The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 7, 2005, at the request of legal counsel, acting on behalf of the worker. The panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits for time loss from work commencing September 13, 1999.

Decision

That the worker is entitled to wage loss benefits for time loss from work commencing September 13, 1999 until discharged from physiotherapy in November, 1999.

Decision: Unanimous

Background

An Employer's Report of Injury dated October 14, 1999, indicated that the worker reported a right lower back injury as a result of two incidents. One incident occurred on June 12, 1999 when the worker supported the full weight of an adult male to prevent him from falling off of a bridge. The second incident occurred on August 26, 1999 when the table on which the worker was standing collapsed.

In a telephone conversation with a WCB case manager on October 4, 1999, the worker indicated that about 4 to 5 months earlier, he supported the weight of a 200 lb. man for a half hour when the man was leaning over the edge of a bridge. Subsequent to this incident, the worker was able to continue working and did not notice any back pain until 3 to 4 weeks later. During the course of his employment activities on or about September 2, 1999 (actual date was August 26, 1999), the worker stated that he was standing on a table which collapsed and he fell approximately two feet to the ground. He stated that he felt a jolt on impact but the pain subsided and he continued working. He told his co-worker about the table incident but did not mention anything about injuring his back because it was not bothering him at the time. The worker noticed some stiffness in his low back that evening but stated it was bearable. Over the course of the week, he worked his regular duties and noticed increasing back pain. There were no new injuries or outside activities to account for the increase in symptoms. On September 8, 1999 he woke up in a lot of pain. He went to work and on his way up a flight of stairs, his right knee gave out. He took two more steps and it gave out again.

The worker's history of injury reported to the physician on October 5, 1999 was "fell from table that collapsed". Subjective complaints were "pain lower back". The physician noted that the worker was totally disabled effective September 9, 1999 and that he should avoid sitting for long periods of time and activities associated with his job.

A CT scan of the lumbar spine was performed on October 6, 1999 and revealed bulging of the annulus at L4-5 and L5-S1. There was no evidence of a disc protrusion.

On November 2, 1999, the treating physician diagnosed the worker with a disc herniation and found him unfit to perform any light duties.

In a decision dated November 24, 1999, the WCB determined that the claim for compensation was not acceptable. The adjudicator stated, in part, "As neither the incident on June 12 or August 26, resulted in the reporting of an injury, making ongoing complaints, or seeking medical attention, the WCB is unable to relate your diagnosed disc herniation to either of these events. Furthermore, there was no change in your work duties or specific event between September 3 - 8, 1999, to attribute to your increased symptoms. As such, your claim has not been accepted."

On June 22, 2001, Review Office considered the case based upon an appeal submission by the worker's representative. Review Office determined that the worker was not entitled to wage loss benefits commencing September 13, 1999. Review Office noted that the worker first developed low back pain in July 1999 and he continued to experience ongoing symptomatology since that time. Neither of the incidents at work produced any significant symptomatology and the medical documentation supported the existence of a pre-existing degenerative problem in the worker's back. Based on its review of all the available information, Review Office was unable to correlate the worker's original and ongoing back problems with either of the two work incidents.

On July 20, 2005, the worker's representative appealed Review Office's decision and an oral hearing was requested.

On July 26, 2005, Review Office clarified its decision of June 22, 2001 at the Appeal Commission's request. Review Office stated, "…It was the intent of my ruling to indicate that while both of the incidents at work (on June 12, 1999 and August 26, 1999) had been established, the back problems which necessitated his time loss from work commencing September 13, 1999 could not reasonably be attributed to either of these at work events."

On November 29, 2005, the worker's representative provided the Appeal Panel with a number of documents that he would be referring to at the oral hearing. This information was provided to the employer's representative for information purposes and a response from the employer's representative was received on November 30, 2005. On December 7, 2005, an oral hearing took place to consider the issue under appeal.

Reasons

The Panel was asked to determine whether the worker is entitled to wage loss benefits for time loss commencing September 13, 1999. For the appeal to succeed, the Panel must find a causative relationship exists between the worker's condition which caused his loss of earning capacity and a work related injury. The Panel did find a relationship exists. Specifically the Panel finds that the August 26, 1999 accident caused a temporary aggravation of the worker's pre-existing condition which was resolved by November 1999 when the worker was discharged from physiotherapy.

Evidence and Argument at Hearing

The worker attended the hearing with legal counsel who made a presentation on his behalf. The worker answered questions posed by the Panel.

The employer was represented by its compensation co-ordinator who also made a presentation.

