The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 18, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 18, 2002.

Issue

Whether or not the worker has recovered from the effects of the November 17, 1997 back injury.

Decision

That the worker has recovered from the effects of the November 17, 1997 back injury.

Decision: Unanimous

Background

On November 17, 1997, the claimant lifted a pail of loonies to dump into a hopper when she felt pain in her left lower back. Initial medical reports diagnosed the claimant with a discogenic pain and a questionable herniated disc. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits commenced on November 29, 1997.

Between December 12 and 14, 1997, the claimant had been admitted to hospital with complaints of pain radiating down her left leg. The attending neurosurgeon noted that the treating physician had concerns over the possibility of the claimant's having cauda equina syndrome. The claimant underwent a myelogram followed by a CT scan of the L1 to S1 vertebra. The neurosurgeon indicated that these procedures demonstrated no compression of the cauda equina or nerve roots. There was no demonstrated lumbar disc abnormality.

In a progress report dated January 26, 1998, the attending physician reported that the claimant had been rear-ended in a motor vehicle accident on January 12, 1998. Subjective complaints were "back pain worse from MVA. Can't turn head too well. Has headaches. Leg pain that night".

In a letter to Manitoba Public Insurance Corporation (MPIC) dated February 2, 1998, the attending physician noted that prior to the January 12th MVA the claimant had been seen by another physician and was experiencing low back pain radiating into her left leg. At that time, the claimant was still diagnosed as having a disc problem with a dural tension. When seen on January 22nd the claimant complained of headaches. She could not turn her head well to the sides. The claimant's back pain had become worse, but her leg pain was apparently not aggravated. The claimant was diagnosed with a lumbar ligamentous strain and muscle spasm without further aggravation of her disc herniation. The claimant also had a cervical ligamentous strain. In terms of work restrictions, the claimant was taken off work duties on January 12 for a further 3 weeks. A direct cause of her being taken off work was her unresolved disc herniation and the new back injury which had exacerbated her previous back problem. It was estimated that the MVA restricted the claimant's return to work by approximately 3 to 4 weeks.

In a May 26, 1998 report, a specialist noted that the claimant sustained injuries to her neck and upper body pain to the MVA. She complained of headaches and had lower back pain, but attributed these to an ongoing lower back WCB injury. The surgeon outlined his examination findings of January 16, 1998, February 2, 1998, February 27, 1998, April 11, 1998 and May 4, 1998. With regard to the January 12, 1998 MVA, the specialist felt the claimant was continuing to improve and in the foreseeable future, she would be able to resume some light duties, i.e. clerical work on a graduated return to work basis.

Following a WCB examination on May 27, 1998, a WCB medical advisor commented that based on history and physical examination, the claimant likely sustained a low back strain after her November 17, 1997 workplace incident. Based on the negative CT/myelogram, the medical advisor did not feel that the claimant had any disc pathology, which was also the same opinion expressed by the treating neurosurgeon. The medical advisor suggested that the MVA may have aggravated the claimant's lower back complaints, but that she was unsure how long the incident would have prolonged the claimant's complaints as her initial incident should have resolved by the time of the January 1998 MVA. The claimant felt that she was presently at her baseline prior to the MVA.

On July 7, 1998, the attending physician indicated that in terms of low back pain, the claimant should be able to return to work with the limitation of lifting at 30 pounds for the next two weeks and then to full duties.

In a decision letter dated July 10, 1998, primary adjudication advised the claimant, in part, "Since your work injury, you have seen a number of doctors and received treatment for your back strain. The weight of evidence including the history of injury, the diagnosis of the injury, expected symptoms duration, your doctors note recommending a return to restricted duty for 2 weeks (2 weeks concludes July 6, 1998), the lack of clinical evidence, and your own comments that you have no symptoms, support that you have recovered from the effects of your November 17, 1997, work injury. Based on the above, and noting your agreement that your wage loss benefits are to conclude by July 6, 1998, there is no further entitlement to compensation benefits."

On June 30, 1999, the claimant called a WCB adjudicator to discuss her claim. The claimant advised that since July 1998, she had been in receipt of MPIC benefits. In October 1998, MPIC sent her to a work hardening program mainly for her neck and shoulder complaints. The work hardening program was very strenuous and caused her considerable difficulty, especially in her back. The claimant advised that she underwent two CT scans in February 1999 and had surgery on May 20, 1999. The claimant indicated that she had problems with an L3-L4 disc bulging. The claimant advised that she had now received a letter from MPIC indicating that she would be cut off of benefits on July 15, 1999 and that her disc protrusion and subsequent surgery would be the WCB's responsibility.

