WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100016
OBJECTION BY: Worker
PARTICIPANTS: Employer, Worker, Employer Representative,
Worker Representative
HEARING DATE: January 14, 2010
ATTENDEES: Worker, Worker Representative, Employer,
Employer Representative
ISSUE
The worker objects to the decision of February 27, 2009 to deny entitlement to a permanent low back impairment and associated health care benefits.
HOW THE ISSUE ARISES
On November 9, 2000, this now 41 year old worker experienced low back pain while unloading cases of liquor. At the time of injury, the worker was employed as a customer service representative in a retail store.
The worker attended her doctor several days post-injury and was diagnosed with lumbar strain. X-rays revealed left-sided spondylolysis without listhesis. When she began physiotherapy on November 22, 2000, the worker complained of pain extending to the left buttock. In February 2001, the worker reported radiation of pain to the left thigh. In March 2001, the worker reported that pain radiated as far as the left knee.
Initial entitlement was granted at appeal in a decision dated April 7, 2004. Entitlement was restricted to health care benefits on the basis of a finding that modified work offered by the employer was suitable. The decision to deny wage loss benefits for the period November 16 to 21, 2000 was upheld by WSIAT in a decision dated March 5, 2008.
On November 21, 2000 the worker returned to pre-injury duties at reduced hours. She continued in this capacity until February 2001 when she laid off due to anxiety and depression. Subsequent medical documentation indicated that a number of non injury-related factors contributed to the psychological condition. Psychological symptoms were reported to include fatigue, sleep disturbance, episodes of panic, nightmares, flashbacks, and depression. By January 2002 the worker was pregnant and unable to take any medications. She went on maternity leave at that time and has not returned to work.
There was no further documentation submitted to the record until 2003. According to the family doctor’s clinical notes, the worker attended in January 2003 and February 2003, complaining of continued low back pain radiating to the left lower extremity. In January 2004 the worker experienced pain in the area of her waist when she was caught in an elevator. In February 2004, the worker returned to physiotherapy due to an insidious increase in low back pain.
In August 2005, the worker attended a neurologist, reporting hip problems and a recent onset of pain, burning and numbness in the left foot. Examination revealed slightly reduced range of left hip motion and metatarsalgia. EMG studies ruled out radiculopathy.
In August 2005 the worker also underwent assessment by a new physiatrist. The physiatrist diagnosed hypermobility, tightness of certain ligaments in the left lower extremity, sacroiliac glide somatic dysfunction, and T3 syndrome, none of which, in his view, were related to facet joint degeneration or nerve root irritation. He recommended prolotherapy to stabilize the sacroiliac joint and treat T3 syndrome.
In May 2006 the worker underwent bone scan and MRI. Bone scan revealed no significant areas of increased uptake. MRI revealed: L3-4 disc protrusion with indentation of the thecal sac but no nerve root impingement; L4-5 disc protrusion with no nerve root impingement; narrowing of the right L4-5 neural foramen which could result in indirect compression of the nerve root, and; L5-S1 disc protrusion with tear of the annulus but no nerve root impingement.
The worker was assessed by a specialist at the Sunnybrook Pain Management Clinic in November 2006. The specialist noted that EMG findings were normal and that MRI did not support nerve root compromise and determined that the worker’s low back complaints exceeded physical findings.
In September 2008, the worker attended another pain specialist who described an unstable left sacroiliac joint which caused popping and clicking, secondary spasms, and sciatic-type pain. He noted that the worker also reported a recent onset of similar symptoms in the right lower extremity. The worker complained of left groin pain, possibly the result of a tight psoas muscle, and discomfort in the hands and shoulders. With regard for the widespread nature of
complaints, the doctor suggested a diagnosis of fibromyalgia. A recommendation was made for Botox injections to address myofascial pain in the lumbar paraspinals, piriformis, and buttocks. In July 2009, the worker underwent left-sided diagnostic facet blocks from L3 to S1 with full resolution of symptoms. A recommendation has been made for a facet denervation procedure.
