Decision #101/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the cumulative effects of the worker's back injuries did not result in the need for back surgery. A hearing was held on March 30, 2017 to consider the worker's appeal.

Issue

Whether or not the cumulative effects of the worker's back injuries resulted in the need for back surgery.

Decision

That the cumulative effects of the worker's back injuries did not result in the need for back surgery.

Background

On January 27, 2014, the worker filed a claim with the WCB for a low back injury that occurred at work on December 17, 2013. The worker reported "I was pulling out some big cages out the trailer with a hand jack and they were double stacked and they were too heavy and I felt sharp shooting pains in the left middle lower back."

On January 28, 2014, a WCB representative documented information she obtained from the worker regarding the onset and progression of his low back difficulties.

The worker has prior claims with the WCB related to low back injuries from 1988 to 2013.

Initial medical reports show that the worker attended a hospital facility on January 26, 2014 where it was reported that he had longstanding back/disc problems at the L4-L5 level. On February 7, 2011, the worker underwent a CT scan of his lumbar spine which read as follows:

"At L4-L5 there is diffuse concentric disc bulging but in addition there is also focal central and right paracentral posterior disc protrusion. May impinge and on the traversing and exiting right L5 nerve root. Does this correlate with the clinical findings?"

On March 7, 2014, the worker underwent an MRI scan of his lumbar spine which read as follows:

"Large central L4-5 disc extrusion affecting both L5 roots."

On May 6, 2014, the worker's claim was reviewed by a WCB medical advisor who stated:

  • the initial and current diagnosis based on the reported mechanism of injury was a back strain and right-sided radiculopathy occurring in the environment of pre-existing lumbar disc disease.
  • gradual improvements to baseline function are predicted to occur over 3 to 4 months.
  • the recent MRI demonstrated a worsening of the disc protrusion at the L4-5 level with ongoing potential for bilateral L5 nerve root compression.

In a consultation report dated June 18, 2014, an orthopedic surgeon recommended that the worker undergo an L4-5 discectomy, fusion and fixation including a PLIF cage at L4-5.

On July 10, 2014, a WCB orthopedic consultant reviewed the file evidence which included the mechanism of injury described by the worker and the imaging studies from 2011 and 2014. The consultant stated, in part:

In my opinion, on the balance or probabilities, the proposed surgery does not arise out of the compensable injury of this claim. The proposed surgery is directed at a well established symptomatic L4-5 disc herniation and may be considered appropriate for that diagnosis, although it is not clear that there is need for stabilization at the L3-L4 level, considering the current MRI report. I do not recommend that the WCB accept financial responsibility for the proposed surgery.

By letter dated July 15, 2014, the worker was advised that, based on a WCB medical opinion, no financial responsibility could be accepted for the proposed L4-5 discectomy and PLIF fusion, and non-fusion stabilization at L3-4.

On July 25, 2014, the worker submitted an appeal to Review Office as he disagreed with the WCB decision dated July 15, 2014.

In a letter dated July 31, 2014, the worker's treating physician stated:

...the pre-existing condition was a work related injury that occurred in 2008. He attended our Clinic on May 30/2008 for a work related lower back injury. At this time he had injured himself lifting heavy weights (magazines) and driving a truck. An X-ray done at this time was entirely normal and it is enclosed. A repeat lumbar X-ray done Nov 29/2013 shows disc space narrowing at L4-L5. This provides evidence that injury has occurred and caused structural changes, since the injury of 2008. I also find no mention of back pain prior to his WCB related work injury of 2008. For this reason I feel that [the worker] is justified in appealing the recent WCB decision.

On September 10, 2014, the worker called Review Office and stated:

...feels his prior WCB back injuries and his heavy work demands have contributed in his need for surgery. The worker said he delivers magazines and also takes returns. Some stores [names], he is able to back up his truck to a loading dock and use their pallet jack. Other times the worker uses a wheeler that he brings with him. Boxes can be over 40 kg.

On September 25, 2014, Review Office determined that no responsibility should be accepted for the proposed back surgery. Review Office referred to file evidence to support that the proposed surgery was not necessary because of an injury resulting from the December 17, 2013 accident. Review Office felt the accident on December 17, 2013 did not cause an enhancement of the worker's pre-existing condition. In May 2015, the worker, through an advocate, appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 12, 2015.