In a letter dated October 15, 1999, a WCB adjudicator advised the claimant that a WCB orthopaedic consultant reviewed the December 13, 1997 CT myelogram scan and the February 23, 1999 CT scans. The specialist indicated that in his opinion there was no definite evidence of a disc herniation on the December 13, 1997 films. Hence, it remained the opinion of primary adjudication that the claimant had essentially recovered form her work injury and no further wage loss benefits would be paid past July 6, 1998.

In a further letter dated October 26, 1999, primary adjudication advised the claimant that a report had now been received from a radiologist. The radiologist stated that he and another radiologist agreed that the December 13, 1997 CT myelogram showed a very small left posterior peri-central L5-S1 partially calcified disc herniation. Primary adjudication noted that this report was reviewed by a WCB medical advisor and a WCB orthopaedic specialist. "It was the specialist's opinion that the calcification indicated a long standing degenerative disc pathology and that this long pre-existed the compensable injury. It was also the specialist's opinion that the CT progression demonstrates a natural history of this condition and not the effect of the compensable injury. It still remains the specialist's opinion that there was no definite evidence of a left central L5-S1 disc herniation on the December 13, 1997 film." As a result, it still remained the position of primary adjudication that the claimant had essentially recovered from her work injury and no further wage loss benefits would be paid past July 6, 1998.

On November 5, 1999, a solicitor for the claimant, appealed the October 26, 1999 decision to Review Office. The solicitor requested Review Office to consider further medical information prepared by the treating orthopaedic surgeon dated September 28, 1999. The solicitor indicated that it was the specialist's opinion that in all probability the current herniation and disc injury were directly the result of her work related injury. In a further submission to Review Office dated November 19, 1999, the solicitor provided a November 5, 1999 report from the attending physician for its consideration. The physician confirmed that between December 1 and 12, 1997, the claimant had been diagnosed with a disc herniation as a result of the work related accident.

On January 14, 2000, Review Office determined that the WCB would accept responsibility for the L5-S1 disc condition, which eventually led to the May 20, 1999 disc surgery. Wage loss benefits were to be implemented effective July 15, 1999 and payable to September 28, 1999, pending an update of medical information. Review Office indicated that it did not have any medical evidence beyond September 28, 1999 and therefore benefits were not payable beyond that date without supporting medical evidence.

A WCB orthopaedic consultant assessed the claimant on March 3, 2000. The consultant noted that at the time of the May 20, 1999 surgery, a large amount of degenerative disc material was removed. In spite of this, the claimant's symptoms have persisted. He was unable to explain why the claimant had failed to improve since her surgery. Given her history, treatment and present objective physical findings, the consultant expected that the claimant would have been capable of quite strenuous work by this point.

In June 2000, the claimant was assessed by the WCB's Pain Management Unit (PMU). Following a case conference, it determined that the claimant did not meet the diagnostic criteria for chronic pain syndrome (CPS). "Her pain did not result in a marked disability that affects proportionally her occupational, social and recreational areas of functioning. Disability affecting solely or disproportionately her occupational area of functioning is a contraindication of CPS. Due to her poor response to previous pain management treatment and her lack of psychological mindedness no treatment recommendations were made."

On July 20, 2000, an orthopaedic consultant reviewed the case at the request of primary adjudication and expressed the following opinion:

"The relationship between the CI [compensation injury] and the imaging studies has been discussed previously. If she had a disc protrusion it should have healed long ago. She has been very thoroughly treated with surgery and facet injections and still has symptoms. There were no hard findings on physical examination. I can see no reasons why she should not have improved.

Because she has had a calcified lumbar disc and a discectomy I feel she will not be '100%'. However, I feel she should be recovered enough to return to her pre-accident work."

In a decision dated July 27, 2000, primary adjudication determined that based on the weight of evidence, the claimant had essentially recovered from the effects of her back injury and that wage loss benefits would be paid to August 3, 2000 inclusive and final.

