The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 21, 2005, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 28, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond November 28, 2003.

Decision: Unanimous

Background

On January 28, 2000, the worker injured his lower back when he slipped and fell while loading cases of antifreeze onto the back of a truck.

In a report to the family physician dated February 23, 2000, the treating orthopaedic specialist diagnosed the worker's condition as sciatica. The specialist also commented that x-rays of the lumbosacral spine revealed marked degenerative changes in the spine and apophyseal joints and considerable degenerative narrowing at the L3, L4, L5 and SI levels. Previous x-rays showed somewhat less degenerative changes.

On June 9, 2000, the treating orthopaedic specialist reported that the worker's physiotherapy was discontinued and that he still complained of ongoing pain in the low back and right leg along with weakness in the right lower leg and right foot.

On July 6, 2000, a WCB orthopaedic consultant made the following comments after his examination of the worker:

"The claimant has advanced diffuse lumbar disc degeneration, certainly more than expected for his age. It is accepted that the injury of this claim date resulted in a demonstration of radicular right lower limb pain, probably the L5 root. There is no further clinical evidence of active lumbar nerve root compression. The absent right ankle jerk is, I think, quite old. The CT scan has not demonstrated a disc herniation at L4-5. It is possible that there may have been a significant disc bulge which has subsided and it is also possible that the right L5 root may have been involved by the lipping and spur formation in the region of the intervertebral foramin at L5-S1."

The WCB orthopaedic consultant concluded that the worker was capable of light duties and restrictions were outlined to avoid driving heavy duty vehicles, no repetitive lifting in excess of 20 lbs., no single lifts over 40 lbs. and no limitations with sitting, standing or walking.

On August 31, 2000, the WCB orthopaedic consultant stated that the worker's extensive multilevel disc degeneration was a significant pre-existing condition that was impacting his recovery.

In a memo to file dated October 20, 2000, the WCB orthopaedic consultant noted that an EMG of October 10, 2000 confirmed a right L5 root lesion as suggested on clinical assessment. He further stated, "I cannot say for sure if the L5 root was affected by an L4/5 bulge/protrusion or aggravation of degenerative changes at L5/S1 but on balance of probabilities it arose out of the workplace injury…".

On February 24, 2001, the WCB orthopaedic consultant responded to several questions posed by primary adjudication. In particular, the consultant commented that the weakness of the worker's dorsiflexion in the right ankle and toes was related to the workplace injury and could be considered permanent.

On July 10, 2001, the WCB orthopaedic consultant indicated that the worker's restrictions as outlined on February 24, 2001 were now "permanent".

In a memo addressed to the WCB's orthopaedic consultant dated July 7, 2003, a WCB case manager indicated that the worker had been participating in vocational planning and had returned to school full-time. She also noted that the worker had been involved in a motor vehicle accident on September 7, 2002, which had delayed his vocational rehabilitation plan. The case manager asked the orthopaedic consultant to examine the worker and to comment on the diagnosis, restrictions, etc.

On September 19, 2003, the worker's treating orthopaedic consultant reported that the worker complained of weakness in the right lower leg and foot and had occasional pain in the low back and right leg.

A WCB orthopaedic consultant examined the worker on October 21, 2003. The consultant stated, in part, that the worker had made a significant improvement since his previous call-in examination but that restrictions were still required.

In a memo dictated on November 6, 2003 and typed on November 17, 2003, the WCB orthopaedic consultant stated that he had reviewed video surveillance segments of the worker in various indoor/outdoor activities. He concluded that the surveillance did not identify any evidence of loss of function arising out of the lumbar spine and was of the view that the worker had recovered from his workplace injury. He also rescinded the workplace restrictions that were outlined on October 21, 2003.

In a letter dated November 27, 2003, the worker was advised that based on the medical opinion of November 17, 2003 and the video surveillance evidence recorded between July 29, 2003 and October 31, 2003, that the WCB was ending responsibility for his claim effective November 28, 2003.

On May 6, 2004, legal counsel, acting on behalf of the worker, appealed the above decision to Review Office. Included with the submission was a report from the family physician dated January 27, 2004, a report from the treating orthopaedic specialist dated January 23, 2004 and a report from a chiropractor dated March 8, 2004. On May 19, 2004, Review Office referred the case back to primary adjudication to consider the new medical information.

On May 27, 2004, primary adjudication forwarded the case to the WCB's orthopaedic consultant to review and to comment on the new medical information. The orthopaedic consultant's response to primary adjudication was dictated on June 10, 2004 and was typed on June 17, 2004.

In a letter to the worker and his legal representative dated June 23, 2004, the WCB case manager outlined her position that no change would be made to the earlier decision of November 27, 2003. The case manager concluded that "…there is lack of clinical findings, both from reports of the physicians/chiropractors/ and call in exam, along with video surveillance showing no effects of the compensable injury to consider reinstatement."

