The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 29, 2004, at the worker's request. The Panel discussed this appeal on September 29, 2004 and November 29, 2004.

Issue

Whether or not the worker is entitled to compensation benefits beyond February 6, 2002.

Decision

That the worker is entitled to compensation benefits beyond February 6, 2002.

Decision: Unanimous

Background

On November 9, 2001, the worker was re-aligning a heavy patient when she twisted her middle and lower back. The worker reported that her symptoms became gradually worse to the point where she could hardly walk and that she left work on December 2, 2001. On January 3, 2002, the Workers Compensation Board (WCB) accepted the claim on the basis of a back strain and wage loss benefits were issued to the worker.

In a January 10, 2002 conversation with a WCB adjudicator, the worker claimed that her back problems worsened from carrying two bags of groceries on the day before. In a further conversation dated January 17, 2002, the worker commented that she was told by her doctor that she may have a herniated disc.

On January 29, 2002, a WCB medical advisor reviewed the file information which consisted of physiotherapy reports along with progress reports from the attending physician. The medical advisor's comments were as follows:

"File reviewed. Injury to low back Nov 9/01 - dx [diagnosis] lumbar strain. She recovered and was ready to RTW [return to work] - then she injured her back again while lifting/moving groceries - now recovery delayed due to this re-injury which was not work related. I also note other co-existing non work-related problems - depression, colitis - & don't feel these are related to the C.I. [compensable injury]".

Based on the above comments, primary adjudication advised the worker on January 30, 2002 that the WCB would no longer be responsible for her claim beyond February 6, 2002 as it was felt that she had recovered from her compensable injury and that her non-work related injury of January 8, 2002 was now preventing her from returning to work.

On March 14, 2002, a worker advisor, acting on behalf of the worker, requested reconsideration of the January 30, 2002 decision. The worker advisor contended that the worker had not recovered from the effects of her November 9, 2001 compensable injury when she re-injured her back on January 8, 2002 and that the November 9, 2001 injury contributed to the January 8, 2002 injury. In support of her position, the worker advisor referred to the medical information on file which included a report by the treating physician dated February 22, 2002.

Following a further review of the file information including the new medical report, primary adjudication confirmed its earlier decision of January 30, 2002. The case was then referred to Review Office to consider the worker advisor's appeal.

On April 19, 2002, Review Office determined that no further responsibility would be accepted on the claim beyond February 6, 2002. The rationale for this decision was outlined as follows:

"Review Office do not believe the circumstances of this claim have shown that the 'non-work injury', occurring on or about January 8, 2001 (sic), was predominately attributable to the compensable injury. Rather we believe the claimant's personal actions of 'placing the groceries onto the floor and as she was straightening up' as (sic) the predominant cause for further injury that resulted in radiation of pain down her left leg, an 'urgent CT Scan' and a continuing loss of earning capacity. The physician's findings since the November 2001 work injury, up to the 'second injury' in January 2002, included muscle spasms, tenderness in the left paraspinal muscle area, and normal neurological signs. After the second injury, findings now noted a positive straight leg raise on the left and decreased range of movement and tenderness, especially in flexion, and now a diagnosis of sciatica (where before the diagnosis was a low back muscular strain/sprain). Both the treating physician and physiotherapist on January 8, 2002 believed the claimant required one more week off work. This was not the case following the second injury as "physiotherapy now wanted her to rest".

Considering all the evidence, Review Office believes the claimant was near recovery at the time of her second injury. We believe that any further loss of earning capacity, treatment and/or investigations relate to the second injury that we do not accept responsibility for. There is, therefore, no further entitlement to compensation benefits on this claim." (emphasis in original)

On June 27, 2004, the worker submitted an application to appeal as she disagreed with Review Office's decision. On September 29, 2004, an oral hearing was held at the Appeal Commission.

