Decision #39/13 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his ongoing difficulties were unrelated to his compensable tailbone injury and therefore he was not entitled to benefits after February 8, 2011 or for the surgery that took place on August 6, 2010. A hearing was held on November 15, 2012 to consider these matters.

Issue

Whether or not responsibility should have been accepted for the worker's August 6, 2010 surgery; and

Whether or not the worker is entitled to benefits after February 8, 2011.

Decision

That responsibility should have been accepted for the worker's August 6, 2010 surgery; and

That the worker is entitled to benefits after February 8, 2011.

Decision: Unanimous

Background

On June 24, 2009, the worker injured his tailbone in a work-related accident. Following a bone scan assessment on August 7, 2009, the worker was diagnosed with an undisplaced fracture of his coccyx. File records also showed that the worker has a past medical history of a low back injury which occurred in the late 1980s and that he underwent a discectomy and lumbar fusion in 1992 and then a spinal cord stimulator insertion in 2000.

On November 4, 2009, the worker was seen by a WCB medical consultant for an assessment of his medical status. The worker complained of pain in his tailbone area and recently some radiation of pain into the upper back and into the shoulders. The consultant noted that the worker's extensive lower back dysfunction history would have an impact on his recovery time from his coccyx injury. Treatment suggestions included a course of physiotherapy and a referral to a pain clinic to discuss the issue of mal-positioning of the stimulator leads. The medical consultant noted in the referral letter to the pain clinic dated November 18, 2009, that the symptoms of pain radiating up the back and into the shoulder was, in his opinion, unrelated to the coccyx fracture but may be related to the movement of the leads of the stimulator.

On January 25, 2010, a WCB case manager referred the worker's file to the WCB's healthcare branch to review medical information on file from the worker's treating physiotherapist, a report from the pain clinic, an ultrasound report dated January 19, 2010, a report from the attending physician dated January 18, 2010, and medical reports dating back to 2003 concerning the worker's back condition. On March 2, 2010, the WCB medical consultant responded as follows to questions posed by the case manager:

  • the initial diagnosis of June 24, 2009 was a fractured coccyx. There was no pre-existing conditions related to the worker's coccyx and a resolution of symptoms was expected in 2 to 3 month's time.
  • the bilateral shoulder pain noted in the pain clinic report was not related to the workplace injury. Despite the worker's initial impression that the leads of his stimulator had moved following the workplace accident, this was not supported by the current medical evidence.
  • the worker's current injury had caused an exacerbation of his pain symptoms and the use of medications by the worker was reasonable.
  • the compensable injury likely aggravated the worker's pre-existing condition and the aggravation continues.
  • the prognosis was poor for the worker to return to his pre-injury status given his significant history of back dysfunction.

The worker was seen by a neurologist on April 6, 2010 and nerve conduction studies and EMG tests were carried out. In his report dated April 6, 2010, the neurologist noted that a CT scan of the worker's cervical spine, neck, low back and thoracic spine had been taken. There were no significant abnormalities of the neck to explain his symptoms. The neurologist noted that the worker complained of pain in the arms and a sense of paraesthesia in his hands. There was no definitive clinical or electrophysiologic evidence to suggest a cervical radiculopathy or ulnar neuropathy. The neurologist noted entities of rotator cuff tendinopathy and tennis elbow.

On June 22, 2010, the pain clinic physician requested authorization from the WCB for a stimulator revision. On July 14, 2010, a WCB medical advisor commented as follows:

The initial diagnosis for the June 24, 2009 workplace injury was a fractured coccyx and in the aggravation of his pre-existing lumbar spine disease. The worker continues to experience significant low back symptoms that date from the time of the June 24, 2009 work place injury. [The pain clinic specialist] has requested authorization from the WCB for spinal stimulator revision. The need for spinal stimulator revision is likely due to a combination of pre-existing, significant lumbar spine disease and aggravation of his lumbar spine disease that occurred on June 24, 2009. The worker had significant spinal symptoms from the late 1980s, had spinal surgery in early 1990s but resulted in significant prolonged pain. This pain was later controlled about 10 years after the spinal surgery via the placement of the spinal stimulator. The aggravation of the lumbar spine disease has not resolved since the June 24, 2009 workplace injury. Therefore, it is likely a combination of pre-existing illness and aggravation of pre-existing illness is contributing to his present symptoms, making the revision of the spinal stimulator needed. Based on continuity of symptoms the June 24, 2009 workplace injury is likely contributing to a material degree to the worker's current symptoms. As yet, there is no evidence to show that the aggravation has resolved, based on the continuity and severity of symptoms.

