Decision #126/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current low back difficulties are not causally related to the August 13, 2001 accident. A hearing was held on September 10, 2019 to consider the worker's appeal.
Whether or not the worker's current low back difficulties are causally related to the August 13, 2001 accident.
The worker's current low back difficulties are not causally related to the August 13, 2001 accident.
The WCB accepted a claim from the worker for a low back injury that occurred on August 13, 2001 after the worker slipped down some steps while at work. The worker received physiotherapy and other medical treatment for an initial diagnosis of a lumbosacral strain. The accepted diagnosis was updated on November 16, 2001 to a left L5-S1 disc herniation.
The worker returned to his regular full duties on October 1, 2001 but stopped working on November 27, 2001 due to increasing symptoms. He then performed light duties from December 21, 2001 to December 27, 2001.
On February 8, 2002, the worker was called-in for examination by a WCB physiotherapy consultant who noted that the worker had ongoing mechanical back pain and recommended chiropractic treatment in conjunction with a work hardening program. The worker completed the work hardening program on April 11, 2002 and was then cleared to return to his regular duties.
The worker contacted the WCB in January 2003 to advise that he had injured his back while working for another employer on January 22, 2003. The worker was advised to file a new WCB claim and advise if he sought medical treatment.
Nothing further was noted on the file until the worker contacted the WCB in May 2010 to advise that he continued to suffer the effects of the August 13, 2001 workplace accident and he was requesting that the related claim remain open. At that time, he advised that he continued to receive chiropractic treatment twice each year since the accident.
The WCB contacted the worker's treating chiropractor on May 26, 2010 who advised that the worker had been treated twice in early 2002 and then, not again until April 2004. On June 22, 2010, the worker's treating chiropractor provided the WCB with a letter setting out the specific dates during the period from 2004 to 2007 when the worker had been seen.
In a meeting with the WCB case manager on August 6, 2010, the worker stated that he felt he had never fully recovered from the August 13, 2001 workplace accident and this had contributed to his inability to perform all of the job duties required of him.
The WCB case manager, in a letter dated August 6, 2010, advised the worker that the WCB determined his current low back difficulties were not causally related to the workplace accident. He was also advised that any new medical information from his healthcare providers would be reviewed and considered.
On September 1, 2010, the WCB received a report from the worker's family physician. The treating physician noted that the worker had been a patient since 2003 and that she had not treated the worker for ongoing back problems in the period from 2003 to the time of the correspondence. The family physician went on to advise that she reviewed the medical chart with the worker and did not find any note of a dedicated visit for the back injury.
On September 9, 2010, the worker was advised that the medical information provided was reviewed but the August 6, 2010 decision remained unchanged.
The worker requested reconsideration of the WCB's decisions to Review Office on September 22, 2010, noting that he had been receiving ongoing treatment for his back pain, in addition to medication prescribed by his family physician and requested that consideration be given to retraining. The worker also requested a meeting with Review Office to discuss his request, which took place on September 24, 2010.
On November 15, 2010, Review Office determined that the worker's current lower back difficulties were not related to his workplace injury of August 13, 2001.
The worker filed an appeal with the Appeal Commission on May 13, 2011; however, on August 17, 2011 the worker requested the Appeal Commission not proceed with his appeal as he was seeking reconsideration by Review Office.
On November 18, 2011, the worker submitted a further request for reconsideration to Review Office together with additional medical information including an MRI report dated March 21, 2011 and a November 18, 2011 report from his treating physician that clarified the details of an unrelated, non-compensable injury that occurred on November 29, 2007.
Review Office advised the worker on December 15, 2011 that the new medical information provided was reviewed but there would be no change to the earlier decision.
The worker's representative filed an appeal with the Appeal Commission on February 11, 2019. An oral hearing was arranged.
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.
Section 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 s 4(2), a worker 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.
The worker was represented by legal counsel who made submissions on his behalf. The worker answered questions posed by his lawyer as well as those of members of the panel.
The worker, in answer to questions from his counsel, described to the panel the circumstances leading to his compensable workplace injury of August 13, 2001 as well as the details of the treatment he received for that injury. The worker indicated to the panel that after completion of the work hardening program in April 2002, he was unable to return to his pre-accident employment as that position was not available.
The worker indicated that he obtained some relief from chiropractic treatment but did not attend frequently because he was concerned about becoming dependent on that treatment. He also indicated his general reluctance to take medication to address his pain, although he noted that when he tried a certain medication, he found relief from his symptoms. He continues to take this medication when his pain is "crippling."
From 2002 through to 2010 when the worker contacted WCB, stating he had never recovered fully from the August 13, 2001 workplace accident and that this had contributed to his ongoing inability to perform all of the job duties required of him, the worker worked for a number of different employers and at times was not employed. He confirmed to the panel that during this period he had continuing pain in his back and that he only felt relief when lying flat on his back.
The worker described to the panel, in response to questioning, the impact of his back pain on his activities of daily living. He stated that he can no longer golf or attend recreational sports or movies. When he recently went fishing, his back was aggravated for several days, including the day of the hearing. He noted that he still undertakes some activities, but he suffers as a result. He used to play sponge hockey but quit doing so about 6-7 years ago, although not as a result of his back injury.