In the interim, the worker has pursued recognition of permanent impairment and sponsorship in prolotherapy, massage therapy and Botox injections. With the benefit of advice from a WSIB medical advisor, the adjudicator found that the worker’s ongoing complaints were related to pre-existing spondylolysis and joint hypermobility. Entitlement to non-economic loss (NEL) assessment and health care costs was denied. The worker has objected further to denial of NEL and health care benefits.
AUTHORITY
11-01-01 – Adjudicative Process
11-01-05 – Determining Maximum Medical Recovery (MMR)
15-02-01 – Definition of an Accident
15-03-01 – Recurrences
17-01-02 – Health Care Benefits Entitlement and Definitions
18-05-03 – Assessing Permanent Impairment
EXHIBITS
Exhibit #1 – from the worker representative, clinical notes from the family doctor for the period
November 2000 to July 2006
ASSESSMENT OF THE EVIDENCE
Worker Statement
The worker confirmed that she was employed as a customer service representative at the time of injury. In this capacity, she was required to unload deliveries of cases of beer, liquor and wine every Thursday. Cases weighed between 30 and 50 pounds.
The worker testified that she experienced the initial onset of low back, left buttock and left leg pain after she had performed unloading duties for an hour and a half on November 9, 2000. The worker denied any low back or left lower extremity problems prior to November 9, 2000. With regard to the family doctor’s clinical note regarding a two to three-week history of low back pain on November 13, 2000, the worker stated that this was an error on the doctor’s part. The worker noted that her back was always painful after unloading shipments.
The worker was asked to clarify her testimony regarding an immediate onset of left leg pain in light of contemporaneous medical documentation which indicates that discomfort was localized to the low back and left buttock. The worker responded that she did experience left leg pain at that time but that it became more severe a year or two later. The worker advised that she continues to experience pain radiating from the buttock to the left leg.
The worker advised that when she returned to work on November 21, 2000, she was still experiencing a lot of pain, swelling, and muscle spasms. The employer provided her with modified pre-injury duties at reduced work hours. She worked four hours per day and was not required to lift full cases of liquor. The worker attended physiotherapy until March 2001 with limited benefit.
The worker confirmed that she laid off work on February 16, 2001 due to anxiety and stress and did not return to work until September 2001. The worker initially testified that her psychological problems arose due to injury-related pain and associated changes in activities of daily living. On cross questioning, the worker confirmed that her perception of harassment by a supervisor was a significant contributing factor. The worker was prescribed an anti-depressant medication at that time but was not immediately referred for psychological treatment. The worker stated that during her time away from work she stayed around the house and did not do much due to lack of motivation.
The worker confirmed that she went to Florida in June 2001, as noted in the family doctor’s clinical notes. During her time away, she experienced no low back pain. The worker felt that this improvement was due to the heat and humidity.
The worker was questioned about a clinical note which described an onset of right upper back pain in July 2001. The worker could not recall when the onset occurred. She noted that the condition involved stiffness in the arms and shoulders, resulting in an inability to raise her arms.
The worker stated that by September 2001, her anti-depressant medication had stabilized her condition, allowing her to return to work. The worker confirmed that she returned to the modified duties and hours she was performing between November 2000 and February 2001. She started at four hours per day and increased her hours. She could not recall the number of hours she achieved but felt that she did not reach pre-injury hours due to back and left leg pain. She advised that her symptoms included low back pain and swelling in both buttocks. The worker attended pool therapy from August 2001 until October 2001 when she discontinued due to pregnancy. The worker stopped working in January 2002 and gave birth in April 2002.
The worker advised that her maternity leave ended on January 22, 2003. She stated that despite a gap in medical documentation, she did attend her doctor between January 2002 and January 2003 for her own medical conditions and for her baby. Low back and left leg symptoms, anxiety, and depression continued during this period. The worker advised that her psychological condition affected her pain perception, making her feel more disabled. She confirmed that some time in 2003 she began to develop right leg pain and groin pain. Hernia was ruled out. She was advised by her doctors that her groin pain was radiating from L1-2.
