The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 26, 2004, 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 claimant is entitled to wage loss benefits beyond September 11, 2002.

Decision

That the claimant is not entitled to wage loss benefits beyond September 11, 2002.

Decision: Unanimous

Background

The worker, a Community Health Nurse, reported that she awoke at 3:00 AM on May 11, 2001 with left groin pain/ thigh spasm and left sciatica. She attributed her symptoms to her work duties, specifically to the duties she performed on May 10, 2001. On this date she carried boxes/stock up and down stairs to restock the pharmacy and emergency area.

The worker was seen by a physician on May 14, 2001 and was diagnosed with "acute radiculopathy sciaticus nerve left leg." At this time the worker's complaints were "Acute pain left inguinal area initially. Then radiating into left gluteus & thigh area. Now sensational changes down left leg into left great toe."

The worker's claim was accepted and benefits were paid.

The worker was seen regularly by her treating physicians. The treating physicians initially reported complaints of left sided symptoms but in July 2001 noted that symptoms were now also right-sided. From this date forward, the worker's symptoms became increasingly right sided.

Diagnostic tests were conducted and results reported to the WCB. A May 15^th x-ray report noted moderate to severe degenerative narrowing of the L5/S1 disc. It also noted end plate sclerosis and anterior marginal spurring. A June 29, 2001 CT scan of the lumbar spine revealed "mild degenerative changes as described, but no disc protrusion, spinal stenosis or fracture identified." A May 14, 2002 radiology report notes "SI and hip joints are normal. No bone abnormality seen."

In a narrative report dated November 2, 2001, the treating physician commented that "My diagnosis for [the worker] remains sciatica caused by degenerative changes of the lumbar spine." In a report dated November 22, 2001, he expanded upon the prior diagnosis. "[The worker] does have undisputed degenerative changes of the lumbar spine from the point of view of osteophytes and facet joint degeneration. However, what I meant by this sentence was that her recent acute onset of pain was in my opinion, caused by a disc prolapse which, of course, is also a degenerative change in the lumbar spine."

On November 29, 2001, a WCB Medical Adviser provided a diagnosis of Right sciatica - low back strain and noted that the CT shows no disc pathology.

The worker was examined by the WCB Medical Adviser on May 3, 2002. At this time he found no evidence that the worker's sciatica was continuing. He recommended that the worker undergo a Functional Capacity Evaluation (FCE).

The worker participated in a FCE on June 25, 2002. Her participation was identified to be less than a full voluntary effort passing 2 of 6 validity checks. Inconsistent findings were reported in the testing. It was suggested this was due to other physical impairments which limited her function at the time of the evaluation. (During the summer of 2001 the worker was also treated for a right knee injury and for a neck injury, neither of which was work related.)

On July 23, 2002, a WCB Medical Adviser reviewed the file and commented "…this was a soft tissue injury, which usually resolves in 2-3 months. On the balance of probabilities her injuries from CI (compensable injury) have resolved."

On September 11, 2002, the WCB case manager advised the worker the WCB considered that she no longer had a loss of earning capacity due to the accident. Any further problems maybe related to her pre-existing medical condition. In making this decision, the case manager referred to the July 23, 2001 opinion of the WCB Medical Adviser.

The worker sought reconsideration of the decision. Prior to responding to the worker's request, the Review Office consulted with a WCB orthopaedic consultant. On August 12, 2003 the orthopaedic consultant provided an opinion on the worker's injury. He noted that the worker's current diagnosis is degenerative disc disease and osteoarthritis and there is no relationship between this diagnosis and the work injury of May 10, 2001.

Review Office declined the worker's appeal in a decision dated August 15, 2003, indicating that on a balance of probabilities, the worker has recovered from the compensable soft tissue injury and has no loss of earning capacity as a direct result of the work injury.

The worker's union representative asked Review Office to reconsider its decision and provided a report from the treating physician dated October 27, 2003. The physician commented that "In my opinion that due to the fact, that she has no previous symptoms, her injury is due to an acute soft tissue injury of her low back which occurred while lifting boxes at work, rather than an aggravation of a pre-existing condition."

On January 2, 2004, Review Office responded that it remains their decision that the compensable soft tissue injury involving the left side, which occurred over two years ago, has resolved and that there is no loss of earning capacity, as a direct result of this work injury. Review Office also found that the difficulties described in the right side since July 30, 2001 are not considered directly related to the compensable left side injury.

The worker appealed this decision to the Appeal Commission.

