Decision #50/13 - Type: Workers Compensation
Preamble
This appeal deals with the decision made by the Workers Compensation Board ("WCB") that the worker had recovered from the effects of his compensable injury and was no longer entitled to wage loss or medical aid benefits. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on March 20, 2013 to consider the matter.Issue
Whether or not the worker is entitled to further wage loss and medical aid benefits.Decision
That the worker is not entitled to further wage loss and medical aid benefits.Decision: Unanimous
Background
The worker filed a claim with the WCB for a low centre back injury that occurred on February 19, 2008. The worker described the accident as follows:
I was lifting a box weighing approximately 130 pounds. Myself and a customer picked up this box to put onto the truck. I wrenched my back when moving the box.
A doctor's first report dated February 21, 2008 indicated that the worker had decreased range of motion and decreased lordosis. The diagnosis was a low back strain. The physician prescribed medication and physiotherapy treatments. It was also felt that the worker was capable of performing sedentary duties with certain restrictions.
On March 27, 2008, the treating physician reported that the worker had lumbar back pain radiating bilaterally to the groins and down both legs with occasional sharp shooting pains. An MRI of the lumbar spine was suggested.
On April 30, 2008, the worker underwent an MRI of his lumbar spine. The MRI report stated that there was disc desiccation at L3-4 with a very minor disc bulge but there was no nerve root compression, central stenosis or exit foraminal narrowing. A similar appearance was present at L4-5. The L5-S1 level appeared normal. It was concluded that the worker had very minor degenerative changes with no nerve root compression.
File records showed that the worker has prior claims with the WCB related to back injuries sustained in the workplace between 1985 and 2005.
On August 6, 2008, the worker was seen at the WCB for a call-in assessment. The medical advisor indicated that the examination showed no evidence of the worker having any radiculopathy. There was good evidence of fixation of the right sacroiliac joint and some degree of loss of strength in the right leg associated with the pain complaints. There was also some evidence of possible sciatica related to the sciatic notch near the piriformis on the right buttock. Arrangements were made for the worker to see a chiropractor for his sacroiliac complaints.
On September 22, 2008, a WCB senior medical advisor noted to the file that the worker had a pre-existing condition in his back region/hip that was prolonging his recovery.
In October and November 2008, the worker underwent a reconditioning program. The final reconditioning report dated November 14, 2008 indicated that the worker was fit to return to full duties as planned on November 17, 2008.
In a letter dated November 14, 2008, the treating physician confirmed that the worker was returning to work on November 17, 2008.
At a WCB call-in examination in August 2009 for a work-related right knee injury, it was determined by the WCB medical advisor that the worker continued to suffer from low back and right SI joint discomfort related to his February 2008 claim. The WCB reinstated the worker's compensation benefits while he underwent further treatment for his back complaints.
On August 11, 2009, the worker underwent a second MRI of his lumbar spine to rule out an L4-5 disc protrusion. The results showed minimal age-related hypertrophic changes involving the L5-S1 facets. There was no central canal or foramina compromise. The impression was as follows:
Minimal degenerative changes within the L5-S1 facet joint; and
No focal disc protrusion or herniation.
On October 8, 2009, the treating physician reported that the worker had low back pain, right knee pain, his legs ache and he could not sit long due to pain.
In a report dated November 20, 2009 a physical medicine and rehabilitation specialist reported that he saw the worker for his low back and bilateral, right more than left, lower limb pain. He stated:
"The January 3, 2007 MRI study shows a shallow central disc herniation at L4-5 with an annular tear. The more recent studies from April 30, 2008 and August 11, 2009 are similar with the exception that the L4-5 disc herniation appears to have mostly resolved.
In summary, this patient has a clinical presentation consistent with pain of either neurogenic or pseudo-neurogenic origin. However, his MRI study does not show a compressive neurologic lesion that would correlate with his right thigh and hip weakness. This raises the possibility of metabolic causes (diabetes would be the most common) for his weakness pattern. His chronic low back and bilateral lower limb pain is still most consistent with intrinsic disc-mediated pain…Although his June 2009 x-ray did not show a right hip arthropathy, his clinical examination suggests that this joint may be affected by early degenerative change. It is possible that this could partially account for some of the observed wasting and weakness of the right thigh. The current clinical presentation is not consistent with a sacroiliac joint problem."
In a follow-up report dated December 15, 2009, the physical medicine and rehabilitation specialist stated: "The x-ray of the hip and EMG study were both unremarkable. Impression: Discogenic pain versus hip-mediated pain."
