Public Decision No. 3/2009
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Preamble:
The worker filed a claim with the Workers Compensation Board (WCB) for a work related injury that occurred on May 17, 2001. The claim for compensation was accepted and the worker was paid benefits to April 5, 2002 when it was determined by primary adjudication that he had recovered from the effects of his compensable accident. The decision was upheld by the Review Office on December 5, 2003. The worker disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission through the worker’s legal representative. A hearing was held to consider the matter on September 22, 2008.
Issue:
Whether or not the worker is entitled to wage loss benefits beyond April 5, 2002.
Decision:
That the worker is not entitled to wage loss benefits beyond April 5, 2002.
Background:
On May 17, 2001 the worker was lying on the ground while working on a refrigeration unit when a co-worker, playing a practical joke, pinned him with the forks of a forklift. The worker indicated that the next thing he knew, he was in a lot of pain on his right side and he looked over his shoulder. On May 18, 2001, the worker attended his family physician for treatment and was diagnosed with a crush injury to his right hip. X-rays taken on the same day revealed no fracture of the pelvis or right hip. The claim for compensation was accepted and the worker was paid benefits. In a follow up report dated May 28, 2001, the treating physician reported that the worker had decreased range of motion of the lumbar spine along with pain in his right hip. On May 28, 2001 the worker was assessed by a chiropractor and was diagnosed with an injury to his lumbar spine and sacroiliac regions. On June 27, 2001, a WCB chiropractic advisor outlined his opinion that the worker suffered a significant sprain/strain injury to his low back caused by the twisting reaction to the compressive forces exerted by the forklift. The worker showed no signs of neurologic deficit. It was recommended that the worker undergo a CT examination to rule out an occult fracture as a cause of his low back pain and to obtain physiotherapy treatment. The worker underwent the following radiological investigations: - An MRI of the lumbosacral spine dated October 18, 2000 revealed severe degenerative disc disease at the L5-S1 level with anterior disc herniation.
- A CT scan carried out on July 11, 2001 revealed the following findings:
- Degenerative disc narrowing and degeneration at L5-S1.
- Tiny central bulge at L4-L5. These changes appear to be incidental.
- No disc protrusion identified.
- Unilateral hairline pars defect on the right at L5 presumably related to past trauma although an old stress fracture involving this region would also have to be considered.
- A bone scan dated August 2, 2001 indicated “There is no evidence of a recent injury to the lumbar spine. The bone scan is unchanged from that in September of 2000 and remains consistent with degenerative disc disease at the lumbosacral junction.”
On August 17, 2001, the WCB chiropractic advisor commented that since the CT and subsequent bone scan demonstrated no fracture or abnormal metabolic activity, the worker was now able to commence with chiropractic and physiotherapy treatment. In October 2001, the treating physiotherapist advised the WCB that she was discontinuing treatment, noting that the worker was pain focused. In a September 30, 2001 report, a pain management specialist outlined his examination findings and stated the worker was in a fair bit of discomfort. He said he was not sure about the worker’s pain generator. With respect to treatment, the specialist indicated that needling therapies would not be appropriate at this time until the worker’s medications were titrated to the point where he could sleep through the night. At the request of the family physician, the worker was assessed by a physical medicine and rehabilitation consultant (a “physiatrist”) on November 7, 2001. The consultant noted that the worker was experiencing left sided discomfort and that his neurogenic symptoms suggested an upper lumbar problem. As this area had not been assessed on the prior CT scan, it was suggested that an MRI be carried out. On December 4, 2001, the worker was interviewed at the WCB’s Pain Management Unit (PMU). At a subsequent PMU assessment conference it was determined that the worker did not meet the diagnostic criteria for chronic pain syndrome as his disability was not proportionate in all areas of functioning. On January 30, 2002, a WCB medical advisor noted that he called the family physician and he agreed it was appropriate for the worker to commence sedentary work that involved no lifting. Arrangements were made with the accident employer for the worker to commence modified duties commencing February 11, 2002 working five days a week. On February 11, 2002, it was reported that the MRI of the lumbar spine showed severe degenerative disc disease at the L5-S1 level which was unchanged since the previous examination. In a February 15, 2002 report the treating physiatrist noted that the worker’s