Decision #140/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that a relationship could not be established between her current right kidney complaints and her compensable left kidney injury of 2003. A hearing was held on November 19, 2012 to consider the matter.Issue
Whether or not the worker's right kidney difficulties are related to her June 23, 2003 compensable injury; and
Whether or not the worker is entitled to wage loss and medical aid benefits after October 14, 2010.
Decision
That the worker's right kidney difficulties are not related to her June 23, 2003 compensable injury; and
That the worker is not entitled to wage loss and medical aid benefits after October 14, 2010.
Decision: Unanimous
Background
On June 23, 2003, the worker suffered internal injuries during a work related accident, consisting of a rupture to her left kidney and fractures to the left lower ribs. Her claim for compensation was accepted and benefits and services were paid. In 2004, the worker was awarded a 10% Permanent Partial Impairment for loss of left kidney function by the WCB.
On January 28, 2011, the worker contacted the WCB to advise that she was off work since October 2010 due to problems with her right kidney which she related to the medications she was taking to treat a virus.
On March 21, 2011, the worker reported that she was on vacation when her right kidney symptoms developed. She said she underwent medical testing which revealed increased creatinine levels in her body. She was then referred to a specialist by her family physician and was advised that she suffered an "insult" to her right kidney due to a combination of taking anti-inflammatory medication, antibiotic medication and dehydration. The worker noted that she was on medication due to chronic back pain. The worker indicated that her blood pressure was low and she did not have a history of diabetes.
Medical reports and test results from the worker's treating physicians were reviewed by a WCB medical advisor on March 23, 2011 at the request of primary adjudication. The medical advisor opined that the worker's current diagnosis was acute renal failure, suspected to be secondary to analgesics use. He said the diagnosis was tentative based on the available clinical medical information. The medical advisor noted that the traumatic injury to the worker's left kidney in 2003 and subsequent left renal artery embolization would leave her with a fully functioning right kidney. He commented that the suspected analgesic neuropathy which came to her doctor's attention in October and November 2010, would not be related to the left kidney injury in 2003.
By letter dated March 24, 2011, the worker was advised by Rehabilitation and Compensation Services ("RACS") that responsibility would not be accepted for her right kidney problems, diagnosed as acute renal failure secondary to analgesic/anti inflammatory use, as being related to her left kidney injury in 2003.
On October 6, 2011, the worker appealed the above decision to Review Office. The worker outlined the opinion that her recent right kidney failure was related to the June 2003 compensable injury that destroyed her left kidney. The worker stated:
"1. Decreased kidney function - The accident in 2003 destroyed one kidney. The loss of this kidney impaired overall renal function, reducing functional capacity and leaving the remaining organ more susceptible to damaging substances such as anti-inflammatory drugs.
2. Increased use of Ibuprofen due to ongoing back pain - Resulting from the accident in 2003, I underwent physiotherapy treatment for back pain prior to returning to work. The physiotherapist and doctor recommended managing the pain and inflammation with Ibuprofen. Eventually I was able to return to work but the back pain persisted and Ibuprofen was used on a regular basis. As previously stated, this use of anti-inflammatory drugs contributed to my acute renal failure in October 2010.
For these reasons, (treating nephrologist's name) and I believe the diagnosed "insult" to my kidney in the fall of 2010 is related to the accident in 2003 (i.e. a previous injury which "arose out of and in the course" of my employment.). The functional impairment caused by anti-inflammatory use would have likely been greatly reduced, or absent, if I had two healthy kidneys."
On November 2, 2011, the worker submitted new information to support her position that her right kidney dysfunction was related to her left kidney injury of 2003. The information consisted of her October 6, 2011 appeal letter which was signed by her treating nephrologist and her family physician; a report from her family physician dated November 8, 2010; a sick note from her family physician dated August 28, 2003; and a referral letter from her family physician to her treating physiotherapist dated September 25, 2003.
On December 15, 2011, Review Office determined that the worker's right kidney problems were not related to her June 23, 2003 compensable injury and that the worker was not entitled to wage loss or medical aid benefits after October 14, 2010. Review Office made reference to specific file information to support that the worker's intake of Ibuprofen was not required as a direct result of her compensable injury. It found no evidence that the worker's recent back pain was due to the effects of her 2003 injury or that the worker continued to have back pain after her return to work in 2003. Review Office indicated that there was no evidence that the absence of one functioning kidney caused her to have acute renal failure of her other kidney. It found no evidence that the compensable injury had caused a secondary injury as required under Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, for her acute renal failure to be accepted.
Review Office obtained a report from the worker's treating nephrologist dated December 9, 2011. On January 24, 2012, Review Office advised the worker that the report did not change its decision outlined on December 15, 2011.
