WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090050
OBJECTION BY: Dual (Worker/Employer)
REPRESENTATIVE: Worker, Employer
HEARING DATE: N/A
ATTENDEES: N/A
ISSUES
By the worker:
- Ongoing entitlement beyond January 6, 2007, including surgery and loss of earnings (LOE) benefits from September 17, 2007
By the employer:
- Initial entitlement and LOE benefits
HOW THE ISSUES ARISE
On October 6, 2006, while employed as a cleaner on a part-time basis, the worker was washing floors and, when she pressed down on the wringer, she experienced low back pain that radiated into her left leg. The claim was allowed as an aggravation of the degenerative disc disease of the lower back.
The worker returned to modified work at reduced hours on February 5, 2007 and went off work on February 16, 2007 due to increased back pain and leg symptoms but there were no physical findings to support an inability to work. She continued with modified work and was not able to progress beyond 4 hours. She went on to have surgery on September 27, 2007.
The MRI of October 31, 2006 showed multi-level bulging with left sequestered disc at L5/S1. The Board medical consultant opined that the multi-level disc bulge and sequestered disc was not caused by the task of wringing out a mop. He stated that any aggravation from the minor workplace accident would not last for more than 3 months, which is the usual healing time for a soft tissue injury. In accepting this medical opinion, as outlined in the decision of October 22, 2007, the worker was advised that entitlement should have ceased by January 6, 2007.
AUTHORITY
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
11-01-15 Aggravation Basis
18-03-02 Payment of LOE Benefits
RESOLUTION METHOD AND PROCESS
The opinion of the Board appeals medical consultant was obtained and provided to both representatives who then made written submissions regarding the issues in dispute.
ASSESSMENT OF THE EVIDENCE
All the documentary evidence in the claim file record, the submissions made by both representatives and the relevant provisions of the legislation and Board policies were considered.
Initial entitlement
The employer representative’s position is that there was no work-related incident that occurred on October 6, 2006 to result in any significant or severe symptoms. She enclosed a physical demands analysis summary of the job duties.
Her submissions included:
Although the worker claimed to have sustained a work-related injury on October 6, 2006, she continued to perform her regular job duties until approximately one month later, without complaint to the employer in the interim. This delay in reporting and onset called into question the occurrence of a work-related injury, and it strongly supported that any work-related incident that may have occurred on October 6, 2006 did not result in any significant or severe symptoms.
There was no evidence or opinion to support that pressing on the mop wringer accelerated or worsened the pre-existing condition in any way. The 2nd MRI noted that the previously noted small disc herniation was not evident.
The worker representative’s stance was that the duties performed on October 6, 2006, specifically the act of pressing the wringer on a mop bucket, was the incident that aggravated the worker’s low back condition.
His submissions included:
While the worker performed her regular duties for approximately one month before reporting the injury on November 8, 2006, she had worked through the pain and controlled it with medication until the level of the pain increased to the point that it necessitated her to report the ongoing problems to her employer on November 8, 2008.
The worker had performed this job for a period of about 16 years with no problems. She has no previous report of back condition other than the pre-existing DDD condition.
The worker’s job was the significant contributing factor to the subsequent period of disability caused by the mechanical action of wringing the wet mop on October 6, 2006.
File evidence noted:
In the worker’s report of injury (F6), the worker stated that she experienced sharp pain in her lower back after pressing down on the mop bucket wringer. She saw a health professional October 27, 2006.
The MRI of October 31, 2006 showed multilevel bulging with left sequestered disc at L5/S1 suspected.
The physician’s first report (F8) dated November 30, 2006 and patient medical record stated that the worker had a back strain or pre-existing back problem. It went on to state the worker “was washing floor and slipped while pushing mop squeezer and since then more pain like lightening happened after seen in office here on day”.
The initial diagnosis provided on the health professional’s report (F8) of November 28, 2006 was “disc sequestered lumbar”.
The Board medical consultant, in the review of January 10, 2007, opined:
In my opinion the accident history is compatible with the diagnosis based on the medical information on file.
Dr. De Villiers, neurosurgeon, saw the worker on December 6, 2006 and April 12, 2007. He ordered a second MRI. When he saw her on May 28, 2007, he reported that the repeat MRI scan of April 27, 2007 showed degenerative disc disease with bilateral facet hypertrophy and some lateral recess stenosis, especially on the left at the L4-5 and L5-S1 levels. The previously noted small disc herniation at L5-S1 was not seen on these images. He was concerned that most of her pain may very well be mechanical rather than related to the stenosis which was present. He agreed that decompressive surgery at L5 with relief of the stenosis both at the L4-5 and L5-S1 levels may provide some symptomatic relief.
On August 16, 2007, the Board sector medical consultant opined:
Wringing out a mop with a bucket wringer takes very little force under usual circumstances. A suspect disc fragment in the first MRI is not evidenced in the 2nd MRI which continues to indicate 5 disc bulge impingement on the left L5 root.
He noted that the worker clearly had significant multilevel DDD and the sequences of events suggest the work incident aggravated this condition.
Neurosurgeon, Dr. de Villiers, in his report of November 26, 2007 stated that, from a surgical point of view, he thought that the worker was stable and did not think further surgery or other treatments through his office was necessary.
Dr. Mantilla’s report of June 5, 2008 stated that the worker had a history of low back pain and bilateral leg pain secondary to spinal stenosis. On August 27, 2008, he stated that the worker’s pain was multifactoral back pain secondary to spinal stenosis and facetogenic.
