Decision #132/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after October 31, 2016 as it was felt that he had recovered from his compensable injury diagnosed as a strain/sprain injury and there was no ongoing relationship between his compensable injury and his pre-existing condition. A hearing was held on August 8, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after October 31, 2016.
Decision
That the worker is not entitled to benefits after October 31, 2016.
Background
On March 10, 2015, the worker slipped on ice when getting out of his truck and landed on his tailbone. The worker sought medical attention on March 12, 2015, and was diagnosed with a lumbosacral strain.
The claim for compensation was accepted and the worker was paid benefits up to December 4, 2015, when it was determined by initial adjudication that his ongoing symptoms were most likely related to his pre-existing back condition (degenerative disc disease) rather than effects of the strain injury he sustained on March 10, 2015. On June 3, 2016, the WCB's Review Office overturned the decision and found that the worker had not reached his pre-accident status by December 4, 2015. Based on the Review Office decision, the worker's benefits were reinstated effective December 4, 2015.
On October 21, 2016, initial adjudication advised the worker that his claim had been reviewed by a WCB orthopedic consultant, who provided the following opinion:
• The MRI study did not identify evidence of a lower limb radiculopathy which would relate to a reported diffuse left lateral disc protrusion at L5-S1 and diffuse prominence of the disc at L3-L4.
• The CT study identified significant evidence of diffuse lumbar disc degeneration. None of these changes would relate to the compensable injury of this claim.
• There was no longer a combined effect between the compensable injury and the pre-existing degenerative changes present.
Based on the above findings, it was the opinion of initial adjudication that there was no evidence linking the worker's current difficulties to his compensable injury and there was no longer a combined effect between his compensable injury and his pre-existing difficulties. As such, he was not entitled to wage loss and medical aid benefits beyond October 31, 2016. On December 5, 2016, the worker appealed the decision to Review Office.
On January 26, 2017, Review Office confirmed that there was no entitlement to benefits beyond October 31, 2016.
Review Office noted that the worker had a pre-existing condition within his lower back of degenerative disc disease, which existed prior to the March 10, 2015 accident. Review Office did not find the evidence to support that the original mechanism of injury, producing a diagnosis of a sprain/strain injury, caused any additional structural changes to the overall disease process. Review Office concluded that there was no longer any ongoing relationship between the compensable injury and the worker's pre-existing degenerative condition by October 31, 2016, and that the worker's sprain/strain injury of March 10, 2015 had resolved.
On April 12, 2017, the worker appealed Review Office's decision and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
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.
Subsection 4(1) of the Act 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.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act states 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."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
Worker's Position
The worker was self-represented. The worker made a presentation and responded to questions from the panel relating to the accident and mechanism of injury, previous injuries or difficulties with his back, and his ongoing activities and capabilities.
The worker's position was that he was still not back to where he was prior to his workplace accident. His back was still sore and he was still unable to work long periods of time. He said he can work around the house for three or four hours during the day, but then has to lie down, sometimes for the rest of the day. He tries to keep busy doing light duties, which include working in his garage and helping friends and family with small jobs. He has not returned to work, but said that he is hoping to be able to work again and is "always keeping my ears open."
The worker stated that he never saw anyone from the WCB between June 3, 2015, when his benefits were reinstated, and October 2016, when his benefits were cut off. The WCB specialist referred to and relied on MRI and CT studies, but he never had an MRI. He had been receiving treatment from a chiropractor for over a year, but had to stop seeing the chiropractor a few months ago, as he could no longer afford to pay for treatment. In response to a question as to whether those treatments were helping, he said that the chiropractor "wasn't making it worse." He also said that his doctor was trying to get him into a pain clinic, but he had not yet been able to get an appointment.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to benefits after October 31, 2016. In order for the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid benefits after October 31, 2016 as a result of his March 10, 2015 workplace accident. The panel is unable to make that finding, for the reasons that follow.
Based on our review of the medical information on file and the mechanism of injury, the panel finds that the worker sustained a lumbar sprain/strain in the environment of a pre-existing condition of degenerative disc disease.
The panel further finds, based on the evidence before us, that the worker's sprain/strain injury had resolved by October 31, 2016. In arriving at this conclusion, the panel places significant weight on the August 19, 2015 and October 26, 2015 opinions of the WCB medical advisor. The panel notes, in particular, the medical advisor's conclusion, after conducting a call-in examination of the worker on August 19, 2015, that:
…there is a major pre-existing condition which is degenerative disc disease (DDD) as reported on the June 22, 2015, CT scan report. It is probable that in this setting a lumbar strain injury may have a somewhat prolonged recovery period…
...it is my opinion that on balance [worker's] current lumbar spine complaints are likely accounted for by the combined effect of his pre-existing DDD and his acute lower back injury.
In his subsequent report of October 26, 2015, the WCB medical advisor opined that there was no longer a combined effect between the compensable injury and the pre-existing condition, as follows:
A lumbar strain injury will typically resolve over a period of days to weeks, but not typically months. [Worker] is now seven months post date of injury. As discussed in the August 19, 2015 call-in exam report [worker's] recovery was likely prolonged given his pre-existing DDD and a combined effect was probable at that time. Notwithstanding this, the natural history of a strain injury is for gradual improvement in symptoms. The natural history of DDD is for a progressive deterioration in symptoms.
Considering the natural history of a lumbar strain, in conjunction with the consultation report from [physiatrist] it is likely that [worker's] ongoing low back complaints are on balance accounted for in relation to his pre-existing conditions rather that (sic) the effect of the strain injury sustained on March 10, 2015.
The panel accepts the WCB medical advisor's opinion in this regard. The panel notes that on February 26, 2016, the WCB medical advisor considered further information from the worker's chiropractor which was submitted by the worker, and concluded that there was no new medical information that would substantiate a change in his opinion.
The panel also places significant weight on the September 21, 2016 opinion of the WCB orthopedic consultant, as referred to above, and adopts his conclusion that there would no longer remain a combined effect between the compensable injury and the pre-existing degenerative changes. The panel acknowledges the worker's concern that there is a reference in the consultant's report to an MRI study and that he did not have an MRI. The panel is satisfied that the reference to an MRI was a typographical error and should in fact have been to the CT study which the worker underwent.
The panel has also considered whether the worker's pre-existing degenerative disc disease was aggravated or enhanced by the workplace accident, but is unable to find that the worker's pre-existing condition became symptomatic as a result of, or was aggravated or enhanced by, his workplace accident. We note that our conclusion in this regard is supported by the WCB medical advisor, who opined on October 26, 2015 that "There is no medical evidence which might substantiate that an anatomical alteration to the [worker's] lumbar spine occurred in relation to the C.I. (compensable injury)."
In conclusion, the panel acknowledges that the worker currently has significant problems with his back, but is unable to find that his ongoing problems are related to his March 10, 2015 workplace accident.
The panel therefore finds that the worker did not sustain a loss of earning capacity or require medical aid after October 31, 2016 as a result of his workplace accident.
The panel finds that the worker is not entitled to wage loss or medical aid benefits after October 31, 2016.
The worker's appeal is denied.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of October, 2017