Decision #43/10 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a trip and fall incident that occurred at work on July 6, 2007. The claim for compensation was accepted based on the diagnosis of a soft tissue injury. The WCB paid the worker wage loss benefits up to June 2, 2008 when it was determined that he had recovered from his soft tissue injury related to his compensable accident. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through his union representative. A hearing was held on December 9, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and/or medical aid benefits after June 2, 2008.

Decision

That the worker is not entitled to wage loss and/or medical aid benefits after June 2, 2008.

Decision: Unanimous

Background

On July 6, 2007, the worker injured his low back when he tripped over a fan that was on the floor and fell forward grabbing onto a countertop to break his fall. The worker advised the WCB that he suffered from constant low back pain mostly on the right along with restricted range of motion with bending and twisting.

The claim for compensation was accepted based on the diagnosis of a soft tissue injury to the low back. File records also showed that the worker had prior difficulties with his back and neck and that surgery was performed in 2001 and 2006 (an L5-S1 discectomy and an L5-S1 laminectomy respectively).

With regard to the worker’s injury of July 2007, medical reports revealed the following:

· Lumbar x-rays dated July 6, 2007 identified screws and vertical fixation rods transfixing L5-S1. The fixation hardware was intact. No acute bony abnormality was identified and a fracture was not visualized.

· CT of the lumbar spine dated July 16, 2007 revealed spinal stenosis on the right side above the L4-5 disc level related to bulging; synovium from the right L4-5 articular facet, less severely on the left encroaching onto the dural sac. Previous laminectomy on the left at L5-S1. Image degradation at this level.

· An MRI of the lumbar spine dated October 9, 2007 showed a small disc bulge at L5-S1. The spinal canal and descending nerve roots appeared normal and there was no evidence of neuro-foraminal stenosis or exiting nerve root compression. A small amount of enhancement was present at the surgical site, however, this was in the posterior spinous tissues with no evidence of perineural enhancement.

· A Doctor’s Progress Report dated October 18, 2007 noted that the worker complained of back pain into both legs, left greater than right.

· October 25, 2007 – the family physician provided a diagnosis of spinal stenosis related to the July 2007 compensable injury and radicular symptoms in the right leg (new) and left leg (old). He indicated that the CT and MRI scan post accident showed relative spinal stenosis on the right side L4-5 disc level, related to the bulging of synovium from the right L4-5 articular facet. The MRI showed facet joint hypertrophy and disc bulge at L4-5. The spinal canal and right neuroforamen were normal. The physician indicated that an MRI before surgery on May 24, 2007 showed mild facet joint osteoarthritis and there was no evidence of spinal stenosis and no disc herniation at the L4-5 level. In his opinion, the disc bulge and facet joint hypertrophy was new and there were no signs of radiculopathy or spinal stenosis. The physician indicated that the worker’s pain was due to the bulging disc. He said the disc lesion did not fit in with the clinical picture of spinal stenosis and felt that a second opinion from the treating surgeon was indicated before he decided if the worker could return to work.

· November 20, 2007 – the treating orthopaedic surgeon indicated that the worker did reasonably well after his previous surgery which was performed more than a year ago and was back at work. After the July 2007 work incident, the worker complained of persistent back pain as well as left leg pain. After his clinical evaluation and review of the recent MRI scan, the specialist said it was difficult to judge whether the disc bulging at the L5-S1 was causing the present complaints and pain. A discogram at L5-S1 was suggested to ascertain whether this was the pain generator.

· An MRI of the worker’s lumbar spine dated November 20, 2007 revealed “Central stenosis has developed at L4-L5 secondary to increasing epidural fat and ligamentum flavum thickening. Epidural fibrosis adjacent to the left L5 and S1 nerve roots.”

· A WCB medical advisor noted on December 12, 2007 that the diagnosis at this time was an aggravation of a pre-existing problem at L5-S1. She indicated that the worker may have aggravated this level with the workplace incident but we “don’t yet know the extent”. She stated that if the employer had modified duties available, the restrictions would be no lifting over 20 lbs., no repetitive bending or twisting of the spine, the ability to work with the spine in a neutral position and the ability to change position as needed. These restrictions were agreed to by the orthopaedic surgeon in a letter dated January 8, 2008.