Reasons

This claim was adjudicated under the Government Employees Compensation Act (GECA). Certain provisions of The Workers Compensation Act of Manitoba (the Act) are incorporated into the GECA. Of specific relevance to this claim, are subsections 4(2) and 39(2) of the Act which provide that wage loss benefits are payable to a worker while the worker has a loss of earning capacity caused by the accident. This means that the worker is only paid wage loss benefits if the work injury is interfering with the worker's ability to work and earn income.

For the worker's appeal to be successful, the Panel must determine that the worker's loss of earning capacity after September 11, 2002 is causally related to her work injury of May 10, 2001. Expressed another way, the Panel must determine that the work injury of May 10, 2001 is preventing the worker from working. We were not able to make this determination.

In coming to this decision, we made a thorough review of the claim file and held a hearing at which evidence was given by the worker and a submission was made on her behalf by her advocate. The employer representative attended the hearing but did not make a submission on the issue under appeal.

Evidence on file indicates that the worker has a pre-existing condition. This is a condition which was present before the work injury. Both the May 15, 2001 x-ray report and the June 29, 2001 CT scan report confirm that the worker has degenerative changes to her back. We find that these degenerative changes were not caused by or related to the work injury.

While numerous diagnoses of the worker's injury have been provided, we find on a balance of probabilities that the most likely diagnosis is that the worker suffered an aggravation of her pre-existing degenerative disc disease in her lower back on May 10, 2001, that by September 11, 2002 the temporary aggravation had resolved and that she had no loss of earning capacity due to this work injury after September 11, 2002. In arriving at this decision, we placed significant weight upon the following:

• first medical report dated May 15, 2001, diagnosed acute radiculopathy sciaticus nerve left leg and noted objective findings affecting the worker's left side.
  
  
• May 15, 2001 x-ray and June 29, 2001 CT scan showing degenerative changes.
  
  
• examination by WCB Medical Adviser dated May 3, 2002 which reports no evidence that the sciatica was continuing. The same Medical Adviser reviewed the file on July 23, 2002 and commented that "On balance of probabilities her injuries from her CI have resolved."
  
  
• opinion of WCB orthopaedic consultant dated August 12, 2003, that the worker's present diagnosis is "degenerative disc disease & osteoarthritis". When asked whether the worker has recovered from the effects of the May 10, 2001 injury, the orthopaedic consultant advised "There was no significant injury that would lead to ongoing symptoms >2 yrs later." He commented that the worker may have temporarily aggravated her pre-existing degenerative changes.

The worker's injury was originally described by the worker as left sided and was diagnosed as acute radiculopathy sciatica nerve affecting the left leg. In July 2001, two months post accident, symptoms developed on her right side and by September 11, 2002 when wage loss benefits were terminated, the only symptoms reported are right sided. In June 2003 the worker's letter to Review Office only identifies right sided symptoms. At the hearing the worker provided the following answers in response to when she first noticed symptoms in her right hip and leg:

"Well, that was the first week or two of June. I forget exactly what date it was, but it was just after the beginning of June and I had gone to bed as I normally would and, when I woke up in the morning, the whole thing had shifted.

And I was in a firm bed. I don't know whether that had anything to do with it. The doctor has no real idea about it.

But from then on, it switched completely over and all the symptoms that I had on the left were in the right, and still to this day it's that way."

WCB Policy 44.10.20.10 deals with pre-existing conditions and provides that the WCB is responsible for the temporary aggravation or enhancement of a pre-existing condition caused by a work injury. We find, on a balance of probability that the worker suffered a temporary aggravation of her pre-existing condition which had resolved by September 2002. In accordance with this Policy, the worker's loss of earning capacity after September 11, 2002 is not the responsibility of the WCB. We also find that the worker's right sided symptoms are not causally related to the work injury which involved left sided sciatica which had resolved. Therefore the worker's appeal is denied.

As an aside, the worker informed the Panel at the hearing of an unfortunate error made in the management of her claim. It appears that when her wage loss benefits were terminated, the WCB did not advise her employer. As the worker was receiving salary continuance, the employer continued to pay the worker for many months, until it inquired at the WCB about the status of the worker's claim. This created a significant overpayment by the employer to the worker which the employer is now seeking to recover. We were not able to deal with this issue. We are concerned that the worker is faced with repayment of this overpayment which arose from an administrative oversight, but understand that in this case, repayment of the overpayment is a matter between the worker and employer.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of May, 2004