NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Employer) Participants entitled to respond to this appeal: [X] (Worker) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim No.: [X] Oral hearing on May 18, 2011 at Port Hawkesbury, Nova Scotia [X] Date of Decision: May 31, 2011 Decision: The Employer s appeal of the October 29, 2008 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Gary H. Levine.
2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This decision is made pursuant to the Workers Compensation Act, S.N.S. 1994 95, c. 10, as amended, (the Act ). It concerns an appeal by the Employer* from an October 29, 2008 Board Hearing Officer decision. The Worker* suffered a workplace back injury on March 27, 2006. The Hearing Officer determined that the Worker s current lower back problems were causally related to the March 2006 injury. As a result, the Board awarded her benefits. However, the Employer asserts that the Hearing Officer s finding was incorrect. This matter was heard in conjunction with two appeals by the Worker arising out of the same injury (i.e., WCAT # 2009 760 AD and 2010 609 AD). I conducted a single oral hearing for all three appeals, but issued this separate decision for the Employer s appeal. The Worker and the Administrator of the Employer s nursing home facility testified at the hearing. Representatives for the Employer and the Worker provided oral submissions and documentary evidence. In advance of her testimony, the Worker submitted a written narrative which she read into the record. I also considered the contents of the Worker s Board file, authorities cited and the decision under appeal. I will only refer to a portion of the relevant evidence and submissions below. ISSUE AND OUTCOME: Were the Worker s back problems beyond May 8, 2006 causally related to her March 27, 2006 workplace injury? Yes. There is sufficient evidence to find that the Worker s lower back symptoms from May 8, 2006 to the present were, at least in part, causally related to her March 27, 2006 workplace injury. ANALYSIS: Burden of Proof, Evidence and Causation: My decision must be based upon the real merits and justice of the case and in accordance with the Act. As in all appeals involving compensation for workers, I must view the evidence before me in light of s. 187 of the Act. The Worker is entitled to the benefit of the *This decision contains personal information and may be published. For this reason, I have not referred to the participants or witnesses by name.
3 doubt on any issue involving compensation. Where there is doubt on a compensation issue and the disputed possibilities are evenly balanced, the issue must be resolved in the Worker s favour. Any participant disputing an inference raised by the Worker is required to meet a greater burden of proof, the balance of probabilities standard generally required in civil cases. Whether an inference is reasonable depends upon the circumstances of each case. Expert opinion evidence is often of great assistance in determining medical and other issues. However, I am mindful that expert evidence is not necessary to such a determination, nor is expert evidence always conclusive. The causal relationship between the Worker s current lower back problems and her compensable injury is in question. Although a causal connection linking a current condition to a workplace injury must be shown, the Worker is not required to prove causation to a scientific certainty. I may use common sense to infer a causal relationship where appropriate. The necessary causal link may be found where it is shown that a worker s condition would not have occurred or arisen but for his or her workplace injury. If the but for test is unworkable, a required causal link may be found where a compensable injury is a material contributing factor to a condition; i.e., the injury contributed more than an insignificant or trifling amount. Medical History and Accident: The Worker s medical history includes a serious motor vehicle accident (MVA) when she was 15 years of age. According to a September 4, 2007 letter from Dr. M. Murphy, family physician, the Worker was a passenger with her seat belt on when the car she was riding in flipped over. The muscles around her right scapula (shoulder blade) have been sore, off and on, ever since that time. However, the Worker testified that she was not restricted in her activities, nor did she miss time from work due to the MVA. The Worker is a licensed practical nurse (LPN). According to her testimony, she was hired by the Employer to work at its nursing home on December 7, 2001. She started on a casual basis and was changed to a permanent part time employee in March 2003. There is no dispute that the Worker sustained a back injury at work on March 27, 2006. The injury occurred as she and a co worker transferred a resident from a bed to a chair. According to a WCB Accident Report received by the Board on April 4, 2006, the Worker felt a pull in her lower back which increased in intensity over the next 24 hours. The Worker stated at the hearing that she had no prior or subsequent back injuries in this area of her spine. On the Monday following the incident, she went off work due to pain and other symptoms. Dr. Y. Nault, a family physician, saw the Worker on April 3, 2006 and was of the opinion
