The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 31, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to further compensation benefits.

Decision

That the worker is entitled to further compensation benefits up to August 3, 2004.

Decision: Unanimous

Background

On January 30, 2004, the worker reported an injury to his lower back. Initial medical reports on file indicated that the worker was treated by a general practitioner and by a chiropractor. The diagnoses rendered were "muscle spasm of the lower back" and "mechanical low back pain". The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly. In February, March and April 2004, the worker returned to modified duties but continued to experience ongoing back difficulties.

A WCB chiropractic advisor examined the worker on March 26, 2004. The chiropractic advisor noted that he was unable to examine the worker sufficiently to establish an anatomic basis for his reported low back pain. A CT scan was ordered to rule out overt disc or bony pathology. In the meantime, the chiropractic advisor indicated that the worker could continue with modified duties as he was unable to identify an organic problem that would limit the worker's ability to continue with his duties.

On April 14, 2004, a CT examination of the lumbar spine was undertaken. At L2-L3 and L4-L5 there was mild diffuse posterior disc bulging. At L3-L4 there was a small left paracentral disc protrusion present and at L5-S1, no abnormalities were demonstrated.

In a memo dated May 14, 2004, the WCB chiropractic advisor noted that the worker's condition developed gradually without specific trauma. In the absence of a precipitating event (i.e. full lift), the advisor felt it was unlikely that the findings on the CT scan could be attributed to worker's workplace activities.

On May 20, 2004, the treating physician called the WCB to indicate that she saw the worker yesterday and he was complaining of increased back pain "but at an area different from pathology on CT". The physician stated that she was going to refer the worker to physiotherapy, provide analgesics and would send in a report.

On August 9, 2004, the case was reviewed by the WCB chiropractor advisor who had examined the worker on March 26, 2004. He stated, "In my opinion, his current problems are not related to the effects of the C.I. Because I was not able to examine him, it is difficult to state precisely when he had recovered. However, based on the description of injury provided, a 6-8 wk. recovery would be expected. In my opinion, further care does not relate to this C.I."

On August 10, 2004, a WCB case manager informed the worker that she was unable to establish an ongoing cause and effect relationship between his compensable injury and his ongoing problems. The worker was advised that the WCB would no longer pay for further treatment in relation to his compensable injury and that he had recovered from the effects of his accident. On April 19, 2005, the worker's advocate appealed these decisions to Review Office and made reference to two medical reports from a physical medicine and rehabilitation specialist dated July 13 and August 4, 2004.

In a report to the family physician dated July 13, 2004, the physical medicine and rehabilitation specialist stated that the worker did not give a clear history and had minimal findings on physical examination. "Nevertheless, there is some evidence of left L5 radiculopathy which would fit with the CT scan examination." A trial epidural injection was suggested.

In a further report dated August 4, 2004, the physical medicine and rehabilitation specialist reported that the worker had undergone a left L5-S1 transforaminal epidural injection and that the worker's pain was gone with the exception of some occasional low back pain. Recommendations were made for some formal reconditioning prior to the worker's return to heavy labour.

In a decision dated May 12, 2005, Review Office determined that the worker had recovered from the effects of his compensable injury; that no responsibility would be accepted for the worker's ongoing back problems; and that there was no entitlement to further compensation benefits. Review Office accepted that the worker, on a balance of probabilities, had suffered a musculoligamentous strain at the time of his injury for which he had recovered based on the absence of findings to suggest otherwise. Review Office felt that the worker's 'discogenic' back pain accounted for his ongoing problems and were not considered related to the effects of his workplace injury. In June 2005, the worker's advocate appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Panel was asked to determine whether the worker is entitled to further compensation benefits. For the appeal to be successful, the Panel must determine that the worker had not recovered from the workplace injury and continued to suffer a loss of earning capacity due to his workplace injury beyond April 2004. The Panel determined that the worker is entitled to benefits up to and including August 3, 2004.

Evidence and Argument at Hearing

The worker attended the hearing with an advocate who made a presentation on the worker's behalf. The worker answered questions posed by his representative and the Panel. The employer was represented by an advocate who made a presentation on behalf of the employer.

The worker described his back condition and the medical treatments that he has received. Regarding the current status of his back, he advised that he is not working but is attending an educational upgrading program. He has not worked since 2004, although he did attempt working at a different job for a different employer. He described his duties after the accident and stated the duties provided by his employer were not light duties.

The worker's representative noted there is no dispute that the worker had a work injury or that the worker has "back trouble". He stated that a common sense review of the evidence leads to the conclusion that the worker's back troubles are caused by his work injury. He stated that light duties were not provided as recommended, and that this impacted the worker's recovery.

The employer's representative stated that at most the case involves a short-term aggravation of the worker's progressing degenerative condition. He stated that the worker's CT scan results are not consistent with the workplace injury as described by the worker. With regards to light duties, the employer's representative stated that the employer has medical notes indicating that the worker could lift up to 20 pounds and does not feel it exceeded the restrictions in this case.

Analysis

The Panel has carefully considered the evidence in this case and on a balance of probabilities finds that the worker's current condition as noted in CT scans of April 2004 and May 2005 are not attributable to the worker's workplace injury. The Panel also finds that the worker's condition after August 3, 2004 is not related to the workplace injury.

The Panel makes these finding after examining all the evidence commencing with the original report of the accident and workplace injury. The Panel notes the description of the accident provided by the worker is of a gradual onset of pain without a specific contributing event. The first diagnosis offered by the treating physician on February 4, 2004 is "muscle spasm of the back." The diagnosis offered by a chiropractor who saw the worker on February 16, 2004 is of "mechanical low back strain". We note that on May 14, 2004 a WCB chiropractic advisor commented that in the absence of a precipitating event, it is unlikely that the CT scan results can be attributed to the workplace activities. The Panel agrees with this assessment.

On the question of whether the worker has recovered from the workplace injury, the Panel finds that by August 3, 2004, the date on which the worker's file was reviewed by the physical medicine and rehabilitation specialist, the worker had recovered from the workplace injury and that any ongoing difficulty was likely due to the worker's pre-existing condition. In making this finding the Panel relies upon the following:

• opinion of WCB chiropractic advisor provided August 9, 2004 that "in my opinion his current problems are not related to the effects of the CI (compensable injury)." While the advisor cannot state specifically when the worker recovered, he is of the view that by this date further care is not related to the workplace injury.
• report of physical medicine and rehabilitation specialist dated August 4, 2004. This report arises from an August 3, 2004 examination of the worker and provides "Since my previous letter, he underwent a left L5-S1 transforaminal epidural injection. Subsequently, he reports that his pain is gone with the exception of some occasional low back pain. He has no need for any pain medications. His examination shows resolution of dural tension and normalization of his left EHL strength."
• CT scan of April 2004 and May 2005 and opinion of WCB orthopaedic consultant in a memo dated May 4, 2005. This memo notes that "The claimant has pre-existing degenerative disc disease at 2 levels at least on the basis of CT findings." This supports our finding that the worker's ongoing difficulties are related to his pre-existing condition.

The Panel finds that the worker is entitled to benefits up to August 3, 2004. The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of October, 2005