symptoms were significantly exacerbated with his return to work and the worker described some of the activities performed. The physiatrist commented “It does not sound like his work activities are sedentary.” On February 14, 2002, the worker was interviewed by a psychiatrist. It was his opinion that the worker fitted the DSM-IV diagnosis of an Adjustment Disorder with Mixed Emotions. On February 27, 2002, a WCB medical advisor commented that based on his review of the normal imaging studies, the fact the worker does not have chronic pain syndrome, his situational depression and longstanding degenerative disc disease at L5-S1, the worker was able to proceed with a graduated return to work program with the end result of full time regular work duties. In a decision dated March 4, 2002, it was indicated to the worker that his ongoing symptoms were attributable to a pre-existing condition and that it was the WCB’s position that he had recovered from the effects of his compensable injury. A return to work schedule was outlined for the worker commencing March 5, 2002 and by April 3, 2002, it was expected that he would resume his full time regular work duties. The worker was advised that partial wage loss benefits would be paid to April 2, 2002 inclusive and final. On March 27, 2002, the worker stopped participating in his return to work program. In a medical certificate dated March 27, 2002, the family physician reported that the worker was seen that day for an exacerbation of lumbar back pain. The worker indicated that the severity of his back pain disabled him from working. In a letter dated April 25, 2002, the worker was advised by his WCB case manager that she was unable to relate his current back pain to a new injury at work. The case manager also commented in the letter that the worker wanted to explore an outside opinion before he would consider attending a call in examination at the WCB. On February 20, 2003, a worker advisor provided the WCB with a chiropractic report dated February 17, 2003 in support that the worker continued to suffer from the effects of his compensable accident. The chiropractor stated in part, that in his opinion, the compensable accident aggravated a pre-existing condition and that the old injuries to the worker’s lumbosacral region would predispose him to lumbosacral discomfort/injuries. In a letter to the worker advisor dated March 31, 2003, the WCB case manager indicated that the file had been reviewed in consultation with the WCB’s healthcare services division. The case manager indicated that it was the opinion of Rehabilitation and Compensation Services that the worker’s pre-existing condition had been aggravated however the aggravation had now resolved. She maintained the position that the worker would have been able to return to work to his full regular work duties. On September 10, 2003, the worker advisor appealed the case manager’s decision to Review Office and submitted reports from a specialist at the pain clinic for consideration. The worker advisor stated that the worker continued to suffer from the effects of his compensable accident. He stated, “Whether there is an ongoing aggravation, or a permanent enhancement of a pre-existing condition, the board is liable by policy whether the disability is the direct result, an aggravation, or enhancement of the compensable injury.” On December 5, 2003, Review Office determined that the worker was not entitled to wage loss benefits beyond April 5, 2002. Review Office noted that the worker had a history of low back problems dating at least as far back as 1981. It stated that in the opinion of a WCB orthopaedic consultant, the injury sustained by the worker on May 17, 2001 was a soft contusion to the hip area and low back and possibly a bone bruise. He felt that in view of the mechanism of injury and the fact that there were no changes to the MRI performed before and after the accident, no enhancement of the worker’s pre-existing degenerative disc disease had occurred. Based on its review of the file evidence, Review Office was of the opinion that the worker’s pre-existing degenerative condition had essentially been ruled out by the degenerative testing and that the worker’s ongoing complaints could no longer be reasonably associated with the contusive and muscular type injuries sustained on May 17, 2001. On May 23, 2007, a hearing was held at the Appeal Commission as the worker disagreed with the decision reached by Review Office. The hearing was adjourned sine die as the worker’s legal representative discovered that she did not have a complete copy of the worker’s compensation file. On May 22, 2008, the worker’s legal representative advised the Appeal Commission that she was now ready to proceed to a hearing. Enclosed with the submission were six medical reports for the panel’s consideration. A hearing was held on September 22, 2008. Following the hearing, the appeal panel requested and received additional medical information which was forwarded to the interested parties for comment. On December 8, 2008, the panel met and rendered its final decision on the issue under appeal.
