The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

Issue

Whether or not the claimant is entitled to wage loss benefits beyond June 6, 2000.

Decision

That the claimant is not entitled to wage loss benefits beyond June 6, 2000.

Decision: Unanimous

Background

During the course of his employment as a "longhole driller miner" on August 25, 1999, the claimant was driving underground and felt a jab in his lower back when he hit a pot hole. The pain went away after a few hours but not completely. On August 27, 1999, he sat down to study some prints and when he got up he crumbled to his knees. He started working again but his back gave out. He then performed light duties until August 30, 1999 before laying off because of back pain.

When seen for medical treatment on August 28, 1999, the diagnosis rendered by the treating physician was a lower mechanical back strain and a referral was made for x-rays and a CT scan. The Workers Compensation Board (WCB) accepted responsibility for the claim and the claimant commenced receiving benefits on August 31, 1999.

Subsequent medical information consisted of a CT scan report of the lumbosacral spine dated September 15, 1999, and an x-ray report of the lumbosacral spine dated August 30, 1999. A report was also received from the claimant's family physician dated October 14, 1999 who reported a diagnosis of spinal stenosis and a disc herniation of L5.

In September 1999 the claimant returned to his full regular duties for two weeks, but had to stop work in early October 1999 because of increased low back pain.

On November 2, 1999, a WCB medical advisor was asked by primary adjudication to review the file information and to answer several questions pertaining to the current diagnosis, cause and effect relationship, etc. In a response dated November 9, 1999, the medical advisor stated the following:

• the current diagnosis was multilevel degenerative lumbosacral disc disease, spinal stenosis and left sided L5 nerve root compression.
  
  
• there was a direct cause-effect relationship between the work injury and the current condition.
  
  
• the evidence on file supports continued disability from work activities and the claimant may be capable of sedentary work.
  
  
• there was evidence of a pre-existing condition (i.e. degenerative L5 disc disease) and it was likely contributing to the claimant's disability.

On May 18, 2000, the claimant was examined by a WCB orthopaedic consultant who provided the following opinion with respect to the claimant's medical status:

"The claimant has longstanding lumbar disc degeneration with advanced disc space narrowing and osteoarthritis of the posterior articulations. The workplace injury was responsible for a musculoligamentous strain of the lumbar region and a probable aggravation of the pre-existing severe lumbar disc degeneration. The strain and aggravation could be accepted as causing significant disabling symptoms for up to 10 to 12 weeks. Thereafter, any continuing low back disability is related to the pre-existing condition.

During the examination, there were numerous demonstrations of significant symptom amplification. In my opinion, the claimant is capable of returning to his regular occupation. There are no workplace restrictions arising out of the workplace injury of August 25, 1999."

On May 31, 2000, the WCB informed the claimant that compensation benefits would be paid to June 6, 2000 inclusive and final as it determined that he had sufficiently recovered from the effects of his work injury and any suggestion that he avoid certain activities was possibly made to prevent subsequent exacerbation of symptoms or further injury.

On June 23, 2000, the claimant appealed the WCB's decision to end his benefits and the case was forwarded to Review Office. In a decision dated July 28, 2000, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond June 6, 2000 based on the following rationale:

• the claimant suggested that his benefits should be continued because his employer terminated his employment due to his injury. Review Office disagreed with this rationale and stated that the Workers Compensation Act (the Act) of Manitoba did not make any reference to any obligation of an employer to rehire injured workers following compensable accidents.
  
  
• the claimant contended that the degenerative changes in his spine were caused by years of heavy labour type work and should therefore be compensable. Review Office, however, disagreed with this comment and made reference to section 4(1) of the Act. Review Office felt that general wear and tear did not meet the definition of an accident as established in Section 1(1) of the Act.
  
  
• Review Office consulted with a WCB orthopaedic specialist concerning the worker's recovery from his compensable accident. The Review Office stated "the consultant felt that the mechanism of injury reported would have most likely produced a musculoligamentous strain or possibly a disc injury due to axial loading. It was his opinion that the injury sustained was fairly minor as evidenced by the worker's continuing to perform the heavy duties required of him for days after the accident. Finally, he noted that the medical documentation establishes that the worker has multilevel degenerative disc disease and osteoarthritis of his posterior facets leading to degenerative stenosis, which he believes to be the cause of the worker's ongoing low back and leg complaints."

