The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 20, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker's back difficulties are related to the compensable back injury sustained on September 14, 2001; and

Whether or not the worker is entitled to the payment of wage loss benefits.

Decision

That the worker's back difficulties are not related to the compensable back injury sustained on September 14, 2001; and

That the worker is entitled to the payment of wage loss benefits from October 5, 2002 to December 9, 2002.

Decision: Unanimous

Background

In September 2001, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back/buttocks injury that occurred in the workplace on September 14, 2001. The worker noted that he was turning a reel that weighed approximately 750 lbs. when he felt a sharp pain in his lower back down to his legs. The worker commented that this was the third time this had happened to him and that he has two other compensation claims (February 16, 2001 and May 16, 2001).

On September 18, 2001, the worker attended his family physician for treatment and was diagnosed with a facet joint syndrome with left sciatica. On October 3, 2001, the family physician confirmed to the WCB that the diagnosis was a low back strain that was radiating into the worker's buttocks and leg.

The file contains a CT cervical spine report dated March 28, 1996. The results revealed cervical spondylosis at multiple levels.

The WCB accepted the claim and wage loss benefits were paid to the worker commencing September 17, 2001.

Subsequent file records showed that the worker attended physiotherapy treatments and returned to modified duties on October 22, 2001, at four hours per day.

On November 15, 2001, the worker told his case manager that his back had dramatically improved since his September 14, 2001 accident but that he was experiencing pain radiating into his left foot when standing for long periods of time. The worker was advised to increase modified duties by one hour commencing November 19, 2001.

The worker underwent a functional capacity evaluation on November 23, 2001. The "Analysis of the Findings" showed signs and symptoms consistent with discogenic lumbar pain with associated spinal and muscular restrictions. It was felt that the claimant exhibited the physical capabilities to perform the duties of his standing operator position but was limited by activity-related pain. Restrictions were outlined.

On December 3, 2001, the worker returned to full time duties. On December 5, 2001, the worker advised the WCB that he was working with cable and found that his back was sore for two days. The worker expressed concerns that his employer would only accommodate modified duties for eight weeks. WCB benefits were paid to the worker up to November 30, 2001 inclusive.

On August 27, 2002, the worker contacted the WCB, stating that he was having ongoing difficulties with his back. The worker commented that he has always had back pain since he returned to work in December 2001 and that he has less when he is not at work. The worker stated he had no new injuries or accidents and that walking on concrete all day aggravated his back. The worker stated that he had not seen a doctor since last December 2001 and that he was making an appointment. The worker noted that in July 2002, he lifted a microwave oven and his back hurt for several days. The worker asked the WCB for assistance in managing his back pain.

On or about August 28 or 30, 2002, the claimant injured his right lower back and left leg at work. A new claim was filed with the WCB for this injury. While the claim was accepted by the WCB no wage loss benefits were paid as the claimant continued to work.

In a letter dated September 26, 2002, primary adjudication advised the worker that there was not enough medical information from November 9, 2001 to September 3, 2002 to support continuity of his ongoing back difficulties. Based on the weight of evidence, it was concluded that the worker had recovered from his September 2001 workplace injury and that his ongoing difficulties were related to a pre-existing condition.

Additional medical information showed that the worker had a CT scan of his lumbar spine taken on January 16, 2002. There was a suspected "slight disc herniation at L4-L5 on the right". Severe L5-L6 facet arthropathy was noted. A slight degree of spondylolisthesis was present and an element of spinal stenosis was present in the area. Broad based disc bulging was seen.

A narrative report was received from the family physician dated November 25, 2002 summarizing all office visits from March 1996 through to November 2002. In particular, the physician noted that the worker, on November 1, 2002, reported a sudden onset of more severe pain after sneezing the previous week.

In a letter to the worker dated November 28, 2002, a WCB case manager stated, in part, the following:

"During our discussion you reported your ongoing difficulties are not related to any incident that occurred August 30, 2002 at work. You indicated you felt your current back difficulties were a result of a September 14, 2001 back injury (claim number). We discussed there would be no entitlement to further medical aid or medical treatment costs paid on this claim as you were not relating any back difficulties to the August 30, 2002 claim."

