The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 11, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on August 11, 2005 and again on October 27, 2005.

Issue

Whether or not the worker has achieved a functional recovery from the effects of his compensable injury; and

Whether or not the worker is entitled to payment of wage loss benefits beyond August 17, 2004.

Decision

That the worker has not achieved a functional recovery from the effects of his compensable injury; and

That the worker is entitled to payment of wage loss benefits beyond August 17, 2004.

Decision: Unanimous

Background

On November 26, 2001, the worker sustained an injury to his lower back during the course of his employment as a welder. The description of accident was outlined as follows: "I was picking up a rod cylinder and I went to turn around and felt a pinching sharp pain in my lower back."

On December 3, 2001, a CT scan of the lumbar spine was performed. At the L5-S1 level, a broad based central disc herniation was strongly suggested.

In a March 1, 2002 report, an orthopaedic specialist diagnosed the worker with "L5/S1 disc herniation with right S1 sciatica." In a further report dated May 21, 2002, the specialist proposed a right L5/S1 decompression and discectomy. This procedure was carried out on June 6, 2002 and the Workers Compensation Board (WCB) accepted financial responsibility for all costs associated with the surgery. In June 2003, the worker commenced a graduated return to work program.

In a progress report dated September 2, 2003, the treating physician commented that the worker continued to have low back pain and right sciatica, variable intensity. The worker had daily pain with increased activity.

On October 30, 2003, the worker was lifting a hydraulic rod off of a table at work when he felt pain in his back and right leg.

An MRI of the lumbosacral spine was carried out on December 8, 2003. The radiological report concluded as follows: "Essentially no interval change apart from further degeneration seen at the L5 vertebral body as described above."

On January 12, 2004, a WCB medical advisor asked the treating orthopaedic specialist to re-assess the worker with regard to his recent MRI evaluation. The medical advisor suggested that the worker might benefit from a multi-disciplinary rehabilitation program which would maximally try to improve his function and pain levels.

In a letter to the WCB dated February 25, 2004, the treating orthopaedic specialist indicated that the MRI revealed some drying out of L4-5 and S1, but did not show any significant new disc herniation. There was a lot of scarring on the right at L5-S1. The specialist did not feel that further surgery would offer the worker any more functional outcome. Treatment suggestions included a multi-disciplinary approach to rehabilitation and pain control and possibly an epidural Cortisone injection in the future.

In a report dated June 30, 2004, the treating orthopaedic specialist stated, in part:

"After two months of trying to do work hardening, it does not appear to be working. Would consider a time out at this time and ask the board to reassess him with a reconsideration for long term plans. I don't believe he will be able to get back to his heavy previous work activity. I think he is at a stage to start exploring lighter type of work or retraining for lighter type of work."

Between May and August 2004, the worker attended a work hardening program. A Work Hardening Program Discharge Report is on file dated August 16, 2004.

On August 13, 2004, a WCB case manager spoke with the worker advising that he had exceeded his job demands as a welder according to the work hardening program, and that she wanted to arrange a meeting to discuss a return to work. In a further conversation with the worker on August 17, 2004, the worker indicated that he was not going to return to work as he knew he could not perform the duties of the welder position as he had tried it before and after a couple of days he could hardly walk. The worker indicated that he could get three doctors to send in letters stating that he could not return to his pre-accident work.

In a letter dated August 17, 2004, the case manager confirmed to the worker that his benefits were being suspended as of August 17, 2004 due to his unwillingness to participate in the return to work program. Section 22 of The Workers Compensation Act (the Act) was referred to in the decision.

On December 2, 2004, a worker advisor appealed the WCB's decision of August 17, 2004. The worker advisor contended that the worker was not medically fit to resume full duties as a welder. In support of his position, reference was made to the following documents on file:

• report from the treating orthopaedic specialist dated June 30, 2004;
• July 20, 2004 memo where 'he indicated that he is in pain all the time';
• July 28, 2004 memo where 'he said his back is getting worse';
• report from treating physician dated September 7, 2004;
• report from a second treating physician dated September 8, 2004;
• report from treating orthopaedic specialist dated September 30, 2004;
• report from treating chiropractor dated October 4, 2004.

