The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 28, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 28, 2001.

Issue

Whether or not the claimant has recovered from the effects of the June 14, 1999 compensable injury;

Whether or not the claimant's disc injury was caused by either the 1994 or 1996 compensable accidents; and

Whether or not the claimant is entitled to compensation benefits after September 22, 1999.

Decision

That the claimant has recovered from the effects of the June 14, 1999 compensable injury;

That the claimant's disc injury was not caused by either the 1994 or 1996 compensable accidents; and

That the claimant is entitled to compensation benefits to February 18, 2000.

Background

While performing the duties of an Instructor Guard II on June 14, 1999, the claimant sustained a jarring injury to her back when her left foot slipped while in the process of taking a mandatory water test in a pool. The claimant stated that the jarring action sent a shooting pain immediately through her back and down her left leg into her foot. The claimant stated that she did not immediately fill out a green card as she was hoping to rectify the problem with rest and icing of her back and leg. As the pain continued to intensify, the claimant reported the accident to her employer on June 21, 1999 and made an appointment to see her physician for treatment.

The claimant has prior claims with the Workers Compensation Board (WCB) for back injuries that occurred on February 28, 1994, and October 31, 1996.

Medical documentation on file revealed the following:

• On May 4, 1999, a CT scan of the lumbosacral spine noted a shallow right posterolateral L4-L5 disc protrusion and a shallow left posterolateral L5-S1 disc protrusion.
• On June 30, 1999, the attending physician noted a pre-existing condition of left S1 radiculopathy due to L5 disc herniation. The present diagnosis was "worse disc L-S1 root. Aggravation & enhancement of disc herniation which was recovering."
• On July 5, 1999, a second physician diagnosed the claimant with a left S1 radiculopathy secondary to disc.
• In a letter dated August 12, 1999, a physiotherapist reported that the claimant first presented for treatment on November 18, 1996, and described a lifting injury while at work as a lifeguard, 2 weeks earlier. The findings were suggestive of a L4 or L5 disc injury with S1 nerve root radiculopathy. The claimant was next seen on February 4, 1998, for an injury to her back when she picked up a bag on January 25, 1998. Symptoms at this time were minimal. When seen on March 3, 1999, the claimant described leg pain since November 1998, which had recently became much worse. The assessment was consistent with a S1 radiculopathy secondary to a disc protrusion. It was the opinion of the physiotherapist that the claimant's present radiculopathy was an ongoing problem which originated from her workplace injury of November 18, 1996 (should have read October 31, 1996).
• In a letter dated August 12, 1999, the attending physician described the claimant's medical treatment of March 1, 1999, March 12, 1999 and April 6, 1999. In May 1999 the claimant developed significant blunting of her left calf reflex with left S1 radiculopathy. When reviewed on June 11, 1999, the claimant's leg pain was reducing. The physician stated that on June 21, 1999, the claimant had a significant increase in aggravation of her leg pain which occurred during the pool test on June 14, 1999. On June 30, 1999, examination revealed right listing with anterior flexion. The left calf reflex was absent and straight leg raising on the right side was 60 degrees with cross over pain and the left side was 30 degrees. The claimant was considered unfit for any form of work. The physician indicated that the pool test of June 14th clearly showed a substantial and dramatic deterioration in the claimant's condition.
• On August 17, 1999, an orthopaedic specialist indicated that the claimant's symptoms and findings were suggestive of an L5-S1 left sided disc herniation that was impinging on the S1 nerve root. He felt that the claimant was too disabled to be working.
• On September 22, 1999, the attending physician indicated that the claimant could return to part-time sedentary work and to continue with rehabilitation and medication.
• In a follow-up report dated September 23, 1999, the orthopaedic specialist noted that the claimant's left leg pain was greatly improving. Straight leg raising on the left was still restricted to 45 degrees and on the right with pain at about 60 to 70 degrees.
• On October 14, 1999, the claimant was assessed by a WCB medical advisor who stated that clinically, there was evidence of a radiculopathy involving the left side at L5-S1. The claimant showed altered sensation and muscle power of the dermatomal distribution of the nerve; evidence of irritability in the sciatic nerve as it existed the sciatic notch. The claimant had some degree of muscular pain involving the left paraspinals, the lower lumbar muscles and to some degree the sacroiliac joint on the left side. There was pain on direct compression of the vertebral bodies at L4-L5. The medical advisor commented that the claimant had been symptomatic in February of this year but had returned to full duties with no restrictions. This was taken as credible evidence that the claimant recovered from her previous condition although this did not preclude the fact that she did have substantial evidence of a pre-accident complaint. The medical advisor indicated that the claimant should continue with her light duties and a number of work restrictions were outlined.
• On February 18, 2000, the claimant underwent a repeat CT scan of the lumbosacral spine. The impression read as follows: "A left sided L5-S1 disc herniation is suspected, but this is very small."

