The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 9, 2004, at the request of an advocate, acting on behalf of the employer. The Panel discussed this appeal on June 9, 2004 and again on July 27, 2004.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 15, 2002.

Decision

That the worker is entitled to wage loss benefits beyond November 15, 2002.

Decision: Unanimous

Background

During the course of his employment as a nursing assistant on January 9, 2001, the claimant injured his lower back when he transferred a patient. The initial medical report diagnosed the claimant with musculoskeletal pain secondary to lifting. On April 10, 2001 a CT scan of the lumbar spine revealed minor diffuse posterior disc bulging at L4-L5. No disc protrusion was demonstrated. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly.

In a report to the family physician dated August 10, 2001, an orthopaedic specialist noted that the claimant underwent a dynamic lumbar stabilization program after having undergone an epidural steroid injection. He noted that the claimant's L5 radiculopathy had resolved except he was still experiencing pain aggravation if he did any twisting and repetitive back movements. The claimant was considered to have low endurance and reduced functional capabilities.

Following a WCB call-in examination on February 21, 2002, the examining WCB medical advisor reported that the claimant continued to have symptoms from his January 2001 injury and an MRI examination was suggested. On March 22, 2002 an MRI of the lumbar spine was carried out and it revealed "Mild degenerative changes in the lower lumbar spine with a posterior annular tear at the L5-S1 level."

On April 24, 2002, WCB medical advisor reviewed the MRI results and quoted the following excerpt from Radiologic Clinics of North America Volume 38 No. 6 Nov. 2000, "It would be unwise to place too much emphasis on a finding of annular tear or disc bulge in a patient with low back pain when it is known that such findings are present in many people with no current pain or any history of pain." It was felt that a reconditioning program for the claimant would be appropriate.

The claimant was assessed by an occupational therapist and physiotherapist on May 15 and 16, 2002. A discharge summary report dated July 8, 2002, noted that the claimant demonstrated improvement in the areas of active range of motion, strength, positional endurance, walking, stair climbing, material handling and overall work tolerance. It was felt that the claimant's work capabilities did not match the critical demands of a nursing assistant.

On September 9, 2002 the claimant commenced a return to work program starting at two hours per shift. On September 19, 2002, the employer advised the WCB that the claimant was not completing his 2 hour shift. The claimant later advised his case manager that he was experiencing too much pain and that simple tasks such as moving an empty stretcher caused his pain to increase. The claimant said he was unable to perform even light activities.

A videotape surveillance was taken of the claimant's activities on September 20 and 21, 2002.

In a letter to the claimant dated October 9, 2002, a WCB case manager commented that the videotape surveillance showed him mowing the lawn, shopping for six hours, entering and exiting his vehicle with no apparent difficulty and bending at the waist with no evidence of discomfort. Following consultation with a WCB healthcare advisor, it was determined that the claimant could continue with his graduated return to work program and that wage loss benefits would be payable to November 15, 2002 inclusive and final. On December 10, 2002, a union representative, acting on behalf of the claimant, appealed this decision to Review Office.

On May 2, 2003, Review Office determined that the claimant's January 15, 2001 injury was no longer contributing to his ongoing symptoms two years post injury and that there was no longer a loss of earning capacity related to the compensable injury. Review Office noted, however, that the claimant was scheduled to have an MRI on May 28, 2003 and was to see an orthopaedic specialist. If the specialist believed there was a relationship between the MRI and the compensable injury, Review Office advised the claimant that he could request reconsideration of its decision based on the new medical information.

In a June 12, 2003 report to the WCB, the treating orthopaedic surgeon commented that the claimant's MRI scan showed that he had tears of the annulus of L4-5 and L5-S1. He noted that the disc was innervated and therefore a tear of the annulus of the disc would cause pain. The surgeon commented that no surgery could cure the claimant and that retraining should be considered.

