Decision #147/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had made a functional recovery from his compensable injury by February 22, 2013. A hearing was held on September 17, 2014 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 22, 2013.Decision
That the worker is not entitled to wage loss benefits beyond February 22, 2013.Decision: Unanimous
Background
The worker filed a claim with the WCB for a low back injury that occurred at work on December 14, 2012. On the day of the accident, the worker reported that he was carrying tools to his truck which was parked on a bit of an incline. There was fresh snow and when he turned the corner, he slipped and fell twisting his back.
On January 28, 2013, the worker underwent a CT scan of his lumbar spine which showed central disc protrusions at L4-L5 and L5-S1. The CT scan was negative for fracture.
On February 6, 2013, a WCB medical advisor reviewed the medical reports on file and stated:
- the initial diagnosis was a lumbar strain and the natural history for functional improvement was 2 to 6 weeks.
- the current diagnosis was ongoing lumbar strain, occurring in the environment of pre-existing degenerative changes.
- temporary restrictions include the avoidance of repetitive or prolonged forward flexion and a lifting restriction from floor to waist of no greater than 50 lbs. using proper lifting technique. Review in 2 to 4 weeks.
The claim for compensation was accepted based on the diagnosis of a lumbar strain occurring in the environment of pre-existing degenerative changes. On February 9, 2013 the worker returned to modified duties with the accident employer.
On April 3, 2013, the worker's file was again reviewed by a WCB medical advisor who stated:
- the February 22 and April 2, 2013 medical reports from the treating physiotherapist documents objective findings consistent with a functionally improved lumbar strain.
- the current presentation including orthopedic referral does not appear to be medically related to the workplace injury.
- the MRI noted lumbar disc protrusions which did not contact a nerve root. These are probably pre-existing and are common in the general population. Currently there is no evidence of aggravation or enhancement of the pre-existing lumbar disc findings in light of the favorable clinical examination findings.
- given the current clinical findings, the WCB supported treatment in relation to the workplace injury was not required.
On June 28, 2013, the worker underwent another CT scan which stated:
L4-L5: There is a very small central disc protrusion, indenting the thecal sac. This has decreased in size since January 28. No other abnormality is seen.
L5-S1: There is a central disc protrusion indenting the thecal sac and possibly displacing the right S1 nerve root laterally. This appears slightly larger than on the previous exam of January 23.
On July 3, 2013, the worker advised the WCB that he continued to have back pain which he related to the December 14, 2012 slip and fall accident. The worker indicated that he found work with an alternate employer that involved front counter work. He said he would go home every four hours to ice his back. The worker said he was planning to take holidays for the month of July and hoped that a month of relaxing would help his symptoms.
On August 12, 2013, a WCB medical advisor stated:
- the current diagnosis was nonspecific back pain. There were no documented neurological deficits or radiculopathic symptoms. Forward flexion of the thoracolumbar spine was noted to be at full range.
- on balance, the current presentation was not medically accounted for in relation to the December 14, 2012 workplace injury. The injury resulted in a lumbar strain of which the anticipated recovery time is a few weeks. Functional improvement was noted clinically by April 2013.
- the clinical information did not support an aggravation or enhancement of the pre-existing condition.
By letter dated August 14, 2013, the worker was advised that the WCB was unable to accept further responsibility for his current difficulties based on the WCB medical opinion outlined on August 12, 2013.
On September 13, 2013, a worker advisor requested that Review Office reconsider the WCB's decision that the worker's current back difficulties were unrelated to the December 14, 2012 injury. The worker advisor noted that the worker was terminated from employment with the accident employer in late February 2013 due to an unrelated issue and that he began working with another company in March 2013. At his new job, the worker stood for long periods of time at a counter serving customers. The worker advisor contended that this activity caused the worker further injury to his lumbar spine and that in accordance with WCB policy, the worker's further injury was predominantly attributable to the compensable injury of December 14, 2012.
On October 31, 2013, the accident employer submitted to Review Office that there was no medical or clinical support for the WCB to continue with physiotherapy, massage or drug therapy for the worker. The employer also submitted that the worker was supporting himself and his family by running a successful handy-man business.
