Decision #146/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current difficulties were not related to his compensable injury of August 10, 2011. A hearing was held on September 3, 2014 to consider the matter.Issue
Whether or not the worker is entitled to further benefits beyond December 21, 2012.Decision
That the worker is not entitled to further benefits beyond December 21, 2012.Decision: Unanimous
Background
While employed as a millwright/rigger on August 10, 2011, the worker was pulling on pipe with both hands at shoulder height when the pipe slipped out and he flew backwards landing on a pile of steel. The worker landed on his right buttock, right shoulder and right elbow. The next day, the worker was taken to a hospital emergency facility with tenderness over the right low back. Lumbosacral spine x-rays were taken and mild degenerative changes were noted at the L3-4 level. The claim for compensation was accepted based on a low back strain/contusion.
On December 8, 2011, the worker was seen by a physiotherapist for an initial assessment. The diagnosis outlined was chronic myofascial and articular pain in the low back.
On January 18, 2012, the worker underwent an MRI assessment of his lumbar spine. At the L3-4 level, there was a mild broad-based disc bulge. At the L4-5 level, there was a mild to moderate broad-based disc bulge. At L5-S1 level, there was a mild right paracentral disc herniation with an associated annular tear. There was no canal stenosis or significant compression of the nerve roots. There was mild bilateral foraminal narrowing also noted at this level.
On February 6, 2012, a physiotherapy progress report indicated that the worker had right low back pain radiating periodically to his buttocks and posterior thigh.
In March 2012, the worker underwent a Functional Capacity Evaluation and was seen at the WCB for a call-in examination. The examining medical advisor diagnosed the worker with right S1 radiculopathy related to the August 2011 accident based on history, review of the reported mechanism of injury and the January 2012 MRI findings.
The worker saw an orthopedic specialist on July 10, 2012. The specialist noted that the worker felt disabled due to fairly significant back and right leg pain. The specialist stated that he reviewed the MRI and it looked fine but he was unable to convince the worker of this. The specialist reported that the worker had no range of motion because he was too afraid to move. There was minimal tenderness and the motor, sensory and reflex examination was normal.
On September 12, 2012, the WCB medical advisor who saw the worker in March 2012, reviewed the updated medical information on file and opined that the current diagnosis appeared to be non-specific non-radicular low back pain and that it was not causally related to the August 2011 workplace incident. The medical advisor commented that the reported mechanism of injury was "more consistent with strain than might be expected to result in disc protrusion(s)."
In November 2012, the WCB arranged for the worker to undergo a 4 week work hardening program commencing November 19, 2012. By the end of the program, it was anticipated that the worker would be fit to return to his full pre-accident work duties by December 21, 2012.
Subsequent file records consisted of the discharge report concerning the worker's progress in the work hardening program and an opinion expressed by a WCB psychological consultant dated January 24, 2013.
On January 31, 2013, the WCB advised the worker that based on a review of all the file information, it was determined that he should have recovered from the back injury he suffered at work on August 10, 2011. The case manager noted in the decision that the work hardening program's discharge report suggested that the worker was still pain focused, with the pain being his self-limiting factor. The case manager also referred to the WCB medical opinion that the worker's mild adjustment difficulties about his financial security and occupational future are a sequela to his workplace injury; however, they should not prevent the worker from returning to his pre-accident duties.
On April 29, 2013, the worker appealed the case manager's decision to Review Office. The worker submitted that he was entitled to further compensation benefits based on a report from his family physician dated March 10, 2013, which indicated that he was unable to work due to ongoing severe mechanical low back pain secondary to his workplace injury. The worker also referred to the work hardening discharge report which stated that he did not meet the demands of his pre-accident job and correspondence from his union dated February 6, 2013.
In a decision dated July 2, 2013, Review Office determined that the worker was not entitled to benefits beyond December 21, 2012. Review Office referred to specific file evidence to support that a relationship could not be established between the worker's ongoing difficulties and the compensable diagnosis of a lumbar strain/contusion.
At the worker's request, Review Office considered an MRI assessment dated October 3, 2013. On April 17, 2014, Review Office advised the worker that given the mechanism of injury and the compensable diagnosis of a lumbar strain/contusion, it found that a causal relationship could not be established between the October 3, 2013 MRI findings and the injury that occurred on August 10, 2011.
On June 6, 2014, the worker appealed Review Office's decisions of July 2, 2013 and April 17, 2014 to the Appeal Commission. On September 3, 2014, a hearing was held via teleconference.
Following the hearing, the appeal panel met to discuss the case and decided to request additional medical information from the worker's treating physician. On October 10, 2014, the worker was provided with a copy of the requested medical information and was asked to provide comment. On October 28, 2014, the panel met further to discuss the case and rendered a decision on the issue under appeal.
Reasons
Applicable Legislation
The worker has an accepted claim arising from an injury that occurred on August 10, 2011. He is seeking further benefits.
In dealing with this appeal the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Relevant provisions of the Act include:
- ss. 4(1) 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.
- ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
- ss. 39(2) 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.
- ss. 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 participated in the hearing by teleconference. He outlined his reasons for appealing the WCB decision and answered questions posed by the panel.
The worker said he has had two MRIs and the second MRI shows his condition is worsening. He said the WCB denies that the second MRI findings are related to his workplace injury. He is going to have a third MRI in September 2014.
