The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 25, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 25, 2000, and determined that additional medical information should be obtained and that the hearing be reconvened with a different interpreter. A reconvened hearing was then arranged for June 20, 2000. The Panel discussed the appeal on June 20, 2000 and on September 26, 2000.

Issue

Whether or not the claimant has recovered from the effects of the January 19, 1998 compensable injury; and

Whether or not the claimant is entitled to payment of benefits beyond April 17, 1998.

Decision

That the claimant has recovered from the effects of the January 19, 1998 compensable injury; and

That the claimant is not entitled to payment of benefits beyond April 17, 1998.

Background

During her occupation as a seamstress on January 19, 1998, the claimant experienced pain and swelling in her back area while putting away full baskets of clothing. The diagnosis rendered by the attending physician on January 19, 1998, was a lumbar back strain. The claimant was prescribed medication and physiotherapy treatments and was referred to an orthopaedic specialist. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

Subsequent medical correspondence revealed the following:

• on January 5, 1998, the orthopaedic specialist noted that the claimant was previously treated for lower back problems in 1993, 1994 and in 1996. On the recent examination, the specialist diagnosed the claimant with degenerative lumbar disc disease and ordered additional tests.
• on February 24, 1998, the orthopaedic specialist noted that the claimant's bone scan which was carried out on February 18, 1998, showed no abnormalities in the spine and pelvis. The blood examination was within normal limits.
• an x-ray report of the lumbosacral spine dated January 19, 1998, read as follows, "Vertebral height and alignment appear normal. There is no convincing disc narrowing. There is slight sclerosis of L4-5 and L5-S1 facet joints consistent with minor degenerative change. The slight sclerosis of the iliac margin on the right sacroiliac joint superiorly is unchanged and appears insignificant."
• on March 23, 1998, the claimant underwent a CT scan of the lumbosacral spine. The findings revealed mild diffuse annular bulging at L4-5 and a central protrusion L5-S1 with minimal contact of the S1 root.

On April 7, 1998, primary adjudication requested that a WCB medical advisor review the case and to provide responses to several questions that were outlined. In a subsequent letter dated April 14, 1998, primary adjudication advised the claimant that wage loss benefits would not be paid beyond April 17, 1998, inclusive. Primary adjudication stated, in part, the following:

"Your file was reviewed by a Workers Compensation Board medical advisor. The medical advisor reviewed the medical reports from both attending doctors. He is of the opinion that you had suffered from mechanical low back strain, however, you have an underlying condition of degenerative disc disease that has prolonged your recovery time. He felt your functional capabilities at this time with regard to returning to work are as follows: No heavy lifting greater than 20 pounds. He also anticipates that you are able to return to your full regular duties effective April 20, 1998. Therefore, our medical advisor was of the opinion that your problems you are now experiencing are related to prior problems in your back in the form of degenerative disc disease. Therefore, you have recovered from the effects of your compensable injury, and any current back problems you are now experiencing are due to a non-compensable pre-existing condition."

Additional reports were received from the orthopaedic specialist dated April 7, 1998, August 12, 1998, and August 26, 1998 and were reviewed by a WCB medical advisor on October 4, 1998. The medical advisor indicated that he had done an extensive review of all of the claimant's files. On a balance of probabilities, the medical advisor was of the view that the claimant's pre-existing degenerative disc disease and subsequent disc prolapse was aggravated by the workplace incidents. By strict definition, the medical advisor stated that the claimant would have had to endure significant contortion or trauma to have caused a true enhancement. There was no evidence of this noted on file.

On October 5, 1998, a second medical advisor reviewed the case. The medical advisor indicated there was no physical findings present to justify surgical intervention. The claimant probably had abnormal pain behavior possibly related to job dissatisfaction. The medical advisor stated that no compensable injuries caused the claimant's degenerative disc disease.

In a October 30, 1998, decision, Review Office confirmed that the claimant had recovered from the effects of the sprain/strain injury of January 19, 1998, at the time benefits ended on April 17, 1998. As a result, no further benefits were payable beyond this date.

