The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a case where the worker suffered a compensable injury to his back and was eventually able to return to work at light duties, only to re-injure his back at home.

On December 8, 2004 the worker suffered a compensable injury to his back. His claim was accepted by the Workers Compensation Board (the “WCB”). He returned to work at light duties and subsequently suffered another injury on May 4, 2005 when at home. The WCB considered this second accident to be non-compensable and suspended benefits until October 13, 2005, when it was determined that the worker had returned to the status which pre-existed his May 4, 2005 accident. Both the worker and employer appealed this decision to the Review Office which, on March 20, 2006, determined that the worker’s benefits should have completely ceased effective May 5, 2005. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on August 3, 2006, at the request of a worker advisor representing the worker. The panel discussed this appeal on the same date.

Issue

Whether or not the worker is entitled to wage loss benefits for his time loss from work commencing May 5, 2005; and,

Whether or not the worker’s wage loss benefits should have been reinstated effective October 13, 2005.

Decision

That the worker is not entitled to wage loss benefits for his time loss from work commencing May 5, 2005; and,

That the worker’s wage loss benefits should not have been reinstated effective October 13, 2005.

Decision: Unanimous

Background

Reasons

Background

On December 8, 2004, the worker was lowering a stretcher with a 180 pound person on it when he suddenly felt pain across his lower back. He went to a local emergency room facility and was found to have tenderness of the sacroiliac joints, decreased range of motion (ROM) and a decreased bilateral straight leg raise (SLR). He was diagnosed with a lower back strain, provided a pain killer and released.

The worker filed a claim for compensation with the WCB that was accepted.

The worker remained off work and continued to see his family physician who confirmed a diagnosis of back strain, prescribed physiotherapy and anti-inflammatory medication. An x-ray was taken of his lumbar spine on December 14, 2004. It revealed slight narrowing of the disc spaces at the L3-4 and L4-5 levels with minor spurring anteriorly which was consistent with degenerative disc disease.

The worker’s back condition improved to the point that he was cleared to return to work at light duties effective January 24, 2005. He was restricted to working 4 hours per days with limited walking and standing and no lifting or carrying over 20 pounds and no bending.

Medical reports of January 28 and February 3, 2005 indicate that the worker’s pain was improving and that he was tolerating his return to work well. Subsequent reports of February 8 and 24, 2005 note that the worker was left with mild pain and stiffness, especially in the morning.

The worker continued in light duties and eventually increased his work day to full time at the beginning of March, 2005.

The worker was then seen by an orthopaedic surgeon on March 29, 2005. The orthopaedic surgeon noted a history of ongoing back pain for the past two years and at least ten injuries to his back. X-rays were taken which once again revealed degenerative disc disease with minor osteophytes affecting the thoracic spine and advanced changes affecting the lumbar region from L3 downward. The orthopaedic surgeon noted a prior history of multiple back injuries. Given the evidence of degenerative disc disease, the orthopaedic surgeon thought that the worker might be experiencing a flare-up of osteoarthritis. The specialist also arranged for a bone scan to be performed. The results of the April 7, 2005 test revealed a normal regional examination of the spine and pelvis.

Then on May 4, 2005 the worker re-injured his back lifting a barbeque at home. At the hearing the worker described that he was assisting a family member unload a boxed barbeque, without a tank, from the back of a truck. He lifted one end of the box, twisted and bent to lower the box.

A WCB medical advisor was consulted with respect to the causal relationship of the worker’s ongoing symptoms to his compensable injury. On May 30, 2005 the WCB medical advisor opined that the worker’s diagnosis at that time was mechanical low back pain. The worker had not yet recovered from his compensable injury when the barbeque lifting incident aggravated his symptoms.

On this same date, the WCB case manager advised the worker that it would no longer accept financial responsibility for his loss of earning capacity effective May 5, 2005. The letter went on to explain that the absence from work subsequent to May 5, 2005 was due to a non-compensable event and not to the compensable injury. Accordingly, responsibility for the time loss could not be accepted. However, as the worker was not yet considered “recovered” from the effects of the December 8, 2004 injury, the WCB would continue its responsibility with respect to healthcare treatment and medical aid benefits.

