Decision #62/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after July 12, 2017. A hearing was held on April 4, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after July 12, 2017.
The worker is not entitled to benefits after July 12, 2017.
The worker reported injuring his lower back on October 18, 2016. He described the workplace accident as:
I was in the manhole, I was lifting sandbags from the dike we build (sic). When I lifted the one sandbag, I turned and when I turned I heard a pop in my back. That's when the pain started shooting from my back into my legs.
I never had any back problems.
Sandbag was approx.. 30 - 40 lbs.
I was bent over, and there's not much room in the manhole.
I lifted about 4 sandbags before I heard a pop.
The worker finished his shift that day but awoke in the middle of the night in pain and attended at the emergency room on October 19, 2016 where he was diagnosed with "Acute Discogenic Back Pain." It was recommended the worker stay off work for one week.
At a follow-up doctor's appointment on October 21, 2016, the worker was cleared to perform modified duties noted as "boiler watch."
The employer flew the worker back to his home in another province and on November 2, 2016, the worker saw his family doctor. The worker's family doctor noted the worker's complaints of low back pain with radiation into buttocks and increasing pain with prolonged standing or walking and referred the worker for physiotherapy. He was also to continue with the modified duties for another three weeks. At the worker's first physiotherapy appointment, he was diagnosed with "Lsp (lower spine) derangement/disc bulge (with) associated paraspinal muscle spasm." The physiotherapist provided restrictions of:
Restrict bending/twisting of low back; (zero) lifting. Avoid prolonged sitting/standing/walking. Allow worker to change positions as needed.
On November 15, 2016, the employer advised the WCB that the worker had not been able to return to work, even on modified duties, since November 7, 2016.
The WCB advised the employer on December 22, 2016 that the worker's temporary restrictions were:
Desk work. Allow worker to change positions as needed.
Avoid bending, lifting, and push/pull.
An MRI conducted on December 29, 2016 indicated the following:
There are degenerative changes at L4-5 at L5-S1. At both levels, there are disc bulges with superimposed mild central protrusions resulting in mild to moderate/mild central canal stenosis respectively. At L4-L5, there is mild narrowing of the lateral recesses with questionable abutment of the L5 traversing nerve roots. No significant neuroforaminal stenosis. There is likely due to progression at the L4-L5 level since a CT from July 2012.
The worker returned to work on January 3, 2017, with the following restrictions noted on a Functional Abilities Form, completed January 5, 2017:
Walking: as tolerated
Standing: as tolerated
Sitting: as tolerated
Lifting from floor to waist: None
Lifting from waist to shoulder: None
Ladder climbing: None
No Bending/twisting repetitive movement of Low Back
Limited pushing/pulling with: Left arm/Right arm
Allow worker to change positions as needed. Every 30min to 1 hr allow worker to sit to rest low back. Avoid prolonged standing. Avoid bending/push/pull.
At a follow-up appointment on January 11, 2017, the family doctor discussed the results of the MRI with the worker and noted:
The MRI showed evidence of degenerative changes at L4-L5 and L5-S1. Her (sic) disc bulges resulting in mild to moderate central canal stenosis. At the L4-L5 level there is a questionable abutment of the L5 traversing nerve recurrence. There has been progression since his CT scan of 2012.
It was also noted that the worker should continue his current light duties, to be reassessed in two to three weeks. The worker advised the family doctor that he had an "acute exacerbation" of his back pain. At this appointment, the worker was also referred to a physical medicine rehabilitation specialist.
At a January 16, 2017 physiotherapy appointment, a new diagnosis of "L4-S1 disc bulges (with) central canal stenosis" was provided and the following modified duties were recommended:
Recommend 4hr shifts of mod. duties, (zero) lifting, restrict bending/twisting/squatting. Avoid prolonged sitting/standing, allow worker to change positions as needed.
A WCB medical advisor provided the following medical opinion on January 24, 2017:
1. The current diagnosis is nonspecific low back pain.
2. The reported and documented low back pain, with the documented limitation in range of motion of the low back by the treating physician and physiotherapist supported by the absence of pathology beyond degenerative changes on the December 29, 2016 lumbosacral spine MRI is concordant with the aforementioned diagnosis.
3. The initial impression of the treating physician was discogenic back pain. The December 29, 2016 lumbosacral spine MRI documents no pathology that supports a diagnosis of discogenic back pain. Multilevel degenerative changes were identified with reported progression from a prior CT scan of the lumbosacral spine in 2012. The described mechanism of injury, in the absence of acute pathology documented on the December 29, 2016 lumbosacral MRI, would be a low back strain. Low back symptoms were reported in close temporal relation to the workplace accident. As such, the current low back symptoms on the balance of probabilities is likely a combined effect of the workplace accident and the multilevel degenerative changes.