On December 7, 2009, the worker was seen by an orthopaedic specialist for low back pain with radicular leg symptoms bilaterally. The specialist stated:
"This 63 year old right-handed gentleman has been reporting long-lasting low back pain with radiation to buttocks and legs, right more than left. He reports sustaining several back injuries over a course of 20 years. Based on the above-noted history and physical examination and with respect to the findings from electrodiagnostic studies performed today, there was no definite evidence for a radiculopathy, peripheral neuropathy or myopathy."
A WCB medical advisor reviewed the file on February 9, 2010. In his opinion, the current diagnosis continued to be a low back injury. He noted that the worker had limited range of motion in his right hip at the time of the WCB call-in examination in August 2009. The medical advisor suggested that an MRI of the right hip be performed.
An MRI of the pelvis and right hip taken February 24, 2010 revealed a tear of the labrum superiolaterally and an adjacent paralabral cyst.
On March 8, 2010, the WCB medical advisor stated that the current MRI findings of a labral tear in the right femoral joint and the small cyst was a new diagnosis and that it was a consequence of the original 2008 compensable injury. He stated that the worker's right hip and low back complaints were contributing to his current impaired status.
In a report dated March 16, 2010, an orthopaedic surgeon stated:
"Difficult to know if all the foot and leg symptomatology is coming from his back, especially with no evidence on MRI of specific root entrapment. Appears to have ongoing mechanical lumbar back pain…Other than stretching, exercising and conditioning, I don't see that there is other specific treatment for him. There is certainly no indication for surgical intervention."
On March 10, 2010, the physical medicine and rehabilitation specialist stated:
"…this patient has a clinical presentation that is likely due to a combination of factors. He has long-standing low back pain that is likely due to discopathy at L4-5. He has some radicular/pseudoradicular symptoms referring to both legs distal to the knee. In addition, he has right-sided thigh wasting with increased buttock pain on the right side. This may be as a result of his labral tear."
On May 26, 2010, a WCB orthopaedic consultant reviewed the worker's file at the request of primary adjudication. The consultant noted that the compensable injury was a low back strain. In spite of continued symptoms, the consultant noted that all investigations failed to identify any pathoanatomic diagnosis to explain the continued symptoms and claimed loss of function. He said there were no workplace restrictions arising from the worker's knee or back claims. He felt the worker had recovered from his back strain and that the condition of the right hip joint of a labral tear was unrelated to either of his claims and was not a WCB responsibility. He noted that there had been no further injury to the low back and the continued symptoms which were of questionable significance, may at most be related to the worker's pre-existing condition. The consultant indicated that in discussion with the WCB case manager, it was agreed that the worker could progress to a time limited graduated return to regular duties considering the length of time he had been away from work.
In a decision dated June 1, 2010, the worker was advised of the WCB's position that he had recovered from his original back strain injury of February 19, 2008 and that his ongoing right hip symptoms and the labral tear were not related to his compensable injury.
On July 13 and September 13, 2010, the treating physician wrote the WCB to support that the worker was entitled to further benefits as he was still suffering from ongoing low back symptoms and right hip pain related to his compensable accident. On July 16 and September 13, 2010, the worker was advised that the new information had been reviewed in consultation with the WCB's healthcare branch and that no change would be made to the WCB's previous decision that he had recovered from his original back strain injury of February 19, 2008 and that there was no need for restrictions arising out of his compensable injury.
On March 4, 2011, the Worker Advisor Office provided the WCB with a report from an occupational health physician dated February 24, 2011 to support that there was a probable link between the worker's ongoing difficulties and his compensable injury. It was felt that the compensable injury had not resolved and that the evidence supported that the worker's injury meets the definition of an enhancement.
In a decision dated May 24, 2011, the worker was advised that the new information had been reviewed with WCB healthcare consultants and that it remained the WCB's position that his ongoing difficulties were not the responsibility of the WCB and therefore there was no further entitlement to wage loss benefits.
On July 28, 2011, the WCB case manager considered a further submission from the Worker Advisor Office dated June 7, 2011. The case manager determined that there was no new medical evidence presented to support a radiculopathy or an enhancement to the worker's pre-existing condition; and that the right hip labral tear was not related to the compensable injury. On August 2, 2011, the worker advisor appealed the decision to Review Office.
On December 14, 2011, Review Office determined that the worker was entitled to partial wage loss benefits and services beyond June 8, 2010 in regards to a graduated return to work process only.
Review Office referred to the opinion by the WCB orthopaedic consultant dated May 26, 2010 that the worker's ongoing symptoms were no longer related to his compensable back strain and that a graduated return to work would be appropriate given the length of time he had had been away from work. Review Office indicated that this opinion was supported by the attending physician and therefore, based on WCB policy, the worker was entitled to partial wage loss benefits over the period of time required for the graduated return to work.
