The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker has been involved in several accidents (workplace and motor vehicle) which have caused injury to his back. This appeal deals with an injury to his right lower back on May 10, 2002 and its causal relationship to his ongoing back complaints.

On May 10, 2002 the worker was working his regular job duties as a bus driver. He drove through an intersection, hit a rough spot and felt a sharp pain in his lower back. He called into work and reported the incident. He reported his injury to the Workers Compensation Board (WCB) on May 13, 2002.

Initial medical treatment was sought the day following the accident from a family practitioner. Subjectively, the worker presented with right sided low back pain with radiation and paraesthesia into the right leg. Objectively, the physician noted the worker had restricted flexion, a negative straight leg raise (SLR) and normal reflexes. Tenderness was reported in the right sacroiliac area. The worker was diagnosed with a low back strain affecting the right side. The physician considered the worker to be disabled from work and unable to undertake modified duties. Rest, physiotherapy and medications were prescribed. Note was also made of a previous disc herniation that occurred in 1999.

On June 5, 2002, the WCB accepted responsibility for this claim. Accordingly, wage loss and medical aid benefits were provided to the worker.

Due to a slow recovery, the family practitioner referred the worker to a local sports injury clinic for further evaluation and treatment. The worker was assessed at the sports injury clinic on June 5, 2002. On examination, it was noted the worker had marked limited lumbar mobility with decreased flexion and SLR. A diagnosis of right lumbar disc herniation was provided. Anti-inflammatory medication and physiotherapy were prescribed.

The worker was also assessed by a WCB medical advisor on July 18, 2002. It was the medical advisor’s opinion that there was no “strong clinical support of acute disc herniation”. He encouraged the worker to become more active and found him capable of performing modified duties in a sedentary to light capacity with restrictions of no prolonged standing, sitting, walking (with opportunity to rest and stretch as needed), repetitive truncal bending or lifting greater than 15 pounds on a frequent basis.

The worker returned to work in a modified duty position effective July 24, 2002 working four hours per day. It was expected the worker would gradually increase his hours to full time. Although performing modified duties, the worker reported difficulty with his tolerance to work full time hours.

An MRI was done on August 21, 2002. At the L5-S1 level it revealed mild degenerative narrowing and desiccation of the intervertebral disc as well as a small to moderate sized right posterolateral disc herniation with posterior displacement and compression of the right SI nerve root. It was suggested that any complaints of radiculopathy be clinically correlated.

The MRI results were reviewed by the WCB medical advisor on September 17, 2002. The medical advisor suggested that the worker remained capable of performing modified duties and in addition to the restrictions previously outlined, it was recommended that the worker also avoid repetitive stair climbing and walking on uneven ground. It was felt that these restrictions would be required for 6 to 8 weeks.

On September 27, 2002, the worker spoke with his case manager at the WCB and advised that he managed to continue working modified duties albeit, at reduced hours. He further indicated that he had seen his family practitioner that morning. He stated that his leg pain had resolved, however his back pain remained.

The family practitioner’s report covering the September 27, 2002 examination confirmed that there had been no symptoms of radiation into leg for one week although range of motion was still decreased. The worker was considered to be neurologically intact. A normal gait was also reported. The practitioner indicated that he would be referring the worker to a neurosurgeon for further assessment.

The WCB medical advisor again reviewed the file in early October, 2002. As he was of the opinion that the worker was not a surgical candidate, he felt that a referral to a neurosurgeon was not indicated. It was felt that the worker may be a candidate for corticosteroid epidural injection. Accordingly, the medical advisor arranged for the worker to be independently assessed by a physical medicine and rehabilitation specialist (physiatrist).

The epidural injection was carried out by the physiatrist on November 13, 2002. In a report dated December 4, 2002 to the WCB medical advisor, the physiatrist advised that the worker did not benefit from the injection procedure and that he continued to present with evidence of an L5-S1 disc protrusion.

The worker was then assessed by a neurosurgeon on January 7, 2003. On examination, the neurosurgeon noted that the worker had restricted movement of the lumbar spine particularly in relation to flexion. His SLR was 60 degrees on the right and normal on the left. Tone, power and reflexes were equal and symmetrical and there was no evidence of sensory loss. The surgeon felt that as the worker’s predominant complaint was that of back pain, he would likely not be a good candidate for surgical discectomy. Rather, facet injections were suggested and subsequently carried out on January 13, 2003.

When re-assessed by the neurosurgeon on February 25, 2003, it was reported that the facet injections resulted in an improvement in the worker’s low back symptoms although he continued to experience back pain. It was further reported that there was still restricted movement of the spine and that the worker was walking with a limp. Arrangements were made to perform a rhizotomy in order to try to provide more long term relief to the worker. The procedure was carried out on March 17, 2003, responsibility for which was subsequently accepted by the WCB.