Reasons:
Applicable Legislation: The Appeal Commission and its panels are bound by The Workers Compensation Act (“the Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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. WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states: “The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The Policy further provides: 1. WAGE LOSS ELIGIBILITY a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.
b. Where a worker has: 1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and 3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
Analysis: The issue before the panel is whether the worker is entitled to wage loss benefits beyond April 5, 2002. For the appeal to succeed, the panel must find that the worker’s loss of earning capacity beyond that date is due to his workplace injury. The panel was not able to make this determination. The panel finds, on a balance of probabilities, that the worker’s workplace injury is not contributing, to a material degree, to the worker’s ongoing loss of earning capacity beyond April 5, 2002. The Worker’s Position: At the hearing, the worker provided a description of the workplace accident, his subsequent medical treatment, areas of pain, and decreased function. His evidence was that his current pain complaints have been continuous and unremitting since the date of the accident in May 2001. Some of his back pain diminished after surgery to remove kidney stones, in particular the burning sensation he had from the middle of his spine to the left side. He continues to have spasms in the buttock area, depending on what he does, as well as sporadic pain in his leg. He is currently employed as a sales representative, and gets occasional aggravations that last for three weeks to a month. In response to questions from the panel, the worker noted that his condition has evolved into good and bad days, described as “feeling good, not sharp, piercing pain, no spasms and no pain down my left leg.” The worker also advised that he had no back problems prior to the workplace accident, but in response to questions from the panel he acknowledged seeing a chiropractor and a sports medicine physician and having an MRI done on his lower back, but says he was not told he had degenerative disc disease. The worker’s advocate relies substantially on the opinion of the worker’s treating pain specialist that the workplace accident caused either a permanent enhancement or an ongoing aggravation of the worker’s degenerative disc condition. This would entitle the worker to ongoing wage loss benefits, under WCB Policy, beyond April 5, 2002. Discussion: Based on our review of the evidence on file and at the hearing, as well as the information provided to the panel following the hearing, the panel finds that, by April 5, 2002, the worker had recovered from an aggravation of his pre-existing degenerative disc disease, and that his ongoing pain complaints are no longer causally related to the injury he suffered in the course of his employment. In coming to our decision, the panel places reliance on the following evidence. Medical information received by the panel subsequent to the hearing (and shared with the worker and his representative for their comments), suggests that the worker’s degenerative disc disease was quite problematic for the worker prior to the date of the workplace accident in May 2001. For example, the worker attended a chiropractor on September 14, 2000, who noted a history of lower back discomfort. The worker was referred to a sports medicine specialist who first examined him on that same date “for his chronic lumbar back pain” which by history dated back to 1985 and had not resolved since that date. His symptoms included shooting pains in the lumbar spine when performing any squatting maneuver, sitting, standing from a seated position or performing right side bending. The specialist found pain in the left SI region, either from a lumbar disc or from the left SI joint, and he ordered diagnostic tests to assist in defining the worker’s pain generator. The specialist later reviewed the bone scan and MRI (as reported in his letter to the chiropractor, dated December 11, 2000), and noted the findings of a markedly degenerative L5-S1 disc, which he described as the likely pain generator. The panel notes, in particular, the sports medicine specialist’s comments about the worker’s considerable frustration over his low back pain “as it has been going on for some time.” The sports medicine specialist also referred the worker to a physical medicine and rehabilitation specialist (physiatrist) who saw the worker on March 19, 2001, two months before the workplace accident. The specialist noted global restrictions on range of motion in the lower back, with a clinical impression of non-specific/mechanical low back pain possibly arising from the left lumbosacral facet joint. The panel prefers the evidence of these physicians made at the time of