Decision #02/14 - 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 accident of June 11, 2010. A hearing was held on October 15, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond September 26, 2012.Decision
That the worker is not entitled to wage loss benefits beyond September 26, 2012.Decision: Unanimous
Background
The worker filed a claim with the WCB for a low back injury that occurred on June 11, 2010. The worker reported that he was placing cases of beer on the back of a trailer when he felt a sharp pain in his low spine. The worker was initially diagnosed with a low back strain and mechanical low back pain. A CT scan of the lumbar spine dated June 25, 2010 showed a left-sided disc protrusion at L4-L5 which may have been affecting the left L4 nerve root.
On October 13, 2010, the treating neurosurgeon reported that the worker's clinical presentation was suggestive of some mechanical low back pain and he could not detect any obvious signs of ongoing clinical radiculopathy.
As the treating neurosurgeon recommended conservative management for the worker's back condition, the WCB arranged for the worker to undergo a four week reconditioning program. In the discharge report of January 7, 2011, the treating physiotherapist indicated that the worker reported a slight increase in his symptoms over the duration of the four weeks but this had not had any negative effect on his range of motion or strength test scores. The worker reported pain across his low back which occasionally went down his left leg to the level of his ankle.
On January 31, 2011, the worker was seen by an orthopaedic surgeon and an MRI examination was suggested. On April 7, 2011, the MRI report of the lumbar spine was read as showing no central foraminal stenosis or disc herniation.
An external radiologist reviewed the April 17, 2011 MRI and compared it to the CT scan of June 25, 2010. In a memorandum dated May 19, 2011, the radiologist stated:
At the L4-5 level, there is very minimal degenerative narrowing and desiccation of the intervertebral disc. The previously identified small left lateral disc herniation extending into the left intervertebral foramen has decreased significantly in size. There is now only very minor left lateral disc bulging in the left intervertebral foramen without any definite displacement or compression of the exiting left L4 nerve root. No other lumbosacral spine abnormality is identified and there has been no other interval change.
In July 2011, a discogram was performed and it was determined that the L4-L5 area was the source of the worker's sciatica. The treating orthopaedic surgeon then recommended a stabilization procedure at L4-L5.
On December 7, 2011, the worker was seen by a WCB orthopaedic consultant at a call-in assessment who indicated that the diagnosis of the compensable injury remained unclear. There was no definite clinical evidence of a low limb radiculopathy apart from the isolated sensory blunting in the left little toe region, which was unlikely to be related to the L4-5 disc herniation identified on the original CT of June 25, 2010. The consultant stated that he identified a pre-existing idiopathic lumbar rotoscoliosis resulting in prominence of the right lower lumbar paravertebral musculature, not due to spasm. A repeat MRI was suggested along with a Functional Capacity Evaluation ("FCE") and possibly a vocational rehabilitation assessment.
On December 10, 2011, a repeat MRI of the lumbar spine was conducted. The MRI report indicated:
L1-2 and L2-3 are normal.
At L3-4, there is mild degenerative disc desiccation and very minimal posterior annular bulging. There is no central canal stenosis, foraminal stenosis or nerve root compromise.
At L4-5, there is mild degenerative disc desiccation and mild posterior annular bulging without evidence of a disc herniation. There is no central canal stenosis, foraminal stenosis, or nerve root compromise.
At L5-S1, there is no abnormality.
Impression:
Mild degenerative changes are noted in the lumbar spine with no evidence of focal nerve root compression.
In a memorandum dated January 19, 2012, the WCB orthopaedic consultant noted that the MRI of December 28, 2011 was unchanged from that of April 12, 2011. There was no evidence of a persistent disc herniation, foraminal stenosis or nerve root compromise at the L4-5 level. He noted that the call-in examination failed to identify clinical evidence of a continuing radiculopathy and the current imaging study reported resolution of any L4-5 disc herniation. The consultant concluded that the worker was not totally disabled and that a relationship did not exist between the compensable injury and the worker's current status.
At the end of January 2012, the worker underwent an FCE. On February 9, 2012, the WCB orthopaedic consultant outlined temporary restrictions for a two month period based on the FCE results.
