The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 8, 2004, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on the same day following the hearing.

Issue

Whether or not the worker's ongoing low back complaints are attributable to injuries sustained at work on May 9, 1994, March 27, 2000 and May 30, 2002; and

Whether or not the worker is entitled to wage loss benefits beyond November 11, 2002.

Decision

That the worker's ongoing low back complaints are not attributable to injuries sustained at work on May 9, 1994, March 27, 2000 and May 30, 2002; and

That the worker is not entitled to wage loss benefits beyond November 11, 2002.

Decision: Unanimous

Background

The claimant filed three claims with the Workers Compensation Board (WCB) for back injuries that occurred during the course of his employment with a printing company. The following is a brief description of what transpired in each of these claims:

May 1994:

The claimant complained of pain in his back after lifting a "colour deck" at work. He continued working at his regular duties but a few weeks later he began to experience trouble with walking. Medical treatment was sought at a walk-in clinic on June 9, 1994 and the diagnosis rendered was mechanical low back strain.

The claimant was seen by a second physician on June 14, 1994. The diagnosis rendered at this time was "acute strain L-S spine, L foot drop. Deg. Disc Disease L-S spine". Rest and medication was prescribed as well as referral to a neurologist.

In a report dated July 14, 1994, the neurologist outlined his examination findings and noted that the claimant suffered a slipped disc in 1986 which occurred while lifting something heavy during which he twisted at the same time. This precipitated acute back pain which resolved after a number of chiropractic visits. With respect to his present status, the neurologist concluded that the claimant appeared to have compression of the L5 root causing both motor and sensory disturbances. The most likely diagnosis was a disc protrusion in light of the acute onset and recurrent history of low back pain. Other possibilities, although unlikely, were a possible tumor or osteophytic changes.

A CT scan of the lumbosacral spine was performed on July 22, 1994. The impression was "Multilevel bulging annuli and degenerative disc disease. Multilevel apophyseal joint osteoarthritis. Bilateral L5-S1 osseous foraminal encroachment."

A WCB medical advisor reviewed the file on August 10, 1994 and he confirmed a diagnosis of low back strain and left foot drop. He also noted that the claimant had extensive degenerative disease at the L/S spine as seen on the CT scan. Vocational rehabilitation was recommended because of the claimant's foot drop, which the medical advisor felt could be considered permanent.

After several follow-up appointments with the treating physician and neurologist as well as physiotherapy treatments, the claimant returned to full work duties on September 26, 1994.

March 2000:

The claimant reported ongoing/progressive pain to his lower back and hips, with numbness down both legs and partial immobility, during the week of March 27, 2000.

When seen by his family physician on April 10, 2000, the diagnosis rendered was an exacerbation of DDD (degenerative disc disease) of the LS spine with a suspected central bulge at L5.

On April 10, 2000, x-rays of the lumbar spine revealed multilevel lower lumbar degenerative disc changes. On April 27, 2000, a CT scan of the lumbosacral spine revealed a large central and right posterior L3-L4 disc herniation with multi-level degenerative disc disease and apophyseal joint osteoarthritis.

In the interim, the claimant returned to modified duties while receiving physiotherapy treatments. He also was seen regularly by his family physician. On September 16, 2000, the claimant returned to regular duties.

In a report to the WCB dated July 18, 2001, the treating physician outlined the dates that he treated the claimant from September 2000 through to June 25, 2001. The physician noted that the claimant was being treated with Vioxx for his back pain which the physician felt was directly related to the heavy work he performed on the presses.

On August 2, 2001, a WCB medical advisor reviewed the file information and found little objective information from the treating physician to support the contention that the claimant's low back pain was work related. He felt the claimant's previous pre-existing degenerative changes would be the most probable cause for his low back pain. The original compensable injury was thought to be discogenic and the effects from this injury should normally have resolved by now.

May 2002:

The claimant was "cutting color, opening & closing keys to get the color right" when he slipped on the catwalk and fell onto a cement floor. When seen by his family physician on May 30, 2002 the diagnosis rendered was an acute strain of the L/S spine with neurologic deficit. Objective findings included difficulty walking, decreased power of the left hip flexors, left foot drop, poor extension, loss of lordosis, flexion okay, hitches to return. Degenerative disc disease of the LS spine was the pre-existing condition that may prevent recovery. Vioxx and Tylenol 3 was prescribed.

On June 25, 2002, the claimant was assessed by a physiatrist and was diagnosed with low back pain of uncertain etiology. He noted that the claimant had previous low back injuries two and nine years ago.

An MRI of the lumbar spine was performed on July 12, 2002. The results revealed lumbar spondylosis. There was no convincing disc herniation seen but there was quite severe combined stenosis at L3-4, L4-5 and to a milder degree at L5-S1.

On August 2, 2002, the physiatrist provided the claimant with an epidural injection. In a follow-up appointment on September 3, 2002, the physiatrist noted that the claimant's low back and bilateral leg pain was slightly improved.