On April 5, 2012, a worker advisor acting on the worker's behalf, requested reconsideration of Review Office's decision dated December 15, 2011. The worker advisor submitted an article from Livestrong.Com on the causes of high creatinine levels and an article entitled Solitary Kidney from National Kidney and Urologic Diseases Information Clearinghouse. The worker advisor stated:
"According to medical literature creatinine is a waste product from muscular activity that is secreted into the blood stream and filtered out by the kidneys. As stated in the article on Solitary Kidney, the glomerular filtration rate or GFR is a measurement of how effectively the kidneys are filtering the blood. An elevated scrum creatinine is commonly associated with reduced GFR and people who have one kidney have a reduced GFR.
According to the medical information on file [the worker] sought medical attention October 2010 for urinary frequency and dysuria and intermittent headache. It was originally felt that she had a urinary infection and was treated with antibiotics. When her symptoms did not settle blood work demonstrated that her creatinine level was 226 which was elevated from July 2010 when it was 104. [The worker] was advised to stop taking antibiotics and anti-inflammatory medication, which she said she was also taking. [The worker's] creatinine levels dropped after she stopped taking the medications and her urinary symptoms subsided.
[The worker's] treating physician [name] stated in his December 9, 2011 report that:
"Part of the problem is that the patient will have lost the kidney mass from the left side, therefore her underlying kidney function will not be normal especially since her injury occurred as an adult and she would not have had a chance to develop enlargement and increased function of the right kidney."
It is our opinion that information supports that [the worker] would have a reduced GFR due to the loss of a kidney. As well according to [doctor's name] [the worker's] right kidney is further compromised due to it did not enlarge to accommodate additional filtration. The reduced GFR affects [the worker's] ability to filter things like medications from her blood that would not likely occur had she had the use of both kidneys.
In conclusion we believe the information presented provides evidence to support, on a balance of probability, that there is a causal relationship between the acute renal failure involving the right kidney in the fall of 2010 and the effects of the 2003 compensable injury.
Therefore responsibility should be accepted for [the worker's] right kidney problems in accordance with policy 44.10.80.40 of the Act…"
On June 6, 2012, Review Office determined that its decision of December 15, 2011 should not be rescinded. Review Office found that the journal articles did not establish a link between the worker's acute renal failure in October 2010 and the workplace accident or its injury involving the left kidney. It noted that the worker's acute problem began when taking medication for her back pain and that it was unable to relate the back pain to the effect of the 2003 accident or its injury. Review Office noted that the worker took this medication for back pain and antibiotics because of a urinary tract infection and that neither the back pain nor the urinary tract infection was due to the 2003 accident. Dehydration was also not due to the 2003 accident. As the medication usage was the cause for the worker's acute renal function, combined with dehydration (one of the causes for increased creatinine levels), Review Office could not establish a relationship to the workplace accident or its injury of 2003. On June 8, 2012, the worker advisor 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
The worker is seeking a ruling that her right kidney difficulties are related to her 2003 workplace accident and that she is entitled to further wage loss and medical aid benefits.
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.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.
Worker's Position
The worker attended the hearing and explained her reasons for appealing. She answered questions posed by the panel.
The worker outlined concerns about her dealings with the WCB. She said that the WCB did not seem to follow reason in its decision making. She found the WCB emphasized aspects of the claim that made it more complicated. She expressed concern that the WCB chose saving money over doing the right thing. She said the WCB supported speculative opinions of some (WCB medical advisor) over the opinions of other more qualified persons (her treating nephrologist).
The worker described her 2003 workplace injury. She explained that she was kicked by a horse in the back near her left kidney. The kidney was damaged and no longer functional. As a result she has only one functioning kidney. The worker was off work for approximately 4 months due to this injury.
The worker said that in addition to the loss of her left kidney, she had back pain which was treated with physiotherapy, Tylenol and non-steroidal anti-inflammatory drugs (NSAIDs).
The worker advised that she has osteoarthritis in many of her joints including her back and knees. She said that she took NSAIDs for this condition. She advised that she was never told about the possible impact of NSAID use on her kidney. Regarding her use of NSAIDs, the worker denied that she had been taking at least 6 NSAID tablets a day for at least six months if not longer because of chronic back pain, as was reported by the treating specialist. She said that after the 2003 accident, her use of NSAIDs was limited; the most she would take was 6 tablets in a day and that this occurred rarely, perhaps once in 2 weeks. She estimated her usual usage to be 1 to 2 tablets, 1 to 2 days per week, or approximately 4 tablets per week. She estimated that in 2009, her use was approximately 3 to 4 tablets per day, twice a week for a total of 8 tablets per week.