When rendering its decision, Review Office made reference to Section 39(2) of the Workers Compensation Act (the Act) and the WCB's policy that related to pre-existing conditions. Review Office took the position that the claimant had degenerative disc disease which was temporarily aggravated at the time of the incident on January 19, 1998 and that the claimant had recovered from that temporary aggravation. The claimant was considered by Review Office to be disabled by reason of the pre-existing degenerative disc disease that had not been enhanced by any of the strain injuries that she sustained. The claimant was not entitled to the payment of benefits as a result of the pre-existing unrelated degenerative disc disease.

In March 2000, a union representative appealed Review Office's decision to the Appeal Commission and an oral hearing took place on April 25, 2000.

Following the April 25th hearing and after discussion of the case, the Panel requested that additional information be obtained from two of the claimant's treating physicians and that the hearing be reconvened with a different interpreter once the medical information was received. On May 12, 2000, all interested parties were provided with the following documents and the case was forwarded to the Appeal Commission's Scheduling Co-ordinator to make arrangements for the reconvened hearing:

• reports from an orthopaedic surgeon dated May 8, 2000, April 15, 1999, September 30, 1999, October 23, 1999, December 29, 1999, February 17, 2000;
• reports from the treating orthopaedic specialist dated September 9, 1998, October 14, 1998, November 13, 1998, January 13, 1999, February 16, 1999; lumbar myelogram results dated July 15, 1998.

A reconvened hearing was held on June 20, 2000.

Following the hearing and discussion of the case, the Panel requested that all of the claimant's x-rays, CT scans, etc. be obtained and forwarded to an independent radiologist for comment. On September 12, 2000, all parties were provided with copies of the independent radiologist's report dated September 7, 2000 and were asked to provide comment. On September 26, 2000, the Panel met to render its final decision on the two issues under appeal.

Reasons

The issues in this appeal are whether or not the claimant has recovered from the effects of the January 19, 1998 compensable injury and whether or not the claimant is entitled to the payment of benefits beyond April 17, 1998.

The relevant subsections of The Workers Compensation Act (the Act) in this appeal is subsection 39(2) which provides for the duration of wage loss benefits.

Subsection 39(2) states:

Duration of wage loss benefits,

39(2) Subject to subsection (3), wage loss benefits are payable until

• the loss of earning capacity ends, as determined by the board; or
• the worker attains the age of 65 years.

Relevant WCB policy is Section 44.10.20.10, Pre-Existing Conditions.

In this appeal we reviewed all the evidence on file as well as that given and received during the hearing process and we find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant had recovered from the effects of the compensable event by April 17, 1998 and therefore is not entitled to benefits beyond that date. In support of these findings we noted the following evidence.

The claimant was employed full-time as a sewing machine operator and when pushing a laundry cart on January 19, 1998 felt pain in her back. WCB accepted responsibility for the claim and benefits were paid from January 20, 1998 to April 17, 1998 inclusive for what was described by the claimant's attending physician and attending orthopaedic specialist as a lumbar back strain.

Following the claimant's visit to her attending physician she was referred to an orthopaedic specialist who diagnosed degenerative lumbar disc disease and felt that a disc prolapse should be ruled out. X-rays at the time revealed "slight sclerosis of L4-5 and L5-S1 facet joints consistent with minor degenerative changes." The specialist referred the claimant for CT scanning of the lumbar spine. In a report dated February 24, 1998 we note that the attending orthopaedic specialist indicated:

"all in all we did not really find any major problems with her back and her back pain is localized to the lower back only."

CT scanning of the lower back performed March 23, 1998 revealed mild diffuse annular bulging L4-5 and central protrusion L5-S1 with minimal contact of S1 root.

The claimant's file was reviewed on April 7, 1998 by a WCB medical advisor who confirmed that the claimant had degenerative disc disease that could have flared up as a result of the compensable event. He noted that the claimant was improving and that expected resolution of her acute problems was expected to occur within two weeks and that the claimant could then return to work at full duties. In a report dated April 7, 1998 the claimant's attending orthopaedic specialist indicated that the claimant was improving, that surgical intervention was not indicated at this time and that the claimant might get recurrences.

In a report dated August 12, 1998 the claimant's attending orthopaedic specialist noted an incident at home of severe uncontrolled pain in the lower back radiating down the lower limbs which caused the claimant to attend to a local emergency facility for treatment.

