The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the causal relationship of the worker's spondylosis to his workplace accidents.

The worker suffered two workplace accidents - one on June 7 and 8, 1999; the other on March 12, 2003. When a CT scan was performed after the first workplace accident, it was determined that the worker had disc herniations at several levels but that the accident could only be causally related to the herniation at the L5-S1 level. Several years later, the worker developed spondylosis.

The worker says that the 1999 accident must have caused or enhanced his spondylosis since it was not initially present. He also says that this condition has rendered him disabled from his employment.

The WCB disagrees. It takes the position that the worker has recovered from his compensable injuries. Any ongoing symptomotology is most likely related to his spondylosis which is a pre-existing degenerative condition. This position was upheld by the Review Office in a November 28, 2005 decision. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on May 25, 2006. The worker and his advocate appeared, as did the advocate for the accident employer.

Issue

Whether or not the worker has recovered from the effects of his 1999 and 2003 workplace injuries; and

Whether or not the worker is entitled to wage loss benefits beyond December 6, 2005.

Decision

That the worker has recovered from the effects of his 1999 and 2003 workplace injuries; and

That the worker is not entitled to wage loss benefits beyond December 6, 2005.

Decision: Unanimous

Background

Reasons

Background

1999 Claim
On June 7, 1999, the worker reported that he experienced "shock and pain down his back to his legs" when he assisted a co-worker to transfer a patient. He did not file a green card at the time as his pain subsided. The following day at work, he sat on a chair that had been broken and fell to the floor injuring his lower back region.

The worker was treated by his family physician who reported pain across the worker's lower back and numbness into his right leg down to his toes. The diagnosis rendered was back pain, not yet diagnosed. He was prescribed medication and physiotherapy treatments and was referred to an orthopaedic surgeon.

A CT scan taken of his lumbosacral spine on August 3, 1999 revealed multilevel disc herniations at three levels. At L3-4 there was a reported small left paracentral disc herniation, at L4-5 a left paracentral disc herniation and at L5-S1, a small to moderate sized central and right paracentral disc herniation displacing the S1 nerve root slightly. This later herniation correlated with the worker's right radicular symptoms.

On September 13, 1999, a second orthopaedic specialist indicated that the worker was seen for complaints of low back pain. The specialist found no neurological changes and felt that the worker's back condition should be treated conservatively. He suggested an examination by a urologist or a neurologist, or both, because of the worker's history of incontinence. A bone scan examination was also recommended and was later reported to have been normal.

A September 17, 1999 x-ray did not find any evidence of a spondylosis.

Then the worker was examined by a WCB medical advisor on October 18, 1999. The worker presented with a mixed picture of mechanical back pain and nerve root irritation. It was concluded that the worker would benefit from a return to modified duties and that he may require nerve conduction studies or non-steroidal anti-inflammatories.

On January 18, 2000, nerve conduction studies were performed. The report stated "There is a delay in the right H reflex which could represent a proximal lesion in right S1 root but this is not diagnostic. EMG of right S1, L5 did not show denervation but this does not exclude it".

The family physician reported on February 7, 2000, that the worker had ongoing back stiffness. He thought that the worker was able to work at sedentary duties.

The worker was assessed by a WCB medical advisor on April 26, 2000. He stated that the worker "…has a combination of what appears to be mechanical pain and perhaps discogenic source of his pain in addition to the ongoing complaints of radiculopathy and paraesthesia. However, the impingement tests are not striking." The medical advisor recommended conservative therapy co-ordinated by a physiatrist.

A physiatrist saw the worker on August 29, 2000. The worker's symptoms were thought to be consistent with right radicular pain and localized low back pain. It was indicated that the worker's presentation could relate to a lumbosacral disc herniation.

On December 6, 2000, a WCB psychological advisor examined the worker and found that his main complaint was pain. He referred him on to the WCB pain management unit ("PMU") to determine whether the worker suffered from chronic pain syndrome ("CPS"). The response was negative. The PMU noted that the worker got out of bed at about 7 a.m., had a Tylenol #3 and some coffee, watched television and did his household chores and prepared his meals. He would visit a friend and socialize in the evenings occasionally. He did not nap and would go to bed between 10 p.m. and 12 a.m. Based on his presentation and reporting, the PMU found that his pain did not result in a marked disability disproportionately affecting his occupational, social and recreational areas of functioning. The PMU clarified a that disability affecting solely or disproportionately his occupational area of functioning is a contraindication of CPS.