On July 20, 2010, the WCB accepted financial responsibility for the costs associated with the revision of the spinal cord stimulator. The procedure was performed on August 6, 2010.

The physiotherapist reported on October 14, 2010, that the worker continued to have low back pain and that he would be capable of a graduated return to work and increasing his hours. In a further report dated December 10, 2010, the worker complained of extreme left buttock, low back and leg pain.

On January 5, 2011, a WCB case manager noted to the file that the worker was reporting symptoms of pain from his neck, all the way down his left arm, down his back to his buttocks and down the front of his left leg into his toes. The worker reported that he was unable to sit or stand for periods greater than 30 minutes. She noted the treating physiotherapist found no improvement in the worker's condition despite treatment.

On January 25, 2011, a WCB orthopaedic consultant saw the worker for a medical assessment. The consultant noted the pre-existing condition of multiple lumbar spine surgeries and spinal cord stimulator implantation. The examination failed to demonstrate any evidence that the compensable injury of this claim had caused an aggravation or enhancement of the pre-existing condition. The worker stated that the stimulator was working well and he no longer was taking any prescription medication. The consultant stated that the worker completely recovered from the injury to his coccyx. He noted that the mild left carpal tunnel syndrome was a condition that was not the WCB's responsibility. The consultant stated that the examination was complicated by demonstration of extreme pain behavior and symptom amplification, including catastrophic behavior, inappropriate tenderness, SLR simulation, breakaway weakness and marked over-reaction. The consultant further stated that in his opinion, the work restrictions outlined on December 15, 2010 were no longer applicable. The consultant was of the view that the repeat CT examination of the cervical and dorsal spines were not a financial responsibility of the WCB.

On February 1, 2011, a WCB case manager wrote the worker to advise that his wage loss benefits would be paid to February 8, 2011, as the WCB was of the opinion that he no longer had a loss of earning capacity in relation to his June 2, 2009 workplace injury. The case manager made reference to the findings of the WCB orthopaedic consultant of January 25, 2011. She also noted that the worker's bilateral shoulder and left wrist pain conditions were not the responsibility of the WCB as she was unable to establish a relationship between these injuries and the June 24, 2009 workplace injury to his tailbone.

On April 8, 2011, the worker provided the WCB with additional medical information to support that he had not recovered from his June 24, 2009 work injury and was unable to return to his pre-accident work.

The new medical information was forwarded to the WCB's orthopaedic consultant for comment. On April 27, 2011, the consultant outlined his opinion that the March 14, 2011 report from the family physician which indicated that the fall aggravated the worker's whole spine was not supported by clinical evidence. The report from the pain clinic dated March 31, 2011 indicated that the worker still had a lot of back and buttock pain in spite of the stimulator and that a CT scan of the worker's neck simply showed some degenerative disc disease. The consultant indicated that the pain clinic physician was not indicating that these symptoms were related to the compensable injury of this claim. The consultant confirmed that at the time of the WCB call in exam on January 25, 2011, the worker had fully recovered from this compensable injury of possible undisplaced fracture of the coccyx. He noted as well the new medical reports did not comment on the gross symptom amplification and catastrophizing behaviour indicated at the time of the call examination.

On May 3, 2011, the worker was advised by his case manager that the previous decision remained unchanged as the new information did not provide any new evidence to support that a relationship continued to exist between his current symptoms and the injury he sustained in his tailbone at work on June 24, 2009.

On November 1, 2011, the WCB orthopaedic consultant was asked to comment on whether responsibility should have been accepted for the August 6, 2010 revision of the worker's spinal cord stimulator. His response included the following:

What are the medical findings to support the compensable injury of June 24, 2009 materially contributed to the development of difficulties with the worker's spinal cord stimulator?

From the file details noted above, it is clear that the first indication of a possible problem with the stimulator leads was six months after the injury, which was accepted as a diagnosis of at most, an undisplaced fracture of the coccyx and a bruise/hematoma to the left buttock. Much of this was based on a bone scan of August 7, 2009. There is no direct evidence noted on file to link the compensable injury to difficulties with the spinal cord stimulator.

What would cause a "severe kink in the lead coming directly from the battery" and "fluid within the lead at its connection" to the Resume (stimulator)?

