The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

As this appeal deals with the causal relationship between the worker’s ongoing symptoms and prior WCB claims, it is necessary to examine the injury sustained and the medical evidence relevant to each claim.

The December 17, 1993 claim

The worker was lifting bleachers at work on December 17, 1993 when he injured his lower back. He saw his family physician who noted tenderness in his low back, 60 degree flexion in the lumbar area, and normal straight leg raising. He was diagnosed with a lumbar strain and remained off work for three days when he returned to his regular duties.

On January 20, 1995, the worker filed another claim with the WCB for recurrence of the 1993 accident. The worker advised that he had been experiencing left leg problems off and on since his December 1993 low back injury. The worker did not however seek medical treatment for his continuing symptoms until January 18, 1995, two days before his 1995 accident. On January 20, 1995 he was lifting a buffer machine down a flight of stairs when he felt a sharp pain in his back. He went to his chiropractor who diagnosed him with low back strain with left sciatica. An x-ray taken on March 7, 1995 revealed minor spurring at the L3-4.

The employer contested the claim and the claim was eventually denied by the WCB. This denial was upheld by Review Office on May 19, 1995. This decision was never appealed to the Appeal Commission.

The worker remained off work until October, 1995. He also continued to receive medical treatment from his chiropractor. A CT myelogram was taken on November 13, 1996 which was normal.

At the hearing, the worker testified that his back pain was worse after this accident. It was the ‘straw that broke the camel’s back’. He suffered lower back pain radiating down to his back and front legs and into his feet and ankles, weakness in his back and legs and ongoing pain, stiff muscles with limited flexibility and pain on having a bowel movement.

The April 20, 1997 claim

Then on April 20, 1997, the worker injured his back after lifting tables and chairs at work. He was once again diagnosed with an acute strain/sprain injury with sciatica. The chiropractor thought that this injury was an aggravation of the worker’s 1995 injury, which, as noted, was never accepted by the WCB.

The claim for compensation was eventually accepted by the WCB based on an aggravation of a pre-existing condition. The worker was paid for one day of wage loss benefits. In November 1997 he left his employment with the accident employer as he felt he could no longer find any relief from his back pain which was worsening with time. The employer disputes this and says that the worker left his employment for unrelated reasons.

Appeal in 2005

The worker continued to seek chiropractic care for his back after the 1997 accident though there are some gaps in treatment.

A CT scan was done on December 20, 2002 which revealed a slight left paracentral disc bulging at the L5-S1 with no evidence of significant compression of the nerve roots. A CT scan done on April 9, 2005 revealed no changes in comparison with the December 2002 CT scan.

On June 7, 2005, the worker’s treating chiropractor asked the WCB to consider this evidence which he felt supported the position that the worker’s ongoing back condition was related to his 1997 WCB claim.

On June 28, 2005, the WCB advised the worker and his treating chiropractor that the new medical reports had been reviewed and that there was no evidence to support a relationship between the work injury of April 20, 1997 and the worker’s current difficulties.

In a submission to Review Office dated July 25, 2005, a worker advisor requested reconsideration of the June 28, 2005 decision. The worker advisor contended that the information submitted by the treating chiropractor provided clinical support to suggest that on a balance of probabilities, there was an ongoing cause/effect relationship between the bulging/herniation, the subsequent nerve compression revealed on the 2002 and 2005 CT scans and the April 27, 1997 compensable injury. WCB policy 44.10.20.10, Pre-existing Conditions and the WCB’s definition of enhancement was quoted in the submission.

On September 19, 2005, Review Office determined that further investigation was required before it would consider the worker advisor’s appeal. It forwarded the case back to primary adjudication to obtain further medical information and to make a determination as to whether the new medical information would alter the WCB’s decision of June 28, 2005.

Subsequently, primary adjudication obtained reports from the worker’s treating physicians with respect to his back condition. A WCB medical advisor and chiropractic consultant were then asked to review the reports and provide an opinion regarding the diagnosis and its possible relationship to 1993 and 1997 compensable injuries.

