Decision #29/13 - Type: Workers Compensation
Preamble
A hearing was held on January 30, 2013 to consider the matters.Issue
Injury occurring September 3, 2008
Whether or not the worker is entitled to additional wage loss or medical aid benefits; and
Injury occurring May 5, 2009 or November 20, 2009
Whether or not the claim is acceptable.
Decision
Injury occurring September 3, 2008
That the worker is not entitled to additional wage loss or medical aid benefits; and
Injury occurring May 5, 2009 or November 20, 2009
That the claim is not acceptable.
Decision: Unanimous
Background
The worker filed a claim with the WCB for pain in her low back which came about on September 3, 2008 while performing her duties as a nursing assistant. On September 4, 2008, the worker was diagnosed with a mechanical low back strain. The claim for compensation was accepted and benefits were paid to the worker while she attended physiotherapy treatments. By late November 2008, the worker returned to her regular work duties.
In March 2011, the worker contacted the WCB to advise that she was having further difficulties with her low back which she related to the September 3, 2008 accident. File records also showed that the worker resigned from her employment on December 2, 2010.
Medical information was then requested by the WCB which showed that the worker underwent a CT scan of the lumbar spine on December 10, 2010. The radiological report stated that there was a large left paracentral disc herniation seen at the L3-4 level. It appeared that the exiting nerve root at this level was normal, but posterior displacement and irritation of the left L4 nerve root was suspected. At L4-L5, there was a broad disc bulging without evidence of focal disc herniation or nerve root compression. No definite abnormality was evident at L5-S1 level.
A chiropractor's first report for an examination dated December 10, 2010 indicated that the worker was disabled from work. The diagnosis was lumbosacral dysfunction with disc herniation.
On May 2, 2011, the worker was assessed by a physical medicine and rehabilitation consultant. His impression of the worker's condition was: "The spinal imaging has shown a small disc protrusion, which is likely incidental. The lower limb referred-type symptoms are not typically neurogenic and there are no alterations of neurological function that would implicate nerve root impingement." The treatment plan was for the worker to do home exercises and to return to work despite ongoing symptoms.
In a May 26, 2011 report, the treating physician reported that the worker attended the office on November 20, 2009 for ongoing low back complaints and she was referred to physiotherapy. The next visit was November 2, 2010 where the worker complained of left leg pain for two weeks which she related to repetitive bending and lifting at work. The worker showed signs of left sciatic irritation with left SLR 30° and decreased ankle reflex. The physician reported that the worker continued to work without notification to the WCB. With respect to current diagnosis, the treating physician's opinion was "musculoligamentous strain of lumbosacral area related to September 3, 2008 injury."
In a June 13, 2011 report, a physiotherapist reported that the worker attended for treatment six times from December 2, 2009 to January 15 and 2 more visits on March 5 and 10. The worker reported that her ongoing pain dated back to an injury one year previously. The worker said her pain was now chronic, constant in nature, and aggravated further when transporting patients during her work as a nursing assistant. The physiotherapist outlined his examination findings and stated: "One year post injury it's impossible for me to say with any certainty that her ongoing problem was directly caused by a work related injury. [The worker] reported that her pain started with a work related injury and was ongoing since. It seems reasonable that the initial and ongoing are therefore connected, but based on the reported history, not my findings. Her current problem was work related repetitive stress in nature and was treated as such."
At the request of primary adjudication, a WCB medical advisor reviewed the worker's current claim along with several prior claims on July 27, 2011. It was the medical advisor's opinion that the current diagnosis was nonspecific low back pain based on the treating physiatrist's May 2, 2011 examination and the treating physician's examination findings of July 25, 2011. The medical advisor outlined a rationale to support his position that the worker's current lumbar pain did not appear to be related to the September 3, 2008 workplace accident.
On August 9, 2011, the worker was advised that a relationship between the development of her recent symptoms and the compensable injury of September 3, 2008 had not been established. Therefore, responsibility would not be accepted for any wage loss or medical treatment beyond February 2, 2009.
On August 5, 2011, the worker advised the WCB that her ongoing problems were related to the repetitive nature of her work duties. The adjudicator advised the worker to file a new claim if she thought her problems were related to her work duties in general rather than the accident of September 3, 2008.
The worker then filed a claim with the WCB on August 5, 2011 for low back symptoms that came about on May 5, 2009. The worker said it was very painful to bend and now she had burning and tingling in her left leg. The worker believed that her injury was caused from pushing heavy equipment all day long which she did for more than a year.