On July 21, 2005, the worker had a CT scan of his lumbar spine which was requested by his treating orthopaedic surgeon. The CT scan revealed the following:

“The vertebral bodies and disc spaces are all relatively well maintained.

At L2-L3, no abnormality has been demonstrated.

At L3-L4, a mild broad base central disc protrusion is present.

At L4-L5, a moderate to large central disc protrusion is present.

At L5-S1, no significant abnormality noted.

Bone windows fail to demonstrate any significant lower lumbar facet arthropathy. There is no evidence of any significant degenerative stenosis involving the central canal, lateral recess or exit foramen.”

On June 7, 2005, the worker wrote to his case manager asking that the decision to deny responsibility for the May 4, 2005 incident be reconsidered. The case manager advised that there would be no change in his decision and as such, referred the worker’s letter to Review Office. The employer also provided a submission to Review Office dated August 3, 2005 in support of the case manager’s decision.

In their decision dated August 3, 2005, Review Office confirmed the decision of the case manager to deny entitlement to wage loss benefits for time loss from work commencing May 5, 2005. In reaching this determination, Review Office noted that the worker has had a long history of lower back problems dating back to when he was in his teens and for which he has been either off work or on modified duties numerous times. It was further stated that the consensus of medical opinion supports that the worker sustained a lower back strain on December 8, 2004 which aggravated the pre-existing pathology in his lower spine and that the secondary accident of May 4, 2005 further aggravated this pre-existing pathology. Review Office made reference to WCB Policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury, and advised that as the pre-existing condition was the primary cause for the current time loss, responsibility could not be accepted.

The worker was also referred to and saw a neurologist on August 9, 2005. At that time there was no pain radiating into his lower limbs. The neurologist noted a history of minor sports injuries to his back and intermittent low back pain related to lifting. The neurologist’s report does not provide a diagnosis. He stated however that the worker “had been lucky so far in that his symptoms have been relatively mild and that he has been able to recover from each episode”. [Emphasis ours] It is noteworthy that the neurologist was provided with a copy of the July 21, 2005 CT scan as well as with the March 29, 2005 x-ray.

The worker next saw his orthopaedic surgeon on August 22, 2005. An August 29, 2005 medical report outlines the orthopaedic surgeon’s findings and opinion. Notably, the orthopaedic surgeon reiterated that the worker suffered from well-advanced degenerative disc disease which had flared up. He did not think that the worker should continue with his regular duties, as the bending and lifting duties create back problems.

The worker’s file was then reviewed by a WCB medical advisor on October 12, 2005. The WCB medical advisor advised that both incidents – the stretcher and barbeque – could have caused a disc protrusion. Given however that the worker was symptomatic before the barbeque incident, he thought that the stretcher incident was more likely to have caused the multilevel disc protrusions at L4-5 and L5-S1. Interestingly, he stated that there is “no evidence on the CT [scan] of pre-x degenerative changes to the discs or facet joints”. That said, he thought, upon consultation with the worker’s family physician, that the worker had returned to the functional status he was at prior to the non-compensable injury and could return to work with restrictions.

The worker’s family physician concurred that the worker had recovered from his non-compensable injury. That said, he thought that the worker’s degenerative disc disease was caused by his multiple years of employment in his current job.

On October 13, 2005, the case manager again corresponded with the worker wherein he advised the worker of the opinion provided by the WCB medical advisor on October 12, 2005. However, the case manager maintained the position that any time loss from May 5, 2005 until a return to work would be due to the non-compensable May injury.

On November 1, 2005, a worker advisor acting on behalf of the worker submitted a request to Review Office requesting that they reconsider their previous decision to deny the worker wage loss benefits beginning May 5, 2005. This request was based predominantly on the opinion expressed by the WCB medical advisor on October 12, 2005.

Prior to Review Office considering the worker advisor’s request, the case manager reinstated the worker’s full wage loss benefits effective October 13, 2005. The rationale to support this decision was that the worker was considered to have returned to his pre-May 4, 2005 status by October 13, 2005 and as a reasonable accommodation, i.e. suitable modified duties had not been identified or provided, the loss of earning capacity would be considered compensable.