On March 13, 2012, the worker underwent an assessment by the WCB's Pain Management Unit ("PMU"). At a PMU case conference on May 8, 2012, it was determined that the worker was not experiencing any psychological disorder related to the compensable injury that would be a barrier to his return to work.
The worker underwent another MRI assessment on August 19, 2012. The report indicated that there was no abnormality seen from L3 to the sacrum.
On September 7, 2012, the WCB orthopaedic consultant opined that the current diagnosis was a resolved left L4-5 disc herniation based on the latest MRI report of August 19, 2012. There were no other new diagnoses and there was no continuing relationship between the worker's current symptoms and his claimed loss of function and the compensable injury.
On September 12, 2012, another WCB medical advisor reviewed the file and stated that the worker's intake of two particular medications were not related to the compensable injury and that a two week period to wean off the medication would be appropriate.
By letter dated September 12, 2012, the worker was advised that he was not entitled to further compensation benefits beyond September 27, 2012 as the WCB was unable to relate his current signs and symptoms to his compensable injury. By letter of the same date, the family physician advised that he was referring the worker to an orthopaedic surgeon for further opinion.
On December 11, 2012, the worker advised the WCB that he had an annular tear in his back and that he was scheduled to start injections on December 28, 2012.
In a report to the family physician dated December 4, 2012, the orthopaedic surgeon reported that the August MRI scan showed a small annulus tear on the left side at L4-5 which did not explain the worker's right leg pain. The surgeon noted that some early Waddell signs were detected. He could not explain the worker's persistent pain except for the annulus tear on the left side at L4-5. It was concluded that the worker's persistent muscle pain and muscle spasm on the right side was indicative of a mechanical injury and facet blocks were suggested to try and improve the localized pain.
The WCB's orthopaedic consultant reviewed the medical report of December 4, 2012 and stated:
In my opinion, recovery from the compensable diagnosis of L4-5 disc herniation is supported by the report from the orthopaedic surgeon. Note he refers to a small annulus tear on the left at L4-5. The radiologist report has no comment regarding an annulus tear. Also note that the term annulus tear or annulus fissure does not necessarily have clinical significance.
Continuing invasive treatment by facet joint injections is questionable in view of the demonstrated symptoms and pain behavior, and is also not supported by the MRI report of August 19, 2012.
On December 11, 2012, the Worker Advisor Office asked the WCB to reconsider its decision of September 12, 2012 based on the treating orthopaedic surgeon's finding that the worker had low back spasm and an annulus tear. It was submitted that the spasm and tear were responsible for his ongoing low back symptoms.
On January 3, 2013, the WCB case manager determined that the report of December 4, 2012 did not change the opinion that the worker was no longer entitled to benefits after September 27, 2012.
In a report to the family physician dated February 5, 2013, the treating orthopaedic surgeon stated that the recent facet blocks in December were not helpful to the worker. He stated:
The recent MRI scan done in August, 2012 does still show the annulus tear, far lateral where the previous far lateral disc herniation was situated. This is best seen on axial scan #10. It also shows marginal compromise of the foramen at L4-5 best seen on sagittal scan #11.
There has been a long continuous history of treatment and investigation for this patient following his original injury. There is therefore little doubt that the chronic pain was related to the original injury in 2010. Continued treatment is therefore mandatory.
On March 28, 2013, the WCB's orthopaedic consultant conducted a further review of the file and remained of the opinion that the worker had recovered from the compensable diagnosis of an L4-5 disc herniation. With respect to the orthopaedic surgeon's comments regarding the annular tear, he stated that annular tears are fissures, part of the degenerative process involving the annulus and are not necessarily a source of pain. It was further noted that the annular tear was not identified in the earlier radiologist reports.
By letter dated April 2, 2013, the worker was advised that it was still the WCB's opinion that his current condition was not related to his compensable injury. On April 8, 2013, the worker appealed the decision to Review Office.
On July 9, 2013, Review Office determined that there was no entitlement to wage loss benefits beyond September 26, 2012. Review Office indicated that the medical evidence did not provide an explanation for the worker's right leg pain and there was insufficient evidence to support that the worker's current back pain was related to the compensable injury. Review Office noted that annular tears are part of the degenerative process and that the neurosurgeon did not attribute the worker's back pain to discogenic pain from the L4-5 level. Review Office concluded that the file evidence did not support a causal relationship between the worker's current difficulties and the June 11, 2010 workplace accident. On July 22, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on October 15, 2013.