The worker described that when his back is aggravated, the pain in his lower back worsens in intensity. Sometimes he feels this on one side only, but at other times on both right and left. On the left, he feels pain down his back into his buttock. The worker indicated that he was regularly wearing a back brace to maintain stability and posture. Since 2010 he has mostly self-treated the symptoms, through use of medications, as well as massage therapy.
The worker noted that the MRI of March 21, 2011 recorded new herniated discs at L3-4 and L4-5 levels and that he now has issues on both the right and left sides of his lower back. The MRI also noted that the herniation at L5-S1 had "increased slightly" since the 2001 MRI was taken.
The worker's counsel confirmed to the panel that the worker's position is that the worker never recovered from his 2001 lumbar sprain/strain injury and that the herniation of the disc at L5-S1, first evident in 2001 continues to account for the worker's lower back pain. Counsel asserted that something happened to the worker's back in 2001 that continues to cause him pain even to this day. While the worker has been able to keep working for the most part, this reflects his stoicism in the face of pain and his determination to recover and work again. As a result of the compensable injury incurred in August 2001, the worker seeks out work that doesn't aggravate his injury.
The worker's counsel stated that the worker is seeking compensation for wage loss and medical aid as well as assessment for a permanent partial impairment.
The employer did not participate in the hearing.
In order for the worker's appeal to succeed, the panel must find, on a balance of probabilities that the worker's current low back difficulties flow from the compensable injury sustained as a result of the accident of August 13, 2001. The panel was not able to make that finding.
The panel noted that while the worker is seeking compensation for wage loss and medical aid as well as assessment for a permanent partial impairment, the question before the panel is limited to whether or not the worker's current low back difficulties are causally related to the August 13, 2001 accident. The panel is therefore not able to make a finding on any other issue or question.
The evidence on file supports a finding that the worker had recovered from the August 13, 2001 compensable injury by spring 2002. The panel considered that the worker was cleared to return to work after completion of a work hardening program in April 2002. The report from that program confirmed that as a result of participation in that program the worker made "…significant functional improvement…" and "…demonstrated improvements in body mechanics and lumbar control and stability."
The worker did not return to his pre-accident employment as there was no longer a position available for him there, but later that spring, the worker returned to work as a plumber on a two month contract with another employer. Through the balance of 2002 and into 2004, he worked sporadically and for a time, collected employment insurance benefits.
The panel noted that on January 23, 2003, the worker called WCB and indicated that since the claim ended he had no ongoing medical treatment and his back wasn't affecting his work. At that time the worker also described an aggravation of a prior injury while working with a new employer, but declined to file a claim in relation to it.
The panel also noted that between April 2002 and April 2004, the worker did not receive any chiropractic treatment, and there is no evidence of any medical treatment relating to the worker's lower back during this period. The evidence from the worker's own physician is that she has treated him since 2003 and from that time to the date of her report on September 1, 2010, the worker was treated for "aches and pains" at various times but she did not have "…reason to investigate and or treat [the worker] for specific ongoing back problems during the period of 2003-present. Hence, I do not have a working diagnosis."
The panel reviewed the available evidence to determine if it establishes a causal link between the worker's compensable injury incurred on August 13, 2001 and his current low back difficulties. That evidence is summarized as follows:
• In February and March 2002, the worker was treated for recurrence of back pain. His treating chiropractor diagnosed mechanical low back pain with secondary myofascial pain and advised the worker that such recurrences were "benign".
• From April 2004 - September 2007, the worker attended for chiropractic treatment 8 times, as follows, each time presenting with low back pain at the lumbosacral junction:
o April 5 & 7, 2004
o April 20, October 17 & 21, 2005
o February 1, October 30, 2006
o September 24, 2007.
• There is evidence of a non-compensable incident in November 2007 when the worker was injured in his upper back and shoulders.
• On May 14, 2010, the worker's family doctor wrote a note indicating that the worker suffers from ongoing multiple joint pain in his back, arms, shoulders, and has been prescribed medication for pain management. The physician indicates that the worker cannot work as a result, but does not provide a diagnosis or point to any cause for the pain symptoms.
• The March 21, 2011 MRI of the worker's lumbar spine identifies broad based disc protrusion at the L5-S1 level which contacts both S1 nerve roots, but more on the left. The report notes that "…irritation is possible…disc at this level appears to have increased slightly in the interval [since 2001 CT scan]".
On reviewing the medical reports and findings available for the period between April 2002 and the present, the panel notes a lack of medical finding that could correlate the worker's current back problems to the injury he incurred in 2001.
The worker reports that he continues to experience lower back pain, which sometimes flares up or is aggravated, but the panel notes that reports of pain are not equivalent to injury. In other words, the aches and pains the worker describes in his lower back are not of themselves an injury.
Having considered the totality of the evidence on the worker's file and presented by the worker in the hearing, the panel finds, on a balance of probabilities, that the worker's current low back difficulties do not flow from the compensable injury sustained as a result of the accident of August 13, 2001. The evidence does not support a causal relationship between the current low back difficulties and the injury incurred in 2001.
The worker's appeal is therefore dismissed.
K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of October, 2019