Decision #133/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further medical aid benefits in relation to his compensation claim. A hearing was held on August 31, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further medical aid benefits.
Decision
That the worker is not entitled to further medical aid benefits.
Background
The worker has an accepted claim with the WCB for injuries related to his lumbar and thoracic spine that occurred on February 16, 2010 during the course of his employment as an equipment operator. For further details regarding claim information, please refer to Appeal Commission Decision Nos. 25/13 and 49/14.
On September 27, 2014, while self-employed, the worker opened the hood of a semi-truck when he felt a pop in his low back. On December 3, 2014, a WCB orthopedic consultant opined that the workplace injury was a sprain/strain of the low back in the environment of pre-existing degenerative disease of the lumbar spine. On January 5, 2015, the worker was advised of the WCB's position that he had recovered from the effects of his compensable work injury and that any ongoing complaints/symptoms were due solely to a pre-existing condition.
On April 27, 2015, the worker's legal representative submitted to the WCB that the worker's ongoing difficulties were related to his workplace injury of 2010 as opposed to the injury of 2014.
Medical information showed that the worker was seen at the WCB's office for a call-in assessment on July 16, 2015 and that the medical advisor later outlined his medical opinion concerning MRI findings taken on December 8, 2011 and November 14, 2014 that were read by a chiropractic radiologist. The worker also attended a physiotherapist for his first assessment on August 13, 2015.
On September 16, 2015, the worker was advised that based on file information and consultation with the WCB medical advisor, it was determined that he suffered a separate work-related injury in 2014 that had since resolved as per the decision letter of January 5, 2014. Although there were pre-existing degenerative changes identified on the MRI, they appeared to be minor. The case manager stated there was no medical information that would attribute the worker's current level of impairment to the workplace injury of February 16, 2010. The worker was advised that wage loss benefits would not be extended beyond January 12, 2015 and that once he completed all his physiotherapy sessions, no further treatment on the claim would be approved.
On October 1, 2015, an external neuro-radiologist noted to the file his findings in relation to MRI results dated June 25, 2010, December 8, 2011 and November 14, 2015.
In a second decision dated October 14, 2015, the worker was advised that the WCB was unable to relate his current level of impairment and inability to work to the workplace injury of February 16, 2010 based on a review of the MRI results.
On January 12, 2016, the worker's legal counsel requested reconsideration of the case manager's decision dated September 16, 2015 to deny responsibility for medical aid costs.
On March 4, 2016, Review Office confirmed that there was no entitlement to further medical aid benefits. In making its decision, Review Office referenced various medical reports on file from the worker's treating chiropractor and physiotherapist as well as the opinions on file by the WCB's healthcare branch and an external neuro-radiologist.
Review Office referred to the Appeal Commission's decision in February 2013 that the worker continued to suffer from an injury to his sacrum and sacroiliac joints caused by the workplace accident in February 2010. However, Review Office found that the medical evidence since February 2013 no longer supported that the worker was suffering from the effects of the 2010 workplace injury. The worker had degenerative changes at L5-S1 with no disc herniation, spinal stenosis or nerve root compression at any of the imaged levels. Review Office placed weight on the external radiologist's opinion regarding the 2010 MRI results: "at the L5-S1 level there are mild disc degenerative changes. There is broad shallow annular disc bulging vs. shallow disc herniation without spinal stenosis or focal nerve root compression. There is no evidence of a disc protrusion. There is no other evidence of disc herniation, spinal stenosis or nerve root compression at any of the other imaged levels. No other significant abnormality is identified."
The medical evidence, in the opinion of Review Office, did not support a causal relationship between the worker's current difficulties and the February 16, 2010 workplace injury and therefore there was no entitlement to further medical aid benefits. On March 28, 2016, the worker's legal counsel appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's 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 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The worker has an accepted claim for a workplace injury. He is seeking additional medical aid benefits.
Worker's Position
The worker was represented by legal counsel.
The worker's counsel advised that the WCB did not have the jurisdiction to make the decision which it made in this case. He said that the matter was "res judicata" as the Appeal Commission, in Decision No. 25/13, had determined the issue.
He noted that in its decision the Appeal Commission wrote:
The issue before the panel is whether or not the worker is entitled to benefits after February 17, 2012. In order for the appeal to be successful, the panel must find that the ongoing low back difficulties experienced by the worker are related to the injuries he sustained in the February 16, 2010 workplace accident. We are able to make that finding…The panel, however, accepts the opinion of the treating chiropractor that even in the absence of sacroiliitis, there could still be an ongoing injury to the sacrum and sacroiliac joints.
