The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 21, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on July 21, 2005 and again on September 21, 2005.

Issue

Whether or not the worker's low back complaints are related to the December 3, 2002 compensable accident;

Whether or not responsibility should be accepted for the worker's diagnosed major depression with anxiety, associated treatment and time loss; and

Whether or not the worker is entitled to benefits beyond March 17, 2004.

Decision

That the worker's low back complaints are not related to the December 3, 2002 compensable accident;

That responsibility should not be accepted for the worker's diagnosed major depression with anxiety, associated treatment and time loss; and

That the worker is not entitled to benefits beyond March 17, 2004.

Decision: Unanimous

Background

On December 7, 2002, the worker submitted a claim to the Workers Compensation Board (WCB) for a groin injury that occurred at work on December 3, 2002. On this date, the worker was unloading a semi trailer and the power jack was not fully charged. When he pulled the jack with stock, he felt a severe pain in his groin area. He continued to work for a few more hours but had to leave because of the pain.

A Doctor's First Report indicated that the worker had been examined on December 3, 2002 and the diagnosis rendered was "strained right groin - right testicle pain."

A hospital emergency report showed that the worker was treated on December 7, 2002 for entrance complaints of testicular and lower back pain. The report noted that the worker was unloading a truck on December 3 and felt a pull and pain to his right groin. Since then, the pain had moved to the left testicle and left inner thigh and left lower abdomen. The worker now had lower back pain which was described as 'intense, sharp, knife-like'. The diagnosis rendered was a groin strain and a surgery consult was suggested.

In a telephone conversation on January 7, 2003, the worker advised a WCB adjudicator that he was pulling and pushing pallets off of a jack and he felt a twinge in his groin region. He advised that he had returned to work on December 9, 2002 to reduced hours and was doing paper work with no lifting. The worker noted that he went to an emergency department of a local hospital as he was having very bad pain in his groin area and the pain was shifting to the right and left. The worker was advised to go to emergency to see if he had a hernia. The worker told the adjudicator that he did not have a hernia. Later in the day, the worker told his adjudicator that he initially had pain in the right testicle but it had moved to the left testicle. He had swelling in the right testicle for approximately two weeks following the accident. He did not have any lower back pain.

On January 15, 2003, the worker informed the WCB that he had seen a physician at the Pan Am Clinic and was advised that he definitely had back problems but he was not certain to what the testicle problem was related.

A WCB medical advisor reviewed the file information on January 22, 2003. He stated "Given the mechanism of injury; then 4 days after DOI [date of injury] onset significant back pain. Report of back pain & findings very similar between ER-MD and Dr. [name] there is likely a back injury here with either radicular or referred pain to the testicles; but I can't say for sure." The medical advisor added that given the tenuous clarity of the diagnosis, he would like to see the physiotherapist's initial assessment and to monitor the progress of the claim.

An x-ray report of the lumbosacral spine dated January 15, 2003 indicated "…small anterolateral osteophytes and narrowing of the intervertebral disc spaces at L3-4 and L4-5 level. Degenerative changes were noted in the apophyseal joints."

A second Doctor's First Report dated January 16, 2003 indicated that the worker complained of severe testicular pain since December and that he had been seen at a hospital for a hernia. He only had minor back pain until repetitive bending with light duties at work the prior week. He went to see an urologist on February 25. The physician commented that the area of injury was questionable low back pain and testicular pain not yet diagnosed versus back pain with nerve involvement.

On January 23, 2003, the WCB adjudicator accepted the claim based on the diagnosis of mechanical low back pain, testicular pain NYD [not yet diagnosed] versus back pain with nerve involvement.

A physiotherapy report dated January 24, 2003 outlined the following subjective complaints: bilateral testicular pain, left more than right, jabs of pain with movement as well as low back and anterior thigh stiffness.

On February 25, 2003, an urologist reported that the worker had bilateral testicle pain NYD.

In a May 7, 2003 memo, a WCB adjudicator indicated that the worker's symptoms were getting worse. On May 9, 2003, a WCB medical advisor stated that the current diagnosis was unclear but the worker may have myofascial pain secondary to a muscle strain.

