Decision #148/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back condition was not related to his compensable injury of May 30, 2003. A hearing was held via teleconference on October 23, 2013 to consider the matter.Issue
Whether or not the worker's current back difficulties are related to the May 30, 2003 compensable accident.Decision
That the worker's current back difficulties are not related to the May 30, 2003 compensable accident.Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to his left side, right foot and hip with the date of accident of May 30, 2003. The worker indicated that he felt loss of strength and sensation in both feet and legs which he related to his work activities in a bakery where he was required to stand all day on his feet while walking on cement flooring and going in and out of a cold room during his work shift. His claim for compensation was accepted and benefits and services were paid up to July 26, 2003 when it was determined that the worker was fit for his full-time regular work duties. The compensable diagnosis was a low back strain/sprain with possible nerve root involvement.
In October 2003, the worker called the WCB to advise that he was experiencing further left-sided discomfort as well as numbness which he related to "pulling racks across the floor, which was not cleaned properly." On November 21, 2003, the WCB case manager determined, based on further discussions with the worker and his treating chiropractor, that the worker's injury was not disabling him from participating in his normal work activities. The WCB therefore was unable to establish a relationship between his condition and an accident as defined in The Workers Compensation Act (the "Act").
In May 2012, the worker contacted the WCB to advise that he was experiencing further back difficulties which were related to his original compensable injury. The worker noted that he was sore on the left side of his back and it went down to his left leg. He had numbness in both legs, muscle spasms and upper back issues. He was not able to sit or stand for too long and lifting was a problem. He had been off work since September 2003. The worker later advised that he was asking the WCB to cover his medications, orthotic shoes, a functional capacity evaluation and retraining.
Primary adjudication then wrote to four healthcare practitioners in relation to the worker's current back difficulties. The medical reports are on file dated June 4, 6, 15 and September 16, 2012.
On September 19, 2012, a WCB medical advisor was asked to review the new medical reports and to comment on whether or not a relationship existed between the worker's current back complaints and his original compensable injury.
On October 9, 2012, the WCB medical advisor stated that the current diagnosis was low back pain with no associated radicular elements. He noted that the original injury was a low back strain and that the natural history of such a condition was recovery within 5 to 8 weeks. The medical advisor commented that the current diagnosis was unrelated to the low back strain. He stated that the worker's current medical findings showed a relatively normal examination of the low back and there was little rationale provided by the treating physician to prescribe the worker two narcotic medications.
By letter dated October 19, 2012, the WCB advised the worker that the evidence did not support a relationship between his May 30, 2003 workplace injury and his current low back difficulties based on the WCB medical opinion dated October 9, 2012. On October 29, 2012, the worker appealed the decision to Review Office.
On January 2, 2013, Review Office determined that the worker's current back difficulties were not related to the May 30, 2003 workplace injury. Review Office noted that the worker's claim was accepted on the basis of a low back strain and there was no evidence to suggest that the worker sustained a more serious injury. The recovery period for a back strain varied but recovery was usually within 4 to 6 weeks.
Review Office referred to file information from October and November 2003. In October 2003, Review Office noted that the worker stated that he was off work as of September 16, 2003 with back symptoms and that he was in a labour dispute with his employer. The worker said that he planned to return to work if he could resolve some issues with his employer and his union. In November 2003, the worker provided conflicting information to the WCB. He stated that he had not experienced back pain for 1 ½ months and then had been pain free for 3 weeks.
Review Office also referred to the WCB medical opinion of October 9, 2012 and stated that it was unable to identify medical or other evidence linking the worker's back symptoms and any loss of earning capacity to the May 30, 2003 workplace injury.
An MRI of the worker's lumbar spine was performed on April 29, 2013.
On June 10, 2013, the worker appealed Review Office's decision of October 9, 2012 to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides that 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.
The worker has an accepted claim arising from a May 30, 2003 workplace accident. The worker relates his current back difficulties to this injury.
Worker's Position
The worker participated by teleconference and was assisted by his current treating chiropractor.
The worker told the panel that:
"Carts were a barrier. Stacking -- lifting dough into the bins were a barrier. And that’s how I injured my back, was because they allowed two people to lift 500 pounds if -- very close -- into a bin when -- when they could have really had something raised and -- and put into the bin without having to use the people."
The worker was critical of the employer. He stated that they never allowed him to come back and showed no concern as to his condition. The worker said that he did not recover from his workplace injury.
The worker relied on his chiropractor who noted that the worker's injury was to a very complicated back system. He said that very few people, if not properly taken care of, fully recover from back injuries. He said that:
"A natural course of history of any serious low back injury not properly treated is to progress to an arthritic change and to lead to disc injury. That just is the way it goes. An accelerated change. So, something that you may find that you have at 65, 70 occurring because you -- you know, where -- lived an active life but never injured anything seriously starts to occur in your forties and starts to affect your ability to function at that age."
The chiropractor said that the history shows that after the original injury the worker continued to suffer chronic back pain.
In answer to questions about the worker's current medical condition, the chiropractor said he has chronic low back pain. He said the worker has facet hypertrophy which is commonly called arthritis. He said that on examination he finds muscle spasm in the piriformis, erector spinae and quadratus lumborum, primarily left side. He found reduced movement in these joints. He found strength to be a little weak, motor is fine, no deep tendon reflex. He said there were "no true neurological" findings.
When asked whether he had a sense of the event or the events that caused the strain/sprain, the chiropractor said that he is treating him nine to ten years after the original event. He said that "I would be treating him more for chronic issues, things that have continued to reoccur and reoccur."
