The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 3, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on December 3, 2001.

Issue

Whether or not the worker has recovered from the effects of the compensable injury effective July 7, 2001.

Decision

That the worker has not recovered from the effects of the compensable injury effective July 7, 2001.

Background

The claimant sustained a lower back injury during the course of his employment as a warehouse manager on May 14, 1998. On the day of accident, the claimant handled approximately 20,000 pounds of dog food and loaded pallets. A diagnosis of lower back pain with probable L4-L5 discopathy was recorded by the attending physician. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on May 18, 1998.

A WCB medical advisor assessed the claimant on August 13, 1998. The medical advisor was of the view that the claimant likely experienced a lumbosacral strain during the course of his work duties while lifting heavy materials in the workplace.

On August 25, 1998, the claimant underwent a CT scan of the lumbosacral spine. The results revealed the following:

• Probable small left paracentral disc protrusion at L4-L5;
• Degenerative disc disease at L5-S1. Degenerative changes resulted in an element of exit foramen stenosis bilaterally at the L5-S1 level.
• Moderate facet arthropathy was present at all levels.

A physical medicine and rehabilitation specialist assessed the claimant on February 5, 1999. History and physical findings were consistent with a diagnosis of a lumbosacral discopathy. There were findings of active nerve root irritation. The physical examination did not clearly define any loss of neurologic function. The specialist agreed that the L4-5 disc herniation was likely responsible for the claimant's left leg symptoms and it was possible that the bilateral L5-S1 foraminal stenosis was also a contributing factor. In a further report dated May 28, 1999, the specialist noted that the claimant underwent an epidural corticosteroid injection on May 3rd but did not obtain any significant benefit following the injection.

An orthopaedic specialist assessed the claimant on November 22, 1999. He thought that the claimant suffered a mechanical strain to his lower back. The specialist noted that the claimant had some degenerative changes which one would expect given his size and age, but would not necessarily be specifically caused by an injury at work.

On December 6, 1999 a bone scan was performed and it revealed degenerative changes involving the L5-S1 articulation.

Following consultation with a WCB medical advisor, primary adjudication advised the claimant on April 6, 2000 that there were insufficient objective findings to support a cause and effect relationship between his ongoing difficulties and the compensable injury. Recommendations were made for a physical reconditioning program after which the claimant would be considered recovered from the compensable injury but would have restrictions related to his pre-existing condition.

At the claimant's request, Review Office considered the case on May 19, 2000 which included a February 3, 2000 report by a neurosurgeon, the results of the claimant's re-conditioning program which commenced on April 12, 2000, reports from the attending physician and an opinion expressed by a WCB orthopaedic consultant. Review Office noted that the present diagnosis appeared exactly the same as the original diagnosis which was a probable L4-L5 disc herniation. It also noted that the claimant was undergoing further tests that were recommended by the neurosurgeon. Review Office agreed with the WCB orthopaedic specialist that the claimant had not recovered from the effects of his accident and was therefore entitled to ongoing benefits and services.

Between May 2000 and April 2001 reports showed that the claimant attended the Wellness Institute regarding exercise and weight loss and was involved with vocational rehabilitation services with respect to aptitude skill and interest testing, career planning, etc. Progress reports were also received from the claimant's attending physician.

Following consultation with a WCB medical advisor in April 2001, primary adjudication advised the claimant that he was considered to be recovered from his compensable injury and that any ongoing problems were no longer related to the May 15, 1998 work injury. The claimant was advised that he would be receiving benefits up to and including July 6, 2001. This decision was later appealed by the claimant to Review Office.

In a memo to file dated May 18, 2001, it was documented that the case had been reviewed by the Preventive Vocational Rehabilitation Committee and it was determined that the claimant did not qualify for any consideration under the WCB's preventive vocational rehabilitation policy.

In a May 25, 2001 decision, Review Office determined that the claimant had recovered from the effects of his compensable injury of May 27, 1998. Review Office noted a WCB medical advisor's comments from a memo dated May 3, 2001, in which he stated, in part, "The mechanical back pain, in my view, relates to his pre-existing facet joint arthritis and degenerative changes and not to his compensable injury of 3 years ago."

Review Office indicated that the claimant's size and lack of conditioning was certainly going to have an affect on the underlying pre-existing conditions. Review Office indicated that one would have expected significant resolution of the compensable injury after three years, considering the fact that the claimant had not been involved in strenuous physical activity which could be an ongoing precipitating/aggravating factor of his low back signs and symptoms.

