Decision #25/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was no cause and effect relationship between his ongoing low back difficulties and the compensable injury of February 16, 2010. A hearing was held on January 10, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after February 17, 2012.

Decision

That the worker is entitled to benefits after February 17, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for increasing low back pain that commenced in early 2010 during the course of his employment as an equipment operator. The worker reported: "…The seat is not good in it. You bounce around a lot in it." His last day at work was April 6, 2010. Medical reports showed that the worker attended a chiropractor and a family physician for treatment. The diagnoses rendered were "multiple level spinal strain/sprain/dysfunction" and "lower back pain."

On June 7, 2010, the worker was seen at the WCB's offices by a WCB chiropractic consultant for an assessment. The consultant indicated that the most probable diagnosis was non-radicular, non-specific low back pain. There were some radiculopathic symptomatic features such as numbness and tingling in the extremities but no neurological deficit was identified.

On June 25, 2010, an MRI of the worker's lumbar spine was performed and the findings were reported as:

At T11-12 there are minor degenerative changes anteriorly with spurring but no disc protrusion. The upper lumbar levels all appear normal to L4-5.

At L5-S1 there is a shallow disc protrusion diffusely with slight prominence in the left paracentral area. The disc approaches the left S1 nerve root without compression. There is no central stenosis or foraminal narrowing.

An x-ray of the thoracic spine dated July 21, 2010 read as:

Alignment is normal. There are mild degenerative changes present within the mid to lower thoracic spine. An acute fracture is not identified.

In a consultation report to the family physician dated September 22, 2010, a sports medicine specialist outlined his opinion that the worker had piriformis and sciatic condition with an aggravated sacroiliitis. He noted that hip x-rays did not show any real degenerative change. The specialist agreed that the worker had some left radicular issues and the MRI was somewhat suggestive of a small disc bulge that may be irritating the S1 nerve root. The specialist did not feel that the worker was a candidate for surgery but did suggest sacroiliac and piriformis injections.

In a chart note dated October 28, 2010, a neurosurgery consultant stated: "I certainly do not find today, any evidence of rotation of nerve roots or any evidence of radicular findings that would suggest any form of neurosurgical treatment would be of benefit to him." He reported that the worker had psoriatic arthritis about the sacroiliac joints which was a possible explanation for his low back complaints.

On January 6, 2011, the family physician reported to the WCB: "The exact diagnosis is becoming cloudier as he has two sites of pain. The first is low back radiating down the back and into the left leg. The second pain originates in the sacroiliac area and is very painful with any pressure to that area. He is slowly improving but I feel he cannot return to driving heavy rough equipment."

On January 10, 2011, the worker was seen at the WCB for another call-in assessment. In response to questions posed by primary adjudication, the WCB medical advisor indicated that the probable diagnosis related to the compensable injury was L5-S1 disc protrusion with possible left S1 radiculopathy and that the natural history for recovery was six to nine months. He further stated: "If one accepts the fact that the workplace injury, that is gradual onset of pain in his lower back and left leg which appears to be related to the grind and wear and tear of heavy equipment operating, then the diagnosis on today's examination is likely causally related to that workplace injury. Again, from today's examination, no alternative diagnosis or other compensable diagnosis is apparent…Based on today's examination as well as the file review, it does not appear that there is a significant pre-existing condition prolonging the response and recovery phase from the compensable injury."

In March 2011 the worker underwent an infiltration of the zygapophyseal joints and recurrent nerves L3-4, L4-5 and L5-S1. On April 19, 2011, the neurosurgeon reported that the infiltration was not able to provide the worker with the necessary pain relief and he recommended that the worker pursue a regular physiotherapy program with the goal of stabilizing the lumbosacral segment.

In a May 2, 2011 report, a physical medicine and rehabilitation specialist noted that the worker had a non-specific clinical presentation. His neurological examination was normal and weakness appeared to be non-neurogenic. It was felt that the worker's symptoms were possibly related to a painful disc at L4-5. Other possibilities outlined were facet and sacroiliac joint pain. A reconditioning exercise program was recommended as a form of treatment.

On June 21, 2011, the worker commenced a reconditioning program and was later cleared to return to work. On August 11, 2011, the worker returned to work for four hours but quit due to pain complaints.

Subsequent medical reports showed that the worker underwent a bone scan on October 6, 2011 which appearance suggested facet arthropathy but showed no evidence of sacroiliitis and trochanteric bursitis.

An MRI on the sacroiliac joints performed on December 8, 2011 to investigate sacroiliitis showed no marrow edema or erosive changes. Additionally, no significant disc protrusion or herniation could be seen in the lumbar spine.

On February 1, 2012 a WCB orthopaedic consultant responded as follows to questions posed by primary adjudication:

  • the current diagnosis is nonspecific low back pain. Following the initial MRI, the diagnosis of the compensable injury was felt to be a left lumbar disc herniation (the call-in examination in June 2010).
  • appropriate conservative management could be expected to lead to recovery in six to nine months time. This was confirmed by the recent MRI of December 8, 2011 which has identified no persisting abnormality in the lumbar spine.
  • there was no pre-existing condition that significantly prolonged the worker's recovery from the compensable injury. In January 2011, the family physician referred to the sacroiliac joint as being a source of pain; this was felt to be a pre-existing condition. Subsequent investigation had ruled out the sacroiliac joints as being a source of pain.
  • the worker's current presentation is not medically accounted for in relation to the compensable injury. Imaging evidence of lumbar disc herniation has resolved.
  • the restrictions dating from September 23, 2011 are rescinded.

By letter dated February 14, 2012, the worker was advised that the WCB could no longer medically account for any ongoing symptoms to be related to the February 16, 2010 workplace accident and that wage loss benefits would be paid to February 17, 2012 inclusive and final. The decision was based on the medical information on file including the opinion outlined by the WCB orthopaedic consultant dated February 1, 2012.