On July 24, 2003, a WCB orthopaedic consultant reviewed the new information at the request of Review Office and stated, in part, "A traumatic tear of the annular ligament in a degenerating disc enhances the degenerative change in the disc". The consultant went on to state that there was no need to impose restrictions for a tear of the annular ligament of a degenerating disc and that any aggravation of the degenerative changes are only temporary.

On October 22, 2003, Review Office asked the treating orthopaedic surgeon to provide his opinion with respect to the diagnosis of the worker's current condition, the etiology of same, etc. The surgeon's response to Review Office is dated October 27, 2003.

In a decision dated December 5, 2003, Review Office determined that the claimant was entitled to wage loss benefits beyond November 15, 2002. Review Office agreed with the WCB orthopaedic consultant that the claimant sustained 'a traumatic tear of the annular ligament in a degenerating disc enhancing the degenerative change in the disc' as a result of the January 9, 2001 compensable injury. Note was also made of the attending orthopaedic surgeon who had stated that the worker had physical restrictions as a result of the annular tear(s) in the disc. Review Office felt the claimant could not safely return to his regular job duties which required him to lift and transfer patients, as the compensable injuries have enhanced his pre-existing condition. On February 6, 2004, an advocate for the employer appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and after discussion of the case, the Appeal Panel requested that clarification be obtained from the treating orthopaedic surgeon with respect to certain comments contained in one of his reports. On June 24, 2004, the treating surgeon responded to the Panel's request for clarification and a copy of his report was provided to the interested parties for comment. On July 27, 2004, the Panel met further to discuss the case and to render its final decision.

Reasons

An MRI of the claimant’s lumbar spine was conducted on May 28, 2003. This diagnostic imaging technique revealed, in part, the following: “At L5-S1, a small annular tear is seen about the left posterolateral aspect of the disc space. No frank herniation, central stenosis, or thecal sac or nerve root compression is seen at this level.” As part of the process in arriving at a decision, we requested the treating orthopaedic surgeon to clarify his physical examination notes of March 26, 2003. In his report, he described the condition of an annular tear of a disc.

“The lumbar disk is located between two lumbar vertebrae. It has a jellylike substance called the nucleus pulpous that is used for shock absorption. This is located on the inside of the disk. On the outside of the disk is the annulus fibrosis portion which is a tough fibrous sheet that holds the nucleus pulpous on the inside. The annulus fibrosis portion of the disk has nerve fibers ending on it. Therefore if the annulus fibrosis is torn it will generate back pain. An annular tear of a disk is therefore a condition. It will produce lower lumbar back pain. It will be aggravated by things that increase disk pressure such as coughing and sneeze, straining at stool or other things increase intra-abdominal pressure.”

We note that Review Office prior to making its determination of the case communicated with the treating orthopaedic surgeon with respect to the claimant’s current diagnosis, etiology of condition and relationship of this condition, if any, to the compensable injury. The treating specialist responded as follows:

“This man has pain secondary to tears of the annulus at the disk at L4 five and L5-S1. These terrors (sic) of the annulus were traumatic in nature.

The etiology of the current condition is secondary to his job. He gives the history of being an orderly and of lifting a lady, then twisting with the back and then developing back pain and leg pain. This etiology is based on history. There’s no lab test or investigative test which will tell to 100% accuracy whether the annular tears occurred at the time of the patient lifting or whether they were pre-existing. Historically however it seems that the twisting injury then caused the back pain.

On the balance of probability the current condition is was caused by the compensable injury. The nature of the relationship is as described above. The patient is an orderly. He lifted a lady, twisted and then immediately had back pain and leg pain ever since that injury.”

In consultation with a WCB orthopaedic consultant, Review Office accepted the fact that a “tear of an annular ligament is permanent & represents an enhancement of the already pre-existing condition” i.e., degenerative discs.

After having thoroughly considered all of the evidence, we concur with Review Office’s decision of December 5, 2003. Accordingly, we also find that the worker was entitled to wage loss benefits beyond November 15, 2002. The employer’s appeal is therefore denied.

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 1st day of September, 2004