On August 10, 2001, Review Office considered the case again at the request of the claimant and his worker advisor based on additional medical evidence, i.e. a CT scan report of July 26, 2001 and an August 1, 2001 report from a physical medicine and rehabilitation specialist. Following review of all the medical evidence on file which included the above reports and the opinion expressed by a WCB orthopaedic consultant on August 9, 2001, Review Office ultimately determined that the claimant had recovered from the effects of his compensable injury by July 7, 2001. This decision was appealed by the worker advisor on August 23, 2001 and an oral hearing was arranged.

Reasons

This case involves a worker who injured his lower back in a workplace accident in May 1998. His work involved consistent bending, twisting and lifting. His claim was accepted by the board as compensable and benefits were paid accordingly.

His claim has been the subject of three separate reconsiderations by the Review Office. The first concluded, in May 2000, that he had not recovered from the effects of his compensable injury. The second and third concluded that he had recovered from his compensable injury as of July 7, 2001.

He has appealed the last decision to this commission. The issue before the Panel, as at the Review Office, was whether or not the claimant had recovered by July 7, 2001.

For his appeal to be successful, the Panel would have to determine that, after that date, the worker continued to suffer medical effects that are causally related to the workplace incident. We have determined that he does continue to suffer the effects of his injury which are causing a loss of earning capacity.

Prior to coming to our conclusion, we made a careful review of the file, as well as conducting an oral hearing, at which we heard testimony from the claimant and argument from his advocate.

We did take note of the reasons given in the two most recent Review Office decisions, which were largely based on the opinions of board medical advisors. The summation of these reasons is that, after three years, the claimant should have recovered from a musculoligamentous strain to his lower back. Even if he had suffered a herniated disc - which was surmised, but never confirmed - this problem should have resolved after this length of time. The board medical advisors concluded that his ongoing problems were the result of pre-existing conditions found in x-rays and CT scans, specifically degenerative changes to his discs, as well as some osteoarthritis.

We do not dispute these findings. Rather we find that other medical evidence on file leads us to believe that his workplace injury is still at play.

We note that in May 2000, two years after the accident, a board consultant offered the opinion that the claimant continued to show signs and symptoms which were consistent with an L4-L5 disc herniation, which was the original suspected diagnosis. He also stated that the workplace accident was still playing a role, although this should not lead to a total disability.

A month later, another board doctor noted that the claimant may have permanent restrictions on his ability to work. He stated that the claimant had a "back at risk" and, thus, would have to avoid repetitive bending, lifting greater than 25 pounds, twisting and prolonged sitting.

Both of these doctors, in 2001, concluded that the claimant's compensable injury was resolved. On the other hand, physicians, including specialists, seen by the claimant were of the opinion that he has yet to recover from the 1998 injury. We placed considerable weight on recent medical evidence, some of which was not available to Review Office at the time of its most recent decision.

In August 2001, a specialist in Physical Medicine and Rehabilitation examined the claimant and offered the opinion that "he has degenerative changes in his lower back . [but] I don't feel the degenerative changes are the sole source for his pain. I think the pain is arising from his soft tissues and it is completely compatible with the type of work he described ."

Later that month, the claimant's family physician, who assumed treatment of the claimant in February 2000, wrote that the claimant continues to exhibit "the same symptoms he has experienced since his injury in May of 1998." He further noted that the claimant's "functional ability remains unchanged from May 2000, and indeed from May of 1998."

His previous family doctor, the original treating physician, wrote, in October 2001, that, in his opinion, "the 1998 injury has never resolved."

In November 2001, the Physical Medicine and Rehabilitation specialist wrote another letter, in which he detailed his treatment of the claimant. He repeated his earlier opinion, adding that he felt the degenerative changes had been present for many years, but had been asymptomatic prior to the injury. In this letter, the doctor also reported on needling treatment he had been giving the claimant over the prior few weeks. Unlike much of the treatment, including needling, the claimant had received since the injury, this treatment appeared to be having a positive effect. He wrote: "Since [the claimant] was injured in 1998, he has not had a day without pain. He has had the best period of relief in that time with the treatment done October 12, 2001."

The panelists found this medical report to be very persuasive, concluding that the fact that the recent treatment is alleviating his symptoms indicates that treatment should not have been terminated.

We also considered the matter of his pre-existing condition. We were persuaded by the opinion of the Physical Medicine and Rehabilitation specialist that, while it certainly exists, the injury is still having an effect on the claimant.

The claimant's advocate asked us to consider Board Policy 44.10.20.10, which reads, in part:

However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

We are of the view that this policy statement fits the situation of the claimant. Medical evidence throughout the file indicates that the claimant did have pre-existing problems with his lower back, which did not affect him prior to the injury, but which were aggravated by the injury. The most recent medical reports indicate that his workplace injury is still at play and causing the claimant a loss of earning capacity.

Therefore, we conclude that the claimant had not recovered from the effects of his workplace injury as of July 7, 2001.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 20th day of December, 2001