On June 10, 2003, an acupuncturist assessed the worker as having mechanical low back pain with sleep disturbance and possible lumbar radiculopathy.

A CT scan of the lumbar spine was taken on July 7, 2003. The radiological report revealed mild degenerative disc narrowing at L3-L4 and L4-L5 and a moderate diffuse disc bulging at L3-L4. There was minor diffuse posterior disc bulging present at L4-L5 with slight focal central disc prominence at L5-S1.

On September 16, 2003, a physical medicine and rehabilitation consultant performed a right transforaminal epidural steroid injection at L5-S1. The indications were, "Right L5 radiculopathy".

In a November 4, 2003 report, a neurosurgeon reported that in his opinion, most of the worker's problems were not radicular in character and that the problem was mechanical pain secondary to an irritation of the zygapophyseal joints and paraspinal muscles. He stated that the occasional more distal pain onto the top of the foot may represent a radicular irritation, but in this case it would have to be from L5 and there was no radiological correlation for that.

On November 26, 2003, the employer's rehabilitation claims specialist outlined his concerns regarding the duration as well as the acceptance of the claim. On January 29, 2004, the worker's union representative outlined her position that the claim was correctly accepted and that benefits and services were correctly provided to the worker.

In a decision dated February 27, 2004, Review Office determined that the claim was acceptable for testicular pain but it was not acceptable for lower back pain. Review Office determined that the worker's benefits should be discontinued effective March 17, 2004 and that he was overpaid wage loss benefits from June 10, 2003 onwards.

With regard to the first issue, Review Office made reference to the initial reporting of injury made by the worker in which he clearly indicated that that the only injury was to his groin area. It was not until December 7, 2002 when the worker attended an emergency facility where he described intense, sharp and knife-like pain. Review Office indicated there had been early speculation that the pain was a referred pain from the lower back area into the testicles and that a neurosurgeon dispelled this theory (report dated November 4, 2003). Review Office also made reference to the comments made by a WCB orthopaedic consultant on February 23, 2004 when he stated that the worker would have had more immediate symptomatology had he injured his back as a result of the described incident and that there would not have been a delay of 3 or 4 days of presenting such symptoms.

Review Office believed that the worker's claim was acceptable for testicular pain, although this had not been specifically diagnosed. It chose the date of June 10, 2003 to end the worker's benefits as this was the date that he attended an acupuncturist and the specialist clearly did not mention any problems with the worker's testicles or groin area following his examination.

In August 2004, the worker contacted the WCB to indicate that he was seeing a psychiatrist for depression which he related to his back pain. The worker requested that the WCB pay him partial wage loss benefits as his depression and back pain were the reasons why he was not able to work full hours.

The WCB requested and obtained additional medical reports from the worker's treating psychiatrist and treating physicians. The worker also was interviewed by a WCB psychiatric consultant on October 26, 2004.

In a decision forwarded to the worker dated November 12, 2004, a WCB adjudicator indicated "…As the diagnosis of depression is related to your ongoing back pain, and the back pain has not been accepted as being related to the original injury of December 3, 2002 your claim for depression has been denied."

On December 16, 2004, the worker's union representative appealed the above decision to Review Office. It was the union's position that the worker's treating psychiatrist's report of August 25, 2004 supported the assertion that the worker's depression was related to his compensable injury.

In a decision dated February 3, 2005, Review Office indicated that there was no evidence to support that the worker had a clinical depression immediately after the work accident or one that was caused by the groin area injury of December 3, 2002. Review Office felt that the worker's response to stress arising out of this claim was not a direct causal result of having strained his right groin while 'pulling a power jack' but rather to ensuing events, his reaction to external stressors, and partially to his back problems which the WCB denied responsibility for. Review Office concluded that on a balance of probabilities, the worker's psychological problems diagnosed as major depression with anxiety was not causally related to his compensable injury of December 3, 2002 and that no responsibility could be accepted for the associated treatment or time loss from work.