On December 19, 2000, a worker advisor, acting on behalf of the claimant, provided Review Office with two reports from an orthopaedic surgeon dated November 24, 2000 which he felt supported the claimant's position that the claimant had not recovered from his compensable injury. In a response dated January 4, 2001, Review Office stated it would not alter its earlier ruling based on the following rationale:

"…[Orthopaedic surgeon] has indicated that Mr. [the claimant] suffers from mechanical type low back pain secondary to degenerative disc disease. It is agreed that the injuries in August 1999 resulted in an exacerbation of the worker's degenerative disc disease, but, I cannot accept that the compensable injury continues to contribute to a material degree to any ongoing loss of earning capacity."

On April 29, 2004, an advocate for the claimant appealed Review Office's decisions and an oral hearing was convened. The Appeal Panel considered all the documentation on file which included a report from a second orthopaedic surgeon dated February 14, 2002, November 27, 2002 and an MRI report dated April 24, 2002 prior to making its decision.

Reasons

As the background notes indicate, the claimant sustained a lumbosacral strain on August 25, 1999 as a consequence of his compensable accident. A review of the medical evidence revealed that the claimant presented with a pre-existing condition described as multilevel degenerative disc disease and osteoarthritis posterior facets leading to degenerative stenosis. After carefully and thoroughly considering all of the evidence, we find that the claimant's ongoing symptoms are, on a balance of probabilities, related to his pre-existing problems. We further conclude that the compensable accident aggravated rather than enhanced the claimant's pre-existing condition and that this aggravation has now resolved.

Incoming to the foregoing conclusions, we relied heavily on the following body of evidence:

• February 18, 2000 WCB medical advisor's examination notes, which state in part - "A CT scan done September 15, 1999 showed diffuse shallow posterior disc bulging at multiple levels but no franc (sic) disc herniation. Mild central spinal stenosis was noted at L4-5 and more severe stenosis was noted of the left intervertebral disc foramen at the L5-S1 level. Bony compression of the left L5 nerve root was suggested. It is felt that these changes on the CT scan suggest pre-existing disease and that the low back injury of August 25, 1999 caused an aggravation of these pre-existing conditions."
  
  
• May 18, 2000 WCB Orthopaedic Consultant's examination notes, which state in part - "The claimant has longstanding lumbar disc degeneration with advanced disc space narrowing and osteoarthritis of the posterior articulations. The workplace injury was responsible for a musculoligamentous strain of the lumbar region and a probable aggravation of the pre-existing severe lumbar disc degeneration. The strain and aggravation could be accepted as causing significant disabling symptoms for up to 10 to 12 weeks. Thereafter, any continuing low back disability is related to the pre-existing condition."
  
  
• November 24, 2000 Orthopaedic Surgeon's examination report, which states in part - "Physical examination reveals a gentleman in mild distress. He is able to walk upon level ground in a forward flexed position. He has limited range of motion of the lumbar spine in all planes. His flexion is to the mid thigh level and extension is to neutral and lateral bending is to the mid thigh bilaterally. Range of motion of the hips reveals a normal range of motion. He is tender to deep palpation at the lumbosacral junction. Straight leg raise is negative."
  
  
• February 14, 2002 letter from second treating Orthopaedic Surgeon to attending physician, which states in part - "The patient was able to forward flex his thoracolumbar spine from a standing position with his knees in extension until the fingers of his outstretched hands could be extended to proximal shin level at which time he complained of low back pain and stiffness further exacerbated by extending his lumbar spine to 20 degrees beyond neutral with lateral flexion and rotation of the patient's lumbar spine to the right and left to 25 degrees. With the patient lying supine on the examination table he was found to have a full and painless range of movement of his hips, knees and ankles. He could straight leg raise to 80 degrees bilaterally with tightness of his hamstrings. He was not able to demonstrate any obvious motor, sensory or reflex deficits on examination of the lower extremities. The patient at the present time suffers from: 1. mild cervical spondylosis 2. degenerative lumbar disc disease with chronic lumbosacral strain 3. non-insulin dependent diabetes 4. chronic bronchitis and possible chronic obstructive lung disease."

Finally in light of the foregoing, we find that the claimant is not entitled to wage loss benefits beyond June 6, 2000. Accordingly, the claimant'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 16th day of September, 2004