The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 20, 2005, at the request of a worker advisor, acting on the worker's behalf. The panel discussed this appeal on the same day.

Issue

1. Whether or not the worker's fall at home was a secondary accident related to the compensable injury; and
   
   
2. Whether or not the worker is entitled to full wage loss benefits for the period September 23, 2004 to December 19, 2004.

Decision

1. That the worker's fall at home was not a secondary accident related to the compensable injury; and
   
   
2. That the worker is entitled to full wage loss benefits for the period September 23, 2004 to December 19, 2004.

Decision: Unanimous

Background

On October 23, 2002, the worker sustained a compensable lower/middle back injury during the course of his employment as a press operator. The worker was initially diagnosed as having mechanical back pain along with degenerative disc disease. On December 5, 2002, a sports medicine physician's diagnosis of the worker's condition was discogenic low back pain/disc herniation.

Over the ensuing months, the worker was treated by an orthopaedic specialist and was examined by a Workers Compensation Board (WCB) medical advisor on October 7, 2003. The medical advisor felt that the worker suffered an aggravation of his pre-existing degenerative condition of the discs and facet joints and that the aggravation had not yet resolved. Further physiotherapy treatments were suggested and it was felt that the worker could continue with modified duties but was to avoid lifting greater than 20 lbs., repeated flexion or twisting of his spine, etc.

At a WCB call-in examination on February 18, 2004, the medical advisor stated that the current examination was similar to the one on October 7, 2003. The worker had slightly improved forward flexion but all other tests were similar. The medical advisor felt that a combined effect between the compensable injury and the worker's pre-existing condition still remained. There was no evidence of any nerve impingement to suggest that a disc herniation was still at play. The medical advisor stated that the prognosis for the worker to return to his regular duties was poor and a Functional Capacity Evaluation (FCE) was recommended to determine his work capabilities.

An FCE was carried out on March 12, 2004 and work restrictions were outlined.

In a report dated April 19, 2004, a physical medicine and rehabilitation specialist's impression of the worker's condition was "discogenic pain with radiculopathy"

On April 29, 2004, the worker was assessed at the WCB's Pain Management Unit (PMU). On June 22, 2004, the PMU medical advisor documented that the worker did not meet the diagnostic criteria for chronic pain syndrome.

In a July 5, 2004 report, the physical medicine and rehabilitation specialist reported that the worker continued to experience radiculitis, mainly affecting his left leg. Treatment suggestions included an epidural corticosteroid injection followed by a dynamic lumbar exercise program to restore spinal function.

On July 27, 2004, the worker attended a hospital emergency facility with complaints of "low back pain progressively worse". The reported diagnosis was low back muscle spasm.

In a report dated August 18, 2004, the physical medicine and rehabilitation specialist's impression of the worker's condition was persistent left L5 radiculitis due to left L4-5 disc herniation. The worker was encouraged to continue with modified duties and was to be reviewed again in three months.

On September 13, 2004, the worker was again examined by a medical advisor at the WCB. The medical advisor recorded that the worker had a flare up of symptoms a few weeks earlier when he fell down some stairs. At the conclusion of the examination, the medical advisor stated, in part, that the worker "…continues to suffer from an aggravation of his pre-existing degenerative disc condition….there is some nerve irritation causing the tingling going into his foot…there were many more pain behaviors…he is developing some type of chronic pain syndrome…It is my opinion that the fall was not caused in any way by his compensable injury and time loss should not be WCB responsibility."

Following the September 13, 2004 call-in examination, a WCB case manager met with the worker to discuss the secondary accident. The worker stated that while coming down a carpeted flight of stairs on September 5, 2004, he missed the first step and slipped down the stairs on his buttocks. He told the case manager that there was no change in his back symptoms pre or post secondary accident. The worker indicated that he saw a doctor on September 7, 2004 and was given a note to remain off work for one week.

On September 14, 2004, the treating physician noted that the worker slipped and fell, injuring his lower back. The diagnosis reported was "muscle spasm, lower back". The physician indicated that the worker was disabled from alternate or modified work.

At an examination on September 22, 2004, the treating physician indicated that the worker had severe pain in his lower back with radiation into his left leg and could not sit or stand for too long. The physician noted that the worker was seeing a neurosurgeon in January 2005 and that he was not capable of alternate or modified work.

In a decision dated September 24, 2004, the case manager informed the worker that the WCB was not accepting responsibility for his time loss between September 7 and September 14, 2004. It was the WCB's position that the worker's disability during this period of time was not due to the compensable injury but rather, due to the worker's slippage on the stairs at home.

With regard to the physician's advice that the worker remain off work until assessed by a neurosurgeon, the case manager informed the worker on October 4, 2004 that there was no objective medical evidence of an injury that would prevent him from continuing to perform modified duties. Accordingly, the case manager determined that there was no loss of earning capacity that would entitle the worker to wage loss benefits.

On November 1, 2004, the worker attended a hospital emergency facility and was diagnosed with low back pain. A CT scan of the same date revealed moderate central disc protrusions at L4-L5 and L5-S1.

On December 18, 2004, the worker underwent surgery to repair the herniated lumbar disc at L5-S1.

On December 20, 2004, the worker appealed the decisions of September 24 and October 4, 2004 to Review Office. The worker argued that his doctor's opinion was that he should be off work until he saw the specialist and that the specialist told him he needed a discectomy. The worker also contended that the reason he fell down the stairs was because he could not feel his leg or foot as they were always numb and that he knew that the numbness was because of a bad disc.

Prior to addressing the worker's request for reconsideration, Review Office referred the matter back to primary adjudication for clarification with respect to the worker's wage loss entitlements.