A physiotherapy report dated May 5, 2009 noted that the worker woke up two days prior with a "wry" neck which began at home.
An Injured Workers Program - Referral form dated December 2, 2009 indicated that the worker's area of injury was a muscular strain of the lumbosacral area.
On August 9, 2011, the worker was contacted by the WCB for additional information. The worker indicated that her symptoms started when she had a shift change in November 2008. The job was more difficult and more physical. It involved pushing more stretchers and wheelchairs and lifting more linens. She worked these duties until she was terminated in December 2010. The worker noted that in May 2009 she attended physiotherapy through the injured worker's program. She was not sure what she told the physiotherapist about the cause of her symptoms when she attended these appointments.
The adjudicator spoke with the employer to obtain additional information. The employer indicated that the worker did not report a work related cause to account for her back difficulties.
In a decision dated August 11, 2011, the worker was advised that her claim for low back difficulties was not acceptable based on the following factors: An "accident" had not been established; the inconsistencies in reporting the development of her symptoms; and delay in reporting a workplace cause to the employer. On August 30, 2011, the worker appealed the decision to Review Office. The worker noted that the correct date of accident was December 2, 2009 and not May 5, 2009.
On November 17, 2011, Review Office determined that the worker's claim was not acceptable. Review Office indicated that it was unable to establish that the worker sustained a back injury on May 5, 2009 that arose out of and in the course of her employment. Review Office further stated that the medical information did not support that the worker injured her back on December 2, 2009 or that the worker reported an injury to her employer or that the medical attention she sought on December 2, 2009 was due to a work related injury. Therefore it was unable to establish that the worker's "chronic sore back" arose out of and in the course of her employment.
In March and April 2012, the worker met with WCB staff members to discuss her 2008 and 2009 claims.
On April 17, 2012, a WCB medical advisor spoke with the treating physician. The treating physician reported that her last visit with the worker in 2008 was on October 30, 2008. Their next visit was in May 2009 for torticollis/upper back pain. On November 20, 2009, the worker was seen for a routine physical when she mentioned that she was assisting a patient at work when she twisted her back. The exact date of injury was not documented. The next visit was on November 2, 2010 when the worker presented with a 2 week history of left leg pain. It was thought that this was also work-related and the physician recalled asking the worker whether she should file a claim on her behalf; however, the worker declined. The physician noted that she saw the worker limping during November-December 2010. The physician opined that the current reported low back pain, which seemed to be improving, was related to the 2008 low back strain injury as well as to other workplace injuries which were unfortunately not reported/documented to the employer and to the WCB.
On April 18, 2012, the worker was advised by the WCB that following a review of her recent submissions and a discussion with her treating physician, the decision to deny recurrence of her September 3, 2008 back injury was upheld.
On August 10, 2012, Review Office considered an appeal from the worker related to her entitlement to additional wage loss or medical aid benefits. Review Office indicated that the file evidence established that the worker's September 3, 2008 injury was most likely a mechanical low back strain, with initial reported symptoms of low back pain and pain into the right leg with right foot paraesthesia. When the worker was discharged from physiotherapy treatment in December 3, 2008 the worker had full strength and range of motion with only minimal complaints of pain towards the end of her shifts. During a conversation with a WCB representative on January 29, 2009, the worker confirmed that she was feeling very good and was not experiencing any ongoing low back problems. This suggested that the worker made a relatively uneventful recovery from the mechanical low back strain which she sustained on September 3, 2008.
Review Office noted that when the worker was seen for medical treatment in May 2009, her complaints were of upper back and neck problems rather than the low back area that had been injured in September 2008. The physical examination in November 2009 suggested she had injured her back assisting a patient at work. When seen again on November 2, 2010, the worker complained of a two week history of left leg pain as opposed to the right-sided problems she had experienced after her injury on September 3, 2008. Review Office therefore was unable to establish a causal relationship between the worker's ongoing low back complaints and the injury she sustained on September 3, 2008. In September 2012, the worker appealed Review Office's decisions of August 10, 2012 and November 17, 2011 and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
This appeal deals with two claims. The worker has an accepted claim arising from a 2008 workplace injury. The worker's wage loss and medical aid were terminated on the 2008 claim, as the WCB found the worker had recovered from the injury. The worker filed a second claim related to her medical condition and wage loss which arose after the 2008 claim.
