The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 13, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on March 13, 2001 and July 26, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond May 25, 2000.

Decision

That the claimant is not entitled to wage loss benefits beyond May 25, 2000.

Background

During the course of his employment as a labourer on October 1, 1996, the claimant sustained an injury to his back. The claimant described the accident as follows:

"I was working on a swing stage. As I was leaning over to pick up a pail of mortar, the swing stage moved and I had to catch my balance. I heard a click in my back and it was a little sore. My back started to hurt more when we finished work & got into the truck to go home. When I woke up the next morning, my leg hurt too much to stand up."

When seen by a physician on October 7, 1996, the claimant was diagnosed with left sciatica and mechanical lower back pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On October 7, 1996, x-rays of the claimant's lumbosacral spine were obtained. The report stated that there had been no significant progression of degenerative changes when compared to the last examination of May 1993. Osteophytic lipping was present throughout the lumbar spine and there was early degenerative disc disease at T12-L1-L2-L3. Degenerative changes were also found at L5-S1.

In a report prepared by a neurologist dated December 23, 1996, the claimant was diagnosed with a left L5 radiculopathy.

On January 7, 1997, the claimant underwent a CT scan of the lumbosacral spine. The impression read as follows:

1. Left paracentral disc protrusion at L5-S1 associated with a moderate sized central posterior osteophyte. Marked facet arthropathy is also present at this level, worse on the right.
2. Degenerative disc disease and narrowing is present at L4-L5 associated with a large Schmorl node defect involving the superior end plate of L5. Diffuse disc bulging is also present at this level which approaches the adjacent dural sac although no disc protrusion has been demonstrated.

A WCB orthopaedic consultant assessed the claimant on May 1, 1997. He felt that the claimant's present symptoms were consistent with degenerative changes seen on the x-ray examinations, particularly changes in the facet joint. The consultant considered that the injury may well have aggravated the facet joint arthropathy, but no objective evidence of any enhancement was seen. The claimant did not appear capable of anything more strenuous than sedentary or possibly light work. The consultant stated that this restriction was due to the degenerative changes and therefore would be considered preventative and permanent and not specifically related to the claimant's compensable injury.

On September 12, 1997, the case was considered by Review Office following an appeal submitted by the claimant's solicitor. The solicitor appealed the WCB's decision that the claimant had recovered from the effects of his work related accident. Review Office determined that the claimant was entitled to further benefits after June 5, 1997 for temporary aggravation of the pre-existing conditions in the lumbar spine which were considered to result from the work related accident on October 1, 1996. Review Office "is satisfied the claimant is entitled to benefits after June 5, 1997until signs and symptoms of S1 nerve root compression are effectively resolved, or refusal of necessary treatment influenced entitlement. Thereafter, disablement may be considered to result from significant pre-existing conditions in the claimant's lumbar spine; and benefits will not be payable in this respect."

A WCB medical advisor assessed the claimant on June 3, 1998 and the claimant also underwent a June 16, 1998 CT scan of the lumbosacral spine.

On June 26, 1998, a WCB medical advisor indicated that the CT scan report showed extensive degenerative disease with no evidence of the previously noted disc. He stated that there was no evidence of any residual effects of the compensable injury and that the claimant had returned to his pre-accident status of extensive degenerative disease.

Based on the foregoing commentary, the claimant was advised that he would not be entitled to benefits beyond July 24, 1998 as he was considered to have recovered from the effects of his compensable injury, that he had returned to his pre-injury status and that the effects of the aggravation had resolved. This decision was appealed by the claimant's solicitor on September 1, 1998. A medical report dated August 17, 1998, was submitted for consideration. The Review Office in turn obtained a medical opinion from a WCB orthopaedic consultant on September 22, 1998.

In a decision dated October 2, 1998 Review Office determined that the claimant was entitled to payment of wage loss benefits beyond July 24, 1998 and that the case should be referred to a vocational rehabilitation consultant in an attempt to assist the claimant back into suitable employment. Review Office accepted the WCB orthopaedic consultant's opinion that the claimant's ongoing symptomatology continued to be in part related to his compensable injury and in part to his pre-existing spinal problems. Review Office believed the claimant was capable of working provided that suitable employment could be found. The type of employment would have to respect the standard back restrictions that would be in place for an individual who suffered from a disc herniation. Review Office specified that these restrictions should be reviewed again in one year's time.

In January 1999, the case was referred to the WCB's vocational rehabilitation branch for assistance in finding the claimant suitable employment. File documentation revealed that the accident employer was unable to accommodate the claimant with work which respected his restrictions. In a memorandum of May 6, 1999, a WCB VRC noted that the claimant had several barriers to employment and that an Employment Specialist had concluded the claimant was unemployable. On May 27, 1999, the VRC advised the claimant full wage loss benefits would be paid until the age of 65 inclusive and final. The file would then be referred to long term wage loss where it would be reviewed on a yearly basis.

On March 4, 1999 the claimant underwent a CT lumbar myelogram. The report showed posterior end plate degenerative spurring and a small central disc herniation at the L5-S1 level. There was no compression of the thecal sac or central spinal stenosis. The disc material contacted the S1 nerve roots bilaterally with no definitive evidence of displacement or cut off of the S1 nerve root sleeve. There was minimal swelling of the left S1 nerve root sleeve on the myelogram but the findings were not definite. The radiologist could not exclude a mild degree of irritation of the left S1 nerve root.