All the claimant's files were subsequently reviewed on October 4, 1998 by a WCB medical advisor who indicated that the claimant had pre-existing degenerative disc disease with a subsequent disc prolapse, which had been aggravated but not enhanced, by the workplace incident. The WCB medical advisor gave his opinion that any surgery would not be the responsibility of WCB and indicated:

" On the balance of probabilities the claimant's pre-ex of D.D.D. [degenerative disc disease] and subsequent disc prolapse must be considered pre-x with aggravation by workplace incidents. By strict definition, the claimant would have to have endured significant contusion or trauma to have caused a true ENHANCEMENT (e.g. sudden profound disc protrusion [secondary] to AXIAL SPINE LOADING etc.). I found no evidence of this on file."

A second WCB medical advisor also reviewed all the claimant's files and concurred that no compensable injury caused the claimant's degenerative disc disease.

A CT myelogram performed 13 July 1998 revealed degenerative changes noted at multiple levels L2 through S1.

" There is no evidence of spinal stenosis or nerve root compression at any of the image levels. Degenerative changes are noted at multiple levels as described above."

The claimant was seen by the first attending orthopaedic specialist on several occasions in 1998 and 1999 including September and October 1998 and we note at that time the claimant reported neck pain as well as in her low back. At that time cervical movements were restricted due to pain.

The claimant was seen and examined on a number of occasions by a second attending orthopaedic specialist. In a report dated September 30, 1999 the specialist indicated based on the information he had received:

" From the information so far, I cannot argue with the opinion of the Board's Review Office of October 30, 1998."

In a further reports dated February 17, 2000 and October 23, 1999 the second attending orthopaedic specialist indicated in part:

" Based on the supplied information, I suspect the back pain and sciatica is probably related to one or more of a work related injury, but this cannot be proven . She has had many consultations and has generally been considered a nonoperative candidate, and a review of her file shows a significant lack of conviction by those writing, that her ongoing problems are related to a specific injury . In this situation then, I would think the most that can be concluded is that her complaints are consistent with work related injuries but cannot be proven to be work related."

He further indicated in October 23, 1999;

"Therefore, although I doubt she would be adversely affected by the surgery, the possibility of complete improvement is relatively low and have discussed the risks and benefits with them, and we will plan a date and she will continue with her WCB appeal, which I think may be unsuccessful." In a further report dated May 8, 2000 the second attending orthopaedic specialist indicated; " Overall she has degenerative disc disease in the lumbar spine, a lumbar disc herniation at L4-5, and a chronic pain syndrome."

Following the hearing the claimant's x-rays and scans from 1989 were sent to an independent radiologist who indicated that minor degenerative changes were noted on x-ray as early as 1989 with minimal progression until 1998. He indicated in part:

"Regarding the question of degenerative studies within the CT scans the patient had a normal CT scan of the lumbar spine performed in 1995 .Degenerative changes have progressed since 1995 with moderate disc protrusion seen centrally and on the right side at L5-S1 . Degenerative changes has also occurred first seen in July 1998 with central disc protrusion at L4-5 which has progressed in the April 29, 1999 exam with a left sided component."

We note with respect to the independent radiologist's report that the claimant's pre-existing degenerative changes in her back predated any compensable back injury and that the progressions particularly with respect to the subsequent disc protrusions noted are not associated contemporaneously with any of the specific workplace accidents affecting the claimant's back. The specialist further indicated that the etiology regarding the degenerative changes was unclear and that it was difficult to determine whether injuries accelerated or enhanced a pre-existing condition at the time of the injury.

We conclude that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant had recovered from the effects of the compensable back strain of January 19, 1998 by April 17, 1998 and is therefore not entitled to benefits beyond April 17, 1998. We also find that any current symptoms are related, on a balance of probabilities, to the claimant's pre-existing multiple level degenerative disc disease and are not related to the compensable event of January 19, 1998 or to any prior compensable back injury as argued on behalf of the claimant. We find that as a result of the claimant's pre-existing degenerative disc disease that the claimant has a back-at risk.

The claimant's appeal is therefore denied

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of October, 2000