Review Office also expressed the opinion that there was insufficient evidence to conclude that the worker's ongoing treatment and wage loss beyond the graduated return to work was a result of the compensable low back injury of February 19, 2008. Therefore no responsibility would be accepted for wage loss or medical treatment beyond July 2, 2010. On October 17, 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.
The worker is seeking 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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.
Worker's Position
The worker was self-represented at the hearing. He told the panel that he was injured in February 2008 and has not recovered. He referred to various medical reports including reports from a chiropractor, neurosurgeon, family practitioner, pain clinic anesthetist, orthopaedic specialist and two physiatrists. He also advised that he has tried various treatment modalities.
He was critical of the WCB for terminating his benefits on the basis of a review by a WCB medical advisor who had never examined him. He maintains that he should have been called in for an assessment and remains willing to be examined by a WCB medical advisor.
The worker said that currently he uses a nerve medication and sleeping medication. He said the pain has spread to his left sciatic nerve. He is unable to stand for long periods of time. He noted that his leg is wasting. His said he has an aching pain which is nearly always present.
In reply to a question about which treatment worked best, he said that he found dry needling and ART treatments seemed to work the best.
The worker advised that he has a labral tear in his right hip. He believes it may be the cause of his current difficulty. He believes the labral tear most likely happened in the November 2008 accident, which happened 3 days after he returned to work from the February 2008 accident.
The worker advised that he could not work due to his bad back and accordingly retired on September 16, 2011.
Employer's Position
The employer was represented by its WCB specialist. The employer representative advised that the employer agrees with the Review Office decision.
The employer representative noted that an occupational health physician examined the worker on two occasions and found the worker's current diagnosis to be degenerative lumbar spinal changes. She noted that the physician commented that hip labral tears are usually from trauma, such as traffic accidents, collisions, and bad falls. The physician opined that the February 2008 accident is unlikely to have caused the tear.
The employer representative also noted various MRIs and commented that the MRI of January 2011 indicated there was no significant disc protrusion and the central canal and foramina were well maintained.
The employer representative stated that the medical information on file supports that the worker's back condition has not worsened and may actually have improved.
Analysis
The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity and required medical benefits as a result of his workplace injury. In other words, the worker was not able to return to work and continued to require medical treatment due to his workplace injury. The panel was not able to make that finding.
The panel finds, on a balance of probabilities, that the worker recovered from the injury by November 2008 when he was discharged from physiotherapy and returned to work. The panel notes that from October 14, 2008 to November 15, 2008 the worker underwent a four week reconditioning program. At the end of the four weeks, the physiotherapist reported that "[the worker] is currently working 4 hours per day and attends 2 hours of reconditioning at the end of his workday. He is completing a cardiovascular program, core stabilization and is handling weights up to 50 lbs on a frequent basis… [The worker] is ready to RTW full duties as of Monday November 17, 2008."
In reaching this decision, the panel places significant weight on the April 21, 2011 review of medical evidence by the WCB orthopaedic consultant. The orthopaedic consultant concluded that the diagnosis from the February 2008 injury was a low back strain from which the worker has recovered. With respect to restrictions arising from the accident, he found there were no restrictions. He noted that a physical and rehabilitation medicine specialist found that the MRI study did not show a compressive neurological lesion that would correlate with the worker's right thigh and hip weakness. He also noted that an orthopaedic specialist had reported that MRIs of the lumbosacral spine never showed anything out of place.
The adjudication of this claim was compounded by the worker's history of multiple back injuries and a subsequent November 2008 right knee injury which occurred shortly after he returned to work from his February 2008 back injury. At the hearing, the worker stated that this incident may have caused the labral tear in his right hip which he feels continues to disable him. The panel notes that the decision on that claim has not been appealed and that the Appeal Commission has no jurisdiction to deal with it at this hearing. However, the panel finds that the labral tear was not caused by the February 2008 accident. We accept the February 24, 2011 opinion of the occupational health physician that "The cause of hip labral tears are usually from trauma: traffic accidents, collisions, associated with hip dislocations/subluxation, bad falls, e.g., falling onto the outside of the hip, or twisting while weight bearing. The February 19, 2008 lifting incident did not subject the hip to abnormal stresses or movements, and is unlikely to have caused the labral tear."
While the panel notes that the worker continues to complain of various symptoms, we are not able to find a relationship between the worker's ongoing symptoms and the February 19, 2008 injury.
The worker's appeal 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 9th day of April, 2013