4. The recovery appears to be protracted beyond typical recovery norms.
5. The expectation is that the physiotherapy will result in a resolution of symptoms. It appears that the treating physician had referred the worker to a physiatrist. Further treatment recommendations may be forthcoming following this consultation.
6. The treatment would be appropriate for the management of a low back strain but also degenerative changes to the low back. It is expected that a strain type of injury to recover while symptoms from degenerative changes to the lower back would have a high recidivism rate with periods of no symptoms interspersed with periods of symptoms.
7. Beyond a home base exercise program some individuals benefit from using modalities like TENS. This is however not required as a medical necessity to recover from the October 18, 2016 workplace accident.
On January 26, 2017, the worker provided a note from his family doctor removing him from his accommodated duties.
The worker met with a physical and rehabilitation specialist on February 2, 2017 who provided, in part, the following opinion:
ASSESSMENT: [The worker] has annular tears and disc protrusion at the lower two lumbar levels. EMG shows irritation to the L5 root with no active denervation.
Prognosis is good for continued recovery. He is encouraged to attend physiotherapy and exercises at home. He should maintain proper back hygiene and I have added [medication] as a muscle relaxant. Continued improvement is expected.
The worker's physiotherapist requested authorization for additional treatment on February 23, 2017. A WCB physiotherapy advisor did not support the additional treatments and suggested that a WCB medical advisor should review the file. On July 4, 2017, the WCB medical advisor opined that they could not relate the current presentation to the compensable injury of October 18, 2016.
On July 5, 2017, the WCB advised the worker that the WCB was unable to accept ongoing responsibility for wage loss and medical treatment beyond July 12, 2017.
The worker requested reconsideration of the WCB's decision by Review Office on July 21, 2017. The worker disagreed with the WCB's medical advisor's findings that he had previous back problems and felt that the request for more physiotherapy treatments should have been allowed.
Review Office upheld the WCB's decision on September 13, 2017. Review Office accepted that the worker suffered an injury to his lower back on October 18, 2016. Review Office also acknowledged that the worker sought and received treatment for his workplace injury of a lower back strain. Review Office did note that there were medical reports that pre-dated the October 18, 2016 workplace injury which indicate the worker suffered from previous low back problems which "…date back to a work-related MVA (motor vehicle accident) in 2007." There is also notes from the December 29, 2016 MRI conducted that refer to the "progression at the L4-L5 level since a CT from July 2012", establishing that the worker did have lower back problems prior to the workplace accident. Review Office also placed weight on the July 17, 2017 WCB medical advisor's opinion that the worker's pre-existing "low back pain and degenerative changes likely prolonged the worker's recovery from the compensable injury."
The worker's representative filed an application with the Appeal Commission on November 20, 2017. An oral hearing was held on April 4, 2018.
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 by the WCB.
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 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."
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.
In this appeal the worker is seeking benefits beyond July 12, 2017 on an accepted claim arising from a 2016 workplace injury.
The worker was represented by a worker advisor. He participated via a telephone conference call. He answered questions from his representative and the panel.
The worker's representative advised that the worker did not agree with the WCB Review Office decision. She noted that the worker was able to perform his work duties prior to the October 18, 2016 incident, but following the incident he developed severe low back symptoms. The claim was accepted as a lumbar strain/sprain injury in the environment of a pre-existing condition.
She said that the worker believes that the delays in treatment contributed to his prolonged recovery.
The worker advised that:
The type of work that we do is we reline main sewers for the [name] with an epoxy fiberglass liner. Before we line any sewer, we have to prep the line, which is consisting of us crawling a sewer pipe. The size of the sewer pipe that we crawl is from 24-inch diameter to a 72-inch diameter pipe. How we do this is we do a man entry to clean the calcite off the pipe…
The worked advised that on October 18th his back was fine and he had no issues before he started work. He said he was crawling in a 60-inch diameter pipe all day with no problems or pain. He advised that due to an excess water problem, they had had to build a dike with sandbags to stop the water from coming back into the line.
He advised that:
Then I had to crawl back down the line where the plug was to remove the 24-inch plug out of the line. After that was done, I had to crawl to where the sandbags were. The water at that time was up to my chest, because I was wearing chest waders. They lowered a pail into the manhole so I could put the silk sandbags into the, into it. The height of the sandbags were three to four feet in height. When removing the sandbag, I turned and placed it into the bucket and then I heard a pop in my back. At that time I had leaned against the wall in the manhole. My back was very tight. I was able to finish getting through getting all the bags out of the line, but I was in pain. We were on our way back to the hotel and I noticed that my back was getting tighter and tighter. When I got back to my room, I had a shower to see if I could loosen up the back. It didn't. I went to bed and I woke up around midnight in a lot of pain.