In May 2003, the case manager made a request of the WCB’s Healthcare Management Services department to provide clarification with respect to the worker’s current medical status. On May 23, 2003, the file was reviewed by a WCB orthopaedic consultant. The consultant opined that the mechanism of injury was rather trivial and would not be likely to cause severe prolonged disability. It was noted that the worker did have mild degenerative disc disease which may have been aggravated when he traversed the rough intersection. It was decided that the worker should be called in and assessed by the WCB orthopaedic consultant. This assessment was carried out on June 20, 2003.

The orthopaedic consultant noted that the worker had marked limitation of forward flexion and to some extent, SLR. It was felt however, that these were not entirely objective findings but nonetheless consistent with a lumbosacral disc protrusion. It was further noted however that the worker’s reflexes were brisk and symmetrical. There was no evidence of sensory or motor changes. It was reported that the worker’s leg pain seemed to have subsided. The orthopaedic consultant reviewed the worker’s previous 1999 WCB claim and commented:

“The [worker] had a previous claim in 1999. X-rays of the lumbosacral spine on June 8, 1999 were reported as normal. CT scan of the lumbosacral spine on August 27, 1999 was reported as showing an L5-S1 disc protrusion extending into the far right lateral recess. There was also possible calcification of disc material although this could also be an osteophyte. It was suspected that there was involvement of the right S1 nerve root. Again the MRI of February [sic] 2002 showed an L5-S1 disc protrusion on the right side…”

The MRI was repeated on September 18, 2003 the results of which suggested the disc herniation was slightly smaller as compared to the earlier imaging result.

The file including the September 18, 2003 MRI results were reviewed by the WCB’s orthopaedic consultant on November 20 and 21, 2003. In essence, the consultant expressed the opinion that although the worker would likely require permanent restrictions in relation to his back condition and that a full recovery was unlikely, it was still felt that the mechanism of injury resulted only in an aggravation of the underlying pre-existing changes. The consultant indicated that there was no evidence that the compensable injury permanently enhanced the pre-existing pathology.

By letter dated January 19, 2004, primary adjudication wrote to the employer to advise that they were of the view that the worker had recovered from the effects of his May 10, 2002 compensable injury. However, based on the opinion provided by the WCB’s orthopaedic consultant, primary adjudication was of the opinion that the worker’s continuing back symptoms were the result of the 1999 compensable injury and would therefore be compensable under that claim injury file. The 1999 claim injury file dealt with a tortional type injury that was sustained on April 26, 1999 when the worker missed a step and lost his balance. The employer disputed the relationship of the worker’s ongoing symptoms to his 1999 claim. It therefore appealed the adjudicator’s decision all the way to the Appeal Commission. The Appeal Commission agreed with the employer and found that the worker’s ongoing back difficulties were not related to the 1999 claim. (Please refer to public decision 37/05 for further details concerning that appeal.)

Against this backdrop, the worker requested a reconsideration of the case manger’s decision that the worker had recovered from the effects of the May 10, 2002 compensable injury.

By way of a decision dated February 10, 2006, Review Office upheld the finding of primary adjudication and concluded that the worker had recovered from the effects of the May 10, 2002 injury. In reaching this conclusion, Review Office relied in part, upon the rationale of the Appeal Commission as outlined in decision 37/05 which determined that the presence of the degenerative changes in the lumbosacral spine pre-dated the 1999 compensable injury. Review Office also relied in part, upon the November 21, 2003 opinion expressed by the WCB’s orthopaedic consultant.

On February 22, 2006, on behalf of the worker, the union representative filed an application to appeal with the Appeal Commission requesting an oral hearing to consider the decision of Review Office. The hearing into this matter was convened on July 5, 2006.

Worker’s Position

The union representative of the worker urged the panel to consider the current appeal in the larger context of the worker’s pre-existing back condition. He takes the position that the workplace accident on May 10, 2002 exacerbated or enhanced the worker’s pre-existing condition and that continuing responsibility should be accepted for it.

Employer’s Position

The employer takes the position that the worker has recovered from the effects of the May 10, 2002 workplace accident. It says that the mechanism of injury was trivial and that the ongoing back complaints are not related to this accident but rather a pre-existing degenerative back.

Analysis

To accept the worker’s appeal we must find that the worker’s ongoing back complaints are related to his May 10, 2002 workplace accident. We are unable to make that finding.

The May 10, 2002 workplace accident was determined to be a compression type injury. We accept the WCB orthopaedic consultant’s opinion that this injury aggravated his pre-existing disc degeneration.

The worker suffers from pre-existing non compensable mild disc degeneration.

On April 26, 1999 he suffered a tortional type injury which resulted in a disc herniation at the L5-S1. A CT scan taken August 27, 1999 revealed disc bulging at the L3-4 and L4-5 in addition to the herniated disc at the L5-S1 with what appeared to be calcified disc material.