4 that she was unable to work. In a Physician s Report to the Board for the visit, Dr. Nault noted that the Worker had a reduced range of motion in her lumbar spine and muscle spasms. The Worker complained of severe lower back pain and pain radiating into the right shoulder. The doctor reported that she was not aware of any similar past problems the Worker may have had. Dr. Nault referred the Worker to a physiotherapist. A report from a physiotherapist for a visit on April 3, 2006 is on file. The report notes very limited lumbar ranges and Very Acute! The Worker received 11 physiotherapy treatments and was discharged on May 5, 2006 with clearance to return to her pre injury work on May 8, 2006. Nonetheless, the Worker testified that she continued to experience lower back, buttock and right leg pain with muscle spasms, particularly with sitting and increased activity. Documentation on file indicates that she returned to work on May 8, 2006. The Employer subsequently advised the Board that the Worker completed six assigned shifts, took one unpaid sick day and resigned her position on May 23, 2006. At the end of May 2006, the Worker moved to another city and obtained similar employment with a different employer. The Worker explained that she moved in order to maintain a relationship. Therefore, her lower back problems were not a consideration in leaving her job with the Employer. On July 12, 2006, the Worker went to a hospital emergency room complaining of low abdominal and back pain. She described the painful areas at the hearing and indicated that they were the same areas on her right side that were painful after the March accident. The Worker became pregnant in August 2006. On November 15, 2006, she was seen in a hospital emergency department for back pain. The report for the November visit noted that the same problem occurred in October. She testified that she was also seen a few times at walk in clinics for back pain, but records for these visits were not available to her. The Board file contains chart notes from Dr. S. Couture, a family physician. A chart note for December 6, 2006 indicates that the Worker was having difficulty with back pain radiating down her right leg. A December 8, 2006 note indicates that the Worker reported having severe back pain in her lower back, numbness and the sensation of a lump in her lower back down into her leg. She was apparently unable to work due to pain. The note goes on to describe severe pain on palpation at the L4 & S1 levels of the Worker s lumbar spine, a mobile cyst near the sacral area and pain in the lower back with single leg raising. The physician thought the symptoms probably indicated a sciatica problem due to her workload and pregnancy. MSI records from December 2006 to May 2007 indicate that the Worker was seen by her
5 obstetrician on a number of occasions for a high risk pregnancy and unspecified complications. She went off on maternity leave on March 18, 2007 and has never returned to work. On May 24, 2007, she delivered her baby. According to chart notes from Dr. Murphy, the Worker had low back pain on June 11, 2007. A September 28, 2007 MRI of the Worker s thoracic spine showed a disc herniation at the T12 L1 disc space level. In a Physician s Report to the Board for an October 3, 2007 visit, Dr. Murphy indicated that the Worker had lower back pain and nausea. On October 11, 2007, in light of the disc herniation and the Worker s symptoms, Dr. Murphy referred the Worker for an urgent appointment to see Dr. D. Alexander, an orthopaedic surgeon. In the referral letter, Dr. Murphy noted the Worker s MVA at age 15. Dr. Alexander saw the Worker on November 5, 2007. Although the T12 L1 disc herniation was considered rather impressive, Dr. Alexander was reluctant to recommend surgery because the herniation was in a difficult location. Dr. W. Oxner, orthopaedic surgeon, saw the Worker on February 4, 2008 at Dr. Alexander s request. Dr. Oxner reported, in part, as follows: I saw this 29 year old patient of yours with regard to her low back dysfunction. As you know, she has been complaining of pain; both in her low, as well as in her upper back, radiating into her shoulders. It seems to have started with a work related injury; which I believe occurred back in March, 2006. Subsequent to that, she has been back to work and in fact, reports that since December, 2006, things have been quite bad. Despite this, she has gone on to have a baby... The Worker informed Dr. Oxner that she had a heavy feeling in her right leg, her balance was off, she often dragged her right leg and she experienced constant burning pain in her leg, lower and upper back. She also had some urgency of urination. Dr. Oxner thought the Worker s symptoms had worsened since the MRI scan, but the T12 L1 herniation could not account for all her symptoms. (As an aside, Dr. Oxner s opinion seems to be consistent with the view expressed by Dr. Smith, Board Medical Advisor; i.e., that the thoracic disc herniation was unrelated to the Worker s lower back symptoms.) Dr. Oxner requested a second MRI. This was done on March 3, 2008. The reporting radiologist for the MRI noted a second disc bulge/herniation with an associated annular tear at the L4/5 level of the Worker s lumbar spine. A report for an MRI done on April 24, 2008 and reports for subsequent MRIs indicated similar findings.
