MEMORANDUM 377/87 DATE: April 5, 1988 TYPE: A TO: ALL WCAT STAFF SUBJECT: DECISION NO. 377/87 Aggravation (preexisting condition) (degenerative disc disease) - Disc, herniated (L4-5). - Bricklayer not entitled to benefits from February 1982 for herniated disc. - In 1976, worker suffered compensable lower back injury which resolved within several months. - At that time, medical examinations showed degenerative disc disease. - Herniated disc resulted from ongoing degenerative disc condition, not from compensable accident. PANEL: Moore; Cook; Mason DATE: 23/03/88 Ss: none
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 377/87 This appeal was heard on March 31, 1987, by: J.P. Moore: Panel Chairman, B. Cook : Tribunal Member representative of workers, D.C. Mason: Tribunal Member representative of employers. THE APPEAL PROCEEDINGS: The worker is appealing a decision of the Appeals Adjudicator, J.M. Davies, dated June 11, 1984. The worker appeared and was represented by D. Paolini, of the Office of the Worker Adviser. The employer, although notified of the hearing, did not attend. The Panel was assisted by D. Munro of the Tribunal Counsel Office. THE EVIDENCE The Panel had before it the Case Description materials prepared by the Tribunal Counsel Office containing a summary of the facts and issues together with the relevant materials from the file of the Workers' Compensation Board. These materials were marked as Exhibit #1. Subsequent to the hearing, the Panel asked for and received additional medical evidence. Evidence was given under oath by the worker with the assistance of an Italian interpreter. The Panel received submissions from the worker's representative at the hearing and subsequent to the hearing. THE NATURE OF THE CASE The worker is claiming entitlement to benefits subsequent to February 1982, for a lower back disability that he related to prior compensable accidents that occurred on April 12, 1976, and August 13, 1979. The worker's claim for compensation benefits was denied by the Board on the ground that the worker's lower back disability did not result from the compensable accidents on the dates cited above. This decision was confirmed by the Claims Review Branch on March 9, 1983. An appeal to the Appeals Adjudicator was denied on June 11, 1984. It is this decision which forms the basis of the worker's appeal to the Tribunal. The issue before the Hearing Panel today is: did the worker's lower back disability which commenced mid-february 1982 result from either or both of two prior compensable accidents occurring in 1976 and 1979.
2 THE PANEL S REASON The worker is a bricklayer by trade and has been since 1953. On April 12, 1976, the worker slipped on some rough ground while carrying bricks. The worker was treated by his family physician, Dr. Irvin. X-rays were taken of the worker's lumbar spine on the date of the accident. The subsequent radiological report states as follows: No fracture or dislocation was seen. There are sclerotic and hypertrophic changes about the L5-S1 level with narrowing of the L5-S1 disc space. Some anterior hypertrophic change is noted in the upper margin of L4. Disc spacing above L5-S1 appears within normal limits. Minimal early sclerotic changes are noted in the lower most apophyseal joints. the sacroiliac joints are unremarkable. Opinion Degenerative disc disease mainly at L5-S1. Dr Irvin's diagnosis at the time was sciatica with severe pain in the right lower back and the right leg to the knee. These findings are of particular significance given later medical opinions concerning this worker. As a result of this injury, the worker was off work, receiving compensation benefits, until June 10, 1976. Materials in the Board file indicate that after his return to work, the worker saw Dr. Irvin once in 1977 and again in 1978 for a physical examination. On both such occasions, he was apparently symptom-free as far as his back injury was concerned. On August 13, 1979, the worker sustained an injury when he stepped in a hole at his work site. Dr. Irvin, in a report dated August 16, 1979, noted that the worker had a very tender right hip joint and diagnosed the worker as having "traumatic synovitis of the right hip". As a result of this injury, the worker lost three days of work for which he received compensation benefits. He returned to work on August 20, 1979. Prior to his return to work, Dr. Irvin had x-rays taken of the worker on August 16, 1979. The resulting radiological report states as follows: Right hip There are degenerative changes involving each hip. These are relatively mild from a radiological point of view. There are also degenerative changes at L4-5 and L5-S1 discs and these may be relatively severe. There is no sign of acute injury and no bone destruction.