The worker dismissed the opinion of the orthopedic surgeon to whom the WCB had referred him. He noted that the physician did not see the second MRI.
The worker advised that his back condition continues to worsen. He said that shortly after the accident, the pain worsened and would move to his right testicle. More recently he gets a muscle spasm which shoots around his hip into his groin and is affecting his abdomen and his bowel. The pain moves through his buttocks to his thigh and legs.
The worker described his activities. He is able to drive and has driven for as long as four hours with several stops. He is able to perform yard work but any bending hurts. He did some woodworking but stopped due to pain. He also worked on his daughter's car and four-wheeler. He has also gone hunting.
The worker said he cannot return to his job or trade as a millwright but acknowledged that he could perform modified duties. He noted that his accident employer was not able to offer modified duties and his union is not able to place him in a position with modified duties. He said that he has not looked for work since his injury.
Regarding his medical condition, the worker advised that he continues to see his treating physician on a regular monthly basis. The physician has recently referred him to a specialist and ordered another MRI.
Subsequent to the hearing, the panel obtained a report from a consulting physical medicine and rehabilitation specialist who examined the worker on August 27, 2014. In response to this report, the worker submitted, in part:
"As you know all the medical information clearly establishes that if I had degenerative disc disease prior to the accident in Manitoba, it was symtom (sp) free. Obviously the degenerative disc disease only became a problem after the accident.
There is a second means of viewing the medical evidence with respect to the torn disc. This is not the result of degeneration. A torn disc can only be the result of trauma. Mainly the Manitoba accident.
Viewing all of the medical evidence, I would suggest the Board can only come to one of two conclusions, both of which arrise (sp) out of the Manitoba accident. First my degenerative disc disease became a problem as a result of trauma. Second and more likely, is that my systom's (sp) with the torn disc were caused by the accident.
This new medical evidence clearly establishes the tear sustained in the accident is in the low back. As you are aware both the accident report and the medical reports clearly support that my complaints were low back related."
Employer's Position
The employer did not participate in the appeal.
Analysis
The worker is seeking benefits beyond December 21, 2012. For the worker's appeal to be successful, the panel must find that the worker continues have a loss of earning capacity and requires medical assistance as a result of his workplace injury.
The panel notes that the worker's injury has been accepted by the WCB as a lower back strain/contusion. The worker, on the other hand, asserts that he sustained a serious injury to his back as a result of the fall and that he is unable to work as a result of the injury. To support his claim he refers to the MRI evidence. The panel notes that this evidence does not support a finding of a traumatic ongoing injury to his back. Rather the panel finds that the MRI evidence notes degeneration in his back.
The panel has reviewed all the medical and other evidence on the file and is unable to identify a condition arising from the workplace accident which is preventing the worker from working and which requires continued medical assistance.
As noted earlier in this decision, to assist with its adjudication the panel sought additional information after the hearing. Copies of diagnostic tests and a report from a consulting physical medicine and rehabilitation specialist who examined the worker on August 27, 2014 were provided.
The specialist noted an October 2013 MRI of the lumbar spine which showed multi-level degenerative disc disease with a lateral disc herniation at the L3-L4 on the left side in the region of the left L3 nerve root and there is an annular tear with disc protrusion at L5-S1
Acknowledging the worker's degenerative back, the specialist reports that the worker has a soft tissue injury. She wrote:
CLINICAL IMPRESSION AND RECOMMENDATIONS: I would agree that [worker's] low back is not neurogenic and is more interspinous and iliolumbar ligamentous discomfort. These were injected today. I have not made arrangements to see him in follow-up but advised him if there is some improvement in his symptoms I would be happy to re-inject him at your request but given the chronicity of his symptoms I am not certain this will be of benefit. I feel he has soft tissue low back injury related more to ligamentous strain.
The panel attaches significant weight to the specialist's opinion and finds that it does not support the worker's view that his pain arises from damage to his spine caused by the workplace accident.
The panel further notes the July 10, 2012 opinion of an orthopedic specialist:
"He had an MRI which to me, looked fine. I could not convince him of this and he insists that he has something terribly wrong with him. That is not the case. I examined him. He had no range of motion because he was simply too afraid to move. Tenderness was minimal. Motor, sensory and reflex examination was normal. I found [name] totally preoccupied with pain. I was quite frank with him today and told him that he had to change his approach here and accept the fact that he is not going to hurt himself exercising and trying to get better."
The panel also notes that the worker's original complaints related to his right side. The most recent medical suggest diffuse pain throughout the back, buttocks, thighs and legs, and degenerative changes throughout the back.
The panel has considered whether the worker's current diagnosis is related to his August 10, 2011 workplace accident. The panel is not able to relate the current diagnosis and symptoms to the worker's initial injury. In coming to this conclusion, the panel relies upon the opinion of the WCB medical consultant. The medical consultant was asked to comment on the "duration of recovery". He opined in a September 12, 2012 memorandum that:
It appears more likely than not that the current diagnosis is not causally related to the effects of the August 2011 workplace incident occurring some 13 months ago. The above information is consistent with clinical reports from the treating physiotherapist and consulting spine surgeon. As well the reported mechanism of injury is more consistent with strain than might be expected to result in disc protrusion.
The panel finds, on a balance of probabilities, that the worker has recovered from the strain arising from the workplace accident and that ongoing symptoms are related to the worker's degenerative condition.
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 18th day of November, 2014