In a further decision by primary adjudication dated November 12, 2014, the worker was advised that the WCB reviewed his prior WCB claims and that the accepted diagnosis was consistent with a back strain which was a temporary condition that typically resolves within 4 to 6 weeks. As such, the WCB was of the view that the proposed surgery was directed at a longstanding pre-existing condition and that no financial responsibility could be accepted for the proposed surgery.

On January 8, 2016, it was determined by the appeal panel that responsibility should not be accepted for the proposed back surgery. For complete details of the panel's decision, please refer to Decision No. 07/16. The panel stated, in part:

The panel also notes that the proposed surgery was performed on November 24, 2014, and that the operative report of that surgery, which is on file, suggests that all findings are consistent with degenerative conditions and spinal stenosis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence does not establish that the proposed surgery arose out of, or was related to, the worker's compensable injury in this claim, and that responsibility should therefore not be accepted for that surgery."

On May 18, 2016, the worker's advocate wrote to Review Office requesting that it consider the following issue: Whether the injurious effect of the cumulative reported workplace injuries along with the compensable injury of December 17, 2013 resulted in [worker] requiring back surgery November 24, 2014.

In a submission to Review Office dated July 11, 2016, the employer's representative outlined the position that "the driving duties were not the contributing factor but likely another medical condition existed that required the corrective surgery."

On July 26, 2016, the worker submitted his final submission to Review Office with respect to the employer's positions that was outlined on July 11, 2016.

On July 27, 2016, Review Office determined that the cumulative compensable back injuries did not result in the need for back surgery. Review Office referred to the worker's previous WCB claims dating from 1988 to the present. Review Office concluded that the worker's cumulative compensable back injuries involved back strains/sprains. In the opinion of Review Office, the worker's cumulative compensable back injuries did not result in the need for back surgery. On September 27, 2016, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was held on March 30, 2017.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the treating orthopedic surgeon and also from the worker's treating physician. On April 4, 2017, the interested parties were provided with the information that the panel received and were asked to provide comment. On May 16, 2017, 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 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 the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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.

Policy 44.10.20.10 - Recurring Effects of Injuries and Illness (Recurrences) ("the Policy").

The policy notes that injuries can be the result of a new and separate accidents or a recurrence of a previous injury.

Worker's Position

The worker was represented at the hearing by an advocate.

The worker's advocate noted that the worker had numerous WCB claims for back related injuries dating back to 1988.

The worker's advocate stated that the workplace injury that occurred on December 17, 2013 enhanced his previous back injuries and was the injury that triggered his need for back surgery. She highlighted to the panel the worker's treating physician's letter to WCB dated July 31, 2014 stating that X-rays were taken in 2008 compared to x-rays taken in 2013 show disc space narrowing at the L4-5 level and mild spondylosis in the lower lumbar spine, as evidence that the injury the worker incurred in May 2008 was more severe than a sprain or strain that had been originally diagnosed.

As a result of his continual back pain, the worker had another MRI on March 7, 2014 which identified mild diffuse bulging at L3-4 and a large central L4-5 disc extrusion affecting both L5 nerve roots.

Due to the worker's ongoing back pain he underwent back surgery on November 24, 2014.

The worker's advocate made the following arguments for the panel's consideration:

In closing, [the worker] suffered from re-occurring effects of these back injuries which led to back surgery.

WCB policy 44.10.20.50 states, a re-occurrence is a clinically demonstrated increase in permanent impairment which results in loss of earning capacity, or a disability which has been directly related to a previous condition and resulted in a current loss of earning capacity. And WCB policy 44.10.20.50.10 goes on to state, when a worker has returned to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity as a result of that same injury or illness, the WCB will award compensation benefits to the worker during the current loss of earning capacity.

The WCB medical advisor opined on July 10, 2014 that there was no single injury, but there was evidence of a significant lengthy pre-existing history of lower back problems. This suggests that every time [the worker] incurred a back-related injury, it enhanced his pre-condition, and in the Appeal Commission decision compensable injury claim for back surgery, the Review Office refers to it in that decision. There was no single injury reported, and evidence of significant lengthy pre-existing history of lower back problems, page 4 of 6 of the Review Office decision.