3 Subsequent to August 20, 1979, the worker lost no further time from work and sought no further medical attention for either his lower back or hip until February 1982. However, the worker testified that, in fact, he suffered relatively frequent back pain after his 1979 accident. He stated that on a number of occasions he informed his employer that his back pain was such that he would require a few days off. He stated that he did not report these days off to the Board or to his family doctor. The Board file indicates that the worker's employer informed a Board Investigator that to the best of his recollection, the worker lost no time as a result of his injuries, other than the times for which he received compensation as noted above. It should be noted at this point that the worker's employment was seasonal, in that he generally did not work for several months during the winter. It was towards the end of one such lay-off in the winter of 1982, that the worker began to notice increasing difficulty with his lower back. The worker could not say what precipitated the developing pain, but it became severe enough for him to consult with Dr. Irvin once again. Because of this problem, the worker delayed returning to work until June 1982. During that summer and early fall, he performed his normal work until mid-october, at which time he laid off work for two weeks. He returned to work for a two week period and then laid off again. He consulted with Dr. Irvin and was referred for an x-ray examination. A radiological report dated November 29, 1982, states the following: Lumbar Spine There has been no appreciable change in the appearance of the patient's lumbar spine since an examination eight months ago. There is some disc space narrowing and there are marginal spurs at L3-4. There is questionable disc space narrowing without spurs at L4-5. There is obvious disc space narrowing and very prominent spurs at L5-S1. The discs above L3 look normal. The sacroiliac joint and paraspinal soft tissues look normal. Dr. Irvin concluded that the worker was suffering from sciatica. The worker was able to return to work the following spring, but continued to have recurrent back and leg pain. He was seen by a chiropractor on May 6, 1983, and then be an orthopaedic surgeon, Dr. McCaul, on June 13, 1983. Dr. McCaul concluded in a report dated June 15, 1983, as follows: Impression: He has a S1 nerve root lesion on the left side which may either be due to a fresh suquestrated disc fragment or maybe due to foramenal entrapment secondary to his spinal stenosis.
4 This opinion was echoed in the report of Dr. Porter, orthopaedic surgeon, dated July 6, 1983. Dr. Porter noted that the worker had "extensive degenerative disc disease at L5-S1 with changes at L3-4, and L4-5 as well". He went on to note that: There is not doubt this man has a first root sacral problem on his left side. It is probably long standing in nature with a recent flare-up. On August 15, 1983, the worker was given a myelogram. Dr. Porter's analysis of this myelogram was that it "confirms the presence of a fairly significant herniated disc at the L4-5 space involving his left L5 root". A number of subsequent medical reports provide little additional information as to the worker's condition. These reports are, however, forceful in their opinion that the worker's ongoing disability is "work-related". Dr. Irvin attributed the worker's ongoing degenerative disc disease to "his heavy work as a bricklayer". Dr. McCaul, in his August 23, 1983, report states "I believe that his is disabled from working as a bricklayer." A report dated June 6, 1985, by Dr. Evans, a specialist to whom Dr. Irvin referred the worker, contains the following statements: In my opinion the sequence of events with the original injury in 1976, the second on in 1979, and his continuing complaints and his deterioration at the present time is very much sequential and based on the original problem beginning in 1976 and aggravated in 1979....Therefore, in black and white I do have a very definite opinion that there is evidence of significant aggravation from the incident at work and it is reasonable to conclude that the accidents in 1976 and 1979 have significantly contributed, and in fact are the basis of his present and current problems. On the other hand, we have the opinion of Dr. Macfarlane, a Board Consultant. On December 16, 1983, Dr. Macfarlane dictated the following memo (later referred to as Memo #16): This patient suffers from progressive degenerative disc disease. We know that by x-ray this was present in August, 1979 and described as relatively severe. There was no indication of an x-ray being taken of his back in 1976, but most likely he had some degree of degeneration then as well. I would not relate his degenerative disc disease to his trade.