The worker said that he saw a doctor in Winnipeg and then returned to his home in another province. He tried returning to modified duties on January 3, 2017 but only for a brief period. He noted that on this date his back was still very tender. He advised that he was on light duties, which included pushing an electric floor sweeper, and updating MSDS sheets at the shop, which entailed walking around, looking at all the chemicals that the employer had and making sure that the sheets were up to date.
The worker advised that:
On January 6th I had pain that was shooting into my bum and down my leg. It was very sharp pains in the lower back. I had a hard time moving and ended up in bed for several days because I was in so much pain.
The worker's physician ordered both trigger point injections and physiotherapy. The worker said that he is still having a major issue with his S1. He said he then had a nerve block injection into lumbar vertebra in conjunction with the trigger point injections. He was able to tolerate more with his back. He acquired a TENS machine and did home exercise. He has also found water physiotherapy to be useful.
In reply to a question about his current condition the worker advised:
My back condition now is still very tender. I still can't walk for a long distance without pain. I can't lift or bend over or tie my shoes without pain. The injections I still receive. They last about four days now. I have a hard time getting to sleep because I'm having difficulty getting comfortable. I still take pain medication for the pain. I bought a back brace for support.
The worker acknowledged that he has degenerative disc disease but states he's never had this much pain since the accident in October, 2016.
The worker's representative reviewed the various treatments which the worker has undergone. She noted that the WCB refused to authorize some treatments and that there have been delays in receiving treatment. She submitted that:
Based on the information presented, it is our opinion evidence supports the delay in appropriate treatment has contributed to [worker's] slow recovery from his compensable injury. Therefore, [worker] should be entitled to additional coverage after July 12, 2017.
The worker was asked about prior injuries. He described a 2007 auto accident and the resulting injury. He said that in the accident the air bag knocked him out and jarred his upper back. He said there was swelling down to the middle of his back. He also noted that on other occasions his back would lock up. He said it felt like he was hit from behind and jarred his shoulders and neck.
He acknowledged a 2009 visit to his physician which indicated that he suffered severe lower back pain after gardening. He also acknowledged a 2012 CT report which noted mild broad-based disc bulges at L5 and S1.
In reply to a question about the condition of his back prior to the accident, the worker advised:
How my back was prior to this accident, like I've been working for the company since 2013. Between the time of 2013 to the accident date, I've never had a back problem working for this company and do what I do. I did not have any shooting pains…I was never off due for a back problem at work. So I was able to do my job very well.
The employer did not participate in the hearing.
The worker is appealing the WCB decision which held that he was not entitled to benefits after July 12, 2017. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity and require medical aid benefits as result of the workplace injury beyond July 12, 2017. The panel was not able to make this finding. The panel finds, on a balance of probabilities that the worker had recovered from the effects of the accident by July 12, 2017 and was not entitled to further benefits.
In reaching this decision, the panel attaches weight to the March 30, 2017 opinion of the orthopedic specialist who examined the worker and opined that the "majority of his symptoms seem to be mechanical and back origin."
The panel also attaches weigh to the opinion of the pain clinic physician who examined the worker on May 12, 2017 and opined that that the diagnoses of the worker's condition are:
1. Degenerative disc disease.
2. L4-L5 disc protrusion and annular tear.
3. Chronic myofascial back pain.
4. Sciatica bilaterally, right more than left.
The panel understands that mechanical back pain is a general term for back pain and often results from degenerative conditions. In the worker's case, there is confirmation of a degenerative back condition.
The panel also attaches weight to the July 4, 2017 opinion of the WCB medical advisor who reviewed the worker's file and opined that:
Upon review of the clinical notes on file prior to and after the date of the injury (Oct 18, 2016), the presentations are similar and represent nonspecific low back pain with no ominous/neurogenic features. Despite an EMG finding of L5 irritation, there aren't any consistent clinical findings of a lumbar radiculopathy among multiple health care providers. It would appear the current presentation represents a consistent chronic back condition rather that (sic) related to the isolated compensable injury. As such, the writer would not relate the current presentations to the compensable injury of Oct. 18, 2016.
Finally, the panel notes that when examined, the worker's straight leg raise (SLR) tests varied which the panel understands is common in degenerative conditions. The panel notes the reported SLR scores measured by physicians who examined the worker on the following dates:
Feb 2, 2017 right 45 left 60
Feb 7, 2017 right full left full
March 30, 2017 right 70 left 90
May 12, 2017 right 10 left 45
The panel also attaches weight to the pre-accident medical reports which confirm that the worker's prior injuries were of greater significance than the worker reported.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of May, 2018