The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 18, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 18, 2000 and again on December 11, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond January 22, 1999.

Decision

That the claimant is entitled to wage loss benefits beyond January 22, 1999.

Background

The claimant has six previous claims for lower back injuries with the Workers Compensation Board (WCB) ranging between 1982 and 1998.

On September 1, 1998, the claimant stated that she was lifting a laundry bag to put into a chute when she felt pain in her back when straightening out. On September 2, 1998, the claimant sought medical treatment and a diagnosis of mechanical low back pain was made. X-rays of the lumbar spine dated July 23, 1998, revealed severe degenerative narrowing of the L5-S1 interspace.

The claimant was assessed by an orthopaedic specialist on September 8, 1998. Following examination, the specialist commented that no specific treatment was indicated. He stated that the claimant should refrain from any bending and lifting until her present pain settled. The specialist recommended the claimant should possibly look at other jobs that did not involve as much bending and lifting as her present job demands.

On October 8, 1998, a WCB medical advisor was asked to review the claim and provide medical input. The medical advisor agreed that the claimant was suffering from mechanical back pain and that an injury such as this would take six weeks for an aggravation to settle down. The claimant had degenerative disc disease which was well documented. The medical advisor indicated that the claimant would always likely have back trouble due to her degenerative disc disease. He agreed that the claimant should do other work based on her pre-existing degenerative disc disease.

In a decision letter dated January 15, 1999, the WCB after consulting with its healthcare department, advised the claimant that in its opinion she had recovered from the effects of the September 1, 1998, accident. "It is our opinion that the September 1, 1998, incident aggravated your pre-existing degenerative disc disease and this aggravation has now resolved." On February 11, 1999, a union representative appealed this decision stating that the claimant's pre-existing condition had resulted from her numerous work related back injuries dating back to 1982.

On March 1, 1999, a WCB medical advisor was given a brief description of each prior compensation claim filed by the claimant and was then asked to provide commentary with respect to the following questions: "Is there any evidence that any of the work injuries or a combination of same has accelerated or enhanced the noted pre-existing condition"; and "Could the compensable injuries have brought on the underlying DDD (degenerative disc disease)." The medical advisor responded to these questions in a memo dated March 1, 1999.

"She had x-rays in 82 & 83 which were "described" as normal. She had x-rays - 1985 - which showed 0 evidence degenerative changes. She had CT & CT myelogram earlier which showed 0 abnormality re: disc/root compression. X-rays taken 23/7/98 show severe L5S1 degeneration. This finding would not be new, therefore it occurred sometime between 1985 and 1998 however causation is impossible to assign in my view in this 57 yr. Female. Her doctor had question disc lesion in her 1985 claim and sciatica 1982 claim but no objective evidence ever found of disc lesion. No degenerative change documented by x-ray until 1998. This could also be aging process."

In a decision letter dated March 10, 1999, Claims Services advised the union representative that in the opinion of the WCB, the numerous back strains that were suffered while in the course of the claimant's employment did not significantly contribute to her degenerative disc disease and did not cause the process. It was therefore decided that no change would be made to the previous decision of January 15, 1999.

On July 2, 1999, the case was considered by Review Office. It was confirmed that the claimant was not entitled to wage loss benefits beyond January 22, 1999. Review Office concurred with the medical opinion that the claimant had essentially recovered from the effects of her September 1, 1998 work injury and that the degenerative disc disease had not been accelerated or enhanced by the accident.

Review Office stated that it reviewed the claimant's prior back claims and was of the opinion, based on a balance of probabilities, that none of the work injuries either caused or enhanced the degenerative process in her lumbosacral spine. It was noted as well, that the claimant was off work for a lengthy period of time following her 1985 injury, however, it was the WCB's decision on January 23, 1989, that the claimant had sustained nothing more than a back sprain/strain when it denied her claim for ongoing benefits. It was noted that none of the prior claims contained any objective evidence of any disc lesion and that the short duration of those claims suggested that the injuries were likely muscular in origin.

In a letter dated May 12, 1999, a rehabilitation consultant confirmed to the claimant that she was not entitled to benefits under the WCB's Preventative Rehabilitation policy.

On June 7, 2000, the claimant's union representative appealed Review Office's July 2, 1999, decision and an oral hearing was held on October 18, 2000.

Following the October 18th hearing, the Panel met to discuss the case and requested further information be obtained, i.e. a report from the treating orthopaedic specialist and copies of research material to which the claimant's union representative made reference in her submission to the Panel of June 7, 2000. On November 21, 2000, all parties were provided with a copy of the orthopaedic specialist's report dated November 14, 2000, together with the research material which had been provided by the union representative.

On December 11, 2000, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The evidence confirms that at the time of her compensable injury the claimant was suffering from a pre-existing degenerative L5-S1 disease with apophyseal joint osteoarthritis. According to the treating orthopaedic surgeon, this condition seemed to have been aggravated by her lifting/bending incident. At no time did a WCB medical advisor ever clinically examine the claimant. The decision to terminate benefits was based on what was considered to be expected general recovery norms and not on the results of any actual examination.

On examination, shortly after the compensable injury, the attending physician measured the claimant's straight leg raising on the right at only 30. We note that a second treating orthopaedic specialist examined the claimant on July 20th, 2000 and that he observed a decreased range of lumbar spine movement and straight leg raising on the right of 60. At the time of his second examination, however, he reported straight leg raising to be 90 on both sides. The specialist offered his opinion that "It is quite possible that she aggravated the situation bending forward in September 1998" and that when he saw the claimant again in October " she seemed to have largely recovered from her symptoms."

We find in accordance with the evidence that the claimant has a non-compensable pre-existing condition (degenerative disc disease) and that this condition has recently been termed severe. We further find, on a balance of probabilities, that the claimant aggravated her pre-existing condition at the time of the compensable injury and that this aggravation did not resolve itself until sometime between July and October of 2000.

Based on a preponderance of evidence it is our view that the claimant is entitled to wage loss benefits beyond January 22nd, 1999. However, it should be pointed out that the claimant took voluntary retirement in May 2000 and that she has been in receipt of long-term disability benefits.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of January, 2001