Following the hearing and after discussion of the case, the Appeal Panel requested additional medical information from the worker's treating physician. On November 5, 2004, all interested parties were provided with the report from the treating physician dated October 30, 2004 which included chart notes from August 15, 2000 through to August 26, 2004 and laboratory results from January 2002 through to May 2004. On November 29, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The issue before us was whether the worker is entitled to compensation benefits beyond February 6, 2002. For the worker's appeal to be successful, we must find that the worker's back problem after February 6, 2002 was related to her workplace injury of November 9, 2001. We did find that the worker continued to suffer the effects of her workplace injury after February 6, 2002.

Evidence at Hearing and Argument

The worker attended the hearing and made a presentation to the Panel. She also answered questions posed by the Panel. The employer was represented by an advocate who made a presentation.

The worker explained the circumstances surrounding the November 9, 2001 workplace injury, the initial treatments following the injury, an incident which occurred on January 8, 2002 involving carrying groceries, her subsequent symptoms and treatments, and the current diagnosis for her injury.

She acknowledged that after the November 9, 2001 injury her condition seemed to be improving until the incident of January 8, 2002. At this time she was carrying a light bag of groceries and a four litre milk container into her home. When she went to drop the milk container onto the floor so she could close the door, the pain in her back intensified. This is when she first noticed the pain radiating down her left leg. She did not think this incident was a new injury. She stated:

"…I just exacerbated the original injury, that the pain was there in the exact same spot, it just went down my leg, because the hernia had, I think popped out more and went on the nerve."

She noted that her physician had suspected a disc herniation with nerve root involvement, but that the early diagnostic tests did not substantiate this diagnosis. It was not until a second MRI scan was performed in May 2004 that this diagnosis was confirmed.

The employer's representative reviewed the evidence on the file and concluded that the evidence supports the Review Office decision. The representative noted that the information regarding the new diagnosis was not on the claim file and acknowledged that this information should be obtained.

After the hearing we asked for updated medical information from the worker's treating physician. She provided copies of reports from specialists and also a recent MRI scan report. This information confirmed that the worker suffers from a disc herniation with nerve root involvement.

Analysis

We accept that the worker currently suffers from a disc herniation with nerve root involvement. While this diagnosis was suspected at an early stage in the claim, the evidence from diagnostic tests was not seen as confirming the diagnosis. As a result, the worker's injury was labeled as a musculoligamentous low back strain/sprain. It was not until 2004 that the current diagnosis was confirmed.

We note the report of the orthopaedic surgeon dated August 26, 2004. He comments that the worker "…suffers from a longstanding L5-S1 disc herniation" and that she is a candidate for surgery. He also noted that the MRI reports demonstrate "…an obvious huge disc herniation at the L5-S1 obstructing the left foramen and compression (sic) the left S1 nerve root. This has been constant since 2002."

We find, on a balance of probabilities, that the worker suffered a disc herniation with nerve root involvement in her workplace accident of November 9, 2001.

In making our decision we had to consider the impact of the non-work incident that occurred on January 8, 2002. At this time the worker was carrying groceries and when she attempted to place them on the floor to shut the door, her pain intensified. The WCB found that on January 8, 2002 the worker suffered another injury when she placed the groceries on the floor and straightened-up. The WCB also found that this incident worsened the worker's condition.

We do not agree with the WCB's position and find, on a balance of probabilities, that the January 8, 2002 incident was not the cause of the worker's disc herniation. In arriving at this decision we rely upon the opinion of the WCB orthopedic consultant. In a memo dated April 10, 2002 the consultant was asked whether the carrying of groceries/ jug of milk incident was significant and whether it resulted in a new injury. The consultant replied: "No; another incident; questionable if it could qualify as an injury."

The orthopedic surgeon who examined the worker in May 2002 commented that "Her present symptoms and signs are related to her previous injury in November 2001. I think the increased back pain due to the lumbar flexion in January could have happened in the normal activities of daily living."

This view was also held by her treating physician. Although she referred to the January 2002 incident as a re-injury, the physician has attributed the disc herniation to the November 9, 2001 workplace accident.

The worker's appeal is allowed.

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 16th day of December, 2004