6 On March 14, 2008, the Worker was seen by a neurologist, Dr. Y. Chakfe. It was Dr. Chakfe s impression that the Worker s symptoms were related to a right sided lumbosacral radiculopathy, probably involving the L5 nerve root. In April 2008, Dr. Alexander reviewed the Worker s circumstances. He did not feel there would be a good result from an operation and recommended against surgery. A Board Case Manager wrote Dr. Alexander to request his opinion concerning the cause of the Worker s symptoms. On April 2, 2008, Dr. Alexander responded as follows: On a review of her history it seems she originally hurt her back in March 2006. She had ongoing symptoms to this date. Therefore I think that this lady has issues related to her initial injury in March 2006 and that this might reasonably be considered a compensable injury. [emphasis added] The Case Manager again wrote Dr. Alexander to advise him that there was a lack of medical visits by the Worker for her back between May of 2006 and December 2006. Nonetheless, Dr. Alexander confirmed his previous opinion. He wrote, I would have to say in the absence of other reported injuries it would be my opinion that the situation she is in now could be related to the work related injury of March 2006. The Worker was seen by other specialists, including two neurosurgeons, Dr. H. G. Malik and Dr. D. McNeely. Both reviewed MRI findings. Dr. Malik reported on June 26, 2008 that he thought the Worker s symptoms arose from the disc protrusion at the L4 5 level and were unlikely to resolve without surgery. Dr. McNeely, on the other hand, did not recommend surgery and felt that many of the Worker s symptoms would be best described as mechanical low back pain. I also have the benefit of a medical legal report prepared by Dr. M. Burnstein, a general practice physician with an interest in occupational and environmental medicine. Dr. Burnstein did not examine the Worker, but he reviewed much of the medical evidence. At the conclusion of his report, he wrote, in part, as follows:... Dr. Alexander appears to unaware [sic] of the MVA 15 years earlier or the fact that she had ongoing upper back complaints which predate the March 2006 injury. I would suggest that this previous accident provides a much better explanation of the symptoms which she presented to Dr. Alexander... than the low back injury which occurred in March 2006. I would also suggest that the MRI findings, which are poorly correlated to her clinical presentation, are incidental findings and if anything, given their stability over 3 MRIs in a two year period, more likely reflect her previous MVA than the more recent workplace low back injury, which by most
accounts, resolved quickly allowing a return to unrestricted work. Causal Connection Found: 7 Upon consideration of the entirety of the evidence, I find that the Worker s current lower back problems are, at least in part, causally related to her March 27, 2006 compensable injury. I will briefly outline the reasons in support of my finding. First, I prefer Dr. Alexander s opinion evidence and give it greater weight than I give Dr. Burnstein s evidence where they may conflict. Dr. Alexander is a treating orthopaedic specialist who examined the Worker and rendered an opinion within the scope of his expertise; whereas Dr. Burnstein did not examine the Worker and lacks Dr. Alexander s level of expertise concerning spinal injuries and conditions. In addition, Dr. Burnstein mistakenly thought Dr. Alexander was unaware of the Worker s MVA at age 15. However, Dr. Alexander was informed of this accident by Dr. Murphy in her October 11, 2007 referral letter. Therefore, it appears likely that Dr. Alexander considered and rejected a possible connection between the Worker s lower back symptoms and the MVA. The opinions from Dr. Oxner, Dr. Malik, Dr. Chakfe and Dr. Smith support Dr. Alexander s view that the Worker s symptoms are attributable to changes in her lumbar spine at the L4 L5 level, not the T12 L1 disc herniation. Dr. McNeely also seemed to be of this opinion even though he differed from Dr. Malik in that he did not feel surgery would benefit the Worker. Therefore, Dr. Burnstein was virtually alone in his opinion that the Worker s upper back injury accounted for her current symptoms. Considering the lack of clear medical evidence prior to the second MRI, it is understandable that treating physicians considered whether the T12 L1 disc herniation or the Worker s pregnancy were principally responsible for the Worker s symptoms. This changed when the second MRI was done and a lower lumbar disc herniation was revealed. It is important to note that the Worker was able to perform her nursing duties with the Employer from December 2001 to the date of her injury in March 2006. She testified, and I accept, that she had no other lower back injury. Although she was able to return to work in May 2006, she reported having lower back pain (among other symptoms) in July 2006. This was before she became pregnant. It appears that she made further medical visits for lower back pain during her pregnancy. In fact, back pain was one of the reasons she was put off work in December 2006 and continued off work on maternity leave in March 2007. Following the delivery of her child, her back pain did not resolve. Given the MRI findings and the Worker s history of lower back problems commencing from
8 the date of her compensable injury, it is reasonable to relate her current symptoms to it. Therefore, I accept Dr. Alexander s opinion that the Worker s lower back problems are causally related to her compensable injury. It follows that the Employer s appeal should be denied. CONCLUSION: The Employer s appeal is denied. There is sufficient evidence to find that the Worker s lower back symptoms after May 8, 2006 to the present are, at least in part, causally related to her March 27, 2006 workplace injury. DATED AT HALIFAX, NOVA SCOTIA, this 31 st day of May, 2011. Gary H. Levine Appeal Commissioner