Both claims would be allowable on an aggravation basis. He would appear to have recovered from both aggravations and so would not have continuing entitlement. It was really questionable that he had true sciatica during the 1976 episode. The paucity of clinical findings makes the diagnosis of disc difficult to confirm. 5 A second memo was dictated by Dr. Macfarlane on February 10, 1984: The x-ray report of April 3 [sic], 1976, confirms what I mentioned in Memo #16, in that by 1976 he had already had fairly significant degenerative changes in the lumbar region. Of course my mention of the paucity of clinical findings was referring to the injury of April 12, 1976. The findings given on Form 8 dated April 13, 1976, were severe pain right lower back, right postero-lateral thigh to knee. This indicates that the patient had referred pain from the lumbar region and was not in fact suffering from true sciatica. Root pain is felt by the patient beyond the level of the knee and usually into the foot. When the pain stops at the knee level this is regarded as a referred pain. There are no findings given with regard to the range of movement of the back, the reflexes, straight leg raising or sensory changes, which are necessary if one is to make a diagnosis of a disc herniation. In the three medical reports submitted by Dr. Irvin, I do not interpret them as indicating that degenerative disc disease is work related. If this is in fact the opinion of the doctors that degenerative disc disease is related to a particular work activity, I would be pleased to receive the articles from the medical literature which supports this. We have been trying to find this evidence for years and to date none has been submitted. Leaving aside, for the moment, the opinions contained in the medical reports before us, the Panel makes the following findings of fact: 1. An x-ray report dated the same day as the worker's 1976 accident indicates the presence of degenerative disc disease at the L5-S1 level. 2. The April 12, 1976, compensable accident appears to have been in the nature of a strain which did not cause any disc herniation. 3. The 1976 injury appears to have resolved itself within several months.
6 4. At the time of the worker's accident in 1979, there appears to have been further degenerative changes to the worker's lumbar spine unrelated to the 1979 accident. 5. The worker's 1979 accident was diagnosed as traumatic synovitis affecting his right hip which did not cause any apparent disc herniation. 6. The worker's 1979 injury appears to have resolved itself. 7. Between the 1979 accident and the developing injury in 1982, the worker missed no work and sought no medical treatment attributable to lower back pain. 8. In 1982, the workers' degenerative disc disease was quite advanced and was exacerbated by the presence of a herniated disc at the L4-5 level. The fact which must form the cornerstone of this Panel's decision is that at the time of his 1976 accident, the worker was already experiencing some degeneration of his discs. The opinions cited above from the worker's physicians are emphatic in their belief that the 1982 disability is work-related. While it is certainly arguable that a bricklayer's work could give rise to the kind of disablement experienced by the worker, that is not the issue before this Panel. The issue before us is whether the 1982 disability can be related to either of the worker's prior compensable accidents. The 1979 injury was short lived and related to the worker's hip. The 1976 injury, while of a longer duration, was nonetheless resolved within a period of several months and, more importantly, appears not to have have recurred for almost six years. Dr. Evans, in his report, refers to the sequence of the injuries, but the Panel does not find the sequence itself to be of causal significance. On the other hand, there is continuing evidence of worsening degenerative condition in the worker's lumbar spine. This degeneration appears to have developed quite independently of the worker's two compensable accidents. The Panel, as a matter of fact, finds that there is no evidence in the medical reports relating the worker's 1983 herniated disc to the worker's 1976 back injury or to his 1979 hip injury. The Panel concludes that it is more probable than not that the 1983 disc herniation reflected the worker's ongoing degenerative condition than that it was a product of either the 1976 compensable accident, or the 1979 compensable accident. As mentioned earlier, there is reference in the medical evidence to the worker's disability being related to his work activity in general. The Panel concludes that it is questionable whether it has jurisdiction to deal with this particular issue and finds that, in any event, there is insufficient evidence to allows us to make a finding on that issue.
7 THE DECISION The worker's appeal is denied. DATED at Toronto, this 23rd day of March, 1988. SIGNED: J.P. Moore, B. Cook, D.C. Mason.