She told the panel that she felt there was too much emphasis on her back pain and NSAID use and that the treating nephrologist's opinion tying her kidney difficulties to NSAID use had complicated her case. She said that she does not feel that NSAID use was the cause of her kidney difficulties.
The worker said that had she not lost the use of her left kidney in the 2003 workplace accident, she would have had two kidneys and likely would not have had the problem with her right kidney. She said her right kidney must do all the filtering and that it became overloaded. She speculated that half the nephrons in her right kidney may have been destroyed by the 2009 flare-up.
The worker advised that as a result of her right kidney problem she is border line anemic and has reduced stamina. She was not able to return to work on a full-time basis and decided to retire effective August 1, 2012. She acknowledged that her decision to retire was also impacted by her employer's retirement inducements.
Employer's Position
The employer did not participate in this appeal.
Analysis
Issue 1: Whether the worker's right kidney difficulties are related to her June 23, 2003 compensable injury.
For the worker's appeal of this issue to be successful, the panel must find that the worker's right kidney difficulties in the fall of 2010 are related to her June 2003 compensable injury. The panel was not able to make this finding
The panel notes the following facts in arriving at this decision:
- the June 23, 2003 CT scan of the abdomen and the November 3, 2010 ultra sound showed a normal functioning right kidney.
- in July 2010 the worker had a normal creatinine level of 104.
- the worker's creatinine level in late 2010 ranged from 202 to a high of 267 on November 4, 2010.
- the worker's condition improved and, her creatinine levels have fluctuated in the 130 range in 2012.
- the worker's condition in 2010 was diagnosed as acute renal failure.
In determining that the worker's right kidney difficulties are not related to her 2003 compensable injury, the panel relies upon the opinion of the WCB medical advisor. In a memo dated March 23, 2011, the medical advisor opined that:
"The traumatic injury to her left kidney in 2003 and subsequent renal artery embolization would leave her with a fully functioning right kidney and that remaining kidney then takes over the full renal function afterwards with that one remaining kidney. The suspected analgesic neuropathy which came to her doctor's attention in October and November 2010 would not be related to the left kidney injury in 2003."
The panel also relies upon the opinion of the family physician who commented that:
"The answer to the question is if she had not had that injury in 2003 would she in fact have had a similar situation develop, would be an unanswerable question. She may have had the same problem if she had two kidneys in my opinion. This would be difficult to prove or disprove."
In assessing the evidence, the panel applied the balance of probabilities standard. The panel concluded that the evidence does not establish, on a balance of probabilities, a relationship between the 2010 right kidney difficulties and the 2003 workplace injury.
The worker asked that the panel place greater weight on the treating nephrologist's report than on the WCB medical advisor opinion. The panel notes that the facts relied upon by the nephrologist in relation to the amount of NSAID use while providing his opinion was disputed by the worker. She denied the extent of NSAID use noted in the opinion. She also questioned the physician's focus on the use of the NSAIDs and suggested her condition was related to the loss of her left kidney. The panel does not place any weight on the report of the treating nephrologist as the facts underlying his report are being disputed by the worker.
The panel has considered whether the 2010 difficulties can be accepted as a further injury under WCB policy 44.10.80.40. To accept this claim the panel must find that the 2010 right kidney difficulties were a further injury in accordance with WCB Policy. The policy provides that a further injury can be compensable where:
1. The cause of the further injury is predominantly attributable to the compensable injury; or
2. The further injury arises out of a situation over which the WCB exercises direct specific control, or
3. The further injury arose out of the delivery of treatment for the original injury.
The panel considered the three situations and concluded, on a balance of probabilities, that the right kidney difficulties in 2010 were not related to the 2003 workplace injury. The evidence does not establish that the 2003 injury caused a secondary injury in 2010.
Finally, the panel notes that prior to the hearing the worker advanced the position that she had to use NSAID medications in 2010 for chronic back pain caused by the 2003 injury and therefore the use of NSAID medications for the right kidney was related to the 2003 injury. She did not advance this position at the hearing. In any case, the panel finds that the evidence does not support such a relationship.
The worker's appeal of this issue is denied.
Issue 2: Whether the worker is entitled to wage loss and medical aid benefits after October 14, 2010.
For the worker's appeal of this issue to successful, the panel must find that the worker's 2003 compensable injury caused the worker to sustain a loss of earning capacity and to require medical treatment after October 14, 2010. Given the panel's findings on the first issue, specifically that the worker's 2010 right kidney difficulties are not related to the 2003 workplace injury, the panel finds that the worker is not entitled to wage loss benefits and medical aid after October 14, 2010.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of December, 2012