Following the hearing, the appeal panel met to discuss the case and decided to obtain a copy of the imaging report related to the worker's upcoming MRI scheduled to take place in early November 2013. A copy of the November 1, 2013 MRI report was later received and a copy was forwarded to the worker for comment. On November 21, 2013, the panel met further to discuss the case and rendered 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.
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.
The Worker’s Position
The worker was self-represented at the hearing. He advised that when he was injured in June 2010, he suffered a bulged disc in his back. He underwent some physiotherapy and received other treatment. In August 2012, the MRI indicated that the disc had gone back into place. This surprised the worker because he was still suffering from the same symptoms and had the same difficulties with his back. It was not until the worker saw his orthopaedic surgeon that an annular tear was identified as being the problem in his back.
The worker observed that the WCB stopped his claim because the disc went back into place and he indicated that there was no contesting that this had occurred. The worker's position, however, was that the WCB failed to recognize the tear as being related to the original injury. The worker submitted that his case was fairly straightforward in that the tear was related to the initial injury and his orthopaedic surgeon supported that it was in fact related.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond September 26, 2012. In order for the appeal to be successful, the panel must find that the worker's current condition is related to the injury he sustained in the June 11, 2010 work related accident. We are not able to make that finding.
At the hearing, the ongoing physical effects being complained of by the worker related primarily to his lower back. The worker identified an area in his low back to the right of his spine where he would experience severe back spasms. He indicated that the muscle would be "sticking out on the right side." On days where the pain was bad, the spasm would also occasionally occur on the left side. The worker also had tingling and numbness in his legs from time to time, mostly on the right. This could range from his toe tingling to a sensation where it felt like the arch in his right foot was wet, like he stepped in a puddle of water. Once or twice a week he would have pain in his right hip and buttock area. The level of pain would be affected by the activities performed. Bending over a counter to cook or wash dishes was the worst. The worker continued to be prescribed sustained release pain-killers which he took on an almost daily basis.
After considering both the file material and the evidence provided at the hearing, the panel is unable, on a balance of probabilities, to find a causal relationship between the worker’s current low back symptoms and the compensable accident. In coming to this conclusion, we relied on the following:
· The worker's accepted compensable diagnosis was a left L4-L5 disc herniation. The MRI imaging indicates that by December 2011 this had reduced to mild posterior annular bulging without evidence of disc herniation, and by the time of the November 1, 2013 MRI, there was no stenosis or disc herniation at L4-L5. The panel therefore finds that the L4-L5 disc herniation injury has resolved.
· The treating orthopaedic surgeon opined that a small annulus tear on the left L4-L5 was visible on the August 19, 2012 MRI and that this was the only explanation for the persistent pain. He acknowledged, however, that the left sided tear would not explain the right leg pain.
· The panel does not accept that a left sided annulus tear caused by the June 2010 workplace accident is responsible for the worker's ongoing difficulties. It is notable that an annular tear was not identified in any of the previous imaging, and in fact, was not identified by the radiologist in either the August 2012 MRI nor in the November 1, 2013 MRI. The panel's expectation is that if a tear of any significance were present, it would have been identified in the previous radiologists' MRI reports. We note that four separate radiologists have reviewed the worker's MRI images taken since the date of the accident and none identified an annular tear at L4-L5. To the extent that an annular tear may be present at L4-L5, the panel finds that it is minimal and we accept the WCB orthopaedic consultant's comments that annular tears are fissures, part of the degenerative process, and not necessarily a source of pain.
· The panel also notes that the constellation of symptoms reported by the worker does not accord with a continuing disc injury at L4-L5. The worker described pain primarily on the right side of his back with spasm, and pain in legs which affects his right toe and foot arch, but is not continuous down the leg to the toe. This description is not consistent with a sciatic injury stemming from the L4-L5 level.
Based on the foregoing, the panel is unable on a balance of probabilities to relate the worker’s current condition to the L4-L5 disc herniation the worker suffered in the June 2010 workplace accident. We therefore find that the worker has recovered from the physical effects of his compensable injury and is therefore not entitled to further wage loss benefits beyond September 26, 2012. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of January, 2014