Diagnostic testing in 2001 suggested that the worker's disc herniation and nerve root involvement were resolving. A February 6, 2001 MRI noted that the disc herniation at L5-S1 appeared slightly less prominent compared to the 1999 CT scan and an August 14, 2001 electrophysiologic study showed prior (as opposed to acute) L5 and S1 nerve root injury with the right L5 nerve root being the main symptomatic one.

The worker was then referred to a registered psychologist for vocational assessment in April and June, 2001. The registered psychologist noted that the worker was generally unmotivated, negative and uncooperative with the testing. He recommended individual counselling to address the worker's anger, chronic pain and depression.

Following this assessment, a functional capacity evaluation ("FCE") was done on January 16, 2002. The FCE determined that the worker was capable of participating in a graduated return to work program with the accident employer. A WCB medical advisor placed physical restrictions of avoiding repetitive bending and lifting greater than 20 lbs.

The worker gradually returned to work and eventually obtained alternate full time employment as a messenger.

The worker's evidence at the hearing was that despite returning to work he was still symptomatic. In October, 2002 he suffered further injury when he lifted a box. In November and December, he saw an occupational health physician. A January 8, 2003 report summarizes these visits:

"…In general, prior to commencing the job as messenger, [the worker] estimates his overall pain level to be 2-3 out of 10, i.e. fairly good, although he had episodic flare ups, particularly with rising from sitting. In the initial weeks on the messenger job he felt encouraged about the position and the exercise he was getting with walking. However, with a full time schedule and the re-injury events in October, he now estimates his pain levels to be 7 out of 10…"

The occupational health physician thought that surgery would be warranted but deferred to the orthopaedic specialist.

The orthopaedic specialist saw the worker on March 11, 2003. The worker reported a pain level of 5 out of 10 with right leg radicular pain. The orthopaedic specialist thought that the worker was suffering from L4-5 disc herniation with L5 nerve root radiculopathy. He ordered another CT scan to confirm his preliminary diagnosis.

2003 Claim
On March 12, 2003, the worker suffered another workplace injury to his lower back when he stopped to avoid hitting a stretcher. A WCB medical advisor thought that that his accident exacerbated the symptoms of his ongoing 1999 compensable injury (November 10, 2003 report).

A CT scan on May 29, 2003 revealed minor diffuse bulging of the L2-3 disc, tiny herniation at L3-4, annulus bulging at L4-5 and a degenerative L5-S1 disc determined to be spondylosis, with herniation; the herniation was largely central but slightly to the right as well. The orthopaedic specialist thought that the herniation might be causing the worker some compression of the S1 nerve root which would account for the right leg symptoms.

An epidural injection was done in an effort to relieve some of the worker's symptoms without success.

Surgery was contemplated but was put on hold until the worker's psychological issues were first dealt with. Surgery was performed on September 17, 2004.

The operative report notes:

"…The S1 nerve root was identified and retracted medially…There was not much disc there…it seems that he probably had a bit of a posterior osteophyte off of L5 that was prominent… that appeared on CT scan to look more like a disc. We did a bit of partial discectomy…"

A November 9, 2004 chart note indicates that six weeks post surgery, the worker's numbness in his right foot had resolved. Pain was reported in the back and right thigh.

A January 4, 2005 report by the orthopaedic specialist notes that the worker's back pain was in the lower back and the leg pain was in the back at the thigh on his right side. The worker advised that he did not get the numbness below the knee as much anymore. He commented that the worker's condition was not progressing well and that he still had back and leg pain. He reiterated that "…during the operation we did note that it was more of an osteophyte present rather than a disc herniation."

The worker underwent another FCE on February 7, 2005 and it was concluded by the evaluator that the worker's functioning was at a very low level.

