The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 23, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker has recovered from the effects of her March 16, 2004 compensable injury;

Whether or not the worker's current back problems are related to the March 16, 2004 compensable injury; and

Whether or not the worker is entitled to wage loss benefits after November 29, 2004.

Decision

That the worker has recovered from the effects of her March 16, 2004 compensable injury;

That the worker's current back problems are not related to the March 16, 2004 compensable injury; and

That the worker is not entitled to wage loss benefits after November 29, 2004.

Decision: Unanimous

Background

During the course of her employment as an office clerk on March 16, 2004, the worker accidentally fell on slippery ground on the way to pick up the morning mail.

Following an examination on March 22, 2004, the treating physician reported that the worker complained of right leg, hip, back and foot injuries as a result of her accident. The diagnosis rendered was "nerve injury sciatica". A pre-existing condition was identified as "years of problems with her back." The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker.

Subsequent medical information consisted of an x-ray report dated April 6, 2004 of the lumbar spine and pelvis and a CT scan of the lumbar spine dated April 14, 2004.

The worker was assessed by a physiotherapist and the initial assessment report dated May 19, 2004 diagnosed the worker with hip and sciatic notch SI joint contusion.

The treating physician provided the WCB with information dating back to September 26, 2001 which included a report from a neurologist dated January 7, 2002, a report from a physical medicine and rehabilitation specialist (physiatrist) dated November 25, 2002, a CT scan report dated April 10, 2002 and hospital chart notes from September 26, 2001 and February 26, 2002.

In progress reports dated June 4 and July 18, 2004, the treating physician noted that the worker was fit for sedentary duties.

On June 28, 2004, a WCB case manager asked a WCB medical advisor to review the file information and to comment on a diagnosis, the worker's pre-existing condition and whether or not the worker was capable of sedentary work. The case manager noted that the worker was reluctant to return to work because she could not sit for very long and most of her job was sitting and inputting information into a computer. In the medical advisor's opinion, the diagnosis was resolving right L5-S1 radiculopathy. The pre-existing condition was degenerative disc disease at the L/S spine which was likely prolonging the worker's recovery. The medical advisor stated that the worker's pre-existing condition was likely aggravated by the compensable injury. The medical advisor agreed that the worker was capable of office duties with restrictions.

A report was received from the treating physiatrist dated June 28, 2004. He stated that the worker's presentation was consistent with a resolving right lumbosacral radiculopathy secondary to the L5-S1 disc herniation identified on the CT scan. There were no current findings of significant impairment of the nerve root function or significant dural tension.

In a report to the WCB dated July 20, 2004, the treating physician indicated that the worker complained of dyspepsia on May 23, 2004. He felt that the worker's symptoms were aggravated by non-steroidal anti-inflammatory medication used for her radiculopathy.

On August 24, 2004, a WCB medical advisor commented that the worker's gastrointestinal symptoms were not directly related to this claim. It was indicated that the worker could commence a graduated return to work program.

On August 26, 2004, the WCB case manager provided the worker with details of her graduated return to work program and restrictions. However, on September 2, 2004, the employer advised the case manager that it would not be able to accommodate the worker with a position that met the outlined restrictions.

The worker was subsequently examined by a WCB medical advisor on October 20, 2004. Following the exam, the medical advisor concluded that the worker's discogenic pain had resolved and that she was left with residual discomfort in her right buttock muscles. The medical advisor felt that the worker could return to work as previously documented on file.

On November 8, 2004, the worker advised the WCB that she had attended her doctor and physiotherapist the previous week and that they were both of the strong opinion that she could not return to work unless on restricted hours and duties. The case manager advised the worker that this was not consistent with the call-in examination findings and based on the current medical information she was fit to return to work.

In a decision dated November 8, 2004, the WCB informed the worker that wage loss benefits would be paid to November 8, 2004 inclusive. The case manager stated, "Based on all the information, I am of the opinion the compensable injury temporarily aggravated the pre-existing condition, which has now resolved. The medical evidence in particular the comparison of the 2002 CT scan and 2004 CT scan supports that the compensable injury did not enhance the pre-existing condition but only aggravated it."

In a December 10, 2004 progress report, the treating physician noted that the worker complained of increase backache after a physiotherapy treatment on November 30, 2004. The worker was then referred to a physiatrist for treatment.

On January 12, 2005, the WCB case manager advised the worker that after discussing her case with a WCB medical advisor, it was felt that a 3 week graduated return to work program would be appropriate given the length of time that she was off work. As a result, wage loss benefits would be extended to November 29, 2004 inclusive and final.

On January 31, 2005, a worker advisor provided the WCB with a report received from the worker's treating physiatrist dated January 19, 2005. It was the worker's position that this medical report supported that there was a cause/effect relationship between her lower back and right buttock symptoms and the March 2004 compensable injury.

