The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 21, at the employer's request.

Issue

Whether or not the worker's ongoing back difficulties are related to the 1999 claim.

Decision

That the worker's ongoing back difficulties are not related to the 1999 claim.

Decision: Unanimous

Background

On April 26, 1999, the worker reported a twisting/strain injury to his lower back when he missed a step and lost his balance while exiting a vehicle. Initial medical reports diagnosed the worker as having a back strain, however, a subsequent CT scan dated August 27, 1999 revealed a herniated disc at the L5-S1 level. By January 7, 2000, the treating physician considered the worker fit to return to his regular driving duties at 8 hours per day. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

During the course of his employment on May 10, 2002, the worker was driving across an uneven intersection when he experienced a jolt to his lower back when the seat of his bus bounced. Initial medical reports diagnosed the worker as having sustained a right lower back strain as a result of the accident. These reports also noted that the worker had a 1999 pre-existing disc herniation. The claim for compensation was accepted by the WCB and benefits were paid to the worker commencing May 11, 2002.

In July 2002, the worker was assessed by a WCB medical advisor who stated that the worker complained of acute low back pain followed by radicular features radiating into his right leg immediately post-injury. The medical advisor stated that such a presentation would be in keeping with an acute lumbar disc herniation but there was no strong clinical support of an acute disc herniation. He determined that the worker was capable of modified duties with restrictions pending review of an upcoming MRI assessment.

On August 22, 2002, an MRI examination of the lumbosacral spine was carried out. It reported as showing mild degenerative narrowing at L5-S1 and desiccation of the intervertebral disc. There was also a small to moderate sized right posterolateral disc herniation at the L5-S1 level.

The worker was subsequently treated by a physical medicine and rehabilitation specialist. The specialist saw the worker on December 3, 2002 for review of his right L5-S1 disc herniation. The specialist concluded that the worker had clinical signs and symptoms consistent with a right L5-S1 disc herniation irritating the dura and potentially the right S1 spinal nerve. The worker was not responding to the epidural injection along the S1 spinal nerve.

On April 9, 2003, the WCB accepted financial responsibility for the costs associated with a rhizotomy that was suggested by the worker's treating neurosurgeon. By May 14, 2003, the worker reported minimal relief from treatment.

On May 23, 2003, the case was reviewed by a WCB orthopaedic consultant. He outlined his opinion that the compensable injury was a rather trivial injury. He noted that the worker had mild degenerative disc disease according to the MRI. This condition may have been aggravated by prolonged sitting. However, driving over a rough intersection would not likely cause severe prolonged disability. The consultant thought that the worker's present treatment was appropriate and that he would be at a high risk for recurring symptoms if he returned to driving.

An MRI of the worker's lumbar spine was carried out on September 22, 2003 and compared to the previous examination of August, 2002. The September results showed mild desiccation and narrowing of the L5-S1 intervertebral disc. At the L5-S1 level, a small right posterolateral disc herniation was present. There was displacement and suspected compression of the right S1 nerve root. No significant central spinal stenosis was identified. The disc herniation was reported to be slightly smaller on the current examination.

On November 21, 2003, primary adjudication asked the WCB orthopaedic consultant to comment on whether or not there was an ongoing cause and effect relationship between the worker's May 10, 2002 compensable injury and his ongoing difficulties and need for restrictions. The consultant responded by saying "I feel there was an aggravation of pre-ex changes. There are no objective signs of any enhancement. I feel he will need permanent restrictions because of the pre-ex changes in his lumbar/L-S spine." He further stated, "I feel his present symptoms are mainly due to the pre-ex condition. An aggravation should have resolved by now."

In a further memo dated December 4, 2003, the WCB orthopaedic consultant clarified that the worker's pre-existing condition was degenerative disc disease. He noted the MRI findings of August 2002 and September 2003 showed mild degenerative change (desiccation/narrowing) and that this could be related to the 1999 injury. In a further undated memo to primary adjudication, the WCB orthopaedic consultant clarified that the worker's degenerative disc disease was more likely related to the 1999 injury and was not due to the May 10, 2002 compensable injury.

In a letter to the employer dated January 19, 2004, the WCB outlined its position that the worker had recovered from the effects of his May 10, 2002 work injury and that the ongoing effects of his back difficulties were related to his 1999 claim. As the worker's ongoing difficulties were related to a workplace injury, his ongoing back difficulties, restrictions and treatment were the WCB's responsibility.

On July 6, 2004, the employer provided Review Office with a report by an independent orthopaedic specialist dated March 17, 2004 for consideration. The employer felt the opinion expressed by the WCB's orthopaedic consultant on May 10, 2002 was "more presumptive then (sic) definitive as he offers no pathological basis for same."… The employer's position was that the totality of medical evidence, on balance of probabilities, did not support the case manager's decision of December 19, 2003. In the event that Review Office was unable to reverse the WCB's position, a Medical Review Panel (MRP) was requested under subsection 67(3) of The Workers Compensation Act (the Act).

On September 16, 2004, Review Office considered the case including a submission by the worker's union representative dated August 23, 2004. Review Office determined that the worker's ongoing back difficulties were related to the 1999 claim and that an MRP would not be convened.

Review Office preferred to give weight to the WCB orthopaedic consultant who had the opportunity to physically examine the worker on more than one occasion and to peruse the complete claim files of 1999 and 2002 on which to base his opinions. Review Office did not know what specific evidence was made available to the employer's orthopaedic consultant who expressed his opinions outlined in his March 17, 2004 report. As such, Review Office stated that it would not be seeking further opinion by convening an MRP under subsection 67(3) of the Act. On October 28, 2004, the employer disagreed with Review Office's decision that the worker's ongoing back difficulties were related to his 1999 claim and a non-oral file review was arranged.

Reasons

File information reveals that the worker was involved in two (2) separate incidents almost three years apart, involving the same anatomical site i.e., the lumbosacral spine. A thorough review of the evidence, however, does not lead us to conclude that the worker's ongoing back difficulties are in any way connected to the 1999 claim other than the involvement of the lower back.

Degenerative changes of the lumbosacral spine were noted in the August 27, 1999 CT scan. We find that these degenerative changes would not, on a balance of probabilities, have arisen as a consequence of the April 26, 1999 compensable accident, which occurred only four months earlier. We note that subsequent to the occurrence of the 1999 incident the worker recovered and was able to return to full time regular duties in early 2000. In addition, he was capable of performing these duties for at least a two (2) year period prior to the May 10, 2002 compensable accident. We also note there were no medical billings submitted for back complaints between 2000 and 2002.

After having considered all of the evidence, we find that the worker's ongoing back difficulties are not related to the 1999 claim.

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 3rd day of March, 2005