· Report from the neurosurgeon dated January 21, 2008 indicated that the discogram was abandoned as he was unable to engage the needle within the disc space. A bone isotope was suggested.

· February 13, 2008 – the orthopaedic surgeon indicated that the worker presented with mechanical back pain. A facet block at L4-5 was suggested and if possible, an L4-5 discogram at the same time.

· March 19, 2008 – the orthopaedic surgeon reported that a facet block was performed at L5-S1 bilaterally on February 22, 2008. A discogram at L4-5 was attempted but failed to engage the needle into the disc space properly.

· April 14, 2008 – the orthopaedic surgeon reported that the previous facet block at L5-S1 was not very successful. The worker still had persistent pain and found very short lived relief following the previous facet block at L5-S1.

· April 16, 2008 – CT of the lumbar spine showed “There are hypertrophic bony facet changes, most marked at the level of internal fixation with no evidence of bone fusion at the facet joints. Laminectomy defect is seen on the left side of L5 with small bony fragments present around the facet joints bilaterally at these levels. There is no recurrent disc herniation. No spinal stenosis identified on this examination.”

· April 23, 2008 – the orthopaedic surgeon indicated that the 3D reconstruction confirmed the suspicion of a non-union. An anterior cage fixation and bone graft surgery was agreed to by the worker.

· May 14, 2008 – the orthopaedic surgeon provided the following opinion: “…this patient was back at work at the time he fell in July, 2007. At that time he was pain-free and had no problems with the previous back surgery. After his fall, he had progressive low back pain and the diagnosis was then made of a non-union of L5-S1. It is, therefore, very possible that he did injure the previous fusion at this level which then broke down and has left him with a persistent non-union.”

· In a second report dated May 14, 2008, the orthopaedic surgeon stated, “…he was fine at the time of his new injury in July 2007. He had recovered from his previous surgery and I’m sure that with the new jarring, he broke down some of the previous fusion that was present at that level.

· May 21, 2008 – a WCB orthopaedic consultant reviewed the file and stated that the diagnosis related to the July 2007 compensable injury was a soft tissue sprain/strain of the lumbar spine. He said the compensable injury did not result in a fracture of a previous L5-S1 fusion. If there was failure of the fusion of July 12, 2006, the consultant felt that it related to other factors such as surgical technique, body habitus and cigarette smoking if the worker had continued with this. He said the two previous lumbar spine surgeries were not the result of a compensable claim and complications of the second L5-S1 spinal fusion was not the WCB’s responsibility.

· May 22, 2008 – a WCB medical advisor indicated that the effects of a soft tissue sprain/strain would have long since resolved in 4 to 6 months. Any ongoing symptoms and findings would not be related to the non-compensable issues.

In a decision dated May 23, 2008, the worker was advised of the opinion that he had recovered from his compensable strain/sprain type injury to his low back and that wage loss benefits and medical treatment costs would end on June 2, 2008. It was the WCB’s position that the need for surgery and the worker’s inability to return to his regular work duties were unrelated to his workplace accident of July 6, 2007.

On March 25, 2009, a union representative provided the WCB with a March 10, 2009 report from the treating orthopaedic surgeon for consideration. The surgeon indicated that the worker had recovered from the surgery he had in July 2006 (L5-S1 fusion and removal of herniation). He indicated that it was initially thought that the worker had an injury to the adjacent level at L4-L5 but that numerous investigations have proven this to be false. The eventual diagnosis was made of a breakdown of the fusion mass at L5-S1 causing persistent mechanical low back pain. An anterior fusion at L5-S1 was completed in June of 2008. He reported that the worker presently had good solid fusion and there was no specific explanation for his continued pain. He considered this to be a circle of failed back syndrome with chronic pain without any obvious cause. The surgeon concluded that there was no doubt that the 2007 injury did cause substantial problems by causing the breakdown of the fusion mass at L5-S1, which had been stable prior to the fall.

On May 13, 2009, a WCB orthopaedic consultant referenced the opinion expressed by the orthopaedic surgeon of March 10, 2009. The consultant noted that early reports on file showed an initial diagnosis of soft tissue strain to the low back, x-rays reported as being negative and the CT scan of July 2007 showed degenerative changes and poor visualization at L5-S1 (due to the metal implants). He acknowledged the orthopaedic surgeon’s opinion that the worker had fully recovered from his spinal fusion operation but noted there was a report on file dated August 1, 2007 by the case manager that the worker was still having massage therapy and was still being prescribed Tylenol #3 and Gabapentin from his physician. He noted that the worker had been off work from July to October 2006.