In the report of January 19, 2005, the physiatrist commented that the worker fell in March 2004 with the onset of right sciatica symptoms and that these symptoms differ from the symptoms that she had many years ago associated with discopathy. His impression was that the worker's symptoms were related to a right S1 radicular process secondary to the disc herniation and that this appeared to be independent of her pre-existing condition.

On February 8, 2005, the WCB case manager advised the worker that she was unable to establish that the worker's current low back difficulties were related to the March 16, 2004 accident. The case manager recognized that there was a recurrence of pain and radiculopathy following the physiotherapy treatment of November 30, 2004, however, this treatment was not approved/authorized by the WCB. Based on all the information, it was the case manager's opinion that the worker had recovered from the effects of her workplace accident of March 16, 2004 and that her current symptoms were related to the events of November 30, 2004 and not the workplace accident or activities associated with work.

On February 23, 2005, Review Office received an appeal submission from the worker advisor which appealed the case manager's decision of February 8, 2005. In a decision dated March 16, 2005, Review Office confirmed that the worker had recovered from the effects of her March 16, 2004 compensable injury; that her current back problems were not related to the compensable injury and that the worker was not entitled to wage loss benefits after November 29, 2004.

Review Office established that the accepted 'compensable injury' in relation to the work event of March 16, 2004 was an 'aggravation' of the worker's pre-existing back condition. It noted that there was evidence to support that the worker had significant pre-existing pathology in her spine that pre-dated the work event and that the April 2004 CT scan established that the work incident had not enhanced her pre-existing back condition. Based on the weight of evidence and subsections 60(2) (c) & (e) of The Workers Compensation Act (the Act), Review Office concluded that the worker had recovered from the effects of her compensable injury after her claim ended on November 29, 2004. Review Office also determined that the worker's current back problems were due to a new injury following physiotherapy treatment on November 30, 2004. As the treatment had not been authorized by the WCB, an injury arising out of the treatment was not considered a WCB responsibility. On April 29, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged. On June 7, 2005, the treating physiotherapist provided the Appeal Commission with information in support of the worker's appeal.

Reasons

As a consequence of her compensable injury on March 16, 2004, the worker sustained an aggravation of her pre-existing degenerative back condition. The preponderance of evidence establishes that this aggravation had resolved by the time benefits were terminated on November 29, 2004. In arriving at this conclusion, we attached considerable weight to the following body of evidence.

• June 28, 2004 letter from treating physical medicine and rehabilitation specialist to the attending physician - "Ms. [the worker's] presentation is consistent with a resolving right lumbosacral radiculopathy secondary to the L5-S1 disc herniation identified on the CT scan. This is superimposed on a distal peripheral neuropathy that was diagnosed previously. Overall, there were no current findings of significant impairment of nerve root function or significant dural tension. She describes continuing improvement and I suggested that she continue with her current management."
• August 19, 2004 attending physician's progress report - negative straight leg raising bilaterally and decreased right side paraesthesia.
• August 25, 2004 discussion between WCB medical advisor and attending physician wherein it was mutually agreed that the worker was capable of participating in a graduated return to work program.
• October 20, 2004 WCB medical advisor's examination notes - "This 58 year old lady sustained an injury to her right buttock and lower back. This resulted in lower back pain with some radiation down her leg as far as her knee. She has pre-existing degenerative disc and facet disease. It is my opinion that her initial symptoms which were worse with flexion suggest an aggravation of her disc disease. No significant changes were noted on CT examination. No new neurologic signs have been found by her attending doctor, physiotherapist, Dr. [treating physical medicine and rehabilitation specialist], nor on my examination today. At the present time, I believe that her discogenic pain has resolved and she is left with residual discomfort in her right buttock muscles. It is my opinion that she could return to work as previously documented on her file."
• February 8, 2005 WCB medical advisor memorandum to file - "she may have symptoms related to a disc lesion but as per my exam she has known degenerative disc disease which is pre-existing. She had resolution of her radicular symptoms related to the C/I of Mar 16/04."

We find based on the weight of evidence that the worker has, on a balance of probabilities, recovered from the effects of her March 16, 2004 compensable injury. We further find that the worker's later exacerbations were not caused by the compensable injury, but rather, were occurrences as a consequence of her non-compensable pre-existing degenerative disc disease.

The graduated return to work proposal was, in our view, appropriate given the state of her back condition at the relevant time. The constraints facing the worker were not related to the compensable injury but to other factors such as deconditioning, high blood pressure and pre-existing degenerative disc disease. The evidence confirmed that the worker had recovered from the aggravation of her pre-existing back condition by the date in question. Therefore, the worker is not entitled to wage loss benefits after November 29, 2004.

Given the foregoing findings, the worker'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 August, 2005