their examinations (and the common findings regarding entrance complaints and their observations), to the recollections of the worker at the hearing many years later. As such, the panel finds that the worker did have severe, symptomatic degenerative disc disease in his lumbar spine which predated the workplace accident. This condition was chronic and painful, led to functional restrictions, and was significant enough to have the worker seek medical attention from a number of specialists with respect to this condition. The panel finds that the worker had an aggravation of his pre-existing condition as a result of his workplace injury. This is supported by the worker’s detailed description of the workplace injury. The panel notes that the first areas of investigation and treatment after the accident were of the worker’s right hip, and that at the time of a call-in examination with a WCB medical consultant on June 27, 2001, the worker describes his low back problems as “…his previous low back pain was overlying the region of the left sacroiliac joint while at present, the pain that he experiences is centralized in the mid-lumbar spine.” As well, a medical report provided by the physiatrist who saw him on November 1, 2001, notes that the symptoms at that second visit were different than his findings during his examination of the worker prior the workplace accident. The panel finds that the later findings of the physiatrist are consistent with the worker still being in the acute phase of his injury. The panel therefore finds that the worker’s aggravation of his pre-existing condition was still in play at the time of that second visit. The panel also notes that the consultant was concerned with neurogenic symptoms suggestive of an upper lumbar problem, and that these may be more consistent with the later diagnosed (and non-compensable) kidney stone issues described by the worker at the hearing. The panel finds that the worker’s ongoing pain complaints are caused by the worker’s severe degenerative disc disease, and that the evidence does not support, on a balance of probabilities, that there is an enhancement or an ongoing aggravation of that condition. The worker and his advocate have relied on the opinions provided by the worker’s treating pain specialist on this point. The argument in terms of enhancement is that the worker’s pain complaints have been permanently altered, temporally, after the accident. The panel notes that diagnostic MRI tests performed before and after the workplace accident demonstrate the same severe level of degeneration and do not demonstrate any enhancement such as, for example, an acute injury to the lower spine. Dealing with the pain specialist’s position, the panel notes that the worker’s significant pain complaints prior to the workplace accident were not part of the history provided by the worker to the pain specialist, and that the specialist’s opinions appear to be based on an understanding of minimal or no symptomology and a level of pre-workplace accident function that is not consistent with our earlier findings. As such, the panel has placed less weight on the opinion of the pain specialist regarding an ongoing causal relationship between the workplace accident and the ongoing symptomology experienced by the worker. The panel also notes that the worker’s initial complaints following the workplace accident were more focused on right hip and mid-spine complaints that later evolved to a left-sided lumbosacral joint complaint of an acute nature, and later still evolved into an intermittent type of pain into the left buttock region, characterized by “good” and “bad” spells. The panel finds that these latter symptoms are consistent with the types of symptoms found in individuals with degenerative disc disease (and noted to be “severe” prior to the workplace accident), which would also be expected to worsen with the passage of time. The panel further finds that the last medical report dealing with acute and broader symptomology of the lower back was the November 1, 2001 report by the worker’s treating physiatrist, and that later reports do not show these acute symptoms. In this regard, the panel notes that WCB adjudication ultimately decided that the worker’s symptoms as of April 5, 2002 were no longer related to the workplace accident. The panel finds on a balance of probabilities that the medical evidence confirms that as of this date, the acute phase (the aggravation) was no longer in play. Based on these findings, the panel concludes on a balance of probabilities that by April 5, 2002, the worker had recovered from the aggravation of his pre-existing condition. As such, the worker is not entitled to wage loss benefits under the Act. The worker’s appeal is, therefore, denied. Panel Members
S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
S. Walsh
Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of January, 2009
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