Public Decisions | The Appeal Commission

Decision #15/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 15, 2001, at the request of the claimant. The Panel discussed this appeal on October 15, 2001 and again on January 3, 2002.

Issue

Whether or not the claimant is entitled to temporary total disability benefits beyond March 19, 1993.

Decision

That the claimant is not entitled to temporary total disability benefits beyond March 19, 1993.

Decision: Unanimous

Background

While in the course of his duties as a machine operator on July 2, 1985 the claimant injured his lower back when lifting a heavy box. The diagnosis that was reported by the attending physician was an acute lumbar strain. The Workers Compensation Board (WCB) accepted the claim and time loss benefits were paid to the claimant up until his return to work on July 9, 1985.

With respect to any prior back difficulties, the claimant indicated that he had strained a muscle in his right middle back while climbing out of a duct in 1984.

On August 23, 1985, the claimant discontinued working due to ongoing back problems and was seen by his attending physician and an orthopaedic surgeon. The WCB reinstated temporary total disability benefits commencing on August 23, 1985.

On February 25, 1986, x-rays of the lumbosacral spine showed a Grade I anterior spondylolisthesis of L4 on L5.

In a report dated July 25, 1986, an orthopaedic specialist noted that a recent myelogram showed that the claimant had a defect at L4-5 that was in keeping with a protruded disc. Surgery was recommended.

On September 20, 1986, a WCB neurologist reviewed the case and commented that the accident of July 2, 1985 aggravated a pre-existing degenerative IV (intervertebral) disc lesion at L4-5.

File information revealed that the claimant elected to return to light duty work instead of undergoing surgery. On June 1, 1987, the claimant returned to light duty work with restrictions and WCB benefits were discontinued.

A follow-up report from the attending physician dated November 16, 1987, showed that the claimant was working 37 hours per week as of August 20, 1987 but his backache persisted. On October 15, 1987 the claimant's backache worsened from bending over to pick up objects and he was advised to wear a corset. By October 20, 1987, the physician noted that the corset was helping, however, the claimant continued to complain of pains going down his right leg. The claimant was working 8 hours per day and was not taking any medications. He was able to flex his spine to reach below his knees. The physician concluded that the claimant had shown a definite improvement, however, if symptoms deteriorate, the claimant agreed to consider a discase injection.

On April 17, 1989 the claimant discontinued working due to the development of further back pain. WCB benefits were paid to the claimant up to April 28, 1989.

In June 1989, the claimant's work load was reduced to six hours per day. The attending physician reported that the claimant had an exacerbation of nerve root compression due to the L4-L5 disc herniation. The WCB paid the claimant partial wage loss benefits up to January 6, 1990.

In January 1992, the claimant informed the WCB that he had been on UIC benefits up until October 20, 1991 as the company he had been working for had gone into receivership. In a report dated January 14, 1992, the attending physician considered the claimant to be totally disabled and WCB benefits were reinstated as of October 21, 1991.

The claimant underwent a CT scan of the lumbosacral spine in May 1992. The impression read, "L4-5 facet arthropathy. L5-S1 degenerative spinal stenosis."

On August 14, 1992, a neurosurgeon reported that the claimant had evidence of compression of the spinal thecal sac at the L4-L5 level and he recommended decompression with a lateral fusion.

A WCB neurologist assessed the claimant on November 18, 1992. The neurologist noted that the claimant had longstanding back problems back to 1984 with most of his symptoms being in the low back and right posterior thigh. The cause of the claimant's symptoms were difficult to determine, but was best described as chronic back pain with possible strain and degenerative arthropathy. The neurologist noted that the claimant developed significant neurological complaints in 1991 which were likely as a result of spinal stenosis. The neurologist felt the claimant exhibited neurogenic claudication which was a fairly recent development and was resultant from the chronic spinal abnormality noted since 1985.

