The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 11, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 11, 2002 and again on September 13, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 20, 2001.

Decision

That the worker is not entitled to wage loss benefits beyond July 20, 2001.

Decision: Unanimous

Background

While employed as a production worker on July 28, 2000, the claimant was working with hogs when he felt a twisting strain in his lower back. When seen by a chiropractor on July 28, 2000, the claimant was diagnosed with discogenic pain of the lumbar spine from L4-L5 and L5-S1. The claimant continued performing modified duties until he went off work totally on September 14, 2000.

File information revealed that the claimant had prior disc surgeries which were performed in March 1993 and January 1999.

On August 11, 2000, x-rays showed degenerative disc disease and spondylosis. A CT scan performed on September 19, 2000 revealed mild bulging of the annulus, facet joint osteoarthritis at L3-4, a small central herniation at L4-5 and facet osteoarthritis at L4-5 and L5-S1.

In February 2001, following a complete review of his claim, primary adjudication advised the claimant that it determined he had recovered from the effects of his July 28, 2000 injury and that wage loss benefits would be paid to November 1, 2000. This decision was overturned by Review Office on March 2, 2001 and the claimant's benefits were reinstated.

Following an assessment by a WCB orthopaedic consultant on May 31, 2001 and review of a videotape surveillance of the claimant's activities in May 2001, the claimant was informed by primary adjudication that he was fit to return to a graduated return to work program as of June 25, 2001. The claimant was to start at 4 hours a day for 2 weeks and then increase his hours to 6 hours per day and then return to 8 hours per day. Partial wage loss benefits would then be paid to July 20, 2001 inclusive and final. On June 29, 2001, the claimant appealed the decision to Review Office.

In July 2001, discussions took place between a WCB case manager and the claimant/employer with respect to the claimant's graduated return to work program. In addition, a medical opinion was obtained from a WCB medical advisor on July 13, 2001.

On July 13, 2001, the claimant was informed by his case manager that based on the weight of evidence, a cause and effect relationship did not exist between the July 28, 2000 compensable injury and his ongoing problems. It was felt that the claimant's difficulties were likely related to pre-existing degenerative changes which were not caused or enhanced by the compensable injury and that the compensable injury was no longer contributing to his ongoing difficulties. By the end of the graduated return to work program (i.e. July 20, 2001), the case manager considered that the claimant would be recovered from the effects of his injury and was therefore not entitled to further benefits.

On September 7, 2001, the Review Office confirmed that the claimant was not entitled to wage loss benefits beyond July 20, 2001. Review Office believed that the worker's entitlement to further wage loss benefits was dependent upon his capability to perform the modified duties provided by his employer, recognizing any work limitations attributable to his work injury of July 28, 2000. The medical evidence did not establish the worker's contention of total disability. Reference was made to the opinion expressed by a WCB orthopaedic consultant who was of the view that the claimant's most probable diagnosis was discogenic back pain. The consultant felt that the provision of modified duties would not be detrimental to the worker's physical well being even after considering his pre-existing lumbar disc problems which proceeded January 20, 2000.

On February 8, 2002, the claimant's union representative requested reconsideration of primary adjudication's decision of July 13, 2001. A neurosurgeon's report was submitted in connection with this appeal. The report stated that the claimant was suffering from a recurrent disc herniation at L4-5 which was herniating inferiorly and possibly compressing the nerve root of L4-5. The union representative felt that the claimant's work activities enhanced and accelerated the claimant's degenerative disc disease and that the same work had caused his disc herniation.

In a response dated April 2, 2002, primary adjudication advised that a medical opinion had been obtained from a WCB orthopedic consultant regarding the relationship between the claimant's compensable injury and the pre-existing condition of degenerative disc disease. It was the consultant's opinion was that there was no recurrent L4-L5 disc herniation and that if there was an L4-5 disc herniation, it was a progression of degenerative lumbar disc disease and was unrelated to the compensable injury.

Primary adjudication also concluded the file evidence did not support the suggestion that the workplace accident caused the degenerative disc disease nor did it enhance the pre-existing degenerative disc disease. It felt that the claimant's current symptoms were rather the progression of degenerative lumbar disc disease and were not related to the effects of the compensable injury.

On May 16, 2002, Review Office concurred with primary adjudication that the claimant had recovered from the effects of his compensable injury and that any ongoing problems were related to his pre-existing degenerative disc disease. In reaching its decision, Review Office took into consideration a February 27, 2002, report prepared by the claimant's treating neurosurgeon together with an opinion expressed by a WCB orthopaedic consultant. On June 5, 2002, the claimant's union representative appealed Review Office's decision and an oral hearing was arranged.