Note that the battery and its connections are located in the flank area of the subcutaneous tissues of the abdominal wall, quite remote from the coccyx. The severe kink was certainly not the result of any aspect of the compensable injury, but was part of the ongoing problems with these leads as noted above. It suggests a chronic change in the alignment and connection of these leads from the stimulator to the battery. The stimulator is located in the lower dorsal spine region. As for fluid within the lead, this also suggests a gradual change related to the effects of mobility of the implants.

What medical evidence supports these operative findings are related to the compensable injury of June 24, 2009?

See above. The operative findings do not identify a direct relationship between the lead/battery problem and the compensable injury.

Would the findings involving the L3, L4 and L5 as noted on the February 16, 2010 CT scan be of clinical significance in relation to the June 24, 2009 compensable injury?

The current imaging studies of the lumbar spine identify the gradual clinical progression of the non-compensable pre-existing condition of lumbar disc degeneration with multiple surgeries. The compensable injury did not aggravate or enhance the pre-existing condition.

On November 4, 2011, Review Office determined that responsibility should not have been accepted for the August 6, 2010 surgery. Review Office pointed to particular file evidence to support that the revision of the spinal cord stimulator was not related to the June 24, 2009 compensable injury.

Review Office also determined that there was no entitlement to benefits after February 8, 2011. It found that the worker's compensable injury of an undisplaced fracture of the coccyx was no longer contributing to the worker's difficulties after February 8, 2011. It noted that in October 2009, the worker's problems according to his physician were unrelated to his back and appeared to be totally related to the tailbone. However the main focus of treatment had been the shoulders, neck and lower back since December 2009. Review Office noted that the worker was considered recovered from his compensable injury at the time of the January 25, 2011 call in exam.

Review Office noted that based on various diagnostic test results on file, the worker had pre-existing conditions in his lumbar spine which did not have a causal relationship with the June 24, 2009 compensable injury. It said it was unable to find evidence to support that the pre-existing conditions were enhanced. It also referred to file evidence to support that the worker's complaints regarding his shoulders, legs, left arm and neck were not attributable to the compensable injury. On November 17, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing the appeal panel requested further medical information from the worker's treating pain clinic specialist. A report was later received and was forwarded to the worker for comment. On February 8, 2013, the panel met further to discuss the case and render its final 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.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

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 assisted by legal counsel at the hearing and was accompanied by his wife. It was submitted that the workplace accident aggravated the worker's entire spine and that he was suffering more pain as a result of this aggravation. It was noted that although he had pre-existing back problems, he received a great deal of pain relief from his stimulator and was able to work without any real problems up until the time of the workplace incident. It was the worker's position that the problems arising with regard to his stimulator and with regard to his inability to work were the result of an aggravation of his previous existing back injuries caused by the accident on June 24, 2009.

Analysis:

The framed issues before the panel are whether or not responsibility should have been accepted for the worker's August 6, 2010 surgery and whether or not the worker is entitled to benefits after February 8, 2011. In order for the worker’s appeal to be successful, the panel must find that the injuries the worker sustained in the workplace accident of June 24, 2009 caused him to require the August 6, 2010 surgery. After careful consideration of both the evidence surrounding the worker's injury and the medical reports on file, the panel is satisfied that the workplace accident caused the worker to suffer an enhancement of his pre-existing lower back dysfunction. It is therefore our decision that the August 6, 2010 surgery was required as a result of the workplace injury and, further, that the worker is entitled to benefits after February 8, 2011.

There is no doubt that the worker had very significant pre-existing dysfunction in his lumbar spine. He had a history of low back difficulties with a laminectomy and lumbar fusion being performed in 1991. In 2000 he had a spinal stimulator implanted and prior to the workplace injury, the worker was reliant on the device to keep his lower back pain manageable.

The challenge for the panel in this appeal was to determine whether the workplace accident was responsible for his ongoing problems after February 8, 2011, or whether his problems simply reflected the gradual clinical progression of his non-compensable pre-existing low back dysfunction, which as noted earlier, was quite significant. Although in the earlier stages of the claim, two WCB medical advisors were prepared to accept that the workplace injury likely contributed to a material degree to the worker's continuing symptoms, the later opinion of the WCB orthopaedic consultant was that the evidence did not support an aggravation or enhancement of the pre-existing condition and that the operative findings from the August 6, 2010 surgery did not identify a direct relationship between the lead/battery problems and the compensable injury.