The Board appeals medical consultant opined:
The initial diagnosis of sequestered disc is not compatible with the accident history. In fact after repeat MRI scanning the sequestered disc diagnosis was no longer valid. Dr. De Villiers noted in his consult note dated May 28, 2007 that the previously noted small disc herniationL5-S1 was not seen on repeat imaging. Dr. De Villiers also noted that given the overall picture in this patient, I am concerned that most of the pain may very well be mechanical rather than related to the stenosis which is present. The MRI noted bilateral facet hypertrophy and some lateral recess stenosis especially on the left at the L4-5 and L5-S1 levels. Dr. De Villiers also stated that nevertheless, despite the somewhat pessimistic outlook, I would agree that there is a chance that decompressive of surgery at L5 with relief of the stenosis both at the L4-L5 and L5-S1 levels may very well give her some symptomatic relief. Therefore the surgery recommended and subsequently done would be for the pre-existing stenosis and would not be accident related.
- MRI April 27, 2007 showed degenerative disc disease with bilateral facet hypertrophy and some lateral recess stenosis, especially on the left at the L4-L5 and L5-S1 levels.
Having assessed all of the available evidence, on the balance of probabilities, I find that it more likely than not that the worker did injure her lower back when she was wringing the mop on
October 6, 2006.
My reasons are as follows:
The worker’s evidence was that she was pressing down on the mop bucket wringer when she experienced immediate sharp pain in her lower back. She describes a specific incident with the immediate onset of pain. The worker reported the same accident history to the chiropractor and employer. While the clinical notes indicate a history that the worker slipped while pushing mop squeezer, I do not find that this is a discrepancy in accident history as the onset is being related to a specific incident of pressing/pushing the mops wringer/squeezer. Therefore, I am accepting the accident history reported on the F6.
The worker sought medical attention for this injury on October 27, 2006 and did not report it until November 8, 2006. In order to determine whether or not the medical attention sought on October 27, 2006 was related to the incident of October 6, 2006, continuity for the interim period was noted. There is no indication of any other accidents or incidents during this period that could have caused a low back injury. Although there is no indication of any complaints and the worker was doing her regular job duties, her evidence was that she was experiencing on going pain which she thought would go away on its own. In my view, it is not unreasonable for a stoic worker to attempt to continue working as long as she could, which is what this worker did. More importantly, the diagnosis provided is compatible with the accident history and this is confirmed by the Board medical consultant. Clearly the worker has a significant pre-existing history but the medical evidence supports that the incident of wringing the mop aggravated the condition and caused her inability to work.
Therefore, I am confirming the allowance of initial entitlement for the lower back on an aggravation basis.
Ongoing entitlement and surgery
The employer representative submitted that the overwhelming weight of medical evidence supports that the worker’s need for the back surgery of September 2007 and ongoing impairment is related solely to the pre-existing non-compensable condition, with no significant contribution by the work injury. There was no material contribution of the work injury to the pre-existing condition.
In support of her position, the employer representative referenced the opinions of the Board medical consultants who concluded that the surgery was not related to the work injury. She also noted that there was no clear evidence or opinion to the contrary to refute this conclusion and that the positions of both the medical consultants were consistent with the clinical evidence.
The worker representative disagreed with the opinions of the Board medical consultants regarding the surgery. He submitted that there was no evidence to prove their theory and, therefore, it should be given little to no weight. He argued that this situation would not have occurred if it had not been for the fact that the worker injured herself at work. He noted that the Board appeals medical consultant could not say for certain that this was the case, only that it could “more likely” be related to the pre-existing condition.
File evidence noted:
- On August 16, 2007, the Board sector medical consultant opined:
Any aggravation from such a minor activity as wringing the mop would almost certainly be self limiting and lasting no more than 3 months maximum, the UHT for STI resolution (at most).
He also stated that if surgery is undertaken, his opinion was that it would be necessitated by the pre-existing condition rather than as a consequence of the mop wringing.
The previously noted small disc herniation L5-S1 was not seen on the repeat MRI.
Dr. De Villiers stated that there was a chance that decompressive surgery at L5 with relief of the stenosis both at L4-L5 and L5-S1 levels may very well give her some symptomatic relief.
The worker had decompressive L5 laminectomy done on September 27, 2007.
The appeals medical consultant opined:
The surgery September 2007 does not appear to be related to the accident history and more likely is related to the pre-existing organic condition of the lower spine.
In assessing all of the available evidence regarding the duration of the injury and the surgery of September 2007, on balance, I find that it is more than likely than not that the worker required the surgery due to her significant pre-existing condition rather than due to the minor work incident of October 2006. The work incident caused a temporary aggravation and, based on the nature of the injury, it would take about 3 months to heal. The 2nd MRI did not show any disc herniation that was previously noted. The Board medical consultants support that the cause of the surgery was the pre-existing condition and none of the treating practitioners have specifically related the need for the surgery to the work related back injury. Despite the worker representative’s claim that the worker had no prior back problems, there is clear evidence that the worker was symptomatic prior to her work injury as is noted in the clinical record. Therefore, it is more than likely that the pre-existing condition was progressing to the point that she would have required surgery regardless of the minor work related incident. As such, I am confirming that the worker recovered from the temporary aggravation in about 3 months and the surgery performed in September 2007 is not the result of the work injury of October 2006.
CONCLUSION
The allowance of the claim for the lower back aggravation and 3 months lost time is confirmed.
The denial of the further lost time and surgery of September 2007 is confirmed.
Both the worker’s and the employer’s objections are denied.
DATED July 6, 2009
J. Pereira Appeals Resolution Officer Appeals Branch