In a January 27, 2005 decision, the case manager informed the worker that there was a direct cause/effect relationship between the need for surgery and the compensable injury, therefore his benefits would be reinstated retroactive to the date of surgery. It was the case manager's view that the worker was not entitled to wage loss benefits prior to the date of surgery as appropriate modified duties were available.

On March 16, 2005, a worker advisor wrote to Review Office and made reference to the medical report of August 18, 2004 which she felt provided objective findings to confirm numbness in the worker's leg. It was submitted that this was a probable cause for the worker's fall and that the fall should be considered compensable based on WCB policy 44.10.80,40, Further Injuries Subsequent to a Compensable Injury.

On May 5, 2005, Review Office determined that the alternate work provided to the worker by his employer was appropriate. It also determined that the worker's fall was not a secondary accident related to the compensable injury and that the worker was entitled to partial wage loss benefits for the period September 23, 2004 to December 19, 2004 as the employer had been paying him at a reduced rate while performing alternate duties.

Review Office outlined its position that the worker's fall at home was unrelated to the compensable injury based on the opinion expressed by a WCB orthopaedic consultant on May 4, 2005 and the WCB medical advisor who examined the worker two weeks after the fall. Review Office also stated that it was unable to establish that the worker's fall down the stairs met any of the conditions outlined under WCB policy 44.10.80.40.

Further, Review Office was unable to substantiate a reason for the worker's time loss after September 22, 2004. Review Office concluded that the worker was not entitled to full wage loss benefits as of September 23, 2004 when he ceased participating in work activities but was entitled to partial wage loss benefits up to the date of his surgery, given that he continued to experience a loss of earning capacity. In September 2005, a worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Reasons

This appeal by the worker involves two issues. The first issue to be addressed is whether the worker's fall at home was a secondary accident related to the compensable injury. The panel could not find a relationship between the fall and the worker's compensable injury.

The second issue is whether the worker is entitled to full wage loss benefits for the period September 23, 2004 to December 19, 2004. The panel found that the worker was unable to work during this period as a result of his workplace accident and is therefore entitled to full wage loss benefits during this period.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel. The employer did not participate in the hearing.

The worker described the fall at home on September 5, 2004. He advised that he fell down the stairs. In answer to a question he stated:

"So what happened was I took this step, I slipped and I tried to grab the hand railing. My hand slipped and I fell three times, like kind of a skip, not a, you know, I don't know, it kind of just boom, boom, boom, you know, to the bottom of the stairs."

Regarding the wage loss which commenced in September 2004, the worker stated that his condition was worsening over the summer and that he had to stop work in September. He stated that he saw a new physician who advised him to stop work due to a neurological problem. The worker described the modified duties he was performing prior to stopping work. The worker advised that he would take vacation days to help cope with the increasing pain.

The worker advised that he had surgery in December 2004. When asked how his back has been since the surgery, the worker responded:

"It's not any better. I can - I'm not getting electrocuted anymore, but now it's constant, it doesn't go away, it's painful all the time."

The worker advisor submitted that from June 2004 onward, there is medical evidence that the worker's back was worsening. He referred to medical reports which support this position. He noted that the worker's new treating physician recommended that he stop work.

Analysis

The panel has reviewed the claim file and heard the worker's evidence regarding the fall at home. On a balance of probabilities, the panel finds there is no relationship between the fall and the worker's compensable injury. The evidence indicates that the worker slipped as he was walking down the stairs. The evidence does not support a relationship to the compensable injury nor a finding that the cause of the fall is predominantly attributable to the compensable injury. In this regard the panel notes that the requirements of WCB Policy 44.10.80.40. have not been satisfied. The panel finds that the fall likely caused a temporary aggravation of the worker's condition.

The worker's appeal on this issue is denied.

The panel finds that the worker is entitled to wage loss from September 23, 2004 to December 19, 2004. The panel accepts the worker's evidence that his condition worsened over the summer months as he attempted a return to modified duties. The worker's increased pain was noted by the psychologist in a report dated July 31, 2004.

The psychologist reported that "As July progressed, [the worker] began reporting increased levels of pain. He also began missing days at work beginning in mid-July…."

The panel relies upon the opinion of the worker's treating physician as noted in a report dated November 5, 2005:

"A CT - scan in 2003 confirmed mild disc bulging at level L4-L5 and moderate central and left par-central disc protrusion at L5-S1. During his visits in 2004, this gentleman's pain was just getting worse, and his clinical signs fitted in with disc herniation L5-S1. Another CT-scan that was done in November 2004, showed evidence of a fairly sizable left-sided medial-lateral disc herniation L5-S1 as well as a small, shallow disc-herniation L4-L5. He was then seen by Dr. [neurosurgeon] who decided on doing a laminectomy and discectomy at level L5-S1. If we compare the CT-scan results of February 2003 with the CT-scan of November 2004, then it is obvious that there is progressive changes.

In spite of his continuous back-ache and chronic pain, this gentleman was still at work. Based on the above CT-scan evidence, it seems that even light duties that was recommended by WCB, led to progression of his clinical condition.

I recommended to WCB that this gentleman was not capable of doing any work because of his chronic back pain. During the month of September and after that till his operation with Dr. [neurosurgeon]."

The panel also notes the report of the neurosurgeon dated December 16, 2004. The neurosurgeon reports "Once again, the November CT scan showed evidence that the disc herniation had progressed since the previous scan of March 17^th."

The panel finds, on a balance of probabilities, that there is entitlement to full wage loss benefits for the period September 23, 2004 to December 19, 2004 as the worker suffered a loss in earning capacity as a result of the compensable injury.

The worker's appeal on this issue is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of February, 2006