At the hearing, the worker (with the assistance of his wife who was of great help to the worker in recalling events), gave evidence regarding the functioning of his stimulator after the workplace accident. When forming his opinion, the WCB orthopaedic consultant relied on the information on the WCB file which suggested that the first indication of a possible problem with the stimulator leads was six months after the injury. This appeared to be derived from the pain clinic physician's letter dated December 29, 2009. The worker's evidence at the hearing was contrary to this information. The worker stated that in fact, he experienced problems with his stimulator immediately following his workplace accident. He was in contact with the pain clinic, and while he did not see the physician, he did receive assistance from the pain clinic staff in trying to get his stimulator to work properly. Prior to the workplace accident, he had had no problems with his stimulator since the battery was changed in October 2007.

Following the hearing, the panel requested copies of the medical charts from the pain clinic. The charts confirmed that between October 2007 and July 2009, there had been no contact from the worker. Commencing on July 3, 2009, there were a series of contacts with the worker who advised that he had a bad fall at work which resulted in increased pain in his back. The stimulator was only working intermittently and on July 9, 2009, the pain clinic staff reprogrammed the device. A subsequent entry on July 10, 2009 indicated that the worker was still complaining of fluctuations in intensity but that he would wait to see if it became unmanageable. The worker's evidence at the hearing was that throughout the fall of 2009, the stimulator continued to work erratically. The correspondence file documents the worker telling his adjudicator on October 14, 2009 that he believed one of his wires had moved when he fell. It is clear that by the time of the Call-in Appointment of November 4, 2009, mal-positioning of the stimulator leads was an issue the worker raised with the WCB medical advisor.

With respect to the location of the stimulator, the worker's evidence also differed from an assumption relied upon by the WCB orthopaedic advisor. While the WCB orthopaedic advisor believed the stimulator battery to be located in the flank area of the abdominal wall, in fact, the worker's evidence was that when the battery was changed in 2007, the device was relocated to a point just left of his spine, approximately four to five inches above the belt line. Thus the location of the battery and its connections was not as remote from the coccyx as was believed by the WCB orthopaedic advisor.

Other important evidence given at the hearing was the greater detail provided as to the mechanism of injury and the specifics regarding how the worker injured himself. He and his employer had been trying to get a three point hitch on a snow blower to attach, as it would not go down on its own weight. The worker stood on top of the snow blower when his left hip gave out and he fell straight down onto a steel lever which was in a vertical position. The lever was located about a foot below the level of where the worker had been standing, so the drop was quite significant. The worker's entire weight landed on a point just millimeters right of centre of his buttocks. He suffered a laceration at the contact point and had a fair amount of bleeding.

In the panel's opinion, the new information from the pain clinic creates a close temporal link between the workplace accident and the stimulator malfunction. The panel finds that, when combined with the evidence regarding the significant impact involved in the workplace fall and the relocation of the stimulator, this new information is sufficient to lead us to conclude on a balance of probabilities that the workplace accident caused the spinal stimulator to malfunction and become less effective.

The pain clinic physician's report of March 31, 2011 reported that:

He had previously been stable on a small amount of medication and the use of a spinal cord stimulator. He indicated at his last visit that he did have a fall at work sustaining an injury to his back and buttocks when he fell on a trailer hitch. Since that time he has had a significant increase in his pain associated with any activities. In spite of the fact that his stimulator does give him coverage he still has a lot of back and buttock pain … As I have indicated, he was fine until the fall which exacerbated his back and buttock pain … he was doing well and working until the fall and since that time has had worsening pain which has not been easy to manage…at present I believe he is not capable of returning to his pre-accident job as a farm hand.

The foregoing report supports that the worker's increase in low back difficulties can be traced back to the time of the workplace accident. In view of our earlier finding that the fall caused the stimulator to malfunction and therefore require surgery, by definition the aggravation of the worker's pre-existing condition has become an enhancement. As the worker has not been able to resume his pre-accident employment, we find that he is entitled to further benefits after February 8, 2011.

The panel notes that our decision is limited to a finding that the compensable injuries arising from the workplace accident include an enhancement of the worker's pre-existing lumbar spine dysfunction. This is in addition to the previous compensable diagnoses of an undisplaced fracture of the coccyx and a bruise/hematoma to the left buttock. We do not accept as compensable the complaints concerning his shoulders, neck and left arm, as we were not presented evidence to support a causal link between these complaints and the workplace accident.

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 March, 2013

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