A WCB medical advisor reviewed the file on March 14, 2005. He found the worker's current diagnosis following surgery to be "lumbar spondylosis". He also found that there was no cause and effect relationship between this diagnosis and the compensable injury. His reasons were three-fold: i) the worker had longstanding back pain based on degenerative disease and not the compensable injury; ii) the orthopaedic specialist noted a posterior osteophyte off L5 rather than a disc prolapse; iii) the orthopaedic specialist reiterated that "during the operation we did note that it was more of an osteophyte present rather than a disc herniation".

On May 20, 2005, the case was reviewed by a WCB orthopaedic consultant. He found:

"1. There is no objective evidence of any pathology being due to the work related injury.

2. There is no objective evidence the surgery enhanced a pre-existing condition.

3. There is no objective evidence the surgery enhanced a pre-existing condition.

4. There are no objective physical findings, operative findings or findings on his imaging studies to indicate he has not recovered from his work related injury."

The orthopaedic consultant indicated there were no restrictions related to the compensable injury. He felt that due to the worker's spondylosis, he should avoid very heavy work as a preventive measure.

On September 13, 2005, the WCB informed the worker that his wage loss benefits would end on December 6, 2005, as it took the position that his ongoing symptoms were as a result of his pre-existing spondylosis and not his compensable injuries of June 8, 1999 and March 12, 2003.

This decision was appealed to the Review Office. A Review Officer discussed the September 17, 2004 operative report and the orthopaedic surgeon's January 4, 2005 report with a WCB consulting orthopaedic surgeon. A memorandum to file dated November 18, 2005 states:

"In his opinion the worker's complaints were more of a degenerative problem; the [orthopaedic specialist's] post-op report of January 4, 2005 implies that the osteophyte created the problem. There was very little disc material found at surgery; the osteophyte caused the worker's radicular pain."

The occupational health physician disagreed with this position in an April 12, 2006 report:

"By my assessment it is both plausible and most likely that the degenerative changes found and first mentioned in the CT-Scan of 2003, and called pre-existing, are related to his work injury of 1999. Degenerative changes were not identified in the earlier MRI scan of February 1, 1999, nor in the September 17, 1999 X-ray. The same anatomical structures injured in 1999 were involved in the March 2003 re-injury, although it was given a new claim number. Symptoms were similar but more severe and prolonged and restricted him from the workplace accommodation that he had been managing previously; management now required surgery. This is a definite enhancement of his back condition caused by a distinct 1999 work injury recognized by WCB."

Worker's position
It is the worker's position that his degenerative spondylosis was caused by his two workplace injuries, the effects of which he has still not recovered from. He relies on the diagnostic testing and the occupational health physician's reports.

Employer's position
The employer says that there is no medical or other evidence to support the worker's position that the worker's spondylosis was the result of trauma caused by his work injuries.

Analysis
To accept the worker's appeal, we must find that his spondylosis was caused by his two workplace accidents. We are unable to make that finding.

As stated by the worker's own treating occupational health physician, spondylosis is a general term for degenerative changes due to osteoarthritis. Degenerative changes often occur within the third and fourth decades of one's life even though they may be asymptomatic.

In the worker's case, a CT scan was taken of his spine shortly after his June 1999 workplace accident, in September 1999 which showed multiple levels of degeneration and herniation. Only the herniation at L5-S1 was accepted as being related to the 1999 mechanism of injury. In our opinion, this CT scan is evidence of the pre-existing degeneration in the worker's back. The medical evidence confirms that this herniation later resolved.

Degeneration is progressive and can, in and of itself, lead to disc bulging, herniation and osteophytes. Although spondylosis was not seen radiologically until 2003, this does not necessarily mean that it was "caused" by anything other than the natural degenerative process.

While the disc herniation at the L5-S1 did impinge on the S1 root, causing right leg radicular symptoms, the medical evidence is that these radicular symptoms resolved after the September, 2004 surgery. What remained was essentially mechanical lower back pain which we find was most likely caused by the worker's osteophyte and spondylosis.

Consequently, we find that as of December 6, 2005, the worker had recovered from the effects of both his 1999 and 2003 workplace accidents. As a result, he is not entitled to wage loss benefits beyond that date.

The worker's appeal is therefore denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of July, 2006