Decision #150/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current problems with his back are not related to his compensable accident and therefore he is not entitled to benefits after January 21, 2014. A hearing was held on October 29, 2014 to consider the matter.Issue
Whether or not the worker is entitled to benefits after January 21, 2014.Decision
That the worker is not entitled to benefits after January 21, 2014.
Decision: Unanimous
Background
The worker filed a claim with the WCB for a low back injury that occurred at work on August 22, 2013. The worker reported:
I was kneeling and cutting metal with a torch. I was backing up on my knees when I fell two feet down off the edge of the metal sheet. I felt immediate pain in my lower back. I came to work the next day and I was welding two sheets of metal that were being held on a forklift. Afterwards, I attempted to climb down from the metal sheets (approx four feet high) and felt a sharp, severe pain in my lower back and left leg. I could not stand up. My co-worker...had to help me down from the forklift (and the sheets). My sons needed to come to my work and help me get home, as I could not move without pain.
Following the accident, the worker sought medical attention on August 26, 2013 and again on September 3, 2013 by two different physicians. The diagnosis outlined by the first treating physician was an acute lumbar strain and left sciatic pains. The second physician's diagnosis was lower back strain and left sciatica. The physician also noted that the worker had osteoarthritis in his lumbar spine that may affect his recovery. The claim for compensation was accepted and the worker was referred for physiotherapy treatments related to his back condition. File records also indicate that the worker had prior claims with the WCB for back injuries.
On September 6, 2013 the worker was terminated from employment due to a shortage of work.
On November 28, 2013, the WCB case manager referred the worker's claim to the WCB's healthcare branch noting that the worker was reporting a slow recovery with lots of pain. It was then decided to have the worker assessed at a WCB call-in examination.
In a December 5, 2013 report, the treating physician noted that the worker's low back was improving overall about sixty percent. The worker still had left-sided low back pain with no radiation to his legs.
On January 1, 2014, an orthopedic surgeon reported that he first saw the worker on December 17, 2013 based on a referral from the worker's family physician. He noted that the worker was concerned about ongoing low back pain and mild left sided sciatic neuralgia. He noted that the worker had a similar problem in 2009 when he was investigated with x-rays and MRI evaluation for low back and sciatic neuralgia. The surgeon noted that an MRI assessment was apparently normal and the worker's back pain was treated as a severe sprain with physiotherapy. He noted that the worker mentioned that he improved considerably after such treatment and was able to resume his work fairly soon. The surgeon outlined his current examination findings and stated:
"X-rays of pelvis revealing both hip joints showed normal findings.
X-rays of lumbar spine demonstrated severe degenerative changes, together with narrowing of L5/S1 disc space. My impression was that [the worker] was suffering from mechanical low back pain syndrome..."
The worker was seen at a WCB call-in assessment on January 6, 2014. The WCB medical advisor's opinion was as follows:
The current diagnosis is non-specific, non radiculopathic low back pain, in an environment of degenerative changes involving the lower lumbar spine, described on December 17, 2013 x-rays as severe at L5. This diagnosis is concordant with that cited in a January 1, 2014 letter from a consultant orthopedic surgeon. The natural history of the above diagnosis is variability of symptoms over time.
The initial diagnosis as described by the treating physician was an acute lumbar strain with left sciatic pain. The natural history for a strain is material resolution over the course of up to 6 weeks. The current physical assessment of functional lumbar mobility without localizing signs of a strain injury indicate that the acute lumbar strain of August 22, 2013 has more likely than not resolved to this point. Insofar as the current examination findings do not indicate a radiculopathic process, a matter substantiated by the recent orthopedic consultation, it is concluded that the initial left sciatic has also resolved.
In a decision dated January 14, 2014, the worker was advised that wage loss benefits would be paid to January 21, 2014 inclusive and final as it was determined by the WCB that he had recovered from his sprain/strain injury and that his ongoing discomfort was related to his ongoing degenerative changes.
In late January 2014, the worker appealed the WCB's decision to discontinue wage loss benefits. The worker's position was that he was still experiencing low back pain from his compensable injury and it was preventing him from returning to work.
On March 27, 2014, Review Office determined that the worker was not entitled to benefits beyond January 21, 2014. Review Office referred to medical information on file to support that the compensable diagnosis of an acute lumbar strain with left sciatic pain had resolved and that a relationship could not be established between the compensable diagnosis and the worker's ongoing difficulties. It was felt that the degenerative changes identified on x-rays were considered a pre-existing condition, a condition that existed prior to August 22, 2013, and was not aggravated or enhanced as a result of the compensable injury.