On December 17, 2013, [the worker] re-injured his back and the cumulative effects of the nine previously documented back injuries resulted in him requiring back surgery.

After a back injury sprain or strain that injury never heals 100 percent or returns to a normal state, as these injuries accumulate or compound, the back weakens and the disc herniations develop spinal stenosis which can result in back surgery to repair as in this case.

We believe that the Review Office decision should be overturned, and [the worker's] back surgery on November 24, 2014 is the result of his cumulative back injuries, that he should be compensated for all lost wages and medical expenses, and any and all other benefits allowed under the Act.

Employer's Position

The employer's General Manager & Vice President participated via conference call.

The employer's representative reviewed the history of the worker's various workplace injuries, the steps that the employer took to assist the worker and clarified some of the employer's concerns with the information on file.

Analysis

For the appeal to be accepted, the panel must find that the cumulative effect of the worker's previous compensable back injuries resulted in the need for the worker's back surgery that occurred on November 24, 2014. The panel is unable to make that finding.

The panel finds, on the balance of probabilities, that the worker's previous back injuries did not result in the need for the worker's back surgery for the following reasons.

The worker's advocate identified ten previous WCB claims related to the worker's back that occurred between February 1988 and December 2013.

In three instances, there are two claims in one calendar year (1988, 2008 and 2013), and in other instances there are several years between WCB claims (1988 to 1990, 2008 to 2010, 2010 to 2013) and in one instance (1990 to 2006) there was a sixteen year gap between back injury claims.

The panel first turned its attention to the status of the worker's back in 2008 around the time of the first diagnostic tests of the worker's back. With respect to the worker's treating physician's letter to WCB dated July 31, 2014 and references to a medical appointment on May 30, 2008, the panel notes that the worker had two WCB claims that year for his lower back. One was for an injury that occurred on May 10, 2008 and the other claim was for an injury that occurred on October 1, 2008.

The May 10, 2008 claim for a low back injury was treated by a chiropractor. There was no time loss associated with claim. There is reference in a June 4, 2008 file note to the worker having attended the treating physician's clinic in the time period referenced in the worker's treating physician's July 31, 2014 letter to the WCB. However, no report was provided to the WCB concerning that visit. The same file note also states that the worker was "doing regular duties." and that he was "Finding improvement with home exercises physio gave him. Will call if any change in status."

The second 2008 WCB claim for an October 1, 2008 injury also did not result in any time loss. At that time his present treating physician did submit a report to the WCB indicating that the workplace incident occurred on October 1, 2008 and that the area of injury was "middle lower back." The only other comment on the report states "No current or future appointments booked for px (patient)." There is no other medical information on the report. It appears that report was submitted to the WCB on October 21, 2008.

Subsequent to the hearing the panel obtained a copy of a CT scan that was performed on July 24, 2008 as well as the referral notes from the worker' treating physician dated August 14, 2008 requesting that the worker be examined by an orthopedic surgeon as well as the orthopedic surgeon's response dated September 4, 2008.

The treating physician's referral letter states:

"I would appreciate it if you could see [the worker]. The patient presented in to me in early July with low back pain, he is also experiencing numbness in his hips.

His range of motion is excellent, but due to ongoing symptoms, he underwent a CT scan, the results of which are enclosed. The CT scan shows some evidence of disc protrusion and spinal stenosis. Interestingly [the worker] is doing well and experiences little in way of symptoms (thanks to physiotherapy)."

The July 24, 2008 CT scan report states the following:

L3-4 paracentral disc with associated spinal stenosis but whether this is significant will have to be correlated with clinical findings. Paracentral disc at L4-5 of uncertain significance.

In response, the orthopedic surgeon stated the following on September 5, 2008:

I received a request for a consultation with your patient, [the worker]. From your letter you do note that although he had spinal stenosis diagnosed on a CT scan, he is doing well clinically. There is, therefore, no reason for me to see him at this stage.

As you know, we are inundated with requests for consultations for spinal cases and as there is no neurological involvement with your patient and he has been improving with conservative treatment, I believe it is prudent to not see this patient at this stage. I have reviewed his x-rays showing chronic narrowing at L4-5 disc space and a mild disc herniation. I would therefore, suggest take a wait and see approach.

