
Considering the mechanism of injury, the reported symptoms and the medical reports on file, the likely diagnosis in relation to the reported January 19, 2010, work-place accident was neck and back soft tissue strain.
The natural history of soft tissue strain is for functional improvement over several weeks, without any specific treatments. Resuming regular duties within 12 weeks is typically safe and appropriate.
In a decision dated January 13, 2011, the worker was advised that wage loss benefits would be paid to April 13, 2010 inclusive as it was felt by the WCB that he would have been capable of performing his regular job duties by that date based on the mechanism of injury, the duration of his claim, the treatment to date and file review by the WCB medical advisor.
On January 18, 2011, the worker's treating physician noted that he saw the worker on January 17, 2011 for complaints of ongoing lower back pain. The physician reported that the pain settles with medication and rest and it was aggravated with any kind of moderate or severe activity.
In a further letter dated March 8, 2011, the treating physician stated: "Although we cannot elucidate a definitive anatomical defect, the patient complains of ongoing back pain. The pain is aggravated with prolonged activity and makes it difficult for him to work in his present job as a construction worker. He is unable to access physiotherapy or alternative treatments for his pain due to his financial limitations."
In a letter dated March 9, 2011, the worker was advised that the report from his treating physician of March 8, 2011 did not supply any new medical information that would warrant a change to the decision made on January 13, 2011. On March 21, 2011, the worker appealed the decision to Review Office.
On May 12, 2011, Review Office confirmed that the worker was not entitled to wage loss benefits beyond April 13, 2010. Review Office indicated that it placed significant weight on the physiatrist's findings and noted that the physiatrist made no indication that the compensable injury was the reason for the worker's ongoing back pain. It found the evidence on file including the initial diagnosis, treatment rendered (physiotherapy from February 10, 2010 to April 17, 2010), the clinical findings and the time that had passed did not support a causal relationship between the worker's ongoing back difficulties and the compensable injury of January 19, 2010.
On February 28, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged. Included with the application to appeal, was an MRI report of the worker's spine dated September 22, 2011. The results were read as showing: "Central and left posterolateral/foraminal C6-C7 disc herniation. Degenerative changes as otherwise described."
A hearing was held at the Appeal Commission on April 26, 2012. Following the hearing, the panel met to discuss the case and requested additional medical information. On May 10, 2012, the requested information was received and was forwarded to the worker for comment.
On May 18, 2012, the worker called the Appeal Commission to advise that he had an upcoming medical appointment and asked the appeal panel to postpone its meeting until he was able to submit the new report as he felt it was relevant to his appeal. The panel granted the request. On June 25, 2012, the worker provided the Appeal Commission with his submission along with a medical report dated May 18, 2012. On July 11, 2012, the panel met further to discuss the case and rendered its 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. 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.
Worker's Position
The worker explained his reason for appealing the WCB decision and answered questions posed by the panel.
He provided a detailed description of the duties that he was performing on the day of the injury. He said that he was installing vapor barrier and insulation in a crawl space with 2 ½ to 3 feet of height. He estimated the temperature in the crawl space to be -27 C.
Regarding the injury, he said that "I was working down there all day, and my back felt bad and got progressively worse and I figured it would get better." The worker acknowledged there was no trauma, only performing his duties. The worker advised that he felt okay at the start of the work day. He denied having any residual pain from prior events.
When he did not feel better, he filed a claim with WCB. The worker said that he saw a physiotherapist who treated his neck and back. He described the pain as a sharp pain which shoots up his back. He said it is always present. He said the neck pain also continues but is better.
The worker described his medical treatment which involved seeing his family physician, a physiatrist and a physiotherapist.
The worker advised that he did not look for work until the summer of 2011. He felt he could not return to work in the construction industry. He said that he was off work until November 2011 when he was hired as a school custodian. He acknowledged he could perform all the responsibilities of the position. He said that he did not have any discussions with his doctors about returning to work or his ability to work. The worker advised that he is now attending school and will attend college in the fall.
The worker indicated that he was seeking wage loss benefits from April 13, 2010 up to November 4, 2011 when he found employment in a non-construction job.
In terms of activity, the worker advised the panel that he walks daily, does some stretching and weight lifting.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond April 13, 2010. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after April 13, 2010 as a result of the workplace injury, or in other words, was not able to work after this date due to the injury. The panel is not able to make this finding. The panel is not able to relate the worker's symptoms after April 13, 2010 to the workplace injury that occurred on January 19, 2010.
In reaching our decision, the panel has considered all the medical information including the May 18, 2012 report of the pain clinic physician, the April 30, 2012 report of the physiatrist and the January 12, 2011 opinion of the WCB medical advisor.
The pain clinic physician does not provide an etiology for the worker's ongoing pain other than note that the worker has a history of neck and low back pain off and on for about 16 years. The physician notes that the worker has undergone three MRIs and opines that the MRI findings do not explain his current symptoms. He comments that "The physical examination findings does not correlate with the findings in the MRI and this can be related to other triggers for pain and the incidental findings on the MRI's does not really relate to his current problem."
The physician describes the worker as having longstanding non-cancer pain with mixed nociceptive and neuropathic type of pain affecting his neck and lower back with myofascial related pain on the right parascapular and right gluteal area. He said his SI joint on the right side is affected with arthritis.
The panel's assessment of the pain clinic physician's May 18, 2012 report is that his findings are not related to or caused by the worker's accident (one day working in the crawl space) but rather are long standing and due to other factors.
The physiatrist wrote on April 30, 2012 that "My conclusion of his recent clinical presentation was that he had a non-specific clinical presentation with no symptoms or signs to localize his pain complaints to the left central disc herniation at C6-7 that was seen on September 22, 2011 and MRI scan. I advised his referring physician that this lesion may be either chronic or irrelevant to his current clinical presentation. As such, the anatomic source of his pain was not deduced from his evaluation."
The panel notes that the physiatrist is unable to find an anatomic source of the worker's pain. The report does not relate the worker's symptoms and signs to his workplace injury.
The panel notes that the pain clinic physician and physiatrist are unable to relate the worker's symptoms to the September 22, 2011 MRI findings. The panel also notes that both physicians have recommended increased exercise and weight loss.
The WCB medical advisor opined on January 12, 2011 that the worker likely had a soft tissue strain which should have resolved allowing the worker to return to work within 12 weeks. The panel considers this to be a reasonable assessment of the impact of the workplace accident given the worker's description that his back simply got sore over the course of a day, performing his duties. The panel finds on a balance of probabilities that the worker's ongoing symptoms are not related to the January 19, 2010 workplace accident and is not able to find an entitlement to wage loss beyond April 13, 2010.
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 24th day of July, 2012