Decision #19/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 15, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 3, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond January 3, 2003.

Decision: Unanimous

Background

During the course of his employment as a welder on August 29, 2002, the claimant began to experience soreness in his right lower back from lining up web sheets and pulling them into place. He then filed a claim which was accepted by the Workers Compensation Board (WCB) and he commenced receiving wage loss benefits effective September 11, 2002.

Subsequent medical information revealed that the claimant was diagnosed with sciatica on the right side following the accident. The claimant was also noted to have had a long history of back problems. The claimant was referred for physiotherapy treatments.

File records contain the results of a CT scan of the lumbar spine which was conducted on April 22, 2002. The results revealed osteoarthritis of the L4-5 and L5-S1 facet joints and the SI joints. There was bulging of the L4-5 intervertebral disc but no disc herniation was seen. There was no significant spinal stenosis. Degenerative changes were seen in the L5-S1 disc.

Another CT scan of the lumbar spine was conducted on November 13, 2002. The results revealed mild OA of the L4-5 and L5-S1 facet joints and very mild diffuse bulging of the L4-5 and L5-S1 intervertebral discs. No disc herniation was seen and there was no evidence of spinal stenosis. There were degenerative changes in the L5-S1 disc with vacuum phenomenon.

On November 12, 2002, the claimant commenced a graduated return to work program with the accident employer.

A WCB medical advisor reviewed the claim on November 21, 2002. It was his opinion that the claimant's current medical condition was related to the aggravation of pre-existing degenerative changes in the lumbosacral spine.

A report was received from a neurologist dated November 27, 2002. The claimant had no objective neurological deficits, having only mild and subjective hypalgesia over the left L5 distribution. The neurologist stated that even though the CT scan did not reveal any actual disc herniation, his history and, in particular, his sensory symptoms would suggest that he had had an L5 radiculopathy.

In a December 9, 2002 report, the treating physiotherapist noted that the claimant had functional range of motion of his low back. He stated that although the claimant was not symptom free, his condition had improved since the time of his initial assessment. The physiotherapist felt that it was reasonable for the claimant to attempt a graduated return to work program.

Following consultation with a WCB medical advisor on December 23, 2002, Rehabilitation and Compensation Services determined that, based on the weight of evidence, the claimant had recovered from the effects of his compensable injury and his current problems were due to a non-compensable, pre-existing condition, namely degenerative disc disease. Wage loss benefits would be paid to January 3, 2003 inclusive and final in accordance with section 39(2) of The Workers Compensation Act (the Act). On February 4, 2003, a worker advisor disagreed with the decision and the case was forwarded to Review Office for consideration.

Prior to considering the above appeal, the Review Office sought the medical advice of the WCB's section head of healthcare. His comments are on file dated March 19, 2003. The medical advisor was of the opinion that the aggravation has completely resolved based on the report by the neurologist dated November 27, 2002. He also believed that the claimant may require preventive restrictions because of his pre-existing degenerative disc disease.

On April 17, 2003, Review Office determined that the claimant was not entitled to wage loss benefits after January 3, 2003. The Review Office based its decision on the medical opinions put forth by the treating neurologist in his report of November 27, 2002 and those of the WCB's section head of healthcare on March 19, 2003, who indicated that there was no longer any objective evidence of any aggravation and any restrictions would be on a preventive basis. The Review Office did not believe that the claimant's earning capacity after January 3, 2003 was related, to a material degree, to the effects of the compensable injury. In November 2003, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

CT scans of the claimant's lumbosacral spine were taken in 1998 and 2002. The findings that resulted from these scans consistently revealed the claimant's pre-existing degenerative disc disease, osteoarthritis of L4, 5 and L5, S1 facet joints and the SI joints. In addition, these scans confirmed that there was no disc herniation present.

The claimant underwent a complete neurological examination on November 27th, 2002. The treating neurologist recorded the following findings and comments in his report to the attending physician.

"No tenderness on palpation of his entire spine including in particular the lumbar sacral spine. He can get up from a chair with ease and without any support and sit down in a most normal manner. Normal gait including normal heel, toe and tandem walking. He also does not walk as if he is in pain. With his knees extended, he can reach his fingers to his mid tibial region, complaining of increasing lower back pain. SLR [straight leg raising] 90 degrees bilaterally, negative Lasegue's sign. No weakness, in particular in the left leg, distally or proximally. There are no objective neurological deficits … he is fully mobile, it is my opinion that he does not require any further neurological studies because management would not be altered in any single way."

A WCB medical advisor reviewed the file on December 18th, 2002 and concluded that the claimant's current diagnosis was lumbosacral degenerative disc disease and that there was no cause and effect relationship between this condition and the August 29th, 2002 compensable injury. In his opinion, the claimant has made a good recovery from his compensable accident to the extent that he would be capable of returning to his regular work duties on January 6th, 2003. Any restrictions would purely be preventive in nature.

After having thoroughly considered all of the evidence, we find that the claimant had, on a balance of probabilities, recovered from the effects of his compensable injury by January 2nd, 2003 and that his current back difficulties are related to his non-compensable degenerative back condition. We further find that the claimant is not entitled to wage loss benefits beyond January 2, 2003. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of January, 2004

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