The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 15, 2004, at the request of an advocate, acting on behalf of the employer. The Panel discussed this appeal on March 15, 2004 and again on June 10, 2004.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond June 18, 2003.

Decision

That the claimant was entitled to wage loss benefits beyond June 18, 2003.

Decision: Unanimous

Background

On February 12, 2001, the claimant sustained an injury to his right hip and left leg during the course of his employment as a production worker. File information revealed that the claimant was diagnosed with lumbar radiculopathy and a lumbar disc herniation at L4-5 and L5-S1. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On October 10, 2001, a WCB medical advisor examined the claimant. It was concluded that the claimant's symptomatology had been consistent with a right S1 radiculopathy as well as a history suggestive of a milder degree of radiculopathy on the left from an earlier injury in December 2000. Treatment suggestions were outlined which included a referral to a physical medicine and rehabilitation specialist along with an MRI scan.

The MRI findings of October 29, 2002 revealed the following impression:

"Disc herniations are noted at the L3-4 and L4-5 levels as described above. At the L5-S1 level, there is a very mild grade I spondylolysis and possible even right L5 spondylolysis but this is not definite and would best (sic) evaluated on CT scanning with bone windows if clinically indicated."

In a letter dated December 7, 2001, the treating physical medicine and rehabilitation specialist reported that the claimant's presentation was consistent with irritation of the right L5 nerve root. Arrangements were made for an epidural injection in March 2002. In the interim, the claimant began a reconditioning program effective February 1, 2002 and a full report regarding his progress with the program is contained in a report dated March 1, 2002. The claimant also commenced a graduated return to work as of February 4, 2002 at 2 hours per day.

In a follow-up report dated April 18, 2002, the physical medicine and rehabilitation specialist commented that the claimant continued to be limited by radicular symptoms and that an epidural injection was booked for April 26, 2002. In a further progress report dated May 30, 2002, the specialist noted that the claimant received no therapeutic benefit after the epidural injection and a "surgical opinion" was suggested.

In a memo dated June 14, 2002, a WCB case manager noted that the claimant had an aggravation at work and was off work completely.

On August 2, 2002, the claimant was examined by a WCB orthopaedic consultant. It was determined that the claimant's symptoms were probably due to disc degeneration and protrusion at L5-6. He was not sure whether the spondylolysis and degenerative changes of the facet joint were significant. It was felt that the degenerative disc disease and degenerative changes in the facet joints and the spondylolysis were permanent conditions.

In a memo dated August 29, 2002, a WCB adjudicator documented that he discussed the case with the above consultant. He felt that the claimant had many problems with his back but mostly they were pre-existing and that the effects of the compensable injury should have resolved. There was no objective medical evidence to suggest that the disc protrusion was symptomatic. Restrictions were considered to be preventive and that a return to work would likely result in an aggravation of the pre-existing condition.

On September 10, 2002, a neurologist reported that he assessed the claimant on July 17, 2002. The specialist could not find any neurological defect. He also thought that the claimant was probably getting intermittent compression of the right L5 nerve root, however, there were no significant or detectable signs at present.

The claimant underwent EMG testing on November 20, 2002. The results revealed "subtle abnormality in Tib ant recruitment, but no findings of active denervation. Electrodiagnostic studies cannot exclude a radicular process and at this point in time would return to normal unless there was ongoing axonal denervation."

The claimant was examined again by a WCB orthopaedic consultant on February 27, 2003. He commented that the claimant's symptoms were most likely due to the degenerative disc disease at L5-L6 and to a lesser extent at L4-L5 and L6-S1. He stated that there was little evidence of nerve root compression. The specialist could not demonstrate any definitive evidence that the claimant's spinal symptoms were work related and he could not find any evidence that these symptoms had been enhanced by a work injury. The specialist further noted that the claimant required permanent work restrictions and was capable of light work.

On March 24, 2003, the claimant was advised that his wage loss benefits would be paid to June 18, 2003 inclusive and final. It was the case manager's opinion that the claimant's February 12, 2001 workplace injury likely aggravated his pre-existing condition in his spine and that the aggravation had since resolved. The case manager concluded that the claimant's ongoing symptoms could no longer be attributed to his compensable injury.

In a report dated May 13, 2003, the treating physical medicine and rehabilitation specialist noted that right straight leg raise testing was suggestive of active nerve root irritation with reproduction of right buttock and posterior thigh pain to the calf. Left straight leg raise and bilateral femoral stretch tests were negative. The lumbosacral spine exhibited no significant tenderness. The specialist concluded that the claimant presented with right lumbosacral radicular symptoms.

On June 18, 2003, the claimant was advised by his case manager that the May 13, 2003 report did not alter the previous decision regarding the relationship between his ongoing symptoms and his workplace accident. The case manager noted that the specialist's findings were not conclusive with respect to ongoing nerve root irritation. "That being said, the presence of nerve root irritation does not necessarily mean the symptoms are a result of your compensable injury. Other conditions related to degenerative changes in our spine can reduce the space around your nerve roots. The constricted spacing can also cause radicular symptoms similar to what you have reported."

On November 7, 2003, the case was considered by Review Office upon receipt of an appeal by the claimant. Following its review of the file information, Review Office determined that the claimant was entitled to benefits beyond June 18, 2003.

Review Office placed appropriate weight on the following opinion that had been expressed by a WCB orthopaedic consultant in a memo dated November 6, 2003, "The claimant has right sided sciatica due to a lumbar disc herniation with nerve root involvement confirmed on CT and MRI which had its onset at work. This occurs in degenerative discs which is pre-existing. The disc herniation occurred at work which was the causal factor." The consultant also advised that the claimant should be reviewed by a neurosurgeon if surgery was being contemplated. He noted that there had been a referral to a Toronto physician according to the file information.

In Review Office's opinion, the disc herniation with nerve root involvement occurred at the time of the compensable incident and has not since resolved. The claimant had no history of nerve root involvement prior to the incident at work and therefore, based on a balance of probabilities, the claimant's ongoing symptoms/treatment were a result of the compensable injury.

In an appeal application dated December 9, 2003, an advocate for the accident employer felt that Review Office's decision should be overturned because of the "WCB orthopaedic consultant opinion that the claimant's spinal symptoms are not work related & there is no evidence that they have been enhanced by a work injury." An oral hearing later took place on March 15, 2004.

Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's treating physical medicine and rehabilitation specialist. This information was later received and was forwarded to the interested parties for comment. On June 10, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The employer brings forward this appeal in which it contests the claimant's entitlement to continued benefits after June 18th, 2003. The employer's advocate advanced the argument that the claimant's current and ongoing lower back difficulties were related to his non-compensable pre-existing degenerative disc disease.

We find based on the evidence that the lower back difficulties being experienced by the claimant have been consistent throughout the history of the file beginning right from the date of the compensable injury to the present. A recent MRI conducted on April 18th, 2004 revealed the following:

"L4-5 right posterolateral disc herniation which appears slightly larger than on the previous examination. The disc appears to contact the right L5 nerve root and there is likely some compression at this level."

After having considered all of the evidence, we further find that the claimant's disc herniation was, on a balance of probabilities, as a result of his compensable injury of February 12th, 2001. Accordingly, the claimant is therefore entitled to wage loss benefits beyond June 18th, 2003. The employer'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 15th day of July, 2004