The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 12, 2004, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not worker's current low back symptoms are related to the October 18, 1996 compensable injury.

Decision

That the worker's current low back symptoms are not related to the October 18, 1996 compensable injury.

Decision: Unanimous

Background

On October 18, 1996, the worker injured his lower back region when he tripped on an air hose while carrying waste oil. Initial medical reports diagnosed the worker with mechanical low back pain and left sciatica. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

Ongoing medical reports showed that the worker was treated with physiotherapy and was assessed by an orthopaedic specialist. Laboratory investigations included x-rays of the cervical and lumbosacral spines along with CT scans and an MRI evaluation. The worker also participated in a residential interdisciplinary pain management program. The worker was enrolled in a work hardening program but did not complete the program. On August 11, 1998, the WCB determined that the worker was capable of a graduated return to full time regular duties. He was provided with job search assistance and received wage loss benefits until January 1999.

On March 30, 2004, the WCB received several reports from the worker's treating physician indicating that the worker was seen for an exacerbation of his lower back complaints. The Review Office also considered a CT scan report of the worker's lumbar spine dated May 17, 2004.

On April 13, 2004, a WCB case manager met with the worker to gather up-dated information concerning the worker's activities from his return to work and the present. The case manager advised the worker that he was unable to establish a cause and effect relationship between the original compensable injury and his current symptoms given the fact that there had been no medical visits of any kind between January 1999 to February 2004. This decision was relayed to the worker in writing on April 13, 2004.

On June 30, 2004, the case was considered by Review Office following receipt of an appeal from the worker who disagreed with the case manager's decision of April 13, 2004.

Review Office ultimately agreed with the WCB case manager that a relationship could not be established between the worker's current low back symptoms and his injury of October 18, 1996. Review Office stated the following in its decision letter of June 30, 2004:

"...after reviewing your MRI examination from early 1997, it is noted that no significant disc herniation was evident and thus, there is no evidence on file that you sustained an injury during your accident on October 18, 1996, which would predispose you to future low back problems.

The Review Office has also had the opportunity to review your May 17, 2004, CT scan report and it indicated there was overall disc bulging of the L4-5 interspace, more so on the right than the left where there may be a minor right-sided disc protrusion. The Review Office does not relate this finding to your incident of October 18, 1996."

On July 28, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us is whether the worker's current low back symptoms are related to the October 18, 1996 compensable injury. For the worker's appeal to succeed, we must find that the worker's 1996 injury is the cause of his current low back symptoms. We were not able to make this determination.

At the hearing the worker made a submission in support of his claim that his current difficulties are due to his 1996 work injury. He provided information regarding his original injury, his condition since the original injury, and the onset of symptoms in 2004. He also provided information on his employment and other activities since he ceased receiving WCB benefits in 1999.

The worker stated that he never recovered from his 1996 injury. He advised that he continued to have low back symptoms after his compensation benefits were terminated in 1999 and does so to this day. He provided examples of how his life has been affected by the 1996 injury. Although he did not seek medical attention for his back symptoms between January 1999 and February 2004, he stated that he continued to suffer symptoms but learned to live with the symptoms. For example, in 1999 he started his own business which allowed him to adjust his daily activities. When his back symptoms were bad he could rest in bed and did not have to work. This business involved selling equipment but did not involve activities that aggravated his back. Unfortunately, in October 2002 this business failed for reasons unrelated to his back.

In May 2003 he started an automotive repair business. He worked by himself and did minor automotive repairs including oil changes, safety checks, some body work and painting. This business was not registered with the WCB. In February 2004 after spray painting the fender on an automobile he had severe back pain. After this incident he tried to continue to work at his business but was not able to continue due to pain. Because of his back symptoms he was forced to close this business. Currently, he is not working on a regular basis but performs a limited number of vehicle safety certifications at his home.

The worker referred to a CT scan report dated May 17, 2004 which he considers supports his position that the 2004 injury is related to the 1996 injury. He noted that this CT scan had similar findings to a CT scan performed in 1997.

Analysis

After considering all the evidence including the worker's testimony at the hearing, we are not able to relate the worker's current back symptoms to his 1996 compensable workplace injury.

As noted the worker referred to a May 17, 2004 CT scan report in support of his claim. This report notes:

"There is overall disc bulging of the L4-5 interspace, more so on the right than left where there may be a minor right sided disc protrusion approximately at the level of the recess of the right intervertebral foramen. The left side of the spinal canal at this level is not considered to be remarkable."

The worker noted that this report is similar to a report performed in 1997 which found:

1. "Diffuse annular bulging and ligamentum flavum hypertrophy contribute to mild central canal stenosis at the L4-L5 level.

2. No significant disc herniation evident."

We find both reports are more suggestive of a degenerative condition than an acute event. The report from an orthopedic surgeon who saw the worker in June 2004 supports our view that the worker has degenerative changes in his back. The orthopedic surgeon notes that the worker has disc degeneration, probably at the L3-4 and L4-5 levels.

We note that the 1997 report makes no reference to a possible disc protrusion at the L4-5 level which is noted in the 2004 report. Therefore we cannot relate these possible radiographic changes to the 1996 workplace injury, especially given the lack of medical treatment since 1999 which is discussed later in these reasons.

We note that one of the last medical reports received by the WCB, before the 2004 incident, was provided by a neurosurgeon in August 1998. The surgeon notes that he reviewed the worker's CT scan (which was done two years earlier) and found there is no evidence of lateral or far lateral or severe lateral disc herniations. As well he notes that he did not find any significant foraminal stenosis. This report does not support the position that the worker suffered a disc herniation in 1996 which continues to bother him.

The worker advised that he did not seek medical attention for his back between January 1999 and February 2004. The lack of medical attention does not support the worker's claim regarding continued symptoms from the workplace injury. We place significant weight on this fact in finding, on a balance of probabilities, that the worker's current low back symptoms are not related to his 1996 workplace injury.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of November, 2004