In a decision dated January 11, 2005, Review Office confirmed that the worker was not entitled to payment of wage loss benefits beyond August 17, 2004 and that the worker had achieved a functional recovery from the effects of his accident. Review Office stated that it preferred to place more weight on the work hardening discharge report than on the reports submitted by the treating medical providers who contended that the worker was unable to perform his pre-accident work and should be retrained, or that alternate or modified duties be found for him. Review Office noted that the work hardening discharge report indicated that the worker had achieved a functional recovery from the effects of his accident to the point where he could perform work of a heavy nature, including his pre-accident work. Despite having missed numerous days from the program, the worker achieved physical recovery to the point where he could perform his pre-accident work, if he chose to do so. Review Office noted that because the worker did not avail himself of this opportunity he then failed to mitigate the effects of his accident.

In March 2005, the worker advisor appealed Review Office's decision of January 11, 2005 and an oral hearing was held on August 11, 2005.

Following the hearing and after discussion of the case, the Appeal Panel decided to have the worker examined by an independent specialist with respect to his lower back status. The worker was later examined by an orthopaedic specialist and the specialist's examination report dated September 29, 2005 was forwarded to the interested parties for comment. On October 27, 2005, the Panel met to discuss the case further and consider final submissions received from the worker advisor and the employer's advocate.

Reasons

As the background notes indicate, the worker sustained a compensable low back injury in November of 2001. Based on clinical presentation and various imaging studies, he was diagnosed with an L5-S1 intervertebral disc herniation. The worker's injury eventually led to surgery (laminectomy and discectomy) having to be performed in June of 2002.

Following the formal hearing process, the Panel found it necessary to have the worker undergo an independent medical examination. On September 29, 2005, an orthopaedic surgeon examined the worker. A report under cover of a letter dated October 6, 2005 was forwarded to the Appeal Commission for its consideration.

In arriving at our decision we attached substantial weight to the following portions of the orthopaedic consultant's report:

"At the present time the patient complains of terrible right lower lumbar backache. Pain radiates into the right leg to the calf. The second to the fifth toes go numb, although this varies from time to time."

"On examination today the patient is 6'8" tall. There is increased thoracic kyphosis. When he flexes forward fingertips come to his knees only. Twisting and turning to the side are also decreased. There is tenderness in the right lumbar area. There is a well healed mid lumbar scar. Left straight leg raising is 20°, with some pain on the right, right straight leg raising 15°."

"Various investigations have been done. This would include x-rays of the lumbar spine, CT scans and MRI examinations. The last MRI investigation that I have record of was done on December 8, 2003. This report reads in part 'note is again made of degenerative disc desiccation and disc space narrowing seen at the L4-5 and L5-S1. There has been slight interval increase in signal intensity seen within the L5 vertebral body adjacent to the inferior endplate consistent with further degeneration at this level'. The report also states that there is at the L4-5 level some associated broad shallow disc protrusion which approaches the L5 nerve roots bilaterally, right greater than left. There is a similar report for the L5-S1 disc space."

"This gentleman therefore had an acute episode of disc protrusion, with apparently extruded material. This has been operated on by Dr. [name]. Initial results appear favorable, but then symptoms recurred. Further investigation showed there to be degenerative changes at L4-5 and L5-S1, with a hint of disc bulging towards the right side."

"My presumption is that this gentleman sustained an injury November 26, 2001. In this he injured his lower lumbar spine. There certainly was evidence of injury to the L5-S1 disc space, and presumably also L4-5. Some of the symptoms were alleviated by removal of sequestrated disc material, but the basic injury to the discs remained, and is now giving him trouble."

"I believe this gentleman is severely disabled, unable to do any heavy lifting, twisting or turning. On the evidence that I have available this was initiated by a work related injury of November 26, 2001."

"I feel that this gentleman's prognosis will be some continuing disability from his back. He will not be suitable for heavy work involving lifting, twisting and turning or prolonged standing or walking. I believe that the job of welding does involve exactly these functions. I believe this gentleman should be retrained to some lighter type of work."

After having considered all of the evidence, we find that the worker has not, on a balance of probabilities, returned to his pre-accident physical state. In other words, the worker has not achieved a functional recovery from the effects of his compensable injury. We note in particular the restrictions suggested by the independent orthopaedic medical examiner (not suitable for heavy work involving lifting, twisting and turning or prolonged standing or walking).

With respect to the second issue, we find based on the weight of evidence that the worker is not totally disabled. He has not fully recovered from the effects of his compensable injury and is still experiencing a loss of earning capacity and therefore he is entitled to payment of wage loss benefits beyond August 17, 2004. However, the evidence further confirms that the worker was, at the time his benefits were terminated, capable of performing some type of work within his restrictions. Inasmuch as he failed to mitigate the consequences of his accident, this will affect the amount of wage loss to which he would otherwise be entitled. Accordingly, the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2005