Decision #49/08 - Type: Workers Compensation
Preamble
On September 9, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a low back injury that occurred at work on August 31, 2004. The WCB accepted the claim for compensation and benefits were paid to the worker up until November 23, 2005 when it was determined that he had recovered from the effects of his compensable injury. This decision was upheld by the Review Office on two occasions. The worker disagreed and filed an appeal with the Appeal Commission. A hearing took place on January 10, 2008 and a final decision was reached by the appeal panel on March 28, 2008.Issue
Whether or not the worker is entitled to wage loss benefits beyond November 23, 2005.Decision
That the worker is not entitled to wage loss benefits beyond November 23, 2005.Decision: Unanimous
Background
The worker reported that on August 31, 2004, he was working in a crawl space when he slipped on some wet rocks and twisted his low back. He felt a sharp pain and could not straighten up. After seeking medical attention, the worker was diagnosed with a moderate lumbar strain with lumbo-pelvic segmental dysfunction by his treating chiropractor. The WCB accepted the claim and benefits and services were provided to the worker.
Subsequent file records indicate that the worker returned to work for several days but experienced a flare up of back pain. He then underwent a reconditioning program and was seen by a neurologist. He also underwent a number of laboratory investigations which revealed the following:
· December 17, 2004 – lumbar spine x-rays showed small marginal osteophytes at multiple levels. There was mild L4-L5 disc space narrowing.
· April 5, 2005 – CT scan of the lumbar spine showed a moderate sized central disc protrusion with compression of the thecal sac and minor compression of the S1 roots bilaterally at L5-S1. At L4-L5 there was diffuse annular disc bulging with anterolateral osteophytes with mild OA present. There was no nerve root compression or spinal stenosis identified.
· August 9, 2005 – EMG results showed no electrophysiological abnormalities.
On August 2, 2005, the worker was assessed by a WCB orthopaedic consultant due to his ongoing back pain. During the interview portion of the examination, the worker noted that he fell from a scaffold in the middle of July 2004 and that he was placed on light duties which included working in crawl spaces when he reinjured his back. Under “Opinion and Recommendations” of the examination report, the orthopaedic consultant outlined the following opinions:
· the workplace injury/ies caused a moderate musculoligamentous strain of the lumbar spine and aggravation of pre-existing lumbar degeneration and may also have caused a central L5-S1 disc herniation.
· there was no continuing symptoms of lumbar disc herniation and the apparent marked midline ligament tenderness was difficult to explain in a person who had rested for a number of months.
· the worker’s stooped posture could not be explained on an anatomical basis. This posture would aggravate any disc herniation and increase rather than lessen symptoms.
· there was ongoing evidence of symptom amplification and pain focus.
On October 15, 2005, the worker had an MRI of his lumbosacral spine which showed mild posterior disc prominence at L3-4 level. At the L4-5 level there was a posterior disc protrusion causing mild bilateral foraminal narrowing. There was mild facet joint hypertrophy. The L5-S1 area revealed a posterior and left paracentral disc protrusion causing mild foraminal narrowing , worse on the left side.
On November 9, 2005, the orthopaedic consultant who had examined the worker on August 2, 2005 reviewed the medical information on file which included all test results along with reports on file from the treating neurologist. The consultant concluded from his review that there was no longer a direct cause and effect relationship between the compensable injury and the current clinical and imaging findings. He indicated that the recent MRI did not provide an explanation for the worker’s postural anomaly. In his opinion, he felt the worker had recovered from the effects of his compensable injury and that no compensable restrictions were indicated. Based on this opinion, the worker was advised by his WCB case manager on November 16, 2005, that wage loss benefits would be paid to November 23, 2005 inclusive and final.
In an appeal submission dated April 20, 2006, the worker outlined his view that his compensable injury should have included the disc protrusion that was seen on the CT and MRI assessments. He contended that as a result of the undiagnosed disc protrusion, the reconditioning program was inappropriate for his injuries and that it aggravated his condition. He therefore requested that his benefits be reinstated.
On April 27, 2006, Review Office referred the case back to primary adjudication to consider the new medical information that the worker included with his April 20, 2006 submission. Review Office also asked primary adjudication to investigate a separate accident related to the worker’s claim of a “fall from a scaffold”, at an earlier point in time.