On December 19, 2013, Review Office considered the file information as well as a further submission from the worker dated December 9, 2013. Review Office concluded that the worker was not entitled to wage loss benefits beyond February 22, 2013 as the worker did not have a loss of earning capacity related to the December 14 accident.
Review Office stated in its decision that it agreed with the WCB medical advisor's opinion outlined on August 12, 2013. Review Office made reference to Board Policy 44.10.80.40 - Further Injuries Subsequent to a Compensable Injury and stated that the policy was not applicable in this situation. It found that the file evidence did not support that the December 2012 workplace injury diagnosed as a strain caused or significantly contributed to the worker's further difficulties.
Review Office concluded that the worker made a functional recovery from the lumbar strain he sustained on December 14, 2012. Although the CT scan of June 2013 showed a slightly larger disc protrusion at L5-S1, Review Office found insufficient evidence to support a causal relationship between this finding and the December 2012 workplace injury.
On June 9, 2014, an advocate representing the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel requested medical information from the worker's treating orthopedic surgeon. A report from the surgeon was later received and was forwarded to the worker for comment. On October 30, 2014, the panel met further to discuss the case and rendered its decision on the issue under appeal.
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 has an accepted claim arising from a workplace injury and is appealing the WCB's decision that he is not entitled to wage loss benefits beyond February 22, 2013.
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.
Worker's Position
The worker was represented by a worker's advocate. The worker's representative made a submission on the worker's behalf. The worker answered questions posed by the panel.
The worker's representative reviewed the mechanism of accident and medical reports. He noted that the worker underwent three CT scans and had an x-ray. Recently the worker had an MRI but does not have a copy of the MRI report.
The worker's representative noted that the January 28, 2013 CT scan showed there was no nerve root compression at L4-L5 or at the L5-S1 levels. He said that the worker attended an appointment with a physiotherapist on February 13, 2013. A WCB medical advisor found the physiotherapy report to be consistent with a lumbar strain. The worker's benefits were then terminated as of February 22, 2013.
The worker's representative noted that on April 13, 2013 another CT scan was performed and a WCB medical advisor reported that the lumbar disc protrusions likely were pre-existing, and there was no evidence of aggravation or enhancement of pre-existing lumbar disc findings.
The worker's representative acknowledged the employer's suggestion that the worker was working on his own outside of his job while still working for them. He advised that the worker denied this accusation. The worker said that he had been helping a friend with a bathroom renovation but was not operating a business at that time.
After his benefits were terminated the worker attempted two jobs. The first job was for a construction company doing drywall sanding, but he had to quit after a couple days. The second job was in a retail business working at the counter but his back worsened to the point that he had to quit. The worker said he felt that the long days on his feet caused the increase in pain. Subsequently the worker registered and opened his own business, doing renovations. The worker advised that he worked limited hours depending on his pain level. He still runs this business. He provided information on the income which he is earning from the business. He said that in 2013 he earned about $20,000.00 after taxes and so far in 2014, 8 months into the year, he earned about $35,000.00 after taxes.
The representative noted that the worker saw an orthopedic surgeon in June 2014 who opined that the worker's original injury was the cause of his pain in 2014. The surgeon diagnosed the worker's condition as a disc herniation at C5-6. He said the worker has ongoing back pain that will require an L5-S1 discectomy, fusion and fixation, along with L4-5 stabilization.
In answer to questions, the worker advised the panel that he attended the orthopedic surgeon who injected his back on 2 occasions. The first set of injections relieved his pain but the second set had no effect. He advised that the surgeon is going to perform surgery. A date has not been set. He advised that he does not have neck pain and was not aware that the MRI referred to a neck issue.
Regarding his condition around February 22, 2013, the worker agreed with the physiotherapist's comment that "Reports he was doing really well. No real pain. Wants to return to helping on jobsites." He also acknowledged telling the WCB that he felt good, that his back was stiff after the weekend but otherwise good.