The panel places particular weight on this report, and in particular its reference to chronic narrowing of the L4-5 disc space and the lack of acute injury findings of the lumbar spine in mid-2008. It is consistent as well with the minimal findings and medical treatment provided to the worker on the WCB claims to this point in time.

The panel then reviewed the worker's subsequent back claims. The worker's next claim submitted to WCB was for a lower back injury that occurred on July 7, 2009. There was no medical information submitted and the worker missed one day from work (July 10, 2009), worked modified duties from July 14 to July 17 and returned to full duties on July 18, 2009.

The worker also made a WCB claim for his lower back injury that occurred on April 29, 2010. There is one treating physician's report on file for an exam that occurred on May 5, 2010 with a diagnosis "LBP-strain." The subjective findings are "sore lower back. Twinges in legs." The objective findings are "tender L/S spine. ROM (decreased)." Although the treating physician indicates on the report that the worker will be incapable of working his regular duties as a result of the injury, there appears to be no time loss incurred.

The next WCB claim submitted by the worker was for an injury that occurred on January 14, 2013. The worker was exiting from a truck and slipped and injured his back. There was no time loss but the worker performed modified duties for approximately 3 weeks. The single medical note on file dated January 15, 2013 from his treating physician states the objective findings "Painful to go from sitting to standing, Flexion limited to 18 inches from the ground while standing, Unable to get on exam table, no extension, minimal side bending and rotation, tender L2-L3 area." The diagnosis states "low back strain??disc."

The worker initially attended physiotherapy on January 21, 2013 and was discharged for poor attendance as he was last seen on February 13, 2013. The physio report dated March 7, 2013 indicated that the worker stated he was back at work at normal duties as of February 5, 2013.

The second WCB claim the worker submitted in 2013 was for a back injury that occurred on December 17, 2013. The worker continued to work until January 24, 2014 when he attended the local hospital emergency department due to pain. In a previous Appeal Commission decision (Decision No. 07/16) the panel considered whether responsibility should be accepted under the December 2013 compensable claim for the proposed back surgery that occurred on November 24, 2014. The previous panel found that the injury that occurred in December 2013 was a sprain/strain to the lower middle back and responsibility should not be accepted for the surgery.

The panel accepts that the worker had a number of workplace injuries over the years. However, all of these incidents were of a strain/sprain type of injury that occurred within the environment of worsening lumbar disc disease. The panel notes that each injury was of a short term duration and that no acute trauma was identified or accepted in relation to any of the worker's previous claims. The panel accepts that each one these injuries resolved.

With respect to the worker's treating physician's report to the WCB dated July 31, 2014 and the assertions contained in his report regarding the 2008 claim(s) that the injuries that occurred in 2008 created "structural changes," the panel places greater weight on the information collected at the time of those claims, which includes the claim file notes identifying back sprain/strain types of injuries as well as the treating physician's own referral letter from September 2008 which does not relate the worker's "structural changes" identified in in the CT scan taken on July 24, 2008 to a work related injury.

As in the prior Appeal Commission decision previously referenced, this panel notes that the surgery that was performed on November 24, 2014, and that the operative report of that surgery, which is on file, suggests that all findings are consistent with degenerative conditions and spinal stenosis.

In response to the statements the worker's advocate made at the hearing regarding the WCB medical advisor's July 14, 2014 report referred to earlier in this decision, the panel notes that the WCB medical advisor's comment there is "no single injury…" is in relation to the actual mechanism of injury as there are different reports as to what was causing the medical condition being claimed in December 2013. The panel does not accept that the WCB medical advisor's comments implied a causal relationship between the need for surgery and the numerous back injuries sustained by the worker.

For the reasons previously noted, the panel does not accept the worker's advocate's assertion that the cumulative effects of the previously documented back injuries resulted in the worker requiring back surgery.

The panel also does not accept the worker's advocate's assertion that back injury sprains or strains never heal 100% or return to a normal state.

The panel does not accept the worker's advocate's statement that "these injuries accumulate or compound" or that such injuries cause the back to weaken, or cause a disc herniation to develop spinal stenosis, again noting the lack of general medical support for this position.

Based on the foregoing, the panel finds, on a balance of probabilities that the evidence does not establish that the cumulative effects of the worker's back injuries resulted in the need for back surgery.

The worker's appeal is denied.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of July, 2017

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