On May 11, 2006, the worker advised his WCB case manager that on August 20, 2004 he was working on a 12 foot scaffold cutting metal with a plasma torch. He fell 12 to 15 feet landing on his backside when a 200 lb piece of metal fell flat on top of his stomach. The worker indicated that he did not seek medical attention as there was no doctor in the area. He said two individuals helped to bandage him up and this was when he was placed on modified duties in the crawl space. The worker advised the case manager that he was unable to find work due to his injury and that he remained disabled. He related everything to the scaffold injury and the subsequent fall in the crawlspace.
The WCB orthopaedic consultant reviewed the file evidence on June 13, 2006. He said he was aware of the worker’s previous injury and that his examination findings (November 9, 2005) would reflect the worker’s current status in relation to either or both injuries. Based on this review, the consultant stated that there was no change to his previous opinion.
In a decision dated June 19, 2006, the WCB case manager indicated to the worker that he completed a review of the additional information submitted and that it was still the WCB’s position that the worker had made a full and complete recovery from the August 31, 2004 workplace injury and that there would be no change to the original decision of November 16, 2005.
In relation to the scaffold accident that occurred in August 2004, the WCB did not accept the new claim on the basis that it could not establish a relationship between the worker’s ongoing symptoms and an accident occurring at work due to his delay in reporting the accident and a review of the medical information.
On July 10, 2006, the worker appealed the June 19, 2006 WCB decision to Review Office. Prior to considering the worker’s appeal, Review Office obtained a report from a physical medicine and rehabilitation specialist (a physiatrist). It showed that the worker had been examined on July 17, 2006 and that the examination did not show any significant signs of nerve root irritability and that the worker’s symptoms were due to a soft tissue injury. The specialist believed that the origin of the worker’s present concerns were directly related to the fall from the scaffold at work in August 2004.
A WCB physical medicine consultant reviewed the file evidence at the request of Review Office on September 12, 2006. He was of the opinion that the medical evidence did not support the presence of any physical diagnosis related to the August 31, 2004 compensable injury and that the evidence did not support a causal relationship between the worker’s current symptoms and the August 31 injury.
On September 26, 2006, Review Office confirmed that there was no entitlement to wage loss benefits beyond November 23, 2005 as it felt there was no medical evidence to support a diagnosis related to the August 31, 2004 compensable injury and no medical evidence to support a causal relationship between the worker’s current symptoms and the compensable injury.
On April 20, 2007, a worker advisor provided Review Office with a March 17, 2007 report from the treating physiatrist in support of a current diagnosis and its relationship to the worker’s compensable injury. The worker advisor noted that the specialist provided the diagnosis of degenerative disc disease and central spinal sensitivity. He provided objective findings of continued taut bands in the area of injury. He also outlined the view that it was highly probable that the mechanism of injury related to the August 31, 2004 accident was responsible for the worker’s current back condition. He also provided support and evidence on a mechanical basis to explain the worker’s forward stooped posture.
The file contains medical reports from an orthopaedic specialist dated April 3, 2007 and April 26, 2007 along with the test results of an MRI assessment done on March 26, 2007. This information was reviewed by a WCB physical medicine consultant on September 4, 2007.
In a decision dated September 7, 2007, Review Office confirmed that there was no entitlement to wage loss benefits beyond November 23, 2005 as it felt that the file evidence did not support a causal relationship between the worker’s current symptoms and the compensable injury of August 31, 2004. In making this decision, Review Office indicated that it placed significant weight on the opinion expressed by the treating orthopaedic specialist where he stated that there was no clinical explanation for the worker’s exaggerated pain responses or the sensation loss and extreme pain levels in the left leg given that there was no atrophy in the area and that the March 26, 2007 MRI findings did not explain the worker’s problems as described by the worker. Review Office also accepted the opinion expressed by the WCB physical medicine consultant that there was no physical diagnosis to explain the worker’s symptomatic complaints or that there was a relationship between the MRI findings and his current symptoms. He further commented that the orthopaedic specialist’s assessment and the prior file information did not support a causal relationship between the worker’s current signs and symptoms and the compensable injury.