The worker described the incidents of June 12, 1999 and August 26, 1999. Regarding the June 12 incident, the worker stated that he had no immediate symptoms. The incident did not bother him until two or three weeks later when he was jogging. At that time he noticed "…a little bit of back pain on the right side of my back and upper hip." He had no further symptoms until about two weeks later when he was again jogging. This time the pain was more intense than the previous time but it did not bother him the next day.

The August 26, 1999 incident was different in that the pain developed immediately. He noted that he was standing on a stool or table which broke causing him to land straight down on his heels. He described this as jarring his back. He noticed that his symptoms were worsening each day after the incident until about a week and a half later when his right leg collapsed as he climbed a step at work. He said the pain was unbelievable. He attended his physician's office and reported the incidents and symptoms to his employer. He was off work for approximately 40 days and has been accommodated in modified duties since returning to work.

The worker attributes his condition to the June 12, 1999 and August 26, 1999 incidents.

The worker's representative reviewed the medical evidence and submitted that the evidence supports a relationship between the incidents and the worker's subsequent symptoms.

The employer's representative submitted that the symptoms could not be caused by the two incidents. He noted both the delay in the development of symptoms and reporting of the incidents. He reviewed the various medical opinions on file and noted the employer agrees with the Review Office decision which was unable to correlate the worker's original and ongoing back problems with either of the incidents.

Analysis

After considering all the evidence including the evidence provided at the hearing, the Panel finds, on a balance of probabilities, that the worker aggravated his pre-existing back condition in the incident that occurred on August 26, 1999 and that the aggravation had resolved by late 1999 when the worker was discharged from physiotherapy treatments. Accordingly, the worker is entitled to wage loss benefits for time loss from work during the period of the temporary aggravation in accordance with WCB Policy on Pre-existing Conditions (44.10.20.10).

The Panel finds that the worker has a pre-existing condition which affects his back. This is noted in an x-ray report dated September 9, 1999 which states:

"Impression: minor multi level disc degeneration. Non specific loss of lordosis"

The Panel also accepts the results of the CT of the lumbar spine performed on October 6, 1999. This scan reports a bulging of the annulus at L4-5 and L5-S1 but notes that no localized disc protrusion is seen.

The Panel finds there is no causal relationship between the June 12, 1999 incident and the worker's condition. The worker did not experience any symptoms immediately after this incident and did not require any medical attention. Symptoms were not noticed until two or three weeks later when the worker was jogging. Symptoms were again noticed when the worker jogged a second time approximately four to five weeks after the incident. On both occasions the symptoms lasted for very brief periods. The Panel notes that jogging involves downward force activity and can result in a jarring motion to the back. The Panel finds that the jogging likely aggravated the worker's pre-existing condition, albeit for a very brief time. Neither of the jogging incidents were work related. The Panel considers these to be early symptoms of the worker's pre-existing condition.

The Panel finds there is a relationship between the incident on August 26, 1999 and the increase in the worker's lower back symptoms. Unlike the June 12, 1999 incident, symptoms developed immediately after the August 26, 1999 incident and worsened to the point that the worker sought medical attention and stopped working. Although the medical attention was not obtained immediately, the worker did see his physician on September 9, 1999. The worker explained the reasons for the delay and the Panel finds the explanation reasonable.

The Panel considered the worker's description of the August 26, 1999 incident and finds that this jarring type of incident is capable of causing an aggravation of the worker's pre-existing condition. The Panel finds further that the aggravation was temporary and that it resolved by the time the worker completed physiotherapy treatment in November 1999. The Panel notes that the worker last attended physiotherapy on November 12, 1999. The Panel relies on the physiotherapy discharge summary dated December 6, 1999 which notes:

"[the worker] attended 14 treatments in total. At the time of discharge, range of motion was full, with pain only at end range flexion, and sacroiliac joint mobility was normal. Muscle spasm was steadily decreasing…"

The Panel places greater weight on the previously noted diagnostic tests than on the opinion of the treating physician that the worker suffered a disc injury, specifically a disc protrusion. The Panel notes that when examined on September 9, 1999 the physician observes that the worker's neurological exam was normal. This suggests no radiculopathy was present and is consistent with the diagnostic tests which do not identify a disc protrusion. The Panel also places little weight on the opinion of the treating chiropractor as he did not attend to the worker until approximately 14 months after the August 26, 1999 compensable injury.

In conclusion, the Panel finds that the worker is entitled to wage loss benefits for time loss from work commencing September 13, 1999 until discharged from physiotherapy in November 1999. Accordingly the worker's appeal is allowed as outlined above.

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 30th day of January, 2006