Following further consultation with the WCB neurologist, the WCB advised the claimant in a letter dated March 11, 1993 that his wage loss compensation would be paid to March 19, 1993 inclusive and final. Based on the WCB's neurologist's comments, the WCB considered the claimant to be recovered from the effects of the aggravation of his pre-existing condition. "As it is our opinion Mr. [the claimant] did not enhance the pre-existing condition at the time of the 1985 injury, and the effects of the aggravation have resolved, Mr. [the claimant] appears to be disabled solely due to his pre-existing back difficulties."

Subsequent file records contained a report from the treating physician dated March 18, 1993. The physician was of the view that the claimant's back disability was related to his 1984 back injury which caused referred pain down both his legs. He noted that a CT scan showed a large disc protrusion with encroachment of both existing roots and that it was clearly incorrect to suggest that this defect had corrected itself over a period of time.

On June 24, 1993, the WCB's neurology consultant reviewed the case at the request of the Benefits Division. In brief, the consultant indicated that a disc protrusion was not documented early on in the claim. The first suggestion that it may be a factor came from a myelogram a year later. The initial injury was quite clearly an acute muscle strain and would not cause the progressive spinal stenosis which was clearly occurring on a degenerative basis. The consultant indicated that the injury may have enhanced the claimant's symptoms but as his family doctor pointed out, strain injuries resolve within a matter of weeks. The consultant concluded his memo by stating, "The evidence suggests that the current medical condition is on a degenerative basis. There is no indication that a back strain injury eight years ago is currently operative and causing any of the present symptoms."

A report was received from the claimant's treating neurosurgeon dated June 28, 1993. The neurosurgeon stated the claimant suffered from neurogenic claudication produced by a spondylolysistesic lesion at L4 and L5 and that his lesion should be removed. The claimant had been incorrectly diagnosed as having an L4-L5 disc for which he received compensation and incorrectly diagnosed as having a congenital spondylolisthesis for which compensation was discontinued.

On September 3, 1993, the case was considered by Review Office at the claimant's request. Review Office confirmed that no further benefits were payable to the claimant based on the following findings:

on May 2, 1984 the claimant was diagnosed with a low back strain which resulted in two days of time loss from work. On July 2, 1985 he sustained a second injury to his back which resulted in him being off work until July 8, 1985 and was diagnosed with an acute left sided lumbar strain.
the first mention of leg pain was in a doctor's report of September 5, 1985, more than 2 months after the injury at work on July 2, 1985. Whereas the injury at work on July 2, 1985 was reported to have been to the left side of the worker's back, the first leg pain was reported as being on the right side.
while benefits were paid intermittently between 1985 and 1993, the decision to extend benefits was made in the erroneous belief that the claimant's injury at work had resulted in a disc injury, a view which Review Office was unable to accept.
the weight of evidence established that the claimant's ongoing complaints were representative of a progressing development of spinal stenosis in the spine, unrelated to either of his injuries at work.

On July 23, 2001, the claimant appealed Review Office's decision and an oral hearing took place on October 15, 2001.

Following the hearing, the Appeal Panel requested that additional information be obtained from the claimant's treating neurosurgeon prior to rendering a decision on the issue under appeal. On December 12, 2001 the neurosurgeon provided the Appeal Commission with a number of consultative reports which included an operative report of December 6, 2000 (lumbar laminectomy of L4-5), a CT scan dated February 24, 2001, a case summary report dated December 6, 2000 to December 8, 2000 and an MRI lumbar spine report dated October 5, 2001. On January 3, 2002, the Panel met again to discuss the additional information that was obtained from the neurosurgeon and a letter from the claimant dated December 21, 2001.

Reasons

This case involves a worker who suffered an injury to his back in July 1985. The injury was diagnosed as an acute lumbar strain. He was off work for a few days. He filed a claim for compensation with the WCB, which was accepted and benefits were paid accordingly.

Over the next eight years, he continued to receive benefits, intermittently, as problems with his back arose from time to time. In March 1993, the board determined that his ongoing problems were due to pre-existing conditions, and that he had recovered from the effects of his compensable injury. Benefits were terminated as of March 19, 1993.