The worker said that his back worsened when he worked at his next job sanding drywall. He worked an eight hour day but could only work six hours the second day. He stopped working for this employer but got a job at a lumber store. He said that he did no lifting at this job but that his back worsened. He attributed this to standing eight hours per day.
The worker's representative provided a written submission regarding the additional information which the panel obtained from the orthopedic surgeon. He advised that it is their position that the worker's present condition requiring surgery for an L5-S1 discectomy and fusion and an L4-5 stabilization has progressed from the original soft tissue injury.
Employer's Position
The employer was represented by its co-owners, L and A. Co-owner L outlined the employer's position on the appeal. He said that he and co-owner A confronted the worker who was working on his own jobsite while he was still employed by their company. He noted that there was a trailer with drywall and studs piled in it. He confirmed it was not new materials. He also said that the worker resigned from his job with their firm.
The employer representative noted the worker's evidence regarding the income he was able to generate from working part time at his business. He said it seemed high for part-time employment.
Analysis
For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity after February 22, 2013 as a result of the workplace injury. In other words, the panel must find that the worker was not able to work full time after February 22, 2013 as a result of his workplace injury. The panel was not able to make this finding.
To assist with its adjudication of this appeal, the panel sought additional information from the treating orthopedic surgeon. The orthopedic surgeon provided a report dated September 23, 2014 and also a copy of an MRI report dated June 28, 2013.
The orthopedic surgeon noted that the worker had an injury in December 2012. He wrote:
"This so called back sprain that resolved initially with progressive symptoms over time. The patient had a CT scan in December, 2012 not showing an acute disc herniation of the L5 at that point. However subsequent imaging showed a disc herniation at L5-S1.
In the meantime he had facet blocks done in May last year. This was an L3 to S1 facet injection in an attempt to control the pain. ...This was not very successful, hence the decision to go ahead with the surgery...
It is quite clear that the injury of L5-S1 originally was a so-called soft tissue injury. This soft tissue includes the disc injury and this certainly can progress over time. I have no doubt that this is related to his original injury in December 2012."
The orthopedic surgeon has proposed an L5-S1 discectomy and fusion, as well as L4-5 stabilization.
The panel, with respect, does not attach weight to the opinion of the orthopedic surgeon. The orthopedic surgeon did not see the worker until nine months after the injury and approximately five months after the worker had, based on the medical evidence, recovered from the sprain.
The panel accepts the original diagnosis and finds that the worker suffered a sprain injury of his lower back. Medical evidence demonstrates that the worker's condition had improved. The panel notes the February 22, 2013 report of the physiotherapist indicates that "Pt (patient) reports he is doing really well. No real pain. Wants to return to helping on Job Site." He recommended restrictions of no lift over 50 pounds and no individual lift of plywood or drywall sheets. An April 2, 2013 report from the physiotherapist notes the worker is not disabled from work. The physiotherapist noted that the worker was not working full time but suggests this is more related to his employment status than physical status.
The panel attaches significant weight to the April 3, 2013 opinion of the WCB medical advisor. He noted the physiotherapist's reports which included objective findings consistent with functionally improved lumbar strain, specifically, functional lumbar motion, absence of dural tension, and absence of neurological deficit. The medical advisor opined that the MRI noted disc protrusions did not contact a nerve root and were probably pre-existing. He opined that there is no evidence of an aggravation/enhancement of the pre-existing lumbar disc findings in light of the favourable clinical examination findings.
The panel notes that the WCB medical advisor reviewed the file again in August 2013 and reiterated his prior opinion that there were no documented neurological deficits or radiculopathic symptoms and that there was clinical evidence of functional recovery by April 2013.
As to any loss of earning capacity beyond February 22, 2013, the panel notes the worker's evidence from the hearing that he began operation of a renovation business in July 2013 and continues to operate the business. While he indicated that he works on small projects and works only when he feels able, he does report a significant income arising from his efforts which suggests to the panel that he is able to function in this field.
Considering all the evidence, the panel is not able to relate the later CT and MRI findings,
symptoms and orthopedic surgeon's opinion to the workplace injury. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of November, 2014