The consultant referred to the comments made by the surgeon in his report of May 15, 2007 which contradicted his statement that the worker had fully recovered from the surgery:

“The patient obviously is in moderate discomfort regarding his back from time to time. However, this is certainly much improved since his rehab has been completed with the physiotherapist. He has mild numbness in the left leg affecting the L5 dermatome. Apparently this also has given out on him on a number of occasions.

X-rays confirm a solid healing of the neck fusion between C5-6, and C6-7. This L5-S1 fusion shows delayed healing and probably non-union.”

The consultant stated that this information confirmed that the worker had not fully recovered from the previous L5-S1 fusion and that his orthopaedic surgeon felt that there was failure of fusion. This information did not corroborate the surgeon’s statement in that “I have therefore no doubt that the injury in 2007 did cause substantial problems by causing the breakdown of the fusion mass at L5-S1, which had been stable prior to his fall.” The WCB consultant indicated that the opinion given in his May 21, 2008 memorandum was unchanged.

On May 21, 2009, the worker was advised that no change would be made to the decision of May 23, 2008. It was the opinion of the WCB that the worker’s current difficulties at the L5-S1 level were unrelated to his July 6, 2007 workplace injury. On June 5, 2009, the union representative appealed the case manager’s decision to Review Office. It was contended that the worker had recovered from his previous surgery as he had been performing his regular unrestricted duties when he sustained his July 2007 injury. The union representative indicated that the worker’s significant pre-existing condition was enhanced and that his compensable injury permanently and adversely affected his pre-existing condition. It was felt that the worker continued to have a loss of earning capacity as a result of his workplace injury and was entitled to retroactive benefits.

In a decision dated June 25, 2009, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after June 2, 2008. In reaching its decision, Review Office relied on the following factors:

· the worker’s medical history pre July 2007 workplace injury established evidence of the worker’s continued complaints in May 2007 attributable to the pre-existing conditions. This was immediately before the July 2007 workplace incident. This was contrary to the surgeon’s report that the worker had recovered from the July 2006 surgery;

· the findings of the MRI taken October 9, 2007 and the April 16, 2008 CT scan related to post-operative changes in 2001 and 2006 surgeries and support a direct relationship to the non-compensable surgeries. There was no evidence of any pathology related to the July 6, 2007 workplace slip;

· it accepted the opinions of the WCB orthopaedic surgical consultant of May 21, 2008 and May 13, 2009;

· it found the CT scan findings of April 16, 2008 were not related to the workplace injury of July 6, 2007;

· it found no evidence to support that there was a “breakdown of the fusion mass at L5-S1” caused by the effects of the soft tissue sprain/strain injury of July 2007;

· the medical advisor’s May 22, 2008 opinion “the effects of the soft tissue sprain/strain injury would have long since resolved…”

· the worker had significant pre-existing pathology that could not be accounted for by the mechanism of injury on July 6, 2007 or that it contributed to a material degree, to the worker’s continuing disability and loss of earning capacity.

On July 8, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on December 9, 2009, the appeal panel requested additional information from the worker’s treating physician, orthopaedic surgeon and chiropractor. The appeal panel also asked an independent orthopaedic specialist to provide an opinion as to the etiology of the worker’s current medical status and its relationship to his compensable injury.

On March 29, 2010, all interested parties were provided with the additional information that was received by the panel and were asked to provide comment. On April 14, 2010, the panel met further to discuss the case and consider final submissions from the worker as well as his union representative.

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(1) of the Act, 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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The worker’s position:

The worker was assisted by two union representatives at the hearing. It was submitted that at the time of the workplace injury, the worker was working his regular full duties and he had enjoyed a full recovery from his previous back surgery, which occurred in 2006. His level of functioning was high, and he was able to perform the physically demanding nature of his pre-accident position. After his workplace accident, the worker suffered new symptoms which precluded him from continuing to work in his pre-accident position. The symptoms were due to the workplace accident and resultant injury to his back at the L5-S1 level. While there was no doubt that the worker did have a significant pre-existing condition in his back, that pre-existing condition was enhanced by the workplace accident, and according to WCB policy, is compensable. Although the initial diagnosis provided to the worker was that of a soft tissue injury, over time and through further medical investigations, it became clear that the worker had sustained a further injury to his pre-existing back condition. Finally, it was argued that there was no evidence on file to support that the worker had recovered from his injury and no longer continued to have a loss of earning capacity when his benefits were terminated.