The worker initially testified that she did not return to work at the end of maternity leave because she could not cope with the heavy lifting required in her job. She subsequently advised that her decision to remain off work was affected by her mother’s serious medical condition, her stepfather’s hospitalization for a life-threatening condition, child care issues, and exacerbation of her anxiety and depression due to these circumstances. The worker stated that she was overwhelmed by her responsibilities and could not return to work. The worker extended her leave until December 2003. She has not returned to any form of employment.
Policy
In determining initial entitlement, it is necessary to establish five points: an employer; a worker; a personal work-related injury; proof of accident; and compatibility of diagnosis to accident or disablement history.
Consideration of proof of accident may include examining whether an accident or disablement situation exists; whether there were witnesses; whether there were discrepancies in the date of accident and the date of layoff; whether there was delay in the onset of symptoms; and whether there was delay in seeking medical attention.
A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is medical compatibility between the original injury or disease and the current condition, or a combination of medical compatibility and continuity. The significance of the new accident must be assessed. If the new accident is significant, then entitlement as a recurrence is not in order.
Operational policy states that workers are entitled to health care as may be necessary, appropriate, and sufficient as a result of the workplace injury.
Workers who have a work-related permanent impairment at the time of maximum medical recovery are eligible for non-economic loss (NEL) benefits. Workers reach maximum medical recovery when it is not likely that there will be any further significant improvement in their medical condition. Permanent impairment is any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss.
Assessment
The worker representative submitted that the worker’s low back and left lower extremity symptoms were the direct result of the workplace injury. He suggested that degenerative changes revealed on MRI were caused by the injury but not evident at that time due to failure of the worker’s health practitioners to conduct adequate investigations. In his view, the worker has consistently complained of low back and left lower extremity discomfort since the date of accident, establishing sufficient continuity to establish permanent impairment. He suggested that the worker’s complaints have remained consistent with MRI findings of disc degeneration and associated mechanical low back pain. The representative requested a finding that the worker is entitled to a permanent low back impairment and health care benefits for prolotherapy, Botox injections, and massage therapy.
The employer representative noted the following factors in her submission that the worker’s ongoing complaints are unrelated to the work-related injury: the minor nature of the accident; initial symptoms localized to the low back; the absence of neurological symptoms or findings following the injury; the initial diagnosis of low back strain, and; the early prognosis for full recovery. The representative suggested that the development of left leg, upper back, right leg, groin and sacroiliac symptoms is inconsistent with the minor accident and injury. In her view, the worker’s ongoing and escalating complaints are due to pre-existing degenerative conditions and pregnancy, not the work-related strain injury. The representative suggested that attending health care practitioners’ opinions regarding the work-relatedness of various complaints are based on the worker’s recollection of events rather than fact. The representative requested confirmation of the decision to deny further entitlement.
In order to consider the worker’s request for ongoing entitlement, it must be determined whether, based on continuity and compatibility, the worker’s present complaints are related to the workplace injury. In making this determination I reviewed the record and considered the evidence and submissions.
The evidence supports the following: that there is no significant history of low back complaints prior to the workplace accident; that the worker sustained a work-related low back injury as a consequence of the November 2000 workplace accident; that the worker reported, within days of the injury, low back and left buttock pain; that the worker reported pain radiating to the left thigh in February 2001 and the knee in March 2001; that the worker reported unrelenting low back and left buttock pain on a monthly or bimonthly basis for the balance of 2000, throughout 2001, and in early 2002; that while the worker’s medical visits decreased in frequency in 2003, her condition was already chronic; that when she returned to her doctor in 2003 and 2004, she reported persistent symptoms dating from the workplace accident, and; that the worker underwent a number of medical investigations and assessments between 2004 and 2009 which resulted in diagnosis and treatment of mechanical low back pain. These circumstances, in my view, establish continuity of medical attention from the date of injury to the present time.