At the request of the claimant's solicitor, Review Office reviewed the case on January 12, 2001. This process included considering additional medical reports dated September 21, 2000, October 17, 2000 and October 26, 2000. Review Office concluded that wage loss benefits would be reinstated effective August 4, 2000 and that a Medical Review Panel (MRP) would be convened in accordance with section 67(3) of the Workers Compensation Act (the Act). An MRP took place on June 12, 2001 and its report was provided to all interested parties for possible comment.

On August 17, 2001, Review Office determined that the claimant's wage loss benefits would be issued up to and including September 4, 2001 as the claimant had recovered from the effects of the November 17, 1997 back injury. After reviewing all of the evidence, including the MRP's findings, Review Office was unable to support the claimant's contention that her present physical and psychological symptoms were related to her injury of November 17, 1997. The claimant's solicitor appealed Review Office's decision and an oral hearing was arranged. Additional medical reports were submitted for the Panel's consideration dated April 17, 2001, December 13, 2001 and January 4, 2002.

Reasons

We accept the June 12th, 2001 findings of the Medical Review Panel. The Panel concluded based on the history provided together with its review of the early x-rays and CT myelogram that the claimant suffered a back strain as a result of her compensable accident and that there was no evidence of neurological compromise. A neurosurgeon's discharge summary from the Health Sciences Centre dated December 14th, 1997 reported as follows:

"The patient was admitted overnight with bed rest and analgesia prescribed. A myelogram followed by a CT scan of the L1 to S1 vertebra was obtained. This demonstrated no compression of the cauda equina or nerve roots. There was no demonstrated lumbar disc abnormality. Therefore the patient was discharged with instructions for bed rest and to follow up with her own doctor."

We further find that the claimant had, on a balance of probabilities recovered from this injury by the summer of 1998. In coming to this conclusion, we took note of certain comments made by her treating physician to MPIC in July 1998. "Straight leg raise is negative bilaterally except pain in the back with left raise at ninety degrees. In terms of her low back pain, she is allowed to return to work with the limitation of lifting 30 pounds for the next two weeks, then full duties."

The claimant sustained a motor vehicle accident (MVA) on January 20th, 1998. Eventually, the claimant was referred by MPIC for work hardening in October 1998 at which time her low back became more painful. Of significance is the report prepared by the claimant's treating orthopaedic surgeon, which report was forwarded to MPIC on or about September 28th, 1999:

"On May 20, 1999 Mrs. [the claimant] underwent a left L5-1 decompression and discetomy. Quite a large disc herniation was uncovered anterior to the exiting S1 nerve root.

Historically it sounds as if Mrs. [the claimant's] lower lumbar spine was injured with her lifting injuries in December 1997. The early CT myelogram which was done very soon after the incident did in fact show a small left L5-S1 disc herniation. Her vehicle accident on January 12, 1998, appeared to have strained her back and caused more mechanical problems than sciatic problems. Only when she went to the Wellness Centre for work hardening did she in fact experience increasing lower lumbar back pain and radiating left leg pain. Undoubtedly the lower disc was weakened as a result of her lifting injury in December 1997. Conditioning and work hardening required by MPIC to get her back to work created the disc injury to become more symptomatic and more herniated, creating left-sided sciatica. The most recent CT myelogram suggests an even larger disc herniation with entrapment of the S1 exiting nerve root on the left. Some of the herniation has now become chronic and calcified. Therefore, the initial disc injury and herniation caused mechanical back problems. This was aggravated by the vehicle accident. However, the herniation was worsened and produced left-sided sciatica after two attempts at work hardening at the Wellness Centre."
(Emphasis ours)

The foregoing opinion clearly leaves one with the impression that the necessity for back surgery came about as a result of MPIC's authorized treatment. In other words, the surgery was a sequela of the MVA. Had the work hardening been directly sanctioned by the WCB and a similar sequela had arisen during the course of treatment, then the WCB would have assumed responsibility for this further development. However, in this case the claimant was being treated for a non-compensable condition under the guidance of MPIC. The exacerbation of the herniated disc which eventually lead to surgery arose out of this treatment. We note that the WCB was never consulted by the treating orthopaedic surgeon for authorization to perform surgery on the claimant, which is standard procedure for work related injuries.

After thoroughly considering all of the evidence, we are of the opinion that the claimant has, on a balance of probabilities, recovered from the effects of her November 17th, 1997 compensable back injury and that her ongoing difficulties are not causally related to this event. 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 14th day of May, 2002