A WCB orthopaedic consultant examined the claimant on October 29, 2002. It was his opinion that the claimant sustained a soft tissue injury consisting of a musculoskeletal strain and perhaps a lower back contusion as a result of the May 30, 2002, workplace injury. He was further of the view that the claimant should have recovered completely from his injury and should have returned to the workplace. The consultant also commented that the claimant may have sustained an aggravation of longstanding lumbar spondylosis and disc degeneration with associated posterior articular osteoarthritis and acquired stenosis and that this aggravation had ceased to exist. There was evidence of pain behavior and symptom amplification during the assessment. There was no evidence of lumbar nerve root compression and no evidence of loss of motor function in either lower limb. Work restrictions were not considered to be warranted.

On November 4, 2002, the WCB informed the claimant of its decision that he likely sustained an aggravation of his pre-existing condition as a result of his compensable injury. The weight of evidence and the lack of current clinical findings supported that the claimant had recovered from his compensable injury. The claimant was advised that his wage loss benefits would be paid to November 11, 2002 inclusive and final.

In a letter dated November 8, 2002, a union president wrote to the WCB outlining that the claimant's current condition was the direct result of his 1994 and 2000 compensable injuries. In a response dated November 15, 2002, the WCB determined that the weight of medical evidence did not support the contention that the claimant's pre-existing condition was caused by either his 1994 or 2000 accidents. However, the evidence did support the claimant having sustained several aggravations to his pre-existing condition. There was no disc involvement and only residual discomfort. Based on this determination, no change would be made to the decision dated November 4, 2002.

In correspondence to the employer dated November 19, 2002, the WCB clarified that the claimant's pre-existing condition existed prior to any of his compensable injuries and was likely aggravated but never enhanced.

On August 8, 2003, the case was considered by Review Office at the request of a union representative, acting on behalf of the claimant. Review Office confirmed that the claimant was not entitled to wage loss benefits beyond November 11, 2002.

Review Office noted the claimant's contention that he had hurt his back years earlier but that his back had been fine prior to his fall at work on May 30, 2002. In contrast, the employer stated that the claimant received medication and treatment prior to May 30, 2002 for back and leg pain.

After considering the October 29, 2002 WCB orthopaedic examination results, Review Office concluded that the claimant had recovered from the effects of the May 30, 2002, muscular injury by November 11, 2002 and that any residual complaints were due to pre-existing, non-compensable degenerative changes in the spine. Review Office also recognized that the claimant had significant degenerative problems present in his lumbosacral spine which pre-dated his 1994 injury at work and therefore, it was unable to correlate the lumbosacral disc degeneration with any of the claimant's compensable injuries.

On October 21, 2003, the union representative asked the WCB to consider whether or not the claimant's low back condition was in part due to his three workplace accidents and their effect on his pre-existing degenerative low back condition. He believed that the 1994 accident enhanced the pre-existing condition and that the 2000 and 2002 incidents were aggravations superimposed on the lingering effects of the 1994 injury.

On December 3, 2003, Review Office determined that the worker's ongoing low back complaints were not attributable to injuries he sustained at work on May 9, 1994, March 27, 2000 and May 30, 2002. Following consultation with a WCB orthopaedic consultant, Review Office concluded that each of the worker's compensable injuries were muscular strains resulting in only temporary aggravations of his underlying degenerative spinal stenosis and thus no further benefits were payable. On April 5, 2004, the union representative appealed Review Office's decisions and an oral hearing was convened.

Reasons

In arriving at this decision, we attached considerable weight to the following body of radiological evidence:

• July 22, 1994 CT lumbosacral spine – Impression: Multilevel bulging annuli and degenerative disc disease. Multilevel apophyseal joint osteoarthritis. Bilateral L5-S1 osseous foraminal encroachment.
• April 27, 2000 CT lumbosacral spine – Impression: Large central and right posterior L3-L4 disc herniation. Multi-level degenerative disc disease and apophyseal joint osteoarthritis.
• July 12, 2002 MRI lumbar spine – There is lumbar spondylosis. No convincing disc herniation is seen but there is quite severe combined stenosis at L3-4 and L4-5 and to a mild degree at L5-S1.

The July 1994 CT scan demonstrates significant multi level degenerative disc disease, which clearly would, on a balance of probabilities, have predated the May 9, 1994 compensable injury. We further find that the mechanics of the three compensable injuries were not such that any and/or all would have either accelerated or enhanced the claimant’s pre-existing degenerative disc disease.

With respect to the second issue, we note that the claimant was examined by a WCB orthopaedic consultant on October 29, 2002. He recorded the following comments in his examination notes.

“This claimant sustained a soft tissue injury consisting of a muscluloligamentous strain, and perhaps a lower back contusion, in the workplace injury of May 30/02.

The claimant should have recovered completely from this injury by now and returned to the workplace.

The claimant may have also sustained an aggravation of longstanding lumbar spondylosis and disc degeneration with associated posterior articular osteoarthritis and acquired stenosis. This aggravation has ceased to exist.

There was no evidence of lumbar nerve root compression and no evidence of loss of motor function in either lower limb.

As of the date of this examination, there are no restrictions arising out of this workplace injury.”

We find in accordance with the conclusions reached by the WCB orthopaedic consultant and on a balance of probabilities that the claimant had recovered from his acute sprain injury by November 5, 2002. In addition, the claimant’s ongoing difficulties are as previously mentioned directly related to his non-compensable degenerative spinal condition. Accordingly, the worker is not entitled to wage loss benefits beyond November 11, 2002 and therefore his 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 31st day of August, 2004