On April 12, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
In a May 30, 2014 report, a physical medicine and rehabilitation specialist noted that he saw the worker on April 4, 2014. His impression of the worker's medical condition was outlined as:
"Post L4-L5-S1 disk (sic) herniation. He has persistent left L5-S1 radiculitis and right-sided sacroiliac and possible L5-S1 nerve root irritation due to disc herniations because cross-leg sign on the right side causes pain in the lumbosacral region.
On October 22, 2014, the worker's legal representative provided the Appeal Commission with a submission regarding the worker's 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 for a workplace injury. He is seeking benefits after January 21, 2014.
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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Worker's Position
The worker was represented by legal counsel who provided a submission on his behalf. An interpreter was also present to assist the worker. The worker answered questions from the panel.
The representative reviewed the worker's various WCB injury claims commencing with an injury from 1993 and concluding with the worker's 2013 injury. He reviewed the injuries, medical treatments and diagnostic tests on the claim files. He submitted that the worker's current condition has been impacted by his multiple workplace injuries and is compensable. Alternatively, the August 2013 accident enhanced the worker's pre-existing condition and is therefore compensable.
With respect to medical treatment, the worker confirmed that he has not seen the physical and rehabilitation medicine specialist since May 2014. He also confirmed that he saw a second physical and rehabilitation medicine specialist who provided injections but that he received no relief from the injections. The worker said that he has good days and bad days, but that his pain never goes away. He described his pain as being across the belt line in his back, on the right side, down the leg to his toes. He said that his left leg is weak now.
The worker advised that he can perform some duties at home, such as cleaning the house, washing dishes, making the bed and sweeping the kitchen. He is not able to cut the grass or do any gardening.
The representative noted the March 2014 MRI report. He submitted that the report clearly indicates that the worker does not simply have a strain injury as decided by Review Office. The worker's representative said that the worker's condition worsened as a result of the August 2013 accident, and noted that the worker was able to work before the accident and is not able to work after the accident. He said that the worker had aches and pains but nothing like the pains after the 2013 injury. He noted that nerve conduction studies ("NCS") were not performed. He expressed concern that in dealing with injuries, the approach is to first diagnose minor conditions and not attempt to rule out more serious conditions first.
In closing, the representative submitted that there was a distinct accepted injury in 2013. Unfortunately, no imaging was done until later. He submitted that if the MRI and NCS tests were done earlier, they would have shown more than a strain. He asked the panel to rely on the objective evidence in the MRI and not the comments of the WCB medical advisors.
Regarding the worker's entitlement to benefits, the worker's representative submitted that the worker is totally disabled from working and is asking the Appeal Commission to order the reinstatement of full wage loss benefits retroactively and until the age of 65 years old.
Employer's Position
The employer did not participate in this appeal.
Analysis
As a preliminary matter, the panel noted that the written submission indicated that "There is definitely a causal connection between the worker's duties over the years and his back condition. Even if the pre-existing conditions noted on file are degenerative changes alone, they have been enhanced, again due to the worker's years of heavy lifting." The panel advised at the hearing that it is unable to address all the issues raised in his submission. The panel is limited to dealing with the effects of the 2013 workplace injury, including whether the worker's pre-existing condition has been aggravated or enhanced.
The worker is appealing the WCB decision that he is not entitled to benefits beyond January 21, 2014. For the worker's appeal to be successful, the panel must find, on a balance or probabilities, that the worker sustained a loss of earning capacity and required additional medical assistance after January 21, 2014 as a result of his workplace injury. The panel is not able to make this finding.
In reaching this decision, the panel attaches significant weight to the following: "On examination I found him a fit and strong gentleman with some localized tenderness which was felt on deep palpation of the dorsum of the left sacroiliac joint. His straight leg raising appeared to be slightly limited on the left. However, muscular power, sensation and peripheral pulses of the lower limbs was examined and found to be satisfactory.... The orthopedic surgeon diagnosed mechanical low back pain syndrome and referred him for physiotherapy. The panel attaches significant weight to the lack of any neurological signs or symptoms found by the orthopedic surgeon in his December 2013 examination. The panel notes that radiculopathic symptoms were not noted until March 2014, almost six months after the accident. The panel is unable to find that the symptoms, which are first noted in March 2014, are related to the worker's accident in August 2013. The worker's appeal is dismissed.
X-rays of his pelvis revealing both hip joints showed no significant abnormality. X-rays of his lumbar spine demonstrated severe degenerative changes with narrow L5, S1 disc space."
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of November, 2014