He appealed that decision to the Review Office, which upheld the decision of the adjudicator. In 2001, he appealed the Review Office decision to the Appeal Commission.

The issue before the Appeal Panel was whether or not he is entitled to benefits beyond March 19, 1993.

For his appeal to be successful, the Panel would have to conclude that his ongoing problems with his back are causally related to his workplace accident in 1985. We were not able to make that determination.

In coming to our decision, we made a careful review of the claimant's file, as well as conducting an oral hearing, at which the claimant was able to present his case, and the panelists were able to question him. Subsequent to the hearing, we sought further reports from his attending physicians.

The claimant continues to suffer from pain in his lower back, as well as pains which radiate down both legs. Such pains in his legs could very well be the result of nerve root impingement, possibly caused by a disc herniation. It is the claimant's position that he suffered such a disc herniation as a result of his workplace accident. The board takes a contrary position that his current back problems are a result of degenerative changes in his back not caused or enhanced by his accident.

We find that there is more support for the board's position than the claimant's. We note that there is no mention - in the medical reports - of any pains in his legs until two months after the accident. The initial complaint in this regard was about pains down his right leg, whereas his back injury had been to his left side.

The report of a myelogram, done in July 1986, shows a large anterior extradural filling defect at the L4-L5 level, which is reported as being consistent with a fairly central L4-L5 disc herniation. This finding became a key factor in the diagnosis and treatment of the claimant's condition over the next few years. It also formed the basis for his receipt of benefits at various times during those years.

In July 1993, subsequent to the termination of benefits, the claimant's file was referred to a Neurology Consultant for review. This doctor noted that, throughout the history of this file, the only finding of a disc herniation was in the above-noted myelogram. He noted also that there were no signs and symptoms of such a herniation in the immediate aftermath of the injury. He implies that there was an incorrect interpretation of the 1986 myelogram, that an extradural filling defect can result from a number of different pathologies than a disc protrusion.

This consultant also notes that a CT scan in April 1986 showed the claimant had stenosis due to spondylolisthesis at the level of the purported disc problem. All subsequent examinations report on this problem, while none finds any significant disc herniation. A CT scan, in May 1992, suggested at least four components were contributing to his spinal stenosis: the degenerative spondylolisthesis, a thickened ligamentum flavum, facet arthropathy, and a minor disc prominence.

A month earlier in June 1993, an orthopedic specialist treating the claimant came to a similar conclusion and had given his opinion that the claimant did not have a herniated disc. He also felt that the claimant did not have congenital spondylolisthesis, rather he had neurogenic claudication caused by a spondylolisthetic lesion. Germane to our consideration is that both a board medical consultant and one attending the claimant both concluded, within a few weeks of each other, that the claimant did not have a disc protrusion.

We also took note of more recent examinations, done in 2000 and 2001. One was an x-ray, done on April 11, 2000, which reported no disc herniations. It did note the spondylolisthesis, which appeared to be secondary to facet joint and disc degeneration.

A CT scan, dated June 19, 2000 reported that while there was mild diffuse posterior disc bulging at L4-L5, no disc protrusion is present. This exam also found:

We also reviewed the report of an MRI examination conducted after the hearing, on October 5, 2001. It found no disc herniation at L4-L5 or at L5-S1, but did note moderate degenerative changes. And, it noted that the spondylolisthesis was unchanged.

This medical history led us to the conclusion that - on a balance of probabilities - the claimant's current medical problems are not related to the workplace accident which occurred on July 2, 1985 and which form the basis of this claim.

We are not saying that the claimant does not have any problems with his back. From the medical evidence, it is clear that he continues to be troubled considerably by back problems. What we are saying is that, in our opinion, his problems are related to pre-existing, degenerative problems and not to his workplace accident.

Accordingly, the appeal is dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of February, 2002

Back