On March 15, 2000, an appeal submission was received from the employer addressed to the Review Office. The employer's representative believed that the alleged incident of June 14, 1999 may have aggravated the claimant's pre-existing disc lesion and that the medical evidence clearly indicated that any such aggravation had resolved by September 22, 1999. Enclosed with the submission was a report from an independent specialist dated January 28, 2000.

• On March 30, 2000, the attending orthopaedic specialist stated that the repeat CT scan did not show much at L5-S1. The L4-5 showed poor definition and it was possible that the claimant could have a fractured piece of disc in this area or disc herniation that was not very evident. Given the poor definition at L4-5, a CT myelogram was arranged.
• On April 20, 2000, a CT myelogram revealed no evidence of disc herniation or spinal stenosis.
• At the request of Review Office, a WCB orthopaedic consultant was asked to review the case and to provide responses to four questions. The orthopaedic consultant responded to the questions posed by Review Office in a memo dated April 27, 2000.
• In a report dated May 3, 2000, the attending orthopaedic specialist noted that the CT myelogram was negative for disc herniation. In a further report dated May 24, 2000, the specialist indicated that the CT scan was reviewed with a radiologist and there was nothing to suggest nerve root impingement.
• On August 29, 2000, nerve conduction studies showed no electrophysiologic evidence of an L5-S1 root lesion to explain symptoms.

On June 1, 2000, a submission was received from the claimant's union representative in response the employer's representative submission of March 15, 2000. It was the union representative's position that the claimant continued to suffer from disc protrusion with S1 radiculopathy that was work related and therefore compensable. He felt that the June 14, 1999 compensable injury specifically enhanced the claimant's condition to the point that she was and remained unable to return to the duties of her regular position.

In a Review Office decision dated June 16, 2000, it was determined that the claimant was not entitled to compensation benefits after September 22, 1999. Review Office believed that on a balance of probability, the claimant aggravated a disc lesion at the time of the workplace incident on June 14, 1999. It was felt that the medical evidence suggested that the claimant had recovered from the compensable injury (aggravation) by September 22, 1999. Review Office indicated there was no evidence to suggest that the claimant's pre-existent back problems were enhanced by the workplace incident of June 14, 1999, and believed the aggravation to have resolved by September 22, 1999 to where the claimant was clinically at prior to the June 14, 1999 workplace incident. Review Office found on the totality of the file evidence that the claimant recovered from the June 14, 1999 workplace aggravation by September 22, 1999. On October 16, 2000, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

Chairperson Sargeant and Commissioner Day:

This case is about a woman who injured her back in the course of her employment. She has had previous work-related injuries of a similar nature. In this most recent case, her injury was accepted by the WCB as compensable, for the period from June 14, 1999 to September 22, 1999.

(It should be noted that the Board had accepted responsibility to December 31, 1999. After an appeal by the employer, this was reduced to September 22. The overpayment was written off, pursuant to Board policy.)

The claimant was unable to return to work, full-time, for a considerable period after September 22; and continues to have some problem with her lower back to this day. Because of this, she has appealed three issues to this Commission.

Issue #1 - Whether or not the claimant has recovered from the effects of the June 14, 1999 compensable injury.

For her appeal to be successful on this issue, the panel must determine that her continuing back problems are related to the workplace injury suffered on June 14, 1999. We have concluded that they are not so related.

In coming to this decision, we were persuaded by the medical evidence on file. We noted, in particular, that the claimant had been receiving treatment for back problems in the weeks preceding June 14, 1999. Indeed, she had had a CT scan of her lower back on May 4, 1999, which showed shallow posterolateral disc protrusions at the L4-L5 and L5-S1 levels.

It is reported, in the file, that her back problems in early-1999 were related to a workplace incident which occurred in the fall of 1998. However, as no claim was filed in respect of this incident, we are unable to consider what effect, if any, it might have played in the claimant's current claim.

The accident the claimant suffered on June 14 definitely exacerbated the state of her back, as it existed in those weeks prior to June 14. For this aggravation, she was compensated.

On February 18, 2000, the claimant had another CT scan of the same area. This one showed very similar results to that of May 1999 - that she had minor disc prominence, but no herniation, at the L4-L5 and L5-S1 levels.

A board orthopaedic consultant, who reviewed the two CT scans, remarked on their similarity and noted further, that her pre- and post-accident medical reports do not suggest an appreciable change.

We found this medical evidence to be very persuasive and, thus, concluded that, on a balance of probabilities, by February 18, 2000, the claimant had fully recovered from the effects of the June 14, 1999 injury. We are not saying that she has fully recovered, but that her condition has returned to what it was prior to the compensable injury.

Issue #2 - Whether or not the claimant's disc injury was caused by either the 1994 or 1996 compensable accidents.

For the claimant to succeed on this issue, the panel would have to determine that she had not fully recovered from those previous injuries, that there were residual effects of those injuries which made her more susceptible to another similar injury.

We were unable to come to such a conclusion. While this was a reasonable argument for the claimant to make, there is no medical evidence to support it.