The case manager also noted that the worker requested the WCB to reconsider its decision of September 26, 2002 and that a WCB call-in examination was being arranged.

On December 9, 2002, the worker was assessed by a WCB medical advisor and it was concluded that the worker was suffering from significant pre-existing degenerative conditions affecting his lumbosacral spine.

In a letter to the worker dated January 13, 2003, the WCB outlined its opinion that a relationship did not exist between the worker's current difficulties and his July 1998 (later corrected to read September 2001) compensable injury. It was felt that the worker's pre-existing condition may have been a factor in his current difficulties.

In a report dated February 5, 2003, the attending physician stated, in part, that the worker has had ongoing back problems since September 2001 when he developed sudden severe left lower back pain when bending and twisting a 750 pound reel. The physician noted that the worker had recovered from this and was back to work in about six week's time. Further note was made that the worker developed similar symptoms after doing work in the summer of 2002 which consisted of repetitive lifting and bending. The physician noted that the worker's symptoms had settled down and that he experienced a sudden onset of severe pain after sneezing at the end of October, 2002.

On March 7, 2003, Review Office considered the case at the worker's request. Review Office determined that the worker's ongoing back difficulties were not related to his September 14, 2001 compensable injury or to his other two 2001 compensable accidents. In reaching its decision, Review Office relied on the report from the attending physician dated February 5, 2003 which stated that the worker achieved recovery from the September 2001 incident and was back to work in about six weeks time.

Review Office further acknowledged that the worker sustained a new injury while on the job in August 2002 and that he was able to perform his work until the plant closed down for economic reasons on October 4, 2002. It was not until the worker sneezed at home in late October 2002 that his symptoms became acute leading the doctor to declare him unfit for any type of work. Review Office felt the sneeze incident aggravated the worker's pre-existing condition and that the aggravation was unrelated to either claim. Review Office did not believe that the worker sustained a loss of earning capacity due to either his September 14, 2001 accident or to the August 30, 2002 accident.

On June 18, 2004, the case was again considered by Review Office at the worker's request based on new medical information from the worker's treating physicians and from a physiotherapist. After reviewing both of the worker's files and after consulting with a WCB orthopaedic consultant, Review Office considered the accidents of September 14, 2001 and August 30, 2002 and the sneeze at home to have all been temporary aggravations of the worker's pre-existing conditions. Review Office concluded that the worker's ongoing difficulties which prevent him from working were not related to either claim and that the claimant was not entitled to receive payment of wage loss benefits. On September 4, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The worker's appeal involved two issues. The first issue was whether the worker's back difficulties are related to the compensable back injury sustained on September 14, 2001. For the appeal to be successful on this issue we must find a relationship exists between his back injury of September 14, 2001 and his subsequent time loss commencing in October 2002. We were not able to make this finding.

The second issue before us was whether the worker is entitled to the payment of wage loss benefits. At the hearing the worker confirmed that he is seeking wage loss benefits after October 4, 2002 which is the date he was laid-off from work due to the closure of his workplace. For the appeal to be successful on this issue we must find that the worker's wage loss after October 4, 2002 was due to a compensable workplace injury. We did find that the worker was entitled to wage loss for the period from October 4, 2002 to December 9, 2002. This wage loss arises from the workplace injury in August 2002.

We note there is some contradictory information regarding whether the August 2002 incident occurred on August 28, 29 or 30. For the purposes of this decision we accept that the date was August 28. This date was confirmed by the worker at the hearing.

Evidence at the Hearing

The worker attended the hearing and made a submission. He described his injury in September 2001 and the injury in August 2002. He provided the opinion that the August 2002 injury was related to the September 2001 injury. He stated that after the September 2001 injury, he returned to work too early and was put in a position where a re-injury to his back was inevitable. He noted that his employer did not have a proper light duty program and this led to the August 2002 injury. After the August 2002 injury the worker was provided light duties on the cutting line. He advised that he reported to work but did not perform any duties with the concurrence of the employer. This continued until the workplace closure on October 4, 2002.