X-rays revealed left-sided spondylolysis at the L5 level. MRI, carried out in May 2006, revealed degenerative disc disease throughout the lumbar spine, including: L2-3 disc protrusion with indentation of the thecal sac but without nerve root compromise, and; L4-5 and L5-S1disc protrusions without left-sided nerve root compression. The worker’s low back pain and some of her left lower extremity complaints are compatible with these degenerative findings.
While the degenerative disc and facet changes likely predated the workplace accident, there were no associated symptoms until after the accident. With regard for the absence of a significant pre-accident impairment and the presence of continuing post-accident mechanical low back pain, I find that a chronic low back condition arose as a consequence of the workplace injury.
What remains to be determined is to what extent the work-related mechanical low back pain affects the worker’s present symptom complex. The worker has undergone extensive assessment and investigation to determine the etiology of her multiple complaints.
In the November 2006 Sunnybrook Pain Management Clinic report, the specialist stated,
(The worker) informed us that approximately six years ago, in the year 2000, she injured her back while working…At that time she had acute low back pain and this was followed by generalized back spasm two days later…Within the same year of injuring her back, (the worker) also developed a left lower extremity and left sacroililac pain. The left lower leg pain radiated to her foot…Her lower back pain and sacroiliac pain is generally worsened with activity…
(The worker) has had a comprehensive work up of her chronic pain syndrome. She underwent an MRI and CT scan of the lumbar spine. She has also had EMG studies for the lower extremities. EMG studies are essentially normal. Both the MRI and CT lumbar spine show discogenic disease at the L3-4 and L5-S1 interspaces. There is also an annular tear at the L5-S1 disc. There does not seem, at least from the MRI report, to be any significant compromise of the interspinous nerve roots or exiting nerve roots at these levels...
Our overall impression…is that she has a multifactorial nature to her pain. As far as her lower back and leg go, the significant areas are her discogenic disease and her sacroiliac joint pain…Her discogenic disease seems more severe than her radiological work up. This may suggest some neurochemical irriation of the nerves…The hypoesthesia of the left lower extremity is somewhat hard to explain given the normal EMG and MRI…
In September 2008 pain specialist, Dr. Ko, wrote:
She was seen back in May 2006…for her ongoing back problems. She was also evaluated by FCAMT physiotherapist…and there was congruence in the diagnosis of mechanical and myofascial back pain. This included probable unstable left sacroiliac joint (she describes herself popping the joint out and feelings of giving way and clicking) as well as secondary muscle spasming in muscles that lead to her sciatica type complaints. For example the piriformis will irritate the underlying sciatic nerve with burning sensation in her posterior thigh and numbness and paraesthesia in her left foot. She has noted similar symptoms now developing in her right leg as well. In addition she has ongoing pain particularly in the left groin suggestive of a tight psoas muscle. She has been diagnosed with carpal tunnel syndrome in the past and still has numbness and paraethesia in the hands. She described pain as well in the shoulder area…
She completed the Fibromyalgia Moldovsky Questionnaire and scored 15/18 which is congruent with a probable fibromyalgia state. There is research evidence… that 25% of chronic low back pain female patients will develop fibromyalgia.
The preceding opinions suggest that in addition to the mechanical low back condition, there are significant organic and non-organic components other than mechanical low back pain contributing to the worker’s symptom complex.
As noted by the attending specialist, physical findings do not explain complaints of sensory changes and weakness in the lower extremity. The worker testified that her psychological state affects her pain perception. Anxiety and depression arose primarily as a consequence of the worker’s perception of workplace harassment, serious family illnesses, and childcare pressures. At a physiatry appointment in August 2005, the worker advised the doctor that she did not wish to return to work due to “an abusive relationship in the workplace” and because she wished to stay home with her three-year old daughter. According to a sleep clinic report dated June 9, 2008, the worker exhibited the following symptoms: stress due to pain and harassment at work; panic attacks; post traumatic stress disorder involving nightmares, flashbacks, and startle response, and depression.
