WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100055
OBJECTION BY: The Worker
EMPLOYER: Not Participating
HEARING DATE: April 15, 2010
ATTENDEES: Worker, Worker Representative, Interpreter
ISSUE
The worker objects to the denial of further benefit entitlement beyond December 18, 2003, in relation to his low back injury of November 10, 2003.
HOW THE ISSUE ARISES
On November 10, 2003, this then 36 year old construction labourer was working with a partner, carrying a manhole. The worker’s partner slipped and dropped his end of the manhole, leaving the worker to carry the full weight of it and injuring his lower back.
As a claim was not established until November 2005; an investigation resulted to carry out the necessary enquiries. The operating level determined the evidence did not establish proof of accident as alleged by the worker and initial entitlement was denied. On appeal, an Appeals Resolution Officer confirmed the denial on August 23, 2007. The worker pursued the matter to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In an October 17, 2008 decision, the WSIAT found that the worker had initial entitlement for a specific work accident occasioned on November 10, 2003. The Workplace Safety and Insurance Board (WSIB) was directed to determine the level and duration of benefits arising from the initial entitlement allowance.
Accordingly, the WSIB case manager reviewed the claim records and granted full loss of earnings (LOE) benefits from November 11, 20003 to December 18, 2003, when it was considered medical attention had ceased for the compensable low back condition. The benefits were paid to the employer for advances previously paid to the worker during this interval. Further benefits beyond December 18, 2003 were denied, due to lack of subsequent medical continuity respecting the compensable low back injury and reporting of additional non-compensable trauma. The worker was advised of the limited benefit entitlement in the January 9, 2009 and June 3, 2009 decisions and appeals these decisions.
AUTHORITY
Operational Policies:
15-03-01, Recurrences
11-01-05, Determining Maximum Medical Recovery
18-03-02, Payment of Loss of Earnings Benefits
TESTIMONY AND SUBMISSIONS
The worker testified under oath. The worker representative made submissions on the worker’s behalf.
The worker testified that he had worked since 1998 with the accident employer as a construction labourer, and was involved in the paving of roads and highways. He described the work injury consistent with his prior evidence on file and submitted that he had no previous back troubles or need to visit a doctor. Subsequent to the work injury and even during a subsequent period of incarceration, however, his low back pain has persisted and gotten worse. He now has symptoms also affecting his right side. Due to the condition of his low back, the worker indicated he has not been able to work nor has he sought out any lighter work.
In terms of medical treatment, subsequent to December 2003 and particularly until March 2005, the worker stated that he used hot and cold cream for several months, which had been given to him by the chiropractor. During his periods of incarceration in 2004, he used the creams and was also given daily Tylenol as well as Arthrotec for both back and knee pain. He did not need a prescription for these while in custody. He noted that while in custody, there was no opportunity for formal treatment and his back pain was relatively stable because of lack of activity. When he was discharged from custody in December 2004, the worker stated he took some pills and delayed in seeing his family physician until March 2005 because he couldn’t get an appointment. His doctor subsequently made arrangements for a scan of his back and there were then regular medical visits with eventual MRI and specialist referral. His physician prescribed medication to reduce the pain but he could not afford formal treatment.
The worker’s representative submitted that the file’s case manager had denied ongoing entitlement based on a finding that there was no medical continuity between December 2003 and March 2005. However, he noted the worker had not experienced any back injury or problems before the November 10, 2003 workplace accident, which he considered significant. The worker attended a period of chiropractic treatment, paid for by his employer, which ended in mid-December 2003.
The worker was then incarcerated several months later and was in custody for most of the period of continuity that was considered lacking. The representative acknowledged that the correctional facility’s clinical notes made no mention of back pain, however, according to the worker, he had ongoing low back problems and that he took daily Tylenol and also Arthrotec for this. He added that during this interval, the worker had more pressing issues to deal with and the back pain became secondary. As well, he was inactive while in custody and while the worker still had back pain, it was stable because he was relatively inactive. After he was released in December 2004, the worker took some pills which he purchased at a pharmacy and was unable to obtain a doctor’s appointment until March 2005, subsequent to which there is fairly regular low back medical attention and reporting.
The representative also submitted that with ongoing low back pain, lack of further injury and with the worker involved in daily activity after his relatively inactive period of custody, it was submitted that the CT and MRI scan findings were compatible with progression of his back injury. Consequently, he submitted that entitlement ought to be accepted for ongoing low back impairment with the associated benefits since December 2003.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision on the presenting issue, I have considered the evidence on file, testimony and submissions. Based on my assessment and contrary to the submissions made, I consider that the evidence does not establish ongoing benefit entitlement beyond December 18, 2003, when it is considered the worker had ceased treatment for his compensable low back condition, with lack of subsequent medical continuity and compensable impairment.
In making this finding, I note that the medical evidence following the November 10, 2003 workplace accident reveals the worker attended a chiropractor for treatment initially on November 11, 2003. The chiropractor’s notes documented complaints of a sore lower back with left leg pain. The worker attended chiropractic treatment from November 11, 2003 to December 18, 2003 and stopped.
In the interim, on November 21, 2003, the worker had attended a general physician for low back pain. The only finding noted was tenderness in the left flank, with a diagnosis of mechanical back pain and recommended treatment was limited to pain medications. A subsequent November 21, 2003 x-ray of the lumbosacral spine, sacrum and coccyx, simply revealed “very minimal degenerative disc disease at the L4-5 level” with the disc spaces well maintained and normal sacroiliac joints, sacrum and coccyx.
There is then no medical reporting until March 2005, reflective of any continuity of medical attention for ongoing low back impairment from the workplace injury. The records reveal several periods of incarceration extending from February 2004. The correctional facility’s clinical records document fairly regular medical visits extending from February 2004 to December 2004, for various ailments, but with no mention of back pain. In this interval, there was a July 14, 2004 emergency hospital visit, as the worker had been assaulted during his incarceration. It was noted he had suffered multiple trauma affecting the cervical spine, right shoulder, right wrist and right scapula. There was no mention of back pain in this visit, either.
The worker then attended two general physicians as of March 8, 2005 for his low back and this comes 15 months following the completion of compensable low back treatment in late 2003. He was seen again on June 15, 2005 and on August 22, 2005. The clinical notes document the worker had fallen from a truck 10 days prior with consequent lumbar spasm and reduced range of motion. There were subsequent visits from October 2005 to December 2005 and a November 22, 2005 CT scan of the spine again revealed the minor degenerative findings in the lower lumbar spine. Fairly regular medical visits then followed to 2009, for various ailments to include low back pain with an October 27, 2007 MRI now revealing discogenic as well as degenerative changes.
Based on my assessment, it is my finding that the medical evidence most proximal to the accident date, establishes the worker sustained only a minor soft tissue low back injury from the workplace accident, with a limited period of treatment ending on December 18, 2003. Noting then an absence of medical continuity for any ongoing low back problems for another 15 months, despite medical visits in this interval for other ailments, I accept that the worker attained full recovery from his compensable back injury following cessation of chiropractic treatment in December 2003. The low back problems reported as of March 2005 with the 2007 discogenic findings on MRI, consequently, are not considered causally related or compatible with the 2003 work injury. On these grounds, entitlement to further benefits beyond December 18, 2003, is denied.
CONCLUSION
Entitlement to further health care and loss of earnings benefits, beyond December 18, 2003, is denied.
The worker’s objection is, therefore, denied.
DATED May 4, 2010.
S. van Veen
Appeals Resolution Officer
Appeals Branch