On September 28, 2007, the worker advisor filed an appeal with the Appeal Commission with respect to Review Office’s decision and a hearing was held on January 10, 2008.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by The Workers Compensation Act (“the Act”) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
Worker’s Position
The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel.
The worker’s representative noted that although the worker had a previous workplace accident falling from a scaffold, it is the worker’s position that he is unable to work due to a crawl space accident on August 31, 2004. The worker said he slipped and fell while working with a pump. He said that he worked bent over in the crawl space for several days and was hunched and just could not straighten up. He described his symptoms as pain in his low back, bruised buttocks, numbness in his legs, left worse than right.
The worker’s representative submitted that there continues to be a cause and effect relationship between the worker’s compensable injury and his ongoing symptoms and disability beyond November 23, 2005. She noted there is evidence of continued symptoms, along with continued objective findings of taut bands, which resulted from a compensable injury. She reviewed the medical information on the file, referring to various reports identifying ongoing symptoms. She submitted that the worker’s loss of earning capacity did not end on November 23, 2005.
She commented that the Review Office placed significant weight on the opinions of the Review Office orthopedic consultant and the WCB physical medicine consultant and failed to assess the evidence on a balance of probabilities.
The worker provided information about ongoing medical treatments and symptoms.
After the hearing, the worker’s representative provided a further submission in response to the additional information which the panel obtained from the treating physiatrist dated February 24, 2008 and a pain clinic specialist. She submitted that the report from the physiatrist solidifies the continuum of symptoms beyond November 23, 2005 in support of non-recovery. She said that both specialists’ reports support a continuum of paraspinal musculature spasms. She noted the physiatrist’s comment that the worker’s symptoms “are compatible with trauma to the back.”
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond November 23, 2005. For the worker to be awarded wage loss benefits, the panel must find that the worker suffered a loss of earning capacity after this date as a result of his workplace injury. The panel was not able to make this finding.
At the hearing, and in a written submission dated March 4, 2008, the worker’s representative acknowledged that the worker had an accident falling from a scaffold but submitted that the accident in the crawlspace caused the worker’s ongoing symptoms. She submitted there is a cause and effect relationship between the worker’s injury and ongoing symptoms. Based on a review of all the evidence, the panel is not able to accept this assertion. While the panel accepts that the worker was injured in the slip and fall accident on August 31, 2004, it cannot ascribe the ongoing symptoms and the worker’s loss of earning capacity after November 23, 2005 to the August 31, 2004 injury.
The panel notes in the Worker’s Accident Report, the worker describes the accident as “I slipped on some wet rocks and I twisted my lower back. I felt some sharp pain and I couldn’t straighten up.” At the hearing the worker stated that “I had a fall before that and I was hurt, bruised and I slipped and fell on my butt.” The panel notes that the worker continued to work for several days after the slip and fall injury in the crawl space. It also notes that the claim was accepted as a moderate strain with lumbo-pelvic segmental dysfunction. Having considered the mechanism of the injury, the circumstances following the injury, and the initial diagnosis, the panel finds that the slip and fall accident was unlikely to cause the significant symptoms, including discogenic symptoms, that continue to affect the worker.
The panel notes that the physiatrist who is currently treating the worker has attributed his condition to his fall from the scaffold, an accident that is not before the panel as it has not been accepted as a claim by the WCB. The physiatrist in a report dated February 28, 2008 refers to an injury in August 2004 when the worker fell off scaffolding from a height of about 15 feet onto cement below. The physiatrist states “There is a strong probability that the cause of his present presentation originated with the August 2004 injury, namely the fall from the scaffolding.”
The panel notes that in a report dated March 17, 2007, the physiatrist also attributes the worker’s symptoms to the scaffold accident but states that the August incident aggravated the worker’s condition.
As well the pain specialist who is treating the worker noted the following history in a report dated December 4, 2007: [“worker’s”] pain initially began in 2004 after a 15 foot fall from scaffolding while at work. He has had pain ever since that time.”
However, as noted above, these physicians have been attributing the worker’s complaints to a significant traumatic event (the fall from the scaffolding) which has not been accepted by the WCB as a compensable accident. The panel reiterates its findings that the significant ongoing discogenic symptoms are on a balance of probabilities, not related to the relatively minor mechanism of injury on August 31, 2004. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond November 23, 2005.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of April, 2008