Decision #47/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 27, 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 had recovered from the compensable injury by November 24, 2003.

Decision

That the worker had not recovered from the compensable injury by November 24, 2003.

Decision: Unanimous

Background

In February 2002, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during the course of his employment as a carpenter on January 17, 2002. On the date of accident, the worker said he was lifting heavy forms and felt a pinch in his back. He kept on working but his back pain progressively got worse over the next two weeks. On January 31, 2002, the attending physician diagnosed the worker with "low back sprain +/- [plus/minus] radiculopathy". The claim for compensation was accepted by the WCB and wage loss benefits were paid to the worker. In September 2003, the worker began to receive benefits from the WCB's vocational rehabilitation branch.

On November 18, 2003, the worker was informed of the WCB's decision that he had sustained an aggravation of his pre-existing degenerative changes in his back at the time of his compensable accident. It was further determined that the worker's aggravation had resolved and that his ongoing difficulties may be related to his pre-existing back condition. The worker was advised that the WCB's responsibility for wage loss benefits, medical treatment and medications would conclude on November 24, 2003. The WCB case manager relied on the following evidence in reaching her conclusion:
  • CT scan of April 25, 2002 - it revealed "Multi-level degenerative changes, most severe at L4-L5. In particular, there is right L4-L5 osseous foraminal encroachment".

  • examination by a WCB medical advisor on June 21, 2002 - he concluded that the worker "…likely sustained enhancement, on balance of probabilities, at the time of his compensable injury."

  • the July 17, 2003 opinion of a WCB orthopaedic consultant who felt that the worker's pain may be due to pre-existing degenerative change at L4-5 and possibly (not likely) the transitional vertebrae. The consultant suggested an MRI to assess for nerve compression at L4-5 or L5-S1. If negative, he suggested the worker's return to work at sedentary or light work level and to continue symptomatic treatment.

  • report by a physical medicine and rehabilitation specialist (physiatrist) dated September 26, 2003 whose clinical examination revealed pain free and normal range of motion of the worker's lumbosacral spine.

  • September 18, 2003 MRI evaluation which revealed "Possible irritation of the L5 nerve roots secondary to degenerative facet and disc changes…".

  • November 6, 2003 opinion by a WCB orthopaedic consultant whereby he concluded that the worker's symptoms were likely related to degenerative pre-existing conditions and that the worker likely sustained an aggravation in January 2002. The consultant also suggested permanent work restrictions dealing with the worker's pre-existing degenerative changes.
On November 27, 2003, the treating orthopaedic specialist wrote to the worker's family physician. The specialist stated, in part, "While reviewing the chart and the examination (sic) that he has had in May 2002, in July 2002 and October 2002, it seems that this man did have signs of disc protrusion at L4-5, with L5 nerve root involvement that seems to have improved clinically as well as neurologically as it happens most of the time in people with disc protrusion. It is therefore not surprising that the MRI done in September 2003 did not show disc protrusion."

On January 15, 2004, the WCB case manager advised the worker that she had reviewed the report by the orthopaedic specialist dated November 27, 2003 and that it was still the WCB's decision that he had recovered from the effects of his workplace injury.

In a letter to the WCB dated March 25, 2004, a worker advisor submitted new medical evidence received from the treating orthopaedic specialist dated March 12, 2004. The worker advisor was of the view that this report supported the position that the worker had not recovered from the effects of his compensable injury. In a response dated March 29, 2004, the case manager confirmed that the orthopaedic specialist's new information had already been considered by the WCB and that no change would be made to its earlier decision. On April 22, 2004, this decision was appealed by the worker advisor to Review Office.

On July 30, 2004, Review Office confirmed that in its opinion the worker had recovered from his compensable injury by November 24, 2003. Review Office concluded that the worker's January 2002 compensable injury was no longer contributing to a major degree to his pre-existing condition and that the worker had recovered from the aggravation by November 24, 2003. The decision was based on the following evidence: "…normal findings on medical examination by the worker's initial orthopaedic specialist November 27, 2003; the report by the second orthopaedic specialist on November 18, 2002 indicating '…no neurological findings to justify any further specific investigation'; the MRI findings September 18, 2003; and two WCB orthopaedic consultants who opined that the worker's ongoing difficulties were not related to the compensable injury in January 2002, but to the pre-existing degenerative changes." It was the further opinion of Review Office that as a result of the degenerative condition in the worker's low back the prognosis of his returning to pre-accident employment was 'poor'. On November 16, 2004, the worker advisor appealed Review Office's decision and an oral hearing was then arranged.

Reasons

A WCB medical advisor examined the worker on June 21, 2002. At that time of his examination, the medical advisor summarized the following comments in his notes:

“There was irrefutable radiologic evidence of multilevel spondylosis of his lumbar spine… . He also had multilevel bilateral apophyseal joint arthritis. However, the L4-5 annular disc bulging with severe narrowing and encroachment on the left L5 nerve root was obviously significant. In view of the fact that the worker had never been symptomatic in this distribution until the time of accident, he likely sustained enhancement, on balance of probabilities, at the time of his compensable injury.”

The worker underwent an MRI examination of his lumbar spine on September 18, 2003. The examining radiologist recorded the following impression: “Possible irritation of the L5 nerve roots secondary to degenerative facet and disc changes as mentioned above.” The ongoing clinical evidence of nerve root irritation is consistent throughout the file.

As previously noted the worker’s right sided symptoms had only become prevalent subsequent to the occurrence of the January 17, 2002 compensable injury. Despite the fact that the worker and his attending physicians all note some improvement in his condition since the accident, we find that the worker’s condition has not completely resolved.

With regards to the worker’s improvement, we prefer to accept the evidence of the worker’s treating orthopaedic surgeon. In a letter dated March 12, 2004 to the worker advisor, he states:

“Mr. [the worker] did have pre-existing degenerative disc disease in his lumbar spine and signs of disc protrusion when he was seen several times in 2002 and seen on November 27, 2003…he continued to have residual symptoms in his lower back, right hip and right leg as described in my note when seen on March 4, 2004.

…

He still has residual symptoms. He feels pain on activities involving bending related to the compensable accident of January 8, 2002 and also, to some extent due to pre-existent degenerative disc disease that he had in his lumbar spine.

…

The accident of January, 2002 did aggravate pre-existent condition as he never had pain in his right leg in the past and the pain related to his right leg started after the incident in January, 2002.

On the balance of probability there is a relationship between the ongoing symptoms in his lower back and his right leg due to the workplace incident of January 8, 2002.

…

Mr. [the worker] has improved but he has not fully recovered from the compensable injury of January, 2002 in that he still continues to have symptoms in his back on activities involving bending and lifting.”

Finally the worker’s worker advisor presented evidence at the hearing that the worker is spending a substantial sum of money ($180.00) each month for his prescription medication. After having considered all of the evidence, we find, on a balance of probabilities that the worker had not recovered from the compensable injury by November 24, 2003. Accordingly, 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 16th day of March, 2005

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