The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 28, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 28, 2003 and again on August 6, 2003.

Issue

Whether or not the claimant's two falls in early 2001 are related to the compensable injury of June 8, 1999.

Decision

That the claimant's two falls in 2001 were not related to the compensable injury of June 8, 1999.

Decision: Unanimous

Background

On June 7, 1999, the claimant was helping a co-worker transfer a patient when he felt a sharp pain down his back and legs. Then, on June 8, 1999, the claimant injured his lower back when he sat on a broken chair and fell to the floor. Initial medical reports diagnosed the claimant with a low back strain. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

The claimant was later assessed by several specialists and underwent a variety of tests. The following is a brief summary of these assessments/test results:

• August 5, 1999 - CT scan results revealed a small left paracentral disc herniation at the L3-L4 level. At the L4-L5 level, there was a small central and slightly left paracentral disc herniation. There was a small to moderate sized central and right paracentral disc herniation.
  
  
• August 18, 1999 - an orthopaedic specialist commented on the above CT scan results, stating that the disc herniation at the lumbosacral level was displacing the S1 nerve root slightly and that this correlated with the claimant's right leg symptoms. The specialist felt that the claimant should be treated conservatively.
  
  
• October 18, 1999 - after a call-in examination at the WCB's office, a WCB medical advisor noted that the claimant presented with a mixed picture of mechanical back pain and nerve root irritation. It was suggested that the claimant return to modified duties and that nerve conduction studies be done to determine whether the claimant had a measurable neurologic impairment.
  
  
• November 25, 1999 - a neurologist provided details regarding the claimant's previous neck and back problems. He further indicated that apart from a positive straight leg raising test, there were no radicular signs.
  
  
• January 18, 2000 - nerve conduction studies revealed "There is a delay in the right H reflex which could represent a proximal lesion in the right S1 root but this is not diagnostic. EMG of right S1, L5 did not show denervation but this does not exclude it."
  
  
• June 3, 2000 - a WCB medical advisor referred the claimant to a physiatrist. The medical advisor noted that the claimant "did have evidence of some nerve root irritation and did have some deficits involving a similar distribution as when examined previously which related to a right S1 and L5 distribution".
  
  
• August 31, 2000 - the physiatrist reported that the claimant presented with symptoms that were consistent with right radicular pain and significant localized low back pain. He further stated, "His presentation could be related to a lumbosacral disc herniation. Based on his symptoms and findings the most probable symptomatic level would be the L5-S1 disc herniation affecting the right S1 nerve root."
  
  
• February 6, 2001 - MRI of the lumbar spine stated, in part, "Changes consistent with the previous CT are again noted. The previously seen disc herniation at the L5-S1 level appears slightly less prominent than on the previous CT."

In a memo dated May 28, 2001, a WCB adjudicator noted that the claimant had fallen on two separate occasions whereby he broke his wrist on one occasion and damaged his teeth on another. The claimant believed that he had fallen on both occasions because of his leg giving away. The attending physician related the falls to the 1999 compensable injury. A WCB medical advisor was asked to comment on whether or not there was a cause and effect relationship between the falls and the 1999 compensable injury.

• June 2, 2001 - in response to the above query, a WCB medical advisor said he could not comment on a relationship with certainty.
  
  
• June 6, 2001 - a WCB adjudicator discussed the case with the above medical advisor. The medical advisor stated, "MRI showed a resolving disc. Also, leg giving away should not lead to someone falling on their face. EMG results will give us a better picture."
  
  
• August 14, 2001 Electromyogram Study Report - "The electrophysiologic study demonstrates evidence of prior L5 and S1 nerve root injury. The clinical pattern of numbness as well as weakness suggests that the right L5 nerve root is the main symptomatic one."
  
  
• August 21, 2001 - the WCB medical advisor stated, "The review of EMG with Dr. [name] suggests there is no ongoing compression, which is consistent with the scan findings of some improvement. The sudden c/o [complaints of] (L) sided problems are of questionable relationship at this time."

On February 8, 2002, primary adjudication advised the claimant in part, that it was the opinion of Rehabilitation and Compensation Services that there was no relationship between his two falls in early 2001 and his June 8, 1999 compensable injury. "This decision was based on the clinical findings of improvement noted on the testing."

On June 17, 2002, a union representative disagreed with the above decision stating that the claimant fell on both occasions because his leg gave away without any warning. She felt that the claimant's leg symptoms were directly related to his compensable injury which meant that that his two falls were the responsibility of the WCB. In support of her position, reference was made to WCB Policy 44.10.80.40, the MRI results of February 2001 and the August 14, 2001 electrophysiological results.

Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. In a memo dated July 18, 2002, the orthopaedic consultant stated, in part, that the claimant's injuries of June 7 and 8, 1999 were not the underlying cause of the alleged "leg giving out". He also stated there was nothing on the CT or MRI scanning results which could be considered responsible for such episodes.

In a decision dated September 6, 2002, Review Office was unable to establish that the claimant's leg giving out scenarios in January and March 2001 were related to his compensable injury of June 8, 1999. Review Office agreed with the opinion expressed by the orthopaedic consultant. On February 4, 2003, the union representative appealed Review Office's decision and an oral hearing was arranged. A medical report dated January 8, 2003 was submitted in connection with the appeal.

Following the oral hearing, the Panel requested that additional information be obtained from the claimant's treating orthopaedic specialist concerning an assessment that was to take place on June 12, 2003. Reports from the specialist were later received and forwarded to the interested parties for comment. On August 6, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The union representative acting on behalf of the claimant advanced the argument that the two falls experienced by the claimant in early 2001 were directly related to the ongoing problems he was having with his right leg. “Mr. [the claimant] suffered a weakening of his leg and ankle as a direct result of his compensable injury. It is this weakness that caused a loss of motor control of his leg. He falls as a result of his leg ‘giving away’ without any warning. It is our position the leg symptoms are directly related to his compensable injury so the injuries suffered in the falls are the responsibility of the WCB.”

A WCB orthopaedic consultant reviewed the worker’s file and provided an opinion with respect to the giving away of the worker’s right leg and the relationship, if any, of these events to his ongoing symptoms and the compensable injury.

“It was noted that the claimant states that he falls as a result of his leg ‘giving way without warning’. In my opinion, based upon years of experience in the surgical management of lumbar disc herniation, ‘giving out’ of a leg permitting a fall cannot be attributed to the underlying condition of lumbar disc herniation and nerve-root involvement, in the absence of clinical evidence of significant weakness of lower limb musculature and extensive marked loss of cutaneous sensibility. Neither of these complications has been identified on any of the continuing reports on file.

In my opinion, the injuries of June 7and 8, 1999, were not the underlying cause of alleged ‘leg giving out’. There is nothing on CT or MRI scanning which could be considered responsible for such episodes.”

The May 29^th, 2003 CT of the claimant’s lumbar spine together with the treating orthopaedic surgeon’s chart notes, which were received on file subsequent to the hearing date, merely confirm what was initially determined at the time of the compensable injury namely, a L5-S1 disc herniation. This new evidence does not establish that the two falls occasioned by the claimant in 2001 were in any way causally related to this herniation.

We find based on the weight of evidence that the claimant’s two falls in early 2001 are not, on a balance of probabilities, related to the compensable injury of June 8, 1999. 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 16th day of September, 2003