The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 13, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on January 13, 2005 and again on March 4, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 14, 2004.

Decision

That the worker is not entitled to wage loss benefits beyond January 14, 2004.

Decision: Unanimous

Background

In October 2002, the worker reported a lower back injury to the Workers Compensation Board (WCB) that she incurred at work when she assisted a resident from bed into a wheelchair with a lift. The initial diagnosis was a back strain. The WCB accepted the claim and benefits were paid to the worker up until October 29, 2002 when she returned to work. On November 20, 2002, the worker stopped working due to increased pain in her back and wage loss benefits were reinstated.

Following a WCB call in examination on February 17, 2003, the examining WCB medical advisor stated, in part, that it was possible that the worker had some degenerative changes in her lumbar spine. He also agreed with the attending physician to order an x-ray. If there was evidence of degeneration found on the x-ray, then the medical advisor said the worker's back strain likely aggravated that condition.

X-rays of the lumbosacral spine dated February 17, 2003 revealed spurring in the lower dorsal spine and at the upper four lumbar discs. There was moderate narrowing of the disc at L3-L4.

In March 2003, the worker was assessed by a physical medicine and rehabilitation specialist (a physiatrist). The physiatrist ordered an urgent CT scan to rule out disc tear/disc herniation at L2-L3 and/or L3-L4.

A CT scan report of the lumbosacral spine dated April 24, 2003 revealed the following evidence: "Congenitally small spinal canal. Mild central spinal stenosis at L4-L5 secondary to mild annular bulging and the congenitally small canal. No evidence of focal disc herniation."

In a follow-up report dated June 5, 2003, the physiatrist stated, in part, that the worker had suffered disc herniation at the L3-4 level which gradually reduced and by the time she underwent the CT scan was normal or was false negative. The physiatrist concluded that the worker had not recovered from her October 5, 2002 injuries.

On July 27, 2003, the physiatrist reported that the worker had made significant improvement with her discogenic and radicular pain but still had mechanical low back pain together with regional myofascial taut bands and trigger points of the right ICL and tensor and fascia lata.

The worker was assessed by a WCB medical advisor and WCB physiatry consultant in August 2003. Following this examination, it was concluded that the worker could return to light duties with a view to returning to her regular duties.

On January 7, 2004, the WCB advised the worker that it was unable to accept further responsibility for her claim. It was the WCB's position that based on the mechanism of injury, the length of time since the date of accident, the treatment she received and the medical evidence on file, that the worker had recovered from her compensable injury. Wage loss benefits were to be paid to January 14, 2004 inclusive and final.

In a report to the WCB dated February 5, 2004, the treating physiatrist stated that due to persistent radiculitis and discogenic pain, the worker was unable to increase her working hours from 4 hours a day to 8 hours a day. The physiatrist asked the WCB to reconsider the case and to reinstate benefits to the worker.

On March 8, 2004, a WCB adjudicator made reference to the opinion expressed by the WCB's physiatrist consultant on March 5, 2004 that the worker's problems were related to her pre-existing condition and were not due to the compensable injury. Based on this opinion, the adjudicator would not reinstate the worker's benefits.

A CT scan of the lumbosacral spine was performed on March 31, 2004. Ultimately, the scan revealed that the worker had minor multilevel degenerative changes.

In a further report dated July 5, 2004, the treating physiatrist commented that the worker continued to have radiculitis related to her previous disc herniation and had not completely recovered from the injuries she sustained on October 5, 2002.

On August 10, 2004, a union representative argued that the worker had not recovered from her compensable injury. The union representative felt that the worker's body was responding to the effects of the demands her work had placed on it and that she should be compensated for these effects.

In a decision dated August 16, 2004, Review Office determined that responsibility should not be accepted for wage loss benefits beyond January 14, 2004. Review Office believed that the causes of the worker's symptoms were not work related. Review Office was of the opinion that the worker had recovered from the effects of her compensable injury based on the weight of evidence. As the compensable injury was no longer contributing to her loss of earning capacity, the WCB was not responsible for ongoing wage loss or medical treatment beyond January 14, 2004. On September 24, 2004, the union representative disagreed with Review Office's decision and an oral hearing was arranged.