On February 21, 2012, the worker appealed the February 14, 2012 decision and the case was forwarded to Review Office for consideration. The worker contended that he still had low back and shooting pain down the left leg and that his treatments with physiotherapy and a chiropractor were beneficial but progress was slow. He noted that his physiotherapist and chiropractor had both requested more treatments but their requests were denied by the WCB.

On April 18, 2012, Review Office determined that the worker was not entitled to benefits after February 17, 2012. Review Office stated that it could not find the evidence to support a continuing cause and effect relationship between the worker's current symptoms and the compensable injury.

On July 24, 2012, the worker asked Review Office to reconsider its decision of April 18, 2012 based on a report from his chiropractor dated July 19, 2012.

On September 17, 2012, Review Office advised the worker that the evidence did not support a change in its previous decision of April 18, 2012. Review Office stated that it accepted that the February 16, 2010 compensable injury was initially diagnosed as a spinal-pelvis strain/sprain joint dysfunction. The mechanism of injury involved the operation of an older front end loader which the worker found very rough to operate for approximately a two month period. A specific event did not occur.

Review Office referred to the October 6, 2011 bone scan findings suggestive of facet arthropathy at T12, L1 and L2 and trochanteric bursitis. No other abnormalities were identified. It stated the medical evidence supported the disc protrusion identified on the June 25, 2010 MRI had resolved. Review Office stated that it agreed with the WCB orthopaedic consultant's opinion of February 1, 2012 that his current presentation and the need for restrictions were not medically accounted for in relation to the compensable injury. On September 27, 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(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. 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.

The Worker’s Position

The worker was self-represented at the hearing. In his Appeal of Claims Decision form, the worker submitted that the issues with his back had not resolved and he was still unable to work. His doctors had all recommended that he quit operating heavy equipment. With respect to his claim, the worker felt that the WCB placed too much emphasis on the opinion of the WCB orthopaedic consultant and did not take all the facts into consideration.

At the hearing, the worker stated that he had seen many doctors for his low back and they had identified a disc protrusion and a sacroiliac condition. Although the MRI showed that the protrusions were now gone, he was still dealing with the sacroiliac condition. To date, he was still unable to perform more than two or three hours of activity, before he needed to take a break. After the WCB discontinued his benefits, he began treatment with a chiropractor, who advised him that it was his sacroiliac area which was causing his issues. The worker had been seeing the chiropractor for nine or ten months and his condition was slowly getting better, but it was taking time.

The Employer’s Position

A representative from the employer appeared at the hearing. The employer’s position was that the WCB decision should be upheld. It was noted that the worker had his own business in maintaining a trucking fleet and the employer questioned whether the worker's loss of earning capacity could be offset by his self-employment. It was also noted that the worker had been seen operating the vehicles, which would suggest that he had been operating heavy equipment.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 17, 2012. In order for the appeal to be successful, the panel must find that the ongoing low back difficulties experienced by the worker are related to the injuries he sustained in the February 16, 2010 workplace accident. We are able to make that finding.

At the hearing, the worker was asked to describe the difficulties he was continuing to experience in his low back area. He identified the lower left hand side of his back, below the belt line. He felt it was generally a few inches away from the spine, but when sufficiently aggravated, the pain radiated back into the spine and down to the tailbone. While in the earlier stages of his claim, he experienced radiation, numbness and shooting pain down the back of his leg, he described this pain as now being "very minimal" and would only occur if he walked for an extended period of time (for example, one and a half hours of walking in a mall).

Since approximately March 2012, the worker had been receiving treatment from a chiropractor. In a four page narrative report dated July 19, 2012, the treating chiropractor identified the worker's ongoing difficulties as arising from a compromised sacrum and sacroiliac joints, associated with surrounding musculoligamentous findings. The report reviewed the medical evidence surrounding the worker's claim and noted that the sports medicine specialist (September 2010), the neurosurgeon (October 2010) and physical medicine specialist (May 2011) all identified the sacroiliac joint as potentially being the source of the worker's symptoms. It was also noted that although the bone scan of October 6, 2011 reported no evidence of sacroiliitis, this would not rule out a sacroiliac fixation and torqued pelvis. The treating chiropractor questioned the WCB orthopaedic consultant's statement that: "subsequent investigation has ruled out the sacroiliac joints as being a source of pain."

After reviewing the evidence as a whole, the panel is satisfied on a balance of probabilities that after February 17, 2012, the worker continued to suffer from an injury to his sacrum and sacroiliac joints which was caused by the workplace accident of February 2010. The sacroiliac joint region was consistently identified as an area of injury right from the outset of the claim and was accepted as compensable by the WCB medical advisors until the February 2012 review by the WCB orthopaedic consultant. On reviewing the WCB orthopaedic consultant's opinion, it would appear that he relied primarily on the bone scan and MRI imaging results indicating no evidence of sacroiliitis to conclude that the sacroiliac joints would not be a source of pain. The panel, however, accepts the opinion of the treating chiropractor that even in the absence of sacroiliitis, there could still be an ongoing injury to the sacrum and sacroiliac joints.

With respect to the employer's concerns that the worker had been seen operating vehicles, the panel accepts the worker's evidence that the extent of his driving heavy equipment was limited to driving his air ride cab truck a few miles home from the shop. Any attempts to return to operating large equipment like a loader had been unsuccessful. In view of the consistent findings from multiple medical treatment providers, the panel accepts the worker's evidence that he has not been operating heavy equipment and that the effects of his compensable injury continue to prevent him from performing this type of work.

For the foregoing reasons, the panel finds that the worker is entitled to benefits after February 17, 2012. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 21st day of February, 2013

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