The panel must determine whether the worker is entitled to further wage loss benefits on the 2008 claim under subsection 39(2) of the Act which provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends. The panel must also determine whether the worker is entitled to further medical aid benefits on the 2008 claim pursuant to section 27 of the Act.
With regards to the 2009 claim, the panel must determine whether the claim is acceptable. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
Worker's Position
The worker attended the hearing with a friend. The worker explained her reasons for appealing.
With respect to the 2008 and 2009 claims, the worker advised that the symptoms arose from the 2008 injury and there was no separate accident in 2009. She said "…it was the same claim I was referring to and then the new claim only as additional information that was from the original claim that was always my back problem, the same area, but this time affecting my left leg."
The worker described her September 3, 2008 accident which occurred when she was replacing oxygen tanks on stretchers. She said that she was able to return to work by November 24, 2008. At that time she returned to full duties, but continued to wear a special belt and was taking medications although the pain was not too intense. She said that "I wasn’t completely full recovered. I was always in a little pain there."
She said that in May 2009 she obtained physiotherapy for her neck, and in December 2009 she had physiotherapy for her back.
When asked by the panel about her condition in late 2009, the worker replied "I'm going to parties, remember I was going to Christmas party, I was just having the time of my life when I - when after I become worse and worse and worse…"
The worker advised that she worked in the same unit from September 28, 2009 until December 2, 2010. She described her work as "… transferring patients from bariatric stretchers by myself with equipment and patients and belongings to a fourth floor, where my nurse was by herself with patients and I didn’t have any help…All of this pulling and pushing and lifting and stretching and everything I couldn’t take it anymore and I feel my leg was palpitating like a heart."
The worker advised that she was terminated from her employment on December 2, 2010. She said that from December 10, 2010 to March 14, 2011 she received chiropractic treatment which was covered by her health plan. She received employment insurance sick and regular benefits after her termination. She advised that she has not returned to work.
The worker was asked whether she expected to work her full shift on December 2, 2010, the day that she was terminated.
Q. Did you go to work expecting to be able to finish your shift?
A. Yes, I was working every day.
Q. So did you expect to be able to work the next day?
A. Yes, I was working every day. I was taking medication…
Regarding her current condition, the worker advised that she is at home. She said that she cannot do much, "… I barely can get up and dress myself slowly."
The worker noted that her treating physician provided a letter supporting her contention that her symptoms are related to the 2008 workplace accident. The worker advised that she has a long history of back injuries starting in 1995 and including the 2008 claim, which have cumulatively caused her current condition.
The worker also referred to the December 18, 2010 CT of the lumbar spine which she said confirms she has a serious back injury.
Employer's Position
The employer was represented by an advocate. The employer's occupational health nurse attended the hearing.
The representative outlined the employer's position on both claims. She said that "…the medical evidence does show that she had recovered from the compensable back strain of September 3rd, 2008 by just months later, by November 2008, returning to work in her regular duties without complaint."
The representative noted that the worker said in January 2009 that she was feeling good and had no difficulties. She continued to work for the employer without complaint.
The representative disagreed with the worker's treating physician's opinion that the worker's current diagnosis of musculoligamentous strain was related to the September 2008 injury. The representative noted that the physician provided no medical substantiation for the opinion.
The representative said that over two years had elapsed since the worker's last contact with the WCB in January 2009 and her call to WCB in March 2011 claiming that she had ongoing back problems due to the compensable injury. She also noted that the treating physiotherapist provided a letter on June 13, 2011 which connected the worker's current and past difficulties and that the physiotherapist said his opinion was based solely upon the worker's reported history, not his actual findings.
Regarding a new claim, the representative submitted that "There's no indication of a new injury occurring. There's no indication that her continuing complaints are related back to the old, so we would ask the panel to deny [the worker's] appeal ..."
Analysis
2008 Claim: Whether the worker is entitled to additional wage loss and medical aid benefits.
For the worker's appeal to be successful on this issue, the panel must find that the worker did not recover from the 2008 injury and continues to be entitled to wage loss and medical aid benefits due to the injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker recovered from the 2008 injury and is not entitled to additional wage loss or medical aid benefits arising from this injury.
In arriving at this conclusion, the panel relies upon the following:
- October 30, 2008 note from the treating physician indicating the worker can return to full regular duties.
- February 2, 2009 discharge report by treating physiotherapist indicating that on December 3, 2008, the worker had full range of motion and full strength. The report also noted that the worker had resumed full duties with minimal pain.
