The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 2, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant's continuing symptoms and restrictions are as a result of the November 20, 1998 compensable accident.

Decision

That the claimant's continuing symptoms are a result of the November 20, 1998 compensable accident.

Decision: Unanimous

Background

On November 20, 1998, the claimant was assisting another co-worker to carry a framed wall when he slipped on a piece of "poly" and fell sideways. Initial medical information from the attending physician diagnosed the claimant with a lumbar sprain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing December 5, 1998.

Further file information showed that the claimant underwent a reconditioning program and was treated by a physical medicine and rehabilitation specialist (physiatrist) for a right S1 radiculopathy condition. Laboratory investigations included a CT scan of the lumbar spine dated April 23, 1999 and an MRI examination dated September 23, 1999. The MRI results revealed, "…some degenerative disc desiccation and disc space narrowing at L4-L5 and L5-S1. No evidence of spinal stenosis, foraminal encroachment, or disc herniation…"

On June 27, 2000, the claimant was assessed at the WCB's Pain Management Unit (PMU). Following this assessment it was determined that the claimant did not meet the criteria for chronic pain syndrome although he continued to be pain focused.

On July 25, 2000, a WCB case manager determined that the claimant did not have any current physical restrictions that would be related to his original compensable injury. The case manager advised the claimant that his WCB benefits would end on August 1, 2000 and that chiropractic responsibility would not be accepted beyond July 25, 2000.

In February 2002, the claimant contacted the WCB to report ongoing difficulties with his back that he related to his 1998 compensable injury. The claimant noted that his condition hadn't changed since August 2000 and that he couldn't lift anything heavy and had to switch positions every 15 minutes from standing to sitting. The claimant reported that he attempted employment in April, June, September and November 2001 but had to cease work because of pain.

On January 28, 2002, the treating physiatrist noted that the claimant was seen on January 25, 2002 for review of his right sided low back and leg pain. The specialist summarized his report by stating that the claimant had clinical signs of right S1 radiculopathy which was similar to his prior presentation and that it may represent a chronic neurogenic lesion.

On March 19, 2002, a repeat MRI examination was carried out on the claimant's lumbar spine. The MRI revealed a small central disc protrusion at L4-L5 along with mild degenerative changes in the lower lumbar spine and a small annular tear at L5-S1.

In a follow-up report dated April 2, 2002, the physiatrist commented that the annular tear at the L5-S1 region was contributing to the claimant's chronic pain. An epidural injection was scheduled.

On May 2, 2002, the claimant was advised of the WCB's decision that the new medical information did not alter its previous decision of July 25, 2000. The case manager stated, in part, "…there was no annular tear or disc protrusion noted on the first MRI. As the first MRI was done after the work place injury, neither the annular tear nor the protrusion can be related to that work place injury. Whether the annular tear is causing your ongoing pain is not a question for us, as we can't relate the annular tear to the workplace injury. The MRI findings would indicate that the disc protrusion is not causing the pain as there is no nerve root compression."

On January 3, 2003 and April 24, 2003, a worker advisor, acting on behalf of the claimant, submitted new medical information which had been prepared by the treating physiatrist dated October 4, 2002 and March 24, 2003 for primary adjudication to consider. On January 29, 2003 and May 5, 2003, the WCB case manager determined that the new medical information did not alter the WCB's position of May 2, 2002.

In a submission dated December 10, 2003, the worker advisor asked Review Office to review the case manager's previous decisions. The worker advisor contended that there was enough evidence on file to conclude that the claimant's continuing symptoms and restrictions were the direct result of his November 20, 1998 compensable injury.

Prior to considering the above appeal, Review Office sought the medical opinion of a WCB orthopaedic consultant. On June 18, 2004, the orthopaedic consultant outlined his opinion that the March 19, 2002 MRI findings were consistent with degenerative disc disease. He also stated, "There have been no imaging studies which show findings consistent with and attributable to the CI [compensable injury] of November 20/98 and which would explain the reported radiculopathy on clinical examination."

On June 11, 2004, Review Office determined that the claimant's continuing symptoms and restrictions were not the direct result of his November 20, 1998 workplace injury based on its review of The Workers Compensation Act (the Act) and board policies concerning pre-existing conditions. On July 9, 2004, the claimant appealed Review Office's decision and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant injured his lower back when he slipped and fell sideways while carrying a framed wall. A thorough review of the evidence reveals that ever since the occurrence of this incident the claimant’s clinical presentation has been consistent. That is, he presents with S1 radiculopathy. This fact was made very clear by the claimant’s treating physical medicine and rehabilitation specialist in his letter to the worker advisor dated October 4, 2002, in which he stated:

“He [the claimant] was seen initially on May 4, 1999 and has been seen on a regular basis since then with his last visit on August 7, 2002. Over this period of time, this patient has presented with persistent symptoms in the distribution of the right S1 spinal nerve. His physical examination has changed minimally over multiple examinations during this time period. He therefore has sound clinical support for an anatomic diagnosis.”

Approximately eleven months following his compensable injury the claimant underwent an MRI study of his lumbar spine. The results revealed a normal examination. A repeat MRI was conducted on March 19, 2002. On this occasion, the process disclosed “mild degenerative changes in the lower lumbar spine with a small annular tear at L5-S1”. With respect to the difference in findings between the two MRI examinations, we accept and agree with the treating physician that the claimant’s clinical presentation has nevertheless remained constant in regards to his continued chronic S1 radiculopathy and associated symptoms.

“As mentioned previously, the only way to accurately compare (sic) differences between the two MRI studies, is to have both MRI’s reviewed side-by-side. Depending on the techniques used in the two studies, this may establish whether an annular fissure was present in the prior study as compared to the latter study. This may be helpful in establishing whether the L5-S1 segment may be a source of pain in this particular patient as it relates to his chronic presentation. However, even a clear discrepancy between the two studies does not alter the clinical impression of a chronic right S1 radiculopathy that was present prior to the first study.”

We find based on the weight of evidence that the claimant has not fully recovered from the effects of his November 1998 compensable injury and that his continuing symptoms are as a result of this accident. It should be noted, however, that the claimant has been able to secure periodic employment despite the effects of his ongoing symptoms.

As to the matter of restrictions, there has been no formal assignment of any restrictions by any of the claimant’s treating physicians. In particular, we note the comments of the treating physical medicine and rehabilitation specialist in his letter of October 4, 2002 to the Worker Advisor.

“Although he has chronic low back and leg pain, there is no intervention with respect to workplace restrictions that are likely to alter his long-term prognosis. Accordingly, I have advised the patient to continue to remain as active as possible and to attend to whatever activities he is capable without limitation. His symptoms may prevent him from performing certain activities. However, an arbitrary restriction has not been imposed.”

As an aside, while no formal restrictions have been imposed, we nevertheless accept the claimant’s evidence that because of his ongoing symptomology he is unable to perform many of the work related tasks of a framing carpenter that he was able to perform prior to the compensable injury. In other words, he is unable to sustain on a full time long-term basis the duties of a framing carpenter without experiencing a recurrence of his symptoms and time loss.

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 25th day of November, 2004