With respect to whether the treatment is supportive or curative, the chiropractor replied that no one has a curative treatment for this injury. The chiropractor said that recovery norms are based on return to work information and noted that return to work does not equate to recovery. He said that workers return to work due to monetary reasons not because they have recovered.
The chiropractor said that the worker became chronic after his original injury. The chronicity is well documented in the fact of his treatment schedules and he still suffers back pain and he has continued to suffer back pain that’s been documented.
The chiropractor said that most injuries come from repetitive movement and work in the spine.
"There’s a fatigue factor that occurs in the muscles and allow the joints to become sprained or strained, cause the tearing in the different tissues. So, that is the nature of the injury. Very few injuries are one-time traumatic events in the workplace unless it’s a fall. Very few back injuries are that. They’re mostly from repetitive lifting or moving or pushing of a cart...usually the mechanism of a chronic low back injury, is repetitive movements that aggravate an existing injury."
Employer's Position
The employer was represented by its Controller. The employer's representative questioned the worker's assertion that he and another worker had to lift and move bowls weighing 500 pounds. He said he was not aware of any job at the worksite with this requirement. He also noted that other people have done the same job without problems. The employer representative questioned whether there was a genetic issue.
Analysis
Before addressing the worker's appeal, the panel notes that the worker was a poor historian and was unable to answer basic questions including whether he worked, where he worked and what he did in the many years after the accident. He also had difficulty remembering details surrounding his medical care and providers' names.
The panel notes for example, that early file documentation indicates that the worker's symptoms came on gradually and with no mention of a traumatic event. In June 2009, however, the worker advised a case manager that "… lifting 500 pound bowls of dough has taken its toll on my back." He told the panel that "And that's how I injured my back, was because they allowed two people to lift 500 pounds if -- very close -- into a bin." At a later point in response to a question about his injury the worker said that "…I never weighed those -- that dough. It wasn't 500 pounds but it was -- definitely well over 150 to 200 pounds."
These examples cause the panel to conclude that the worker's evidence is not reliable, and the panel attaches little weight to this evidence.
The issue before the panel is whether the worker's current back difficulties are related to the compensable injury of May 2003. For the worker's appeal to be successful, the panel must find that the symptoms he is currently experiencing are related to his May 2003 injury. The panel was not able to make this finding.
In reaching this decision, the panel notes the medical report of a family medicine physician who examined the worker and provided a report dated September 16, 2012. The physician reported that "His exam did not show any motor or sensory deficits. His lower extremity exam was normal. His lumbar spine range of motion was not decreased significantly. He was walking without significant difficulty." This assessment does not support the worker's position that he cannot work.
The panel also notes that on October 9, 2012 a WCB medical advisor provided an opinion of the worker's file. The medical advisor opined that:
1. The current diagnosis is low back pain with no associated radicular elements.
2. The original injury appears to have been a low back strain. The natural history of such a condition is recovery in 6-8 weeks. The current diagnosis is unrelated to low back strain and may be a function of the status of the worker's lumbar spine in terms of his age at this time.
3. Based on the injury and recovery norms the current presentation does not relate to the original injury.
4. The current medical findings show a relatively normal examination of low back as documented by the medical practitioner. There appears to be little rationale on this report for prescribing [narcotic medications].
The panel finds that this opinion does not support the worker's position that his current problems are related to his 2003 workplace injury.
At the hearing, reference was made to an MRI of the worker's lumbar spine performed on April 29, 2013. The MRI report noted:
"Impression:
There is no significant spinal stenosis present however, there is a moderate to marked multilevel foraminal narrowing contacting and mild (sic) compressing multiple nerve roots. This is secondary to minimal diffuse disc bulges and moderate multilevel facet hypertrophy."
These findings were discussed with the current treating chiropractor. It was his opinion that the findings were related to the workplace injury. He explained that:
"So, what we have here is we have an MRI that shows that he’s had the signs of arthritic changes, osteoarthritic changes, which are normally associated with trauma and repetitive movement. So, now these changes are the -- the disc bulging that he has in the MRI and the changes of the bones around the joints and becoming more arthritic. …So, anybody that’s had a serious back injury is going to -- if they don’t get proper treatment and long-term treatment, is going to become more arthritic and more susceptible to disc injuries and things like that as they get older."
The panel has considered the treating chiropractor's opinion but is unable to attach weight to the opinion. The panel notes that the chiropractor has only seen the worker on six occasions and acknowledged that he did not have the complete file and was not fully aware of the worker's injury history.
The panel is not able to relate the MRI findings to the worker's 2003 workplace injury. The panel finds that the findings relate to degeneration and aging and not to a specific injury.
The chiropractor indicated that a back injury which does not receive proper treatment and long-term treatment results in accelerated conditions such as arthritis. The panel notes that in this case, the worker received significant post injury treatment from a chiropractor and recovered to pain free status. The file shows the worker received 14 treatments in 2003, 34 in 2004, 50 in 2009, 30 in 2010 and 12 in 2011. The panel notes that the original accepted diagnosis was a low back strain/sprain with possible nerve root involvement. There was extensive chiropractic treatment in the acute phase soon after the injury, and the worker had been cleared by the WCB to return to work in November 2003, based on the medical information on the file. The evidence does not support an ongoing nerve root involvement. There is also a significant gap of many years without apparent medical treatment of the low back. These findings are not consistent with the worker's or his chiropractor's assertion that there was an ongoing chronic injury.
The panel finds, on a balance of probabilities, that the worker's current symptoms are not related to his May 2003 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 19th day of November, 2013