The worker's counsel advised that there had been no change in the worker's condition. He said the worker's symptoms continue to be exactly the same as they were in 2012. He noted that while the symptoms may wax and wane there has been no significant change since 2010 or 2013. The worker's counsel submitted that the WCB could not alter the Appeal Commission's decision, that it remains in force and that the worker is entitled to the cost of medical aid for treating the condition which was accepted by the Appeal Commission. As a result, this panel also could not alter the prior 2013 decision.
The worker's counsel reviewed the history of the claim commencing with the worker's accident. The worker's counsel noted that Review Office sought an opinion from a WCB medical advisor on the worker's current diagnosis and its relationship to the February 2010 injury. He noted that the WCB medical advisor responded that the worker's "current presentation is medically unaccounted for in relation to workplace duties performed in 2010 or subsequently." He referred to the WCB medical advisor's opinion as speculative.
The worker's counsel submitted that it was not open for Review Office to obtain another medical opinion and change the decision. He said the WCB cannot overrule the Appeal Commission. The panel asked the worker's counsel whether a change in findings would, in his opinion, be sufficient to provide the WCB with authority to make a different decision. He responded that a change in findings is not sufficient, there must be a change in the symptoms and that in this case there has not been a change in symptoms. Without a change in symptoms, Review Office has no jurisdiction to change the decision.
In answer to questions from the panel, the worker advised that he continues to see the same chiropractor who had diagnosed the sacrum and sacroiliac joints condition. He advised that he sees him once every two weeks. He said the treatments keep him mobile. He advised that the treating chiropractor has referred him to a neurosurgeon who he will see at some point in the future. He also acknowledged that he continues to see his family physician who prescribes medication for his injury.
The worker's counsel submitted that the cause and effect relationship was determined in 2012 and that the issue of entitlement to ongoing benefits is not before the panel.
Employer's Position
The employer was represented by its general manager. The employer representative advised that the employer supports the WCB decision.
Analysis
The worker is appealing the WCB decision that he is not entitled to further medical aid benefits. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker requires medical aid to cure and provide relief from his compensable injury.
The panel notes that the worker's counsel has framed the issue as one of jurisdiction. He has submitted that the Appeal Commission decision is still in force and that Review Office (and therefore this panel) had no jurisdiction to alter the decision which was made by the panel in 2013.
The panel does not accept the worker's position. The panel finds that the earlier decision made by the Appeal Commission was a "point in time" decision. The panel finds that Review Office had the jurisdiction to review the ongoing medical and other information on the worker's file and determine whether the worker's condition had changed or whether it was still related to the workplace injury. Review Office did not usurp the jurisdiction of the 2013 panel in this case. It is therefore open to this panel to consider the issue, namely, the worker's entitlement to further medical aid benefits.
At the time the Appeal Commission made its 2013 decision, the panel reviewed the various medical conditions diagnosed and stated that "…the panel is satisfied on a balance of probabilities that after February 12, 2012, the worker continued to suffer from an injury to his sacrum and sacroiliac joints which was caused by the workplace accident of February 2010." This is the only diagnosis accepted by the Appeal Commission in 2013.
The panel notes that the information placed on the worker's file since 2013 confirms that the worker's condition is different from when the Appeal Commission last considered the evidence. The panel finds that, since the Appeal Commission rendered its decision, there are no longer any clinical or diagnostic test findings provided by any medical practitioner, other than a reference by the treating chiropractor in late 2013, relating to the worker's sacrum or sacroiliac joints. The panel finds the compensable condition has resolved, as noted by the changing findings, and that there is no longer a relationship between the compensable accident and the worker's current complaints.
As to the worker's position that the worker is entitled to further medical aid because there has been no change in symptoms, the panel finds that this approach is too simplistic; there must also be a patho-anatomic basis for the symptoms that can be linked to a compensable medical condition. This is confirmed by the medical findings obtained through examinations, tests and diagnostic tools.
The panel attaches weight to the opinion of the WCB medical advisor who examined and interviewed the worker on July 16, 2015. The WCB Medical Advisor found "no objective evidence of pathology" involving the sacroiliac joint. This was the compensable diagnosis established by the Appeal Commission in 2013. The panel also agrees with the WCB medical advisor's opinion that the current diagnosis of the worker's condition is non-specific, non-radicular back pain. This was not accepted in 2013 as a compensable diagnosis.
The panel finds, on a balance of probabilities, that the worker is not entitled to further medical aid benefits in relation to his 2010 workplace injury. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 15th day of September, 2016