The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker, a nurse, injured his back on two occasions while transporting patients. The claims were accepted and benefits were paid. Diagnostic tests confirmed the existence of a pre-existing condition. The worker continued to have symptoms affecting his back. The Workers Compensation Board (WCB) found that the worker recovered from the work injuries and that the worker's ongoing back problems are not related to the work injuries. The worker has appealed these determinations.

An appeal panel hearing was held on June 20, 2006, at the worker's request. The panel discussed this appeal following the hearing on June 20, 2006.

Issue

Whether or not the worker's ongoing back problems are related to the compensable injuries of July 1 and August 17, 2004.

Decision

That the worker's ongoing back problems are not related to the compensable injuries of July 1 and August 17, 2004.

Decision: Unanimous

Background

On July 1, 2004, the worker injured his lower back during the course of his employment as a registered nurse.

The worker sought treatment from his family physician and a hospital emergency facility following his accident. X-rays of the lumbosacral spine dated July 21, 2004, showed very mild degenerative facet changes at L5-S1. The worker was diagnosed and treated for a lumbar strain and was advised to return to work on August 1, 2004.

While working regular duties on August 17, 2004, the worker injured his back again transporting a patient. The mechanism of injury was the same as the July 1 accident but his symptoms were more severe.

On November 21, 2004, a CT scan was taken of the worker's lumbosacral spine due to complaints of low back pain radiating into his legs. The results showed that the worker had multilevel degenerative changes and mild central canal stenosis at L3-L4.

In December 2004, the worker advised the WCB that he may have a disc problem and was being referred to a surgeon for treatment. The worker noted that he had returned to light duty work because of a hand problem and that he was experiencing pain in his lower back and tingling in both feet, greater on the right.

In a report dated March 11, 2005, the family physician reported that the worker developed pain in his back on July 1, 2004 and that the back pain recurred on August 17, 2004. The diagnosis was an L3-L4 annular disc bulging and apophyseal joint osteoarthritis which caused spinal stenosis. The physician opined that the central disc bulging could be caused by the work related accident and that the osteoarthritis was not caused by the accidents of 2004.

Following consultation with a WCB medical advisor on April 13, 2005, the worker was advised by his WCB case manager that he had recovered from the effects of his low back injury as a cause and effect relationship could not be established between his current back complaints and the July 1, 2004 work injury.

Subsequent medical information consisted of an MRI report of the lumbosacral spine dated April 17, 2005. At L3-4 there was a posterolateral disc herniation projecting towards the right. At L5-S1 there was a posterolateral disc herniation projecting towards the left. The report noted findings that had not significantly changed from November 2004.

On July 11, 2005, the worker appealed the case manager's decision that there was no relationship between his current back complaints and the July 1, 2004 work injury. The worker's position was that his disc herniation came about from his second injury at work on August 17, 2004 and it had made his back condition worse.

Prior to considering the worker's appeal, Review Office gathered additional information from the employer and the worker and as well, attended the work site.

A WCB orthopaedic consultant reviewed the file information and provided Review Office with his opinion concerning the worker's back complaints. On October 18, 2005, the consultant indicated that the worker's disc bulging was not the result of either compensable accidents. He stated that the worker suffered a lumbosacral sprain/strain resulting from his two accidents with aggravation of pre-existing degenerative changes. It was indicated that the recovery period would have been 4-6 weeks.

On November 25, 2005, Review Office confirmed that the worker's ongoing back problems were no longer related to the compensable injuries of July 1 and August 17, 2004 based on the WCB's policy regarding pre-existing conditions. On March 7, 2006, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

Worker's Position

The worker made a submission on his behalf. He advised that he has worked as a nurse since 1984 and has been assigned to the same ward since 1985. He described his duties on the ward.

The worker explained that on July 1, 2004, he was moving a bed with a patient into an elevator when the wheels of the bed got caught between the elevator and the floor. The worker tried to lift and push the bed free and in doing so, felt a severe pain in his back. The worker advised that on August 17, 2004, he had a similar incident. This time the pain in his back was more severe.