A WCB medical advisor assessed the claimant on January 10, 2000. The medical advisor summarized his report by saying that the claimant had quite marked ongoing low back pain and pain in both feet. The examination did not demonstrate any conclusive evidence of nerve root irritation or radiculopathy. The medical advisor indicated that he found little to relate the claimant's ongoing problems to the compensable injury of 1996. He believed the claimant had an aggravation of underlying osteoarthritic disease, but he could find no evidence of enhancement. Preventive restrictions were outlined.

In a letter dated March 1, 2000, the claimant was informed by Rehabilitation and Compensation Services that he was considered to have recovered from the effects of his work injury. It was noted that medical information confirmed the presence of an underlying degenerative condition and that this degenerative condition had no relationship to the work injury nor had it been enhanced by the work injury. On April 18, 2000 the claimant's solicitor appealed this decision to Review Office and submitted a April 10, 2000 report from the claimant's attending physician for consideration.

On May 19, 2000 Review Office determined that the claimant had recovered from the effects of his 1996 workplace injury and there was no further entitlement to wage loss benefits after May 25, 2000. Review Office placed significant weight on the fact that there was no longer any diagnostic or clinical evidence to support a continuing disc herniation as well as the opinion expressed by a WCB orthopaedic consultant on May 11, 2000. Review Office was of the view that there was no longer any evidence linking the claimant's ongoing complaints and loss of earning capacity to the effects of the October 1, 1996 compensable injury.

In June 2000, the claimant's solicitor appealed Review Office's decision. A hearing was later arranged for March 13, 2001. A November 27, 2000 report from an orthopaedic specialist was submitted for consideration.

Following the hearing on March 13, 2001, the Panel met to discuss the case. The Panel decided that it would be beneficial to have the claimant assessed by an independent specialist with respect to the claimant's present medical status. The Panel also requested that a copy of the claimant's file be obtained from Canada Pension Plan Income Security Programs.

On June 28, 2001, all parties were provided with copies of the following reports/documents:

• the independent specialist's report of June 22, 2001 along with MRI result of June 14, 2001, and Nerve Conduction Studies of June 22, 2001; and
• 92 pages of information that was received from the Canada Pension Plan Income Security Programs.

On July 26, 2001, the Panel met to discuss the case and considered a final submission from the claimant's solicitor dated July 13, 2001 and a July 12, 2001 report from the claimant's attending physician.

Reasons

As the background notes indicate, the claimant injured his back on October 1st, 1996 while he was working on some scaffolding. Following this incident, the claimant continued to experience ongoing pain and weakness in the legs. In early December of 1999, the WCB's Healthcare Management Services decided to bring the claimant in to the WCB offices for assessment as well as attempt to clarify the need for any ongoing restrictions that might possibly be related to his compensable injury.

The medical advisor's examination notes of January 10th, 2000 recorded various conclusions:

"I found little today to relate Mr. [the claimant's] ongoing problems to the compensable injury of 1996. I believe he had an aggravation of underlying osteoarthritic disease but I find no evidence of enhancement.

Mr. [the claimant] should have preventive restrictions of no lifting greater than 15 pounds, no excessive twisting or bending and the ability to change position often."

A few months after this examination, the WCB decided to discontinue the claimant's benefits as it felt that the effects of the claimant's work related injury had resolved and that any ongoing difficulties would be solely attributable to the claimant's pre-existing condition.

After having reviewed all of the evidence on file, we decided to have the claimant's neurologic status assessed with respect to the possible ongoing presence or absence of any lumbar radiculopathy. In this regard, an independent external neurologist examined the claimant on April 20th, 2001. We attached considerable weight to several of his clinical findings:

"In conclusion, on the basis of my April 20, 2001 evaluation, he does not demonstrate strong evidence for a radicular lesion. Much of his pain seems to be mechanical in nature. Likely there is a component of degenerative spine disease contributing to his pain. It is possible that this was aggravated by the injury. For completeness, MRI of the cervical, thoracic and lumbosacral spine and repeat EMG were organized.

The MRI of the cervical, thoracic lumbar spine performed on June 14, 2001 showed degenerative changes but no evidence of root compression or spinal stenosis. The EMG performed on June 22, 2001, showed no evidence of neuropathy or L4, 5, S1 root compression signed (sic). Minimal chronic denervation was seen in EDB bilaterally, a nonspecific finding. There was a delay in the proximal (f response) conductions bilaterally, a nonspecific finding.

In conclusion, to answer your questions, I do not feel that the patient currently suffers from lumbar radiculopathy. I find no evidence for any other neurological conditions such as neuropathy affecting his lower extremities. I suspect his prognosis relates more to his chronic pain and the management would rest with a multidisciplinary approach to this. There likely is a component of degenerative disc disease contributing to his pain."

We find on a balance of probabilities that the claimant suffered an aggravation of his pre-existing degenerative disease as a consequence of his compensable accident and that this condition had resolved by the time when his benefits were terminated.

Therefore, we further find that the claimant is not entitled to wage loss benefits beyond May 25th, 2000. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of September, 2001