The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 25, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on August 25, 2005 and again on November 17, 2005.

Issue

Whether or not the worker is entitled to benefits beyond May 20, 2005.

Decision

That the worker is entitled to benefits from May 20, 2005 to June 2005 when he returned to full time work duties.

Decision: Unanimous

Background

On December 9, 2003, the worker sustained a work related injury to his lower right back when he slipped on ice and landed on his back and buttocks. The diagnosis rendered by the attending physician on December 9, 2003 was an acute lumbar strain. The Workers Compensation Board (WCB) accepted the claim and benefits were paid commencing December 10, 2003.

Subsequent file records revealed that the worker underwent physiotherapy treatments for his lower back region and various laboratory investigations which included nerve conduction studies, lumbosacral spine x-rays, CT scan and MRI examinations.

In a March 1, 2004 report, the treating neurosurgeon indicated that the worker had quite profound spasticity in his lower limbs which he suspected arrived from a cervical anomaly.

In a report dated April 22, 2004, a neurologist reported that the worker "…was seen one year ago with a clinical picture most consistent with a myelopathy. He underwent an MRI at that time which revealed what was thought to be significant spinal stenosis at C4-5. There was some motion artifact and the study was repeated… . This revealed again a spinal stenosis at the same level but the grade was borderline to mild. His symptoms were stable until December when he fell at work onto his back. Since that time he has had ongoing pain in the lower back radiating to the left leg. This increases with activity. A CT scan…of his lumbar spine failed to reveal any definite pathology. He in the past has undergone three spinal fusions to his lumbar spine the last approximately 10 years ago." The neurologist stated that he was arranging for a further MRI of the lumbar spine to determine whether there was a new pathology to explain the long-standing findings in the worker's lower extremities.

On May 12, 2004, an MRI of the lumbar spine was performed. In a report dated July 8, 2004, the treating neurologist stated, "…His previous problems related to an unusual gait related to spasticity. He was able to work despite that and was in really no pain. In December of 2003 he slipped at work onto his lower back. Since that time he has had ongoing lower back pain which radiates down his left leg to his left foot. The pain prevents him from walking any distance. This is despite Morphine and gabapentin. His MRI has revealed significant degenerative changes in his lumbar spine."

Following consultation with a medical advisor from the WCB's healthcare branch on June 9, 2004, the worker was advised on June 21, 2004 that wage loss benefits would be paid to July 8, 2004 inclusive and final, as it was felt that he had recovered from his work injury and that his ongoing symptoms were related to a pre-existing condition.

In a submission dated September 16, 2004, a worker advisor appealed the above decision to Review Office. The worker advisor contended that the worker's ongoing symptoms were the same as they had been from the beginning of his accident and that he was currently unable to return to his pre-accident employment. In support of her position, reference was made to the neurologist's report of July 8, 2004. The worker advisor believed that the worker was entitled to benefits in accordance with Section 39(2) of The Workers Compensation Act (the Act) and WCB policy 44.10.20.10, Pre-Existing Conditions.

On September 23, 2004, Review Office referred the file back to the case manager to consider the new medical information received from the treating neurologist.

File records consisted of a report prepared by a physical medicine and rehabilitation specialist dated October 1, 2004. His clinical impression of the worker's condition was "bilateral L4-5 radiculitis with possibility of arachnoiditis".

A WCB medical advisor examined the worker on November 24, 2004. The medical advisor concluded that the compensable diagnosis was an aggravation of degenerative disc disease, which should have settled after 11 months. The medical advisor outlined a graduated return to work program for the worker that included restrictions.

Based on the medical advisor's November 24, 2004 examination findings, a WCB case manager advised the worker on December 22, 2004, that wage loss benefits would be paid retroactively to June 29, 2004. The case manager stated that the worker's pre-existing degenerative disc disease was non-compensable as it did not occur as a result of his workplace accident and that the aggravation to the degenerative disc disease was accepted as being compensable.

On January 18, 2005, the worker commenced light duty work with the accident employer starting at two hours per day.

In a January 18, 2005 submission, the worker advisor referred to a progress report from the treating physician dated January 15, 2005 and an Occupational Health Fitness Assessment form. The worker advisor contended that these reports showed that the worker continued to have objective and subjective symptoms of lower back pain radiating into his left foot and that he was disabled from returning to his pre-accident employment as a truck driver.

Following consultation with a WCB medical advisor on January 27, 2005, the case manager determined there was no new information suggesting a reversal of the initial decision, i.e. that the worker's ongoing difficulties were related to his pre-existing degenerative disc disease and that the aggravation of the disc disease would have resolved. The worker was informed that the WCB was arranging a work hardening program due to the length of time that had passed and that he would continue to receive partial wage loss benefits up until the end of this program.

Between March 8 and May 5, 2005, the worker participated in a work hardening program. In the final report dated May 9, 2005, the physiotherapist stated that the worker was very limited functionally due to pain and that the worker made frequent reference to his increased lower back and left leg pain levels. The therapist indicated that the worker's level of medication and frequency continued to be a barrier in his return to work plan.

In a submission to Review Office dated March 8, 2005, the worker advisor appealed the WCB's decisions of June 21, 2004, December 22, 2004 and February 1, 2005. The worker advisor contended that the worker's symptoms continued and that he was unable to return to his pre-accident employment as a semi-driver in accordance with the treating physician's progress report of January 15, 2005.

In a decision of May 10, 2005, the WCB case manager determined that benefits and services would end on May 20, 2005 as the worker's ongoing problems were related to a pre-existing condition and he no longer suffered from the workplace injury.

On May 9, 2005, Review Office confirmed that the worker had recovered from the effects of his compensable injury and that he was not entitled to wage loss benefits beyond May 20, 2005. Review Office noted that the worker had three non-compensable operations to his lower back and that diagnostic testing confirmed the existence of a pre-existing Grade I spondylolisthesis and significant degenerative changes throughout the lumbosacral spine. According to Review Office, there was no evidence to suggest that any structural injury occurred on December 3, 2003 and that the compensable injury was a muscular strain of the right lower back area. Review Office concluded that the worker's ongoing complaints of severe lower back and left leg pain could not be reasonably associated with the injury that took place on December 3, 2003. On May 26, 2005, the worker advisor appealed Review Office's decision and an oral hearing was then arranged.

Following the hearing held on August 25, 2005, the Panel met to discuss the case and it requested that additional information be obtained from the worker's treating neurologist prior to its discussing the case further. An MRI report regarding the worker's lumbosacral spine dated October 11, 2005 was later received and forwarded to the interested parties for comment. On November 17, 2005, the Panel met to discuss the case further and as well consider a submission received from the worker advisor dated October 27, 2005.

Reasons

After having taken into consideration all of the evidence, we find that the worker is entitled to benefits beyond May 20, 2005. We agree with the determinations made by the Review Office that the worker had medically recovered from the effects of the compensable injury by May 20, 2005. Although the worker was fully functional to resume driving in May 2005, he could not, however, legally commence full time driving duties until the prescribed medication that he had been taking for his compensable injury had been fully flushed through his system. We further find that any residual symptoms experienced by the worker beyond the end of June are, on a balance of probabilities, related to his pre-existing degenerative condition. Accordingly, the worker is entitled to benefits from the date of termination to the day at the end of June when he returned to his full time pre-accident duties as a long haul truck driver. The worker's appeal is hereby allowed.

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 28th day of November, 2005