WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090023
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker Representative, Employer Representative
HEARING DATE: August 27, 2009
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative
ISSUE
Entitlement to benefits in this claim have been terminated effective October 1, 2007 with a determination that there is no ongoing impairment and no assessable permanent impairment for the low back as outlined in the decision by the claims adjudicator dated December 27, 2007.
HOW THE ISSUE ARISES
This worker is employed as a part-time employee in a gym where he takes care of the weight room and provides instruction and weight lifting assistance (spotting for weight lifters).
On November 15, 2006 the worker was spotting a client when he strained his low back and reported this to the employer on November 16, 2006. The Health Professional’s Report (Form 8) provided a diagnosis of acute mechanical low back pain with a complete recovery expected in four to six weeks.
A physician’s report of January 27, 2007 recommended a treatment plan of chiropractic care and acupuncture. At that time the worker was describing constant low back pain aggravated by bending, twisting, lifting heavy objects and prolonged periods of standing and/or sitting.
The worker was referred to a regional evaluation centre (REC) on May 29, 2007. At that time it was determined the worker had a back strain and the prognosis was excellent. It was recommended the worker obtain an MRI scan to rule out pathology and it was recommended that the worker undergo a work hardening program for four to six weeks with a home program thereafter. It was expected he could return to full duties in four to six weeks time depending on how the work hardening program progressed.
At the time of the assessment, the worker was deemed fit for a sedentary job. It was suggested he should not lift anything more than 5 pounds and should not be asked to sit for more than 30 minutes or stand for more than 10 to 15 minutes.
An MRI of June 7, 2007 was limited due to the fact the worker is claustrophobic. However, the exam was essentially normal other than bulging annuli.
The worker eventually participated in a work hardening program. A report from September 14, 2007 indicated the worker was ready to be discharged from the work hardening program and could return to his job in the weight room with the following restrictions:
- Lifting and putting away weights that are 12 pounds or less only
- No spotting
- Pace as tolerated only
The ongoing diagnosis remained that of chronic mechanical low back pain. The worker was assessed by his family physician on October 1, 2007 at which time, improvement was guarded and permanent restrictions were anticipated. Restrictions indicated no lifting over 12 pounds as indicated during the work hardening program.
This worker was then assessed December 17, 2007 and December 19, 2007 at a functional abilities evaluation (FAE) centre. The conclusion of the report indicated there were no medical restrictions due to the negative physical screening examination and negative June 7, 2007 lumbar MRI examination. Prognosis was considered excellent. The report indicated that during the FAE, the worker reported increased low back pain with lifting, carrying and with some push and pull tests. It was noted that the worker had high levels of subjective pain which could prevent him from even attempting tasks he would be physically capable of performing.
This case was reviewed by a Workplace Safety and Insurance Board (WSIB) medical consultant December 19, 2007. The medical consultant indicated that although the worker had ongoing back symptoms (beyond October 1, 2007), there was no ongoing objective impairment documented and therefore no assessable permanent impairment for the low back. The medical consultant indicated there would not be a need for permanent restrictions based on the assessment of the actual physical findings in the claim.
Benefits have been terminated October 1, 2007 as the WSIB determined there was no evidence of ongoing objective physical impairment.
It is the position of the worker and his representative that there are still objective physical symptoms and permanent restrictions have not been lifted by the treating physician.
It is the position of the accident employer that the worker in fact made a full recovery from an objective standpoint. The diagnosis of mechanical back pain describes subjective symptomatology and is not a diagnosis. An FAE failed to demonstrate neurological or skeletal impairment and as such, there would be no basis to uphold restrictions.
AUTHORITY REFERENCE
Loss of earnings benefits are paid in accordance to WSIB Operational Policy Manual (OPM) document 18-03-02.
Determining the degree of permanent impairment is assessed in accordance with WSIB OPM document 18-05-03.
ASSESSMENT OF THE EVIDENCE
During the hearing, the worker was questioned regarding a prior back accident in 2001. The worker testified he could not recall any specifics. He did state there was no ongoing impairment and that although he would sometimes have some pain symptoms in his back, they would always resolve. The worker testified that subsequent to the accident of 2006, his pain symptoms have never subsided.
The worker testified that he has a full-time desk job during the day in which he is able to accommodate any back symptoms by moving around. It is however the worker’s position that he has never been able to return to the full activities in the weight room.
With respect to exercising, the worker did testify that he was very athletic before the injury. He currently still goes to a gym and does some cardio activity as well as he can to stay fit; however, he is not as active as he was prior to the accident.
The worker testified that the only prescription drug he occasionally takes is naproxen. Other than that, he takes over the counter Advil for his symptomatology.
The worker testified that the MRI that was taken did demonstrate some impairment in his back. The Appeal Resolution Officer, ARO notes that the MRI only documented bulging discs. There was no disc herniation and no neurological impairment or nerve root compression. As such, there is no indication that the finding of the bulging discs is anything more than an incidental finding that was noted as the worker went for an MRI. In other words, there appears to be no clinical significance to the MRI description.
Bulging discs are common in the general public and are associated with the natural process of degenerative changes. These bulges occur normally regardless of trauma or injury.
Unfortunately, bulging discs can cause acute and spontaneous flare ups of pain and bulging discs can be aggravated or inflamed by twisting and bending resulting in acute periods of pain.