Regarding which of these incidents was more significant, the worker stated that it was his opinion that the August injury caused the ongoing difficulties because he was able to go back to work in short time and function satisfactorily after the July injury.

The worker advised that prior to these incidents he did not have back pain and did not know that he had a pre-existing condition.

The worker advised that his symptoms worsened and he was referred to a neurosurgeon who is arranging for an MRI.

The worker advised that moving a bed can take up to 3 or 4 staff and in both accidents he was the primary person pushing the bed.

The worker noted that the WCB gave him four to six weeks for healing and that two years have passed and his back has not healed. He stated that the loss time from work due to pain, numbness and possible surgery and rehab should be compensable. He submitted that "The pre-existing condition on my back has worsened because of the compensable injury. I think the pre-existing condition should be compensable."

Employer's Position

The employer was represented by an advocate who made a submission on behalf of the employer. The employer representative stated that the employer believes the worker has been appropriately and fairly compensated and asked the panel to confirm the decision of Review Office.

The representative reviewed the medical evidence on the file. She noted that the normal recovery for a back strain is four to six weeks and that the worker was able to resume working after an eight day time loss. The representative submitted that the medical evidence is clear and that the worker's difficulties are due to significant and severe degenerative disc disease and osteoarthritis. She concluded there is no evidence of enhancement.

The employer representative advised that the worker is being accommodated in his pre-accident position with restrictions with respect to his back condition and another non-work related condition.

Analysis

The issue before the panel was whether the worker's ongoing back problems are related to his compensable injuries. The panel finds, on a balance of probabilities, that the worker's ongoing problems are not related to the compensable injuries of July 1 and August 17, 2004.

The panel notes that the worker's injury was initially diagnosed as lumbar strain by his family physician in the Doctor's First Report dated July 20, 2004. A physiotherapist who completed the initial assessment on August 25, 2004 also diagnosed a strain.

The panel also notes that tests have confirmed the existence of a pre-existing condition. This is noted in the x-ray of the lumbosacral spine taken on July 21, 2004 after the first injury. It is also noted in the CT of the lumbosacral spine taken on November 21, 2004. The report of the CT notes "Impression: Multilevel degenerative change. Mild central stenosis L3-L4"

The MRI report dated April 18, 2005 notes that a comparison was made with the November 2004 CT scan. The MRI report notes that the worker had disc herniations at the L3-4 and L5-S1 and comments that "The findings have not significantly changed compared to November 2004"

The worker submitted that the disc herniations are caused by the compensable injuries. The panel finds, however, that the evidence does not support this conclusion.

The panel places significant weight on the April 13, 2005 opinion of a WCB medical advisor that the diagnosis of a back strain is consistent with the mechanism of injury and that "The findings on CT are likely all pre-x as the MOI [mechanism of injury] is not significant enough to cause a disc injury."

The panel also places significant weight upon the opinion of the WCB orthopedic consultant with regard to the findings of disc bulging on the November CT scan and April MRI. The consultant comments the disc bulging is "… the result of multilevel degenerative disc disease & osteoarthritis of the lumbar spine also reported on x-rays of lumbar spine July 21/04." The consultant comments that the diagnosis of the compensable injuries is "lumbosacral sprain/strain with aggravation of pre-existing degenerative changes". The panel notes the opinion of the WCB orthopedic consultant that the normal recovery period for the compensable injuries is four to six weeks.

The worker also argued that the pre-existing condition has deteriorated as result of the compensable injuries. For the worker to be eligible for benefits under the WCB's policy on pre-existing conditions (Policy 44.10.20.10), the evidence must establish that the pre-existing condition continues to be aggravated by the compensable injuries or has been enhanced. The panel finds that the evidence does not support a finding of an ongoing aggravation nor of an enhancement.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 3rd day of August, 2006