Following the hearing held on January 13, 2005, the Appeal Panel requested additional information be obtained from the treating physiatrist prior to discussing the case further. On February 7, 2005, all parties were provided with copies of the additional medical information that the Panel received and were asked to provide comment. On March 4, 2005, the Panel met to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the worker sustained an injury arising out of and in the course of her employment. The worker’s presenting diagnosis as determined by her treating physician was “back strain”. A WCB medical advisor examined the worker on February 17, 2003 and reached the following conclusions:

“Based on the mechanism of injury and findings during this examination it would appear Ms. [the worker] suffered a lumbar strain on October 5, 2002. It is possible that there are some degenerative changes present in her lumbar spine and I agree with the attending physician (sic) ordering the recent x-ray. If there is evidence of degeneration on the x-ray then the strain most likely aggravated that condition. There is still objective evidence on today’s exam that the aggravation has not yet resolved.”

The x-ray conducted on February 14, 2003 revealed spurring at multiple levels as well as moderate narrowing of the L3-4 disc. The worker’s low back complaints continued and a CT scan was subsequently arranged by the treating physician. The CT scan disclosed a congenitally small spinal canal, mild central spinal stenosis at L4-5 and that there was no evidence of a disc herniation. Despite the foregoing radiological results, the treating physiatrist after having examined the worker on June 5, 2003 reported, as follows:

“In my opinion, she did suffer disc herniation at L3-4 level which gradually reduced and by the time she underwent CT scan, this was normal or it was false negative. She has not recovered from the injuries she suffered at her work on October 5, 2003 (sic).”

This determination by the treating physiatrist prompted the WCB’s medical services to call the worker in for further examination. The WCB’s physiatry consultant recorded the following comments in his examination notes of August 21, 2003.

“The current clinical examination suggested minor mechanical symptoms at the lumbosacral junction, this likely (sic) related to early degenerative involvement at this level, likely posteriorly. The history suggests a possible musculoligamentous strain. However, resolution of a musculoligamentous strain would have been expected long ago, now approaching 11 months post-injury.

There was no evidence on the current examination of any neurologic involvement that is of any lumbosacral nerve root irritation or compression. There appears to be, as well, a predisposition to mechanical aggravation and to perpetuation of mechanical symptoms related to her significantly overweight status, contributing to and exaggerating her hyperlordosis, and the congenitally small spinal canal identified on the CT scan of the lumbosacral spine.

As well, consideration should be given to return to work, if available, to lighter duties initially. I would expect she should be able to progress to return to work her full, regular work duties, from this.”

On March 31, 2004, the treating physiatrist ordered a second CT scanning of the worker’s lumbosacral spine. The radiologist was advised that the patient was a 50 year old lady with increasing low back pain, right L5-S1 radiculitis and that the provisional diagnosis was query disc herniation. The radiologist’s findings were:

“Alignment is normal. At L1-L2 there is some very minimal degenerative anterior disc spurring. L2-L3 is normal. L3-L4 shows some degenerative disc narrowing and minor annular bulging. At L4-L5 there is mild diffuse annular bulging and bilateral apophyseal joint osteoarthritis. L5-S1 shows bilateral apophyseal joint osteoarthritis. No other abnormalities are seen. Impression: Minor multilevel degenerative changes.”

The treating physiatrist proposed a series of diagnoses including disc tears or disc herniation. We note, however, the two CT scans that he ordered to establish these diagnoses failed to do so. In addition, there are numerous reports on file that suggest there is no neurological compromise.

After having considered all of the evidence, we find that the worker’s current difficulties are not related to her compensable injury, but rather, to her pre-existing degenerative condition. In this regard, we prefer to attach more weight to the opinion expressed by the WCB physiatry consultant’s opinion of March 5, 2004, “The current symptoms most likely on balance of probabilities is related to preexisting condition and factors rather than to any strain injury. Suggest return to work her regular duties.”

We further find that the worker’s inability to work is, on a balance of probabilities, related to non compensable reasons and therefore the worker is not entitled to wage loss benefits beyond January 14, 2004. Accordingly, the worker’s appeal is hereby dismissed.

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 6th day of April, 2005