The employer provided its submission to Review Office on January 30, 2006. In its submission, based on their review of the file documentation, the employer opposed the worker’s request that the previous Review Office decision be rescinded and in addition, they also appealed the more recent decision of the case manager to reinstate the worker’s entitlement to wage loss benefits effective October 13, 2005.

Review Office rendered their decision on March 16, 2006 wherein they upheld their previous decision of August 2005 and further determined that the worker’s wage loss benefits should not have been reinstated effective October 13, 2005. In rendering this decision, Review Office referred to the opinions provided by the worker’s treating physician and specialists and noted that they have concluded that it is the worker’s pre-existing pathology that is the cause of his ongoing complaints and which is necessitating the need for modified duty employment. Review Office further determined that the weight of evidence supported a finding that the pre-existing condition was unrelated to the workplace accident of December 8, 2004.

On March 28, 2006, the worker advisor submitted an application to the Appeal Commission requesting an oral hearing be convened. The hearing into this matter was convened on August 3, 2006.

Worker’s Position

The worker says that his appeal should succeed as the December 8, 2004 compensable injury was a multi-level disc protrusion and not a lumbar strain. He denies that he suffers from degenerative disc disease and says that all of his symptoms, from which he has still not recovered, all stem from the December 8, 2004 compensable injury. He also says that the May 4, 2005 barbeque lift was inconsequential in nature and that the further injury he sustained was predominantly caused by the compensable injury.

Employer’s Position

The employer denies that the worker suffered anything more than a lumbar sprain to a pre-existing degenerative back from which the worker had essentially healed by May 4, 2005.

Analysis

To accept the worker’s appeal, we must find that the worker’s ongoing symptomotology beyond May 5, 2004 was related to his compensable injury on December 8, 2004. We are unable to make that finding.

The injury on December 8, 2004 was initially diagnosed as a lumbar strain. Physical examinations at that time did not reveal any radicular symptoms. The worker asks us to accept a different diagnosis – multi-level disc protrusions. He relies on the July 21, 2005 CT scan and the WCB medical advisor’s October 12, 2005 opinion.

Though we accept the comments of the WCB medical advisor that the mechanism of injury on December 8, 2004 can cause disc protrusions, we do not find that this was the case here.

Disc protrusions can result from injury such as the December 8, 2004 injury or the barbeque injury. They can, however, also result from simple degeneration.

The worker denies having degenerative disc disease. He denies prior incidents involving his lower back. In fact, at the hearing, he testified that he only experienced upper back complaints prior to December 8, 2004.

We do not accept this submission or evidence. The worker’s own treating family physician and specialists all concur that the worker suffers from degenerative disc disease. They came to this opinion both before and after having seen the x-rays and the July 21, 2005 CT scan. More compelling is the opinion of the worker’s family physician who opines that the worker’s degenerative disc disease has been caused by eight years of work related duties. While this appeal does not deal with the issue of a repetitive type injury, we find the family physician’s comments pertinent in that he makes reference to several prior injuries and a diagnosis of degenerative disc disease.

We therefore specifically find that the worker does suffer from degenerative disc disease and that the December 8 2004 workplace accident aggravated this pre-existing condition.

We also find that the worker had essentially recovered from his December 8, 2004 compensable injury by May 4, 2005. Though he had not returned to his full time regular duties at that time, we find that this was as a result of his pre-existing condition rather than his compensable injury. Indeed, in 2005, the worker’s medical practitioners all opined that the worker can never return to his pre-accident duties. We find that these comments relate to the worker’s pre-existing degenerative disc disease – not his lumbar strain.

Before May 4, 2005 the medical evidence indicates that the worker’s symptoms were improving and that he was only experiencing mild pain and stiffness, especially in the morning. This is a sign of degenerative disc disease rather than lumbar strain.

Based on the foregoing, we find, on a balance of probabilities that the worker had recovered from the effects of his compensable injury by May 4, 2005. Therefore, we find that the worker is not entitled to wage loss benefits commencing May 5, 2005, and that the worker’s wage loss benefits should not have been reinstated effective October 13, 2005.

Accordingly, the worker’s appeal is denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 28th day of September, 2006