The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 5, 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 is entitled to wage loss benefits beyond November 1, 2002.

Decision

That the worker is entitled to wage loss benefits from November 1, 2002 to March 2004.

Decision: Unanimous

Background

During the course of his employment as a carpenter on September 5, 2002, the worker reported a back injury which he related to the following work activity:

"I was framing a building with four other co-workers. We were lifting the rafters up onto the walls and also climbing up onto the roof and jumping down and I jarred my back."

Initial medical reports revealed that the worker was treated at an emergency/out-patient facility on September 11, 2002 and was diagnosed with right sciatica. X-rays of the lumbar spine dated September 12, 2002 revealed "moderately severe degenerative narrowing posteriorly of the L4-L5 disc…".

A CT scan was undertaken of the lumbosacral spine on December 14, 2002. The results revealed, "Multilevel degenerative disc and facet changes. Possible small right L4-L5 synovial cyst with thecal sac compression. …".

On March 4, 2003, the worker advised his WCB adjudicator that he was involved in a motor vehicle accident (MVA) in October 2002 whereby he sustained a whiplash injury which made his back pain worse.

On April 3, 2003, the worker was advised that the Workers Compensation Board (WCB) was accepting his claim and that he would be paid two weeks of wage loss benefits. The worker was also advised that the WCB would be establishing whether the MVA had any impact on his compensable accident.

In a decision dated June 3, 2003, the WCB determined that the worker's September 5, 2002 compensable injury resulted in a temporary aggravation of his pre-existing chronic low back difficulty and that this aggravation had resolved by November 1, 2002. On June 9, 2003, the claimant appealed this decision to Review Office.

On July 4, 2003, Review Office confirmed that the worker was not entitled to wage loss benefits beyond November 1, 2002. Review Office made reference to the December 14, 2002 CT scan results and was of the opinion that the CT scan findings did not arise from the worker's job duties on September 5, 2002. Review Office also commented that the worker was downplaying the significance of his MVA and made reference to the treating chiropractor's comments that the worker's sciatica and lumbar pain were from previous injuries but had gotten significantly worse after the accident. Review Office also noted that the worker had very significant GI problems which played a role in his overall physical well being and had an influence on his back condition through de-conditioning and inactivity.

On September 24, 2004, a worker advisor contended that the worker had not recovered from his compensable injury by November 1, 2002 based on new medical information that he acquired from three of the worker's treating practitioners. The worker advisor also argued that the WCB's policy on pre-existing conditions were relevant to this case.

On October 14, 2004, Review Office upheld its decision that the worker was not entitled to wage loss benefits beyond November 1, 2002. Review Office outlined its opinion that the worker's severely degenerative spine was negatively affected by the MVA that occurred on October 8, 2002. Review Office pointed out that the treating sports medicine physician found it difficult to comment on what was truly causing the worker's back complaints more than a year after his WCB claim. Review Office indicated that the non-specific type scenario of the compensable accident was consistent with a strain superimposed on a severe degenerative spine. Concerning the worker advisor's position on the WCB's pre-existing policy, Review Office felt that the WCB had implemented that policy as the WCB covered the worker for two months after the September 5, 2002 injury. On November 17, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us was whether the worker is entitled to wage loss benefits beyond November 1, 2002. For the appeal to be successful we must find that the worker continued to have a loss of earning capacity due to the compensable work injury after November 1, 2002. We did find that the worker continued to suffer a loss of earning capacity due to his compensable work injury from November 1, 2002 until March 2004.

Evidence at Hearing

The worker attended the hearing and was represented by a worker adviser who made a presentation on his behalf. The worker answered questions posed by his representative and by the Panel.

The worker described his back condition as it was prior to the September 2002 workplace injury. He acknowledged that he has a degenerated spine and that his back was often tired after a day of work. He noted that before the workplace accident he did not miss any work due to his back. After the workplace injury his back was very painful and he was not able to perform any work duties.

The worker described the accident which resulted in his workplace injury. He noted that he and his co-workers were manually raising roof trusses on a building. The trusses were quite heavy. The work involved lifting the trusses from ground level to roof level. Over the day, 16 trusses were put into place. The worker indicated that he felt some discomfort by noon and by the end of the day the pain was increasing. He stated that the next day he had significant pain, which continued to worsen over time. On October 2, 2002 the worker was admitted to a local hospital due to low back pain which radiated down his right leg.

The worker also described a motor vehicle accident that occurred on October 8, 2002. The worker's vehicle rolled-over and he suffered a whiplash type injury to his neck and shoulders and also headaches. He was treated by a chiropractor. His symptoms from this accident resolved. In his opinion, this accident did not worsen his back condition.

The worker advises that his condition started to improve with physiotherapy and the use of a TENS machine. By spring 2004 his condition improved to the point that he was able to work and found employment.

The worker's representative noted the WCB's finding that the worker recovered from the September 2002 workplace accident, and that his ongoing back problems were due to his pre-existing condition and the subsequent motor vehicle accident. The representative reviewed the medical information on file and noted that this information supports the view that the worker did not recover from the workplace injury until spring 2004.

Analysis

After considering all the evidence including the worker's testimony at the hearing, we found on a balance of probabilities that the worker had not recovered from the September 2002 workplace accident by November 1, 2002. We found that the worker continued to have a loss of earning capacity due to the accident beyond November 1, 2002 until March 2004 when he was examined by the treating sports medicine physician. We found that the worker aggravated his pre-existing condition in September 2002 and that the aggravation resolved by March 2004.

We found that the worker's back was not aggravated by the October 8, 2002 motor vehicle accident. We accept the worker's testimony at the hearing that the motor vehicle accident did not worsen the back symptoms. We note that the worker was hospitalized for his back injury on October 2, 2002, six days prior to the motor vehicle accident. The worker was not hospitalized for his back condition after the motor vehicle accident. We also note, that the chiropractor who treated the worker after the motor vehicle accident, advised in a report dated December 16, 2003 that "The pain he was experiencing with his leg and lower back did not get worse after the accident, they were consistently painful since the work related injury of September 2002, and remained painful and constant after the accident."

The worker testified that his condition began to improve when he commenced physiotherapy treatments and the use of a home TENS machine.

In arriving at our conclusion we attach significant weight to the opinion of the sports medicine specialist who has been treating the worker since August 2003.

In a report dated May 14, 2004 this physician commented:

"My diagnosis on October 1, 2003 was an aggravation of lumbar spondylosis and poor pain control. This diagnosis is supported by his May of 2003 MRI from the Health Science Centre and his physical examination. His examination that day revealed significant point tenderness of the L4-5 spinous processes. He had markedly limited range of motion of his lumbar spine…

[the worker] has essentially recovered from his work related exacerbation. He now experiences only low back pain and has been able to secure a position at a local golf course…

As of my first visit with [the worker] in August of 2003, he was incapable of gainful employment. At the time of this visit he had minimal range of motion, was in significant discomfort, and was on high dose narcotics for pain control. This made him; in my opinion, unable to do any physically demanding occupation. These limitations essentially remained unchanged up until March 2004."

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 27th day of January, 2005