Following the July 11, 2002 oral hearing, the Appeal Panel met to discuss the case and decided that further information was required from the claimant's treating neurosurgeon prior to discussing the case further. A response was later received from the neurosurgeon dated July 31, 2002 and was forwarded to the parties with a direct interest for comment. On September 13, 2002, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant sustained a twisting strain of his lower back as a result of the workplace incident on July 20th, 2000. An orthopaedic consultant to the WCB, who examined the claimant on May 31st, 2001 recorded in his examination notes the following comments: "Current clinical examination and CT assessment does not provide a diagnosis to explain his complaint of persistent left lumbar pain and apparent left lower limb radiculopathy. The only organic diagnosis applicable in this case which is not necessarily related to any workplace incident, is degenerative osteoarthritis of posterior articulations and chronic lumbar disc degeneration L3-4, all pre-existing." The evidence definitely confirms the existence of pre-existing degenerative lumbar disc disease and that the claimant had undergone two prior surgical procedures, a discectomy in 1993 at the L3-4 level and a similar operation in 1999. These operations were for non-occupational back problems that pre-dated the claimant's twisting injury at work in July of 2000. There is no evidence to suggest that these pre-existing conditions had been either enhanced or accelerated as a consequence of the work injury.

On June 19th, 2001, a WCB medical consultant reviewed a surveillance video of the claimant's activities and concluded that there was no contraindication to the claimant's resuming a graduated return to work program. In light of the foregoing, a formal graduated return to work plan with a proposed commencement date of June 25th, 2001 was formally presented to the claimant. The plan provided for the following work restrictions of no repetitive bending, no lifting over 15 pounds, no climbing stairs or squatting and the opportunity to change positions frequently. The claimant indicated his willingness to attempt the graduated return to work program. We are satisfied that the modified duties made available by the employer were well within the claimant's recommended restrictions.

The claimant began modified duties for a four-hour period on the first day, but the next day he only managed two hours before laying off after his back pain worsened following a slip at work. The claimant did not return to the modified work stating that he was incapable of performing the assigned light duties because working increased his back pain. Inasmuch as the evidence did not support the contention of total disability but rather that he was capable of performing the modified duties provided, Review Office confirmed the termination of the claimant's benefits effective July 20th, 2001. Review Office concluded that the claimant had recovered from the effects of his injury and that his ongoing problems were most likely related to the pre-existing degenerative disc disease and the previous surgeries.

The claimant underwent an MRI examination of his lumbar spine on November 30th, 2001. The radiologist's report stated: "There is a significant extrusion of disc material at the L4-5 disc space." The claimant's attending neurosurgeon reviewed the MRI and opined that it showed a "recurrent disc at L4-5, which was herniating inferiorly and possibly compressing the nerve root of L4-5." He further went on to state that the claimant's condition was complicated and that there was a possibility the claimant needed a fusion. With this new evidence in hand, the claimant's union representative requested Review Office to reconsider its September 7th, 2001 ruling on the basis that the claimant's work with the employer "both enhanced and accelerated his degenerative disc disease and that same work caused his disc herniation." Review Office considered the request. However, it concluded that the claimant had recovered from the effects of the compensable injury and that any ongoing problems were related to his pre-existing degenerative disc disease.

The claimant underwent a posterolateral fusion and decompression on May 1st, 2002 with the fusion extending L3 to L5. According to the operative report, both the preoperative and postoperative diagnosis was recorded as "Failed back syndrome with disc extrusion at L3-L4, spinal stenosis and joint hypertrophy of L3-L4, L4-L5, with severe back pain and claudication symptoms."

In arriving at our decision, not only did we attach weight to the operative report, but also to certain comments contained in the neurosurgeon's letter of July 31, 2002 to an attending physician. In particular, we noted the following: "In terms of the diagnosis of the patient's condition, he presents with failed back surgery syndrome which essentially was due to further disc extrusion to L3-4 with facet hypertrophy L3-4 and L4-5 associated with severe claudication in his lower limbs."

After having taken into consideration all of the evidence, we find, on a balance of probabilities, that the claimant's current medical problems relate to his pre-existing non-compensable lumbar pathology and not to the effects of his workplace injury. We further find that the claimant was again, on a balance of probabilities, fit to participate in the employer's graduated return to work program, but for some reason he chose not to do so. Accordingly, the claimant is not entitled to wage loss benefits beyond July 20th, 2001 and his 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 7th day of October, 2002