On October 29, 2004, Review Office confirmed that the worker was not entitled to wage loss benefits beyond November 28, 2003. Review Office stated that the at-work accident on January 28, 2000, resulted in a lower back strain which served to aggravate the worker's underlying pre-existing degenerative disc disease. Review Office indicated that there was no evidence to suggest the pre-existing condition had been enhanced given the lack of ongoing positive neurological findings and the lack of any worsening in the degenerative process. It was Review Office's opinion that the worker's ongoing complaints were more reasonably associated with his pre-existing degenerative changes in his lumbosacral spine than to the injury he sustained on January 28, 2000. On February 22, 2005, legal counsel, representing the worker, appealed Review Office's decision and an oral hearing was arranged.

Reasons

Radiological evidence clearly establishes that the worker has a non-compensable pre-existing lumbar spine condition. X-rays of the lumbar spine taken on January 28, 2000 revealed severe degenerative narrowing of the L5-S1 intervertebral disc space together with mild vertebral end plate osteophyte formation at the L3-4, L4-5 and L5-S1 levels.

The overwhelming preponderance of evidence leads us to conclude that the worker has recovered from the effects of his compensable injury and that his ongoing medical difficulties are as a consequence of his pre-existing condition. In arriving at this conclusion, we attached considerable weight to the following body of evidence.

• August 19, 2003 treating orthopaedic surgeon's medical report. "On examination, dorsolumbar spine has full movements. Straight leg raising is to 90° bilateral and there is pain on elevation of the right leg. The right ankle reflex is absent. There is slight weakness of the extensor to the right great toe. He tells me he will be attending Red River Community College in Winnipeg."
• August 27, 2003 worker in conversation with a WCB case manager. "Mr. [the worker] has applied for the courses. He advised the examination [i.e., scheduled appointment with WCB orthopaedic consultant] is not necessary now as he advised over the past month he has improved dramatically and feels he is capable of attending the courses."
• October 21, 2003 WCB orthopaedic consultant's examination notes of worker. "The claimant has made significant improvement since the previous call-in examination. He remains symptomatic with occasional symptoms of lower back and right lower limb pain, and an impression of weakness of dorsiflexion at the right ankle and toes. This examination did not demonstrate any individual weakness in this area, nor is there any muscle wasting in the right lower limb. However, the symptoms may still be attributable to a right L5 root lesion arising out of the workplace injury of this claim number."
• November 6, 2003 review of surveillance video and file by WCB orthopaedic consultant. "This surveillance has not identified any evidence of loss of function arising out of the lumbar spine injury of this claim. Returning to the call-in examination of October 21, 2003, it was noted that in spite of his complaint of weakness or foot drop, there was no measurable wasting of calf or thigh in the right lower limb, which was surprising in view of the duration of this complaint. From the further information provided to me regarding his workplace activities and observation of surveillance video, it is my opinion that the claimant has fully recovered from the workplace injury. The restrictions of October 21, 2003, are rescinded."
• January 23, 2004 treating orthopaedic surgeon's report. "Observations regarding current condition. Dorsolumbar spine movements slightly restricted. Slight weakness of extensors to right foot (grade 4+). X-rays of lumbosacral spine, 19 January 2004; 10º lumbar scoliosis convex to the left; marked lumbar spondylosis with degeneration and spurring and narrowing of the discs from L3 to S1."
• January 27, 2004 treating chiropractor's report. "At present, the patient is stable now, however, his condition that was previously diagnosed as degenerative disc osteoarthritis can progress with age and will deteriorates (sic) after any back injury."
• June 10, 2004 WCB orthopaedic consultant's medical review. "My interpretation of the video surveillance was that he demonstrated the ability to walk continuously, combined with frequent lifting for periods in excess of his claimed intolerance. Further, on the video surveillance of October 30, 2003, 8:19 p.m., the claimant modified his walking to give the impression of the right leg weakness when he became aware of the surveillance. Immediately prior to that he appeared to have no difficulty. The diagnosis of the work related injury was a strain of the soft tissue of the lower back and an aggravation of pre-existing lumbar disc degeneration and possible L4/5 disc herniation which however was not demonstrated on CT examination. Refer to my call-in examination of July 6, 2000. Note also at that time there was no evidence of lumbar root compression on clinical assessment. It remains my opinion that the claimant had recovered from both of these diagnoses and that the restrictions were no longer required. I have found no new medical information on the reports which would change this opinion. In fact, it is the claimant's pre-existing condition that is characterized by episodes of remission and relapse."

Given our findings that the worker has recovered from his compensable injury by November 28, 2003, we find that the worker is not entitled to wage loss benefits beyond that date. Accordingly, 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 1st day of September, 2005