This does not however mean the bulging discs are caused by any particular twist, bend or lift, only that the bulges can be made symptomatic by these particular actions.
Bulging discs do not however always equate to actual pathology and especially in cases such as this where there is no evidence of compression on the nerve roots. They can simply be a radiological finding with no clinical significance.
In this case, there is no evidence to even indicate that these bulges were inflamed by the injury and this would seem apparent by the lack of prescription medication that is normally given in the case of acute inflammation flare ups. The evidence in this case does not support that the MRI findings are relevant in the assessment of this case.
During the assessment at the REC in May 2007, the examination indicated the worker was in good physical condition and had well maintained muscle mass. Although forward flexion was limited, rotation was full and lateral flexion was good. There was no tenderness on palpitation of the spine. The reflexes were equal bilaterally and the toes were down going. The worker had good strength and normal sensation in both lower extremities. Essentially, few physical findings were demonstrated to confirm the worker had sustained anything other than a strain. For this reason, a work hardening program was recommended. Unfortunately, this did not start until September; however, we do know that the worker was performing his regular full-time job throughout the claim.
The worker was assessed at the Canadian Back Institute (CBI) physiotherapy and chiropractic centre, August 1, 2007. This report suggested the worker had discogenic low back pain, however, it is interesting to note that the lumbar range of motion findings seem to have deteriorated since the time of the REC assessment and this is unexplained. Whether or not this was related to lack of activity or the worker’s normal stretching process is unknown, however, in terms of an injury related explanation, there is none. Neurological examination was normal and therefore, there is no basis to indicate this worker actually had discogenic low back pain specifically noting the fact that the MRI was essentially normal.
The discharge report from the CBI physiotherapy and chiropractic centre of September 14, 2007 did indicate the worker was ready to be discharged from the work hardening program with restrictions. The reason for the restrictions seems to be based more on the worker’s pain perception rather than residual physical findings. Beyond that point in time, the job restrictions have been upheld by the family physician however there seems to be no objective basis for restricting this worker’s activity. In other words, physical findings are not evident to support there would be any basis for ongoing impairment or injury if this worker returned to his regular employment activities in relation to the basis for which this claim was established. There is no objective medical documentation supporting a sustained physical impairment as a result of the accident that occurred November 15, 2006.
To further support this, there is the FAE which confirmed negative physical screening and examination as well as a negative lumbar MRI with respect to an injury based finding. The functional abilities evaluator indicated that the worker could safely return to his pre-injury job. Although the worker did not meet the functional requirements during the functional abilities testing, this appeared to be based on pain behaviours rather than lack of physical ability due to injury. Based on the worker’s pain behaviours and subjective complaints of pain which limited performance, it was thought that the test scores underestimated the worker’s actual functional capabilities.
Given the functioning at the test as a result of the pain symptoms, it was suggested that the worker return to the pre-injury work hours and commence a graduated return to full duties. It was recommended the worker begin lifting weights no greater than 20 pounds, and gradually increase the amount of weight over time.
The potential barriers to returning to work came from the worker when he indicated the only way he could return to the pre-injury job would be in a supervisor role with no “spotting”; the ability to walk and sit as needed and no lifting over 25 pounds, and even then only on an occasional basis. These self imposed restrictions are simply not supported by objective medical documentation.
An addendum to the FAE dated May 16, 2008 indicated clarifications regarding the examination. The report indicated examination had revealed both normal muscular skeletal and neurological examination and no medical restrictions were warranted.
When making an assessment as to whether a worker can return to the full pre-accident job, physical findings in the claim have to be considered for the purposes of assessing a worker’s safe return to the pre-accident job. In this case, there have been no physical findings provided that would suggest this worker cannot safely return to the pre-accident job. In other words, it is recognized this worker sustained a strain as a result of a specific lift; however a strain is a muscle injury. These normally resolve and especially in cases where the acuteness of the injury is limited such as in this case. There was no need for significant narcotics to even treat the pain symptomatology in this case and that would suggest that the worker’s description of pain symptoms seem to exceed what he is even actually experiencing. Certainly from an objective medical standpoint, residual physical findings have not been demonstrated structurally, neurologically or from a muscular evaluation.
Ongoing restrictions appear strictly related to the worker’s perception of his own abilities and his description of pain symptoms. The ongoing restrictions have not however been medically substantiated.
Based on the lack of residual physical findings in this claim, the ARO upholds the decision of the claims adjudicator. There is no basis to determine this worker could not have safely returned to his pre-accident employment duties, October 1, 2007.
The ARO did receive a statement from a co-worker dated August 11, 2009. This statement indicates that this co-worker often works with the worker on evenings and is aware of the worker’s back injury and his limitations when it comes to lifting heavy loads and spotting. While this statement indicates the co-worker is aware of the worker’s complaints of pain and limitations, this only means that he is aware of what the worker has told him or how the worker has presented himself to him. This does not provide credible objective evidence of the worker’s medical limitations based on physical findings.
CONCLUSION
The claims adjudicator determined that maximum medical recovery (MMR) was reached by at least October 1, 2007 with no evidence of residual impairment. This is upheld by the ARO. There is no entitlement to any benefits beyond that date.
The worker’s objection is therefore denied.
DATED September 10, 2009
S.M Elliott Appeals Resolution Officer Appeals Branch