- January 29, 2009 WCB file note indicating that the worker attended at the WCB and advised that she was back to work full-time and duties. The file note also indicates that the worker advised she was feeling very good with no ongoing problems.
- The worker's evidence at hearing that in late 2008 and early 2009 she was feeling well, attended a Christmas party and was "having the time of my life."
- July 27, 2011 memo from WCB medical advisor opining that worker's current lumbar pain was not related to the September 3, 2008 injury. The physician commented, in part, that:
· the September 3, 2008 injury diagnosis was in keeping with a lumbar strain which was the opinion of the treating physician on September 4, 2008 who diagnosed mechanical low back strain.
· the natural history of a lumbar strain is for functional recovery within 2 to 12 weeks which is consistent with the worker's course of recovery.
· there is an absence of a structural lesion on a December 18, 2010 on a lumbar CT report that would causally relate to the prior injury.
· the current diagnosis was non-specific low back pain based on the treating physiatrist's May 2, 2011 examination findings.
· there is an absence of a temporal relationship between reported recurrence and of low back pain and the September 2008 injury. The physician noted that the worker did not seek further physiotherapy treatment until December 2009 -January 2010 and March 2010 approximately one year after her functional recovery from the 2008 injury.
· the worker did not report further symptoms to the WCB until March 2011.
The panel notes the report of a physiotherapist dated June 13, 2011. The physiotherapist states that it seems reasonable that the initial and ongoing symptoms are connected. However, the physiotherapist qualifies his comment by noting it is "…based on the reported history, not my findings." The panel does not place weight on this report as it is not based on findings from examinations, nor is it consistent with the other evidence on the file regarding the lack of continuity of symptoms.
The panel also considered the May 26, 2011 report from the treating physician. In this report, the physician comments that "In my opinion current diagnosis of musculoligamentous strain of lumbosacral area is related to September 3, 2008 injury." The panel is not able to rely on this report as the physician provides no medical support for the statement. The panel also notes that this opinion is not consistent with previously referenced evidence showing the worker had recovered from the 2008 injury by December 2008.
The worker advised the panel that she had a CT of her back which confirms that she injured her back. The panel reviewed the CT report dated December 18, 2010. The panel finds that the CT report does not support the worker's contention. As noted by the WCB medical advisor in his July 2011 memo, there were no left lower extremity radiculopathic symptoms and objective neurological deficits noted near the date of the injury.
The worker's appeal of this issue is dismissed.
2009 Claim: Whether the claim is acceptable.
At the hearing, the worker said that she had a long history of back problems arising from her employment. She contended that her symptoms in May and November 2009 and thereafter were not due to individual accidents but were a continuation of her 2008 injury and the effect of years of hard work.
In order for the appeal of this issue to be successful, the panel must be satisfied, on a balance of probabilities, that the worker's back condition in 2009 and thereafter, was caused by the worker's job duties. The panel was not able to make this finding.
After reviewing the evidence as a whole, the panel is unable to find that the claim for a cumulative injury arising from her employment is acceptable. The panel is also unable to find, on a balance of probabilities, that the worker sustained work-related injuries in May or November 2009.
The evidence does not establish that the symptoms complained of in May and November 2009 were related to the worker's employment. The worker did not advise the employer that she sustained work related injuries at these times.
The worker advised that she has been unable to work since December 2010 when she was terminated by her employer. The panel notes the hearing transcript of the worker's evidence regarding her ability to work on and after December 2, 2010: The worker was asked if she was able to perform her regular duties every single day, she replied "I was performing but slowly, yes." The worker confirmed that she attended the workplace on December 2, 2010 expecting to work a full day. She also acknowledged that she expected to work the next day.
This information suggests that the worker was able to work on and after December 2, 2010, contrary to her assertion that she could not work after this date due to a workplace injury.
The panel notes that the worker was referred by her treating physician to a physiatrist. The physiatrist reported on May 2, 2011. He reviewed the CT report and commented that the CT showed a small disc protrusion, which is likely incidental. He noted that the lower limb referred-type symptoms are not typically neurogenic and there are not alterations of neurological function that would implicate nerve root impairment. He commented that "At this time I can see no reason that she should continue to stay off work…"
Finally, the panel notes that the worker had an x-ray of her lumbosacral spine in May 2012. The x-ray found no evidence of fracture but did find evidence of degenerative disc space disease. The panel finds that the x-ray does not support a work-related cause for the worker's current disability.
The panel finds that the worker did not sustain an accident as provided by the Act. The worker's appeal of this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 5th day of March, 2013