Decision #68/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 5, 2003 at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on May 5, 2003.

Issue

Whether or not responsibility should be accepted for the worker's recent low back difficulties.

Decision

That responsibility should not be accepted for the worker's low back difficulties.

Decision: Unanimous

Background

The claimant had a 1987 claim with the Workers Compensation Board (WCB) for a muscular strain injury that occurred at work on December 3, 1987. By November of 1988, the claimant recovered from the effects of her accident and had returned to work. In 1990, the claimant incurred a non-compensable episode of low back pain and was off work for a three month time period.

While attending a dietary staff meeting on February 13, 1991, the claimant felt a sharp pain in her lower back when she crossed one leg onto the other. On May 12, 1991, a CT scan revealed a large central L5-S1 disc herniation with a large inferiorly sequestrated left sided fragment. A small central L4-L5 disc herniation was also noted. On May 23, 1991, the attending physician reported that the disc herniation was a result of the February 13, 1991 accident. The claim was initially denied by the WCB as it was determined that the claimant was not in the course of her employment when the February 13, 1991 incident took place but the decision was overturned by Review Office on July 5, 1991. The Review Office accepted the claim on the basis of the L5-S1 disc herniation, resulting from the February 13th incident and benefits were paid to the claimant.

On September 29, 1991, the claimant underwent a CT scan of the lumbar spine which revealed a "residual central disc herniation at L5-S1, but the extent of this had improved a little since May." The claimant underwent a further CT scan on March 19, 1992. The results showed "…widespread degenerative change, with a suggestion of relatively small central disc herniations at L4-5 and L5-S1."

A WCB medical advisor assessed the claimant on April 7, 1993. The medical advisor was of the opinion that the claimant's pre-existing disc disease had been affected by the February 13, 1991 accident and that her ongoing back and left lower limb problems have become quite intractable.

On August 20, 1993, the attending physician summarized that the claimant had myofascial back pain, joint inflammation and S1 disc herniation which appeared to be chronic.

In April 1994, an independent orthopaedic specialist commented that the claimant's symptomatology was due partly to degenerative changes in her lumbar spine, apophyseal joints and lumbar discs and also due to her left sided lumbar disc protrusion.

On March 12, 1995, a CT scan of the lumbar spine revealed the following findings: "There are L4-5 and L5-S1 disc herniations. Associated spinal stenosis is present at the upper level. The degree of encroachment at both levels was somewhat more severe than on March 19, 1992."

In a report dated March 27, 1995, the independent orthopaedic specialist commented after examining the claimant and reviewing radiology reports, that the claimant had multilevel lumbar disc disease at L3-4-5-S1, with some element of disc protrusion and degenerative changes in the lumbar facet joints.

In early February 2000, the claimant asked the WCB to re-open her claim because of CT scan results dated January 20, 2000.

In a report to the WCB dated March 15, 2000, a different family physician noted that he had been treating the claimant since April 1998 and that it was on June 2, 1999 when the claimant complained of lumbar spine pain and arthritis. The physician indicated that it was at the end of September 1999 when the claimant presented with an acute episode of back pain. After reviewing the recent CT scan findings, the physician felt this was a re-exacerbation of a long term problem likely related to her initial injury nine years ago. The physician felt that the claimant was totally disabled from work, although she had other underlying problems concerning a recent hysterectomy, which was still causing her lower abdominal pain and discomfort as well as ongoing depression because of social, financial and health problems.

On May 28, 2000, an orthopaedic surgeon outlined his examination findings of the claimant and noted that the results of the CT scan of her lumbosacral spine of January 17, 2000 appeared to be inconclusive as it revealed multiple disc protrusions. His impression was that the claimant was suffering from myofascial pain syndrome and that a good course of physical therapy would be beneficial in her recovery.

A WCB medical advisor reviewed the case on June 21, 2000 at the request of primary adjudication. According to the medical advisor, the diagnosis was degenerative disc disease of the back. He felt there was no ongoing relationship between the original accident and the claimant's current difficulties. He stated, "We have a chronic degenerative back that was not caused by sitting and twisting in a chair, not to my knowledge. This is an ongoing - natural degenerative process and is not related to her CI [compensable injury]."

On June 27, 2000, primary adjudication informed the claimant that the WCB was unable to accept responsibility for her recent low back difficulties. It was the opinion of primary adjudication that the claimant's current disability was the result of an underlying or pre-existing condition, the progression of which had not been enhanced or accelerated by the accident at work. On July 20, 2000, the claimant appealed this decision to Review Office.

On September 1, 2000, Review Office determined that no responsibility would be accepted for the worker's current low back difficulties. After reviewing the medical evidence Review Office concluded that it had not been established that the claimant's current multi-level low back problems were related to the 1991 incident. On October 9, 2001, the claimant appealed Review Office's decision and an oral hearing took place on May 5, 2003. At this time, the Panel considered all file evidence which included a report by a neurosurgeon dated June 10, 2002, the MRI results of the lumbosacral spine dated March 5, 2002 and a report by the Pain Clinic dated July 6, 2001.

Reasons

The claimant sustained her injury doing what can best be described as a harmless maneuver. She had been sitting in a chair at a meeting when she crossed her legs and basically began to experience back pain. The WCB accepted her diagnosed injury as an acute L5-S1 disc herniation. This diagnosis was later confirmed by a May 12th, 1991 CT scan of the lumbar spine, which revealed the following: "Large central L5-S1 disc herniation with associated large inferiorly sequestered left sided fragment."

In addition, initial and subsequent radiological evidence (series of CT scans in 1991 and 1992) clearly demonstrated widespread degenerative change in the claimant's lumbar spine. Over time there was a gradual reduction in size of the L5-S1 disc herniation. An MRI study conducted on March 5th, 2002 disclosed "Multilevel degenerative changes especially in the lower lumbar spine. There has been some improvement in the appearance of the disc herniation at L5-S1."

The claimant consulted a neurosurgeon on December 20th, 2001. By way of treatment, he performed perineural injections in the lumbar area to try and treat her pain. The neurosurgeon was called as a witness at the hearing. He was asked why the injection given to the claimant was targeted more towards the L4-L5 disc and he replied as follows:
     "The reason L4-L5 was targeted was it was the level that obviously looked worse to me at the time. We know now, from records that L5-S1 seems to have been shriveling up in time and maybe looking better and maybe looking better on MRI scan. I would put that down to probably dehydration fibrosis, shrinking of the disc prolapse over time, so it's less visible to one."

From the very outset of this file, there has been obvious widespread degenerative disc disease in the claimant's lumbar spine, which over time would be expected to become progressively worse as a person grows older. While we sympathize with the claimant's plight, we find after considering all of the evidence that the claimant's low back difficulties are, on a balance of probabilities, related to her overall degenerative condition and not the original compensable injury. In this regard, we attached considerable weight to the opinion expressed by a WCB medical advisor in a memorandum dated August 24th, 2000 in which he stated: "It is my view therefore that she is more likely suffering from chronic degenerative changes in her back which I note likely occurred over time regardless of her claim to an injury in 1991 given that she had 3-level involvement with changes to the disc architecturally at the time of her old claim (very unlikely to have been caused by crossing one leg over another)."

We find that responsibility should not be accepted for the claimant's recent low back difficulties. 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 23rd day of June, 2003

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