The employer’s position:

Two representatives appeared on behalf of the employer at the hearing. The representatives advised that they were present to assist in confirming the accuracy of the workplace information provided to the panel. With respect to the issue of whether the worker was entitled to benefits after June 2, 2008, the employer took no position and felt that it was a decision to be made based on the medical information on file.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss and/or medical aid benefits after June 2, 2008. The key question concerns whether the worker’s ongoing low back difficulties (most notably, the non-union of his pre-existing L5-S1 spinal fusion and subsequent anterior L5-S1 fusion in June 2008) are related to the workplace accident of July 6, 2007. In order for the appeal to be successful, the panel must find that the workplace injury permanently enhanced the pre-existing pathology in the worker’s lower lumbar spine and caused the need for the subsequent anterior fusion surgery. After reviewing the evidence as a whole, we find on a balance of probabilities that the worker’s ongoing back problems are not a result of the injury sustained in the July 2007 accident and accordingly, the worker is not entitled to wage loss and medical aid benefits beyond June 2, 2008.

It was undisputed that the worker had pre-existing degeneration in his back which had been treated surgically in July 2006. Following the 2006 surgery, the worker had a reasonably good recovery and by May 2007, he had been able to resume activities such as golfing, landscaping, and working full time in an unrestricted capacity. Since the time of the workplace accident in July 2007, however, the worker has had impaired functioning and continuing pain in his back, legs and buttocks. He has never recovered to the level he was at pre-accident.

The challenge the panel faced in considering this appeal was determining whether the workplace accident caused or contributed to the L5-S1 fusion breakdown, or whether the fusion failed for reasons unrelated to the workplace accident.

In his letter of March 10, 2009, the treating orthopedic surgeon opined that: “I have no doubt that the injury in 2007 did cause substantial problems by causing the breakdown in the fusion mass at L5-S1, which had been stable prior to his fall.” The panel noted, however, a seemingly contradictory report from the orthopedic surgeon dated May 15, 2007 (approximately two months prior to the workplace injury) which indicated delayed healing in the L5-S1 area of the surgery and probable non-union.

Following the hearing, the panel requested an independent orthopedic surgeon with no prior involvement in the claim to conduct a comprehensive review the medical file and provide his opinion. The independent surgeon produced a 14 page report dated March 16, 2010 which concluded:

The records indicate that [worker] sustained a soft tissue injury to his lower lumbar spine related to his compensable injury of July 6th 2007. He may have aggravated the pathology in his lower lumbar spine but there is no true evidence that it caused enhancement or acceleration or permanent damage.

There is no evidence that there was an acute fracture of a pre-existing L5,S1 fusion. In fact, the CT imaging study suggests there was no fusion present. Trauma from his work related injury would not have caused a previously fused fusion to disappear.

Although [worker] continued symptomatic after his compensable injury, there are no physical findings or x-ray images or imaging studies to suggest he had demonstrable new pathology or enhanced pathology to a pre-existing worn area of his lumbar spine. In fact, this man’s exact pathology causing his degree of symptomatology was still in doubt up to the time of his anterior fusion. This is further supported by the fact he remained symptomatic after the last spinal fusion. I would have expected [worker] would have recovered from the results of his compensable injury (soft tissue and aggravation of pre-existing pathology in the lower lumbar spine) certainly within a year post injury. Ultimately an anterior fusion was performed June 27, 2008. My opinion is that this was not needed as a result of the July 6, 2007 compensable injury.

…

A review of all the images do not delineate a new specific anatomical entity that has been a result of the July 2007 compensable injury.

The panel is of the view that the independent orthopedic surgeon conducted a thorough analysis of the medical information and we see no reason to vary from his conclusions. The panel therefore accepts the opinion of the independent orthopedic surgeon and we find that the worker has fully recovered from the effects of his workplace injury and the ongoing back problems which he has experienced since June 2, 2008 are not compensable. As a result, the worker is not entitled to wage loss and medical aid benefits beyond June 2, 2008. The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of June, 2010

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