Both injuries were to her lower back and both occurred while lifting persons. The 1994 injury was diagnosed as an "acute back strain" and resulted in approximately 3 months of lost time, at the end of which she was able to return to full-time regular duties. The 1996 injury was diagnosed as mechanical back pain. She lost a couple of weeks of work and then returned to regular duties. In both cases, she was determined to have fully recovered.

We were not presented any evidence - either in the file or at the hearing - which would support the premise that her 1999 injury was caused by either of the earlier ones.

Accordingly, we have concluded, on a balance of probabilities, that the claimant's disc injury was not caused by either of the compensable accidents, which occurred in 1994 or 1996.

Issue #3 - Whether or not the claimant is entitled to compensation benefits after September 22, 1999.

For the appeal on this issue to succeed, the panel must determine that the claimant continued to suffer a loss of earning capacity, because of her compensable injury, beyond September 22.

We have concluded that she did continue to suffer a loss of earning capacity, because of her compensable injury, until February 18, 2000.

As has also been noted, Primary Adjudication initially accepted her claim from the date of the injury to December 31, 1999. A successful appeal by the employer reduced the period of acceptance to September 22.

We do not accept the results of that appeal. We find that it was based largely on the assessment of a medical consultant contracted by the employer. While his conclusion was not incorrect, other, conflicting medical evidence was ignored in coming to this decision.

Reports from her attending physician and specialist, from September to December 1999, note that she is not yet ready to return to work. Indeed, her attending specialist, in a report dated September 23 (the day after the date eventually held to be the termination of benefits) reported that she should be able to contemplate a return-to-work program in about six weeks.

We found particularly persuasive the report of a WCB medical consultant who examined the claimant on October 14, 1999. This doctor reported that the claimant was not yet ready to return to work to her regular duties. The doctor concluded that the claimant should continue on modified duties, with restrictions and with limited hours.

As noted above, based on a CT scan performed on February 18, 2000, it was concluded that, as of that date, the claimant had returned to the medical condition she had prior to June 14, 1999. We have concluded that the claimant is entitled to wage loss benefits up to and including that day.

We note that there may be the appearance of a contradiction in our reasons: we have concluded that she was entitled to wage loss benefits beyond September 22, 1999, based, in large part, on the medical evidence that she was not able to return to work full-time, but have cut her off as of February 18, 2000, even though she was still unable to return to her regular duties.

We have come to this conclusion based on the medical evidence that, after February 18, the effects of her June 1999 injury were no longer the reason for her continued wage loss.

Conclusion

The appeal is denied in respect of the first two issues under consideration. In respect of the third issue, the appeal is allowed to the extent that she is entitled to wage loss benefits up to and including February 18, 2000.

Panel Members

T. Sargeant, Presiding Officer
M. Day, Commissioner
A. Finkel, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of April, 2001

Commissioner's Dissent

I agree with my colleagues, for the reasons stated in the majority decision, that the claimant’s current back problems are not related to her compensable work injuries in 1994, 1996, or 1999 (Issue #1 and #2), but rather to her pre-existing non-compensable back complaints which surfaced in late 1998 for which she sought medical treatment starting in March 1999.

I also agree with my colleagues that the claimant suffered an exacerbation of her pre-existing back problems on June 14, 1999 and that this aggravation was properly accepted by the WCB as being work-related. However, it is my opinion that the evidence supports, on a balance of probabilities, that this aggravation had resolved by September 22, 1999, and that benefits should only be paid to that date.

In support of these conclusions, I have compared the medical findings reported by the claimant’s attending physician on June 11, 1999, three days prior to the compensable incident, to the findings in medical reports after the date of the workplace accident. The medical reports by the attending physician and orthopaedic surgeon after the June 14, 1999 compensable incident indicate clinical findings demonstrating a worsening of the claimant’s sciatic condition compared to the findings of June 11, 1999. However, in later reports, there are significant improvements noted in the attending physician’s report of September 22, 1999 and the orthopaedic surgeon’s report of September 23, 1999, with clinical and neurological findings (the restoration of an “absent” ankle jerk to a “diminished” ankle jerk) being consistent with those reported on June 11, 1999, prior to the compensable incident.

Clinical findings after September 22, 1999 demonstrate that the claimant’s condition had basically plateaued or improved slightly (improvements in the ankle reflex). A series of tests in February 2000 (a CT Scan), April 20, 2000 (a CT myelogram), and August 28, 2000 (a nerve conduction study) all indicated normal findings or findings better than that demonstrated in a CT scan on May 4, 1999, prior to the compensable accident. I find that these tests corroborate that the claimant’s condition had plateaued on September 22, 1999, and confirm that this is the appropriate date for the aggravation of the claimant’s medical condition to be considered as resolved.

Accordingly, I would confirm the decision of the Review Office in this regard, and pay benefits to September 22, 1999.

A. Finkel, Commissioner