In addition to psychological problems, the worker has, since her injury, developed symptoms associated with a number of organic conditions, including hypermobility, sacroiliac dysfunction, left sacroiliac glide somatic dysfunction, T3 syndrome, metatarsalgia, and groin pain associated with either or both of a tight psoas muscle and L1-2 radiation. Findings pertaining to sacroiliac dysfunction, hypermobility, the groin, and T3 syndrome were not documented until the worker attended physiatrist, Dr. Fulton, five years post-injury.
Dr. Fulton noted that hypermobility was a condition inherent to the worker which would make certain ligaments prone to stress, strain and laxity. He diagnosed the worker’s left hip complaints as left sacroiliac glide somatic dysfunction which was not attributable to the L5-S1 facet joint degeneration or any nerve root condition. He found that tightness in the left leg was localized and not indicative of nerve root involvement. The T3 syndrome was associated with impairment of the upper extremities. In his view, groin complaints were related to L3 irritation. Dr. Fulton felt that irritation of the L5-S1 facet joint may be a factor.
In July 2009, the worker underwent diagnostic facet blocks from L3 to S1 on the left. Where the worker graded the severity of pain as 8/10 prior to the injections, she reported full resolution of symptoms after the injections. The worker’s testimony in this regard was consistent with medical documentation. Due to the positive response, a facet denervation procedure was recommended.
After careful consideration of the evidence, I find that the worker has entitlement to a permanent impairment related to mechanical low back pain. This impairment involves low back pain without significant neurological impairment.
The worker does not have entitlement to hypermobility, sacroiliac dysfunction, T3 syndrome, left leg tightness, or groin pain. Hypermobility and sacroiliac dysfunctions are conditions inherent to the worker which did not become problematic until well after the workplace accident. While these conditions place the worker at risk for injury, they were not caused or aggravated by the workplace accident. T3 syndrome, groin pain and leg tightness were not evident until well after the accident and are unrelated to the work-related mechanical low back condition
In keeping with these findings, the worker is entitled to the health care measures that are necessary and appropriate for the work-related mechanical low back condition. Such treatment may include massage therapy, facet joint injections, and facet denervation.
The worker is not entitled to health care benefits associated with hypermobility, sacroiliac dysfunction, T3 syndrome, or groin pain. Consequently, the worker is not entitled to prolotherapy intended to treat S1 joint dysfunction.
Botox injections were recommended to treat myofascial pain and spasms in the left
L4 to L5 paraspinals, left piriformis, gluteals and short adductors. While entitlement to myofascial pain/fibromyalgia has not been addressed, I would suggest that entitlement may be in order for a trial of Botox injections for relief of symptoms associated with mechanical low back pain; however, this treatment should be reconsidered by the worker’s attending physicians noting the positive result of facet joint injections and proposed denervation procedure. The issue of Botox injections is left to the discretion of the operating area.
CONCLUSION
The objection is granted in part.
The worker’s request for recognition of permanent impairment is granted in part. Entitlement is restricted to mechanical low back pain without significant neurological impairment. NEL assessment should be arranged once maximum medical recovery has been achieved.
The worker’s request for health care benefits is granted in part.
a. The worker is entitled to massage therapy, facet joint injections, and, if necessary, facet denervation procedure.
b. The worker is not entitled to prolotherapy.
c. The issue of Botox injections is left to the discretion of the Operations Division. Botox injections may be appropriate for symptomatic relief of mechanical low back pain; however, the advisability of this treatment may be affected by the positive facet joint injections and proposed denervation procedure.
DATED January 22, 2010
D. M. Shepherd
Appeals Resolution Officer
Appeals Branch