On December 7, 2005, the WCB medical advisor opined that both the 1993 and 1997 workplace accidents caused a back strain which would have resolved within a couple of days or weeks of the date of the accident.

The WCB chiropractic consultant concurred with this opinion. He added that disc bulging, as evidenced in the CT scans, is common in normal and symptomatic individuals and cannot be related to specific incidents of trauma. In the present case, there was no specific finding that would explain the worker’s current symptoms.

On January 4, 2006, the case manager advised all parties that she could not accept any ongoing responsibility for the worker’s back difficulties on either his 1993 or 1997 claims. It was the case manager’s opinion that “…both work injuries would have caused back strains that appear to have been relatively minor in nature and entailed a very short duration of time loss prior to you being able to resume your regular duties. The CT scan findings are not related to injuries sustained in the 1997 accident. It is also noted that such CT scan findings are common in normal and symptomatic individuals and cannot be related to specific incidents of trauma.”

In a submission dated January 4, 2006, the worker advisor asked Review Office to reconsider the case manager’s decision of January 4, 2006. The file was reviewed by an orthopaedic consultant to the Review Office. His January 17, 2006 opinion states:

“The [worker] has a typical history with radiological & CT evidence of lumbar disc degeneration with periodic flare of symptoms. The normal CT myelogram Nov. 13/96 rules out any significant disc herniation or injury prior to the CI of Apr. 10/97. The attending M.D.’s file from Nov/96 -> 2005 does not relate any persistent back problem such as a disc herniation that one can relate to the CI of Apr 10/97. The CT’s of Dec/02 & Apr. 9/05 reported a disc herniation at L5-S1 with no interval change, which represent a calcified degenerative disc which is unrelated to the CI Apr 20/97 & not compatible with the subsequent history of symptoms, if any, over a period of 8 yrs.”

On January 19, 2006, Review Office determined that the worker’s current back complaints were not related to either his 1993 or 1997 compensable injuries. On April 18, 2006, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.

Subsequent to the appeal, several medical reports and diagnostic tests were provided to the Appeal Commission:

• A January 3, 2006 report from a neurologist noted a presentation suggestive of an irritation of the dorsal elements of the spine (zygopopyseal joints and/or the paraspinal muscles). He thought that the pain radiating into the left lower extremity might be radiculopathic though there was no associated sensorimotor deficit and the radiological findings did not show any significant displacement/impingement of the L5 root. An MRI was therefore requested;

• The MRI was done on February 26, 2006. It revealed anterior disc protrusions at multiple levels. Minor left lateral L2-3 disc protrusion without significant foraminal narrowing as well as noncompressive shallow left posterolateral L5-S1 disc protrusion;

• In a follow-up report of April 4, 2006, the neurologist concluded that the clinical and radiological findings did not suggest any radiculopathy.

Chiropractic Evidence at the Hearing

At the hearing, the worker’s treating chiropractor testified that he began treating the worker on January 20, 1995. He treated the worker on a regular basis until December 1998 and then again on May 16, 2005 until the present.

The chiropractor testified that the worker’s current condition has developed into a chronic low back radiculopathy involving the left leg and sometimes both legs which is indicative of disc involvement.

It was his opinion that the worker’s current and ongoing back symptoms were related to his 1993 accident as the same areas were involved. He thought that the injury sustained in the 1993 accident was more than a sprain/strain and that the worker had been misdiagnosed and improperly treated. The areas that were injured in the 1993 accident were then aggravated and made worse by the 1995 and 1997 accidents.

With respect to the 1997 accident, the chiropractor was unable to provide an opinion as to when the worker returned to his pre-accident status. At the time he saw the worker in 1997 however, he had advised him to remain off work for 6 months.

Worker’s Position

The worker says that all of his back complaints stem back to his 1993 accident. He says he has had ongoing symptoms since that date but has carried on nonetheless. He relies essentially on his treating chiropractor’s evidence as support for his position.