On July 21, 2005, an oral hearing was held at the Appeal Commission as the worker's union representative appealed Review Office's decisions dated February 27, 2004 and February 3, 2005. Following the hearing and after discussion of the case, the Appeal Panel asked for additional information to be obtained from the worker's treating neurosurgeon. A response from the neurosurgeon dated July 25, 2005 was forwarded to the interested parties for comment. On September 21, 2005, the Panel met to render its final decision.

Reasons

As the background notes indicate, the worker developed fairly acute bilateral inguinal pain in early December 2002 after unloading a trailer. The pain was so intense that he could not move. Several weeks later the worker began to experience pain in his lower back. He asserts that his lower back complaints are related to the December 3, 2002 compensable accident.

The worker was examined by a neurosurgeon on November 4, 2003. In a letter bearing the foregoing date to the treating physician, the consulting neurosurgeon offered, in part, the following comments:

"The submitted CT scan of the L-spine (July 7, 2003) shows some bulging of the discs. I do not get the impression that there is a frank compression of the thecal sac or the root.

As I discussed with Mr. [the worker] and his wife, it is my opinion that most of the problems the patient has developed are not radicular in character. I think it is mechanical pain secondary to an irritation of the zygapophyseal joints and paraspinal muscles. The occasional more distal pain on top of the foot may represent a radicular irritation, but in that case it would be from L5 and there is no radiological correlate for that. Therefore, at this point I do not think surgical intervention is indicated in Mr. [the worker's] case. On the contrary, I would think that an intense physiotherapy program would be most beneficial."

On January 15, 2003, the treating physician ordered an x-ray of the worker's lumbosacral spine. The radiologist noted degenerative changes with small anterolateral osteophytes and narrowing of the intervertebral disc spaces at L3-4 and L4-5 level together with degenerative changes in the apophyseal joints.

A WCB orthopaedic consultant reviewed the worker's file on February 23, 2004 at the request of Review Office. In reply to a question whether the worker's delayed low back symptomology arose as a consequence of the mechanics of the accident, the consultant replied as follows: "Initial symptoms suggest possible groin muscle pull. Any back injury with referral to testes would have to be upper lumbar (L1-2). This has been ruled out as has any radiculopathy as a result of disc problem (CT & neurosurgeon report). Worker has evidence of pre-existing D.D.D. [degenerative disc disease] & OA [osteoarthritis] (X-ray & C.T.)." In addition, the consultant diagnosed the worker's back problem as being degenerative disc disease and osteoarthritis of the lumbar spine. He further suggested that a sprain/strain of the lower back would result in immediate back pain not several days later.

The treating physician arranged on or about July 25, 2005 for the worker to undergo a consultation with a second neurosurgeon. In his report, the neurosurgeon recorded these remarks:

"His neurologic exam was essentially normal and 5/5 motor strength bilaterally. Sensation was grossly normal. Straight leg raising test was negative. His lumbar range of motion is restricted in flexion and extension. His gait is abnormal due to the fact that he is slightly bent to the left side with ambulation. There is no evidence of scoliotic deformity in the spine on inspection.

A review of the CT scan and MRI showed multilevel degenerative changes without any evidence of central or lateral spinal stenosis. These findings are consistent with his age, and there is no surgically amenable lesion on the MRI.

Impression: A 47-year-old right-handed gentleman with degenerative disc disease presenting with mechanical back pain and occasional radiculopathy."

After having thoroughly considered all of the evidence, we find that the worker's lower back pain complaints are coincidental in time, but not, on a balance of probabilities, related to his compensable accident of December 3, 2002.

With respect to the second and third issues, we note that the particular reports submitted by the treating psychiatrist describe the worker's back problems as being the source of the worker's psychological issues and not the compensable groin injury accepted by the WCB. Given our determination of the first issue, we find that responsibility should not be accepted for the worker's diagnosed major depression with anxiety, associated treatment and time loss. Based on these findings, there is no active compensable condition which would entitle the worker to continued benefits. Therefore, the worker is not entitled to benefits beyond March 17, 2004. 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 25th day of October, 2005