The worker noted that prior to the September 2001 injury, he had a healthy back and he had never missed a day of work because of a sore lower back.

The worker described his condition from September 2001 to the August 2002 injury and to the date of the hearing. With respect to the symptoms he noted that his symptoms have always been the same. At the hearing he advised: "Let me state here, the pain has always been on the left side of my lower back, with pain traveling down my left leg." He acknowledged that the CT scan showed bulging on the right side at the L4-L5 level but that his symptoms are left sided.

Analysis

As previously noted we are not able to find that the worker's current back difficulties are related to his September 2001 injury. Having considered all the evidence, we find on a balance of probabilities, that the September 2001 workplace incident aggravated the worker's pre-existing condition. The aggravation was resolved by December 2001 when the worker had returned full-time to his regular duties. In arriving at this decision we rely upon the following:

• Following the worker's September 2001 injury the worker returned to work, initially to light duties and then to regular duties, which were quite physical. Although the worker advises that he worked in constant pain, he did not contact the WCB about his condition until August 2002.
  
  
• There is some question about whether the worker sought medical attention during the period from November 2001 to September 2002. At the hearing the worker advised that he saw his physician in December 2001 and May 2002. This information conflicts with information provided by the physician that the worker had not sought treatment for his back after November 9, 2001 until September 3, 2002. With respect to a visit in May 2002, the worker could not remember what prompted this visit to the physician. He indicated that nothing specific had happened to his back to cause him to see his physician. At this time he told his physician that he was doing a very physical job which was causing him pain. Whether or not the worker sought medical attention for his back on these dates, we note that neither the worker nor the physician contacted the WCB to report any problems. This does not support the worker's position that he had not recovered from the September 2001 injury.
  
  
• A CT Scan was conducted in January 2002. A report of the CT scan noted significant degeneration in the worker's back. The report notes:
  
  "Impression: Slight disc herniation at L4-L5 on the right is suspected. Facet arthropathy is noted. At L5-L6 (six lumbar type vertebrae are present) severe facet arthropathy is noted. A slight degree of spondylolisthesis is present and an element of spinal stenosis is present in this area also. Broad based disc bulging is seen."
  
  
• A WCB orthopedic consultant reviewed the worker's file in June 2004 and provided the following opinion:

  "The claimant has pre-existing lumbar facet arthritis; degenerative spondylolisthesis + degenerative disc disease with temporary aggravation occurring in CI [compensable injury] of Sept. 14/01 & Aug. 30/02. Any ongoing symptoms result of pre-existing. Also occurred with incident at home."

Given these findings, we conclude on a balance of probabilities that the worker's current back difficulties are not related to his compensable injury in September 2001. Accordingly, we would deny his appeal on the first issue.

With respect to the second issue, we find that the worker is entitled to wage loss benefits after October 4, 2002 to December 9, 2002, the date on which the worker was examined by a WCB medical advisor. On this date the medical advisor commented:

"It is the medical advisor's opinion therefore, the claimant is suffering from significant pre-existing degenerative conditions affecting his lumbosacral spine. Today's findings were reviewed at length with the claimant utilizing plastic model and diagrams to offer explanations. The claimant would benefit from weight loss and abdominal strengthening program in addition to regular daily exercise and stretching protocols. The claimant would also benefit from the utilization from an anti-inflammatory/osteoarthritic medication of the family physician's choosing in light of his significant degenerative spinal changes."

We find that on August 28, 2002 the worker suffered an aggravation to the pre-existing condition in his back while at work. We further find the worker recovered from the aggravation by December 9, 2002 the date on which he was examined by the WCB medical advisor. In accordance with Board policy 44.30.20, we find that after the plant closure on October 4, 2002, the worker suffered a competitive disadvantage compared to uninjured workers of this employer, in that he was not able to work or accept other employment during the period of the aggravation. He is therefore entitled to benefits between October 5, 2002 and December 9, 2002. We also find that any ongoing difficulties after December 9, 2002 were due to his pre-existing condition, as noted in our reasons on the first issue.

The worker's appeal is allowed in part.

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 18th day of November, 2004