The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This case deals with the relationship between the worker’s injuries and his pre-existing condition.

The worker has injured his back at work on several occasions. His claims were accepted by the Workers Compensation Board (WCB) as a strain injury, then as an aggravation of a pre-existing condition. The worker’s condition did not resolve and he ultimately required surgery. The WCB refused to accept responsibility for the surgery. The WCB determined that the aggravation had resolved and that the worker’s ongoing symptoms were due to the pre-existing condition. The worker’s benefits were terminated. The worker appealed the WCB decisions.

An appeal panel hearing was held on September 6, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on September 6, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond March 9, 2005;

Whether or not responsibility should be accepted for the May 24, 2005 back surgery; and

Whether or not the worker’s degenerative back conditions are related to his four lower back claims or to his occupation in general.

Decision

That the worker is entitled to wage loss benefits and services beyond March 9, 2005;

That responsibility should be accepted for the May 24, 2005 back surgery; and

That the worker’s degenerative back conditions are not related to his four lower back claims or to his occupation in general.

Decision: Unanimous

Background

On January 6, 2004, the worker indicated that he felt a strain in his lower back during the course of his employment as an assembler. Following the accident, the worker sought medical treatment and was diagnosed with a lumbar strain. The claim was accepted by the WCB and the worker was paid wage loss benefits commencing January 7, 2004.

On January 8, 2004, the worker attended his family physician for treatment and was assessed with “new onset of acute lumbar strain on the left. Complicated by underlying facet arthropathy.”

The worker has prior compensation claims with the WCB dating back to 1997 with respect to his back region. Of particular note is an x-ray that was taken on November 26, 1997 which indicated that the worker has degenerative disc disease at the L3-L4 level.

In a report from the family physician dated January 29, 2004, he indicated that the worker had been compliant with therapy but was not feeling better. It was felt that the worker should continue with physiotherapy and acupuncture and to remain off work while he awaited a physiatry referral.

On February 18, 2004, the worker was assessed by a WCB medical advisor to determine his current status. The medical advisor found the worker’s condition was related to facet dysfunction associated with muscular symptomotology, probably arising out of the left lower lumbar spine.

A narrative report was received from a physical medicine and rehabilitation specialist (physiatrist) dated April 14, 2004. He stated, in part:

“He has significant degenerative changes in his lower back and at least two levels (L3-4 and L4-5) of central canal compromise creating spinal stenosis. Spinal stenosis in and of itself is not directly related with lower back pain but given the mechanical nature of his back pain history (numerous attacks with increasing frequency), it is probable that the degenerative changes seen in his lower spine are influencing the pain. It is highly probable that the repetitive nature of his work has contributed to his present back situation.”

Subsequent file records revealed that the worker was seen by the physiatrist on a number of occasions. Despite various treatment modalities, the worker continued to experience problems with his back.

In a report dated November 10, 2004, a specialist from the Pain Clinic provided the following impression of the worker’s condition:

“This patient has a longstanding history of low back pain. There appear to be 2 causes for his back pain based on his history and physical and investigations. The first cause is a central stenosis at the L4-5 level. This is due to degenerative changes in the facet joints as well as some posterior disc bulging. In addition the patient has multilevel facet joint degeneration. These changes most likely represent degeneration and potentially acute disc bulging as a result of the patient’s work activities.”

On December 10, 2004, a WCB orthopaedic consultant reviewed the file information and provided the opinion that there was no evidence to indicate that the worker’s pre-existing condition was enhanced by his work related injury. He felt there was an aggravation. He did not feel that surgery for spinal stenosis was related to the work injury.

In a February 28, 2005 memorandum, the WCB case manager documented a phone conversation that he had with the worker’s treating physiatrist. In particular, the case manager documented that it was the physiatrist’s opinion that the worker’s “…lifetime of heavy work has contributed to the development of stenosis, i.e. permanently enhanced through a non-specific means on a daily basis of 30 years.”

In a letter to the employer dated March 2, 2005, the WCB case manager outlined preventive restrictions for the worker.

On March 2, 2005, the worker was formally advised that his benefits would be concluding on March 9, 2005 as it was considered that he had recovered from his compensable injury of January 6, 2004.

Correspondence was received from an orthopaedic surgeon dated March 22, 2005. He noted that the worker was scheduled for surgery at the end of May 2005 for spinal stenosis and neurogenic claudication.

In e-mail correspondence dated April 27, 2005, a worker advisor asked the WCB to investigate and consider the effects of the worker’s prior related back claims, the history of his repetitive heavy workplace duties, and his need for restrictions.

On May 17, 2005, a WCB medical advisor indicated that the worker’s pre-existing conditions were systemic and were not related to his work or work activities.

On May 18, 2005, a WCB case manager advised the worker advisor that all medical information had been reviewed by a WCB healthcare advisor and that it remained the opinion of the WCB that the worker’s ongoing difficulties were a result of his pre-existing back condition (i.e. facet arthropathy at L3-4, L4-5 and L5-S1) and not related to either his January 4, 2004 compensable injury nor related to his prior WCB back claims. The case manager also indicated that The Workers Compensation Act (the Act) did not include any legislation which covered degenerative wear and tear over decades of employment in certain industry. She also indicated that the worker did not meet the requirements of WCB policy 43.10.60, Preventive Vocational Rehabilitation, given his limited history of WCB claims.

In a June 7, 2005 submission to Review Office, the worker advisor made reference to medical evidence on file which supported the position that the worker had not recovered from his workplace related condition and that his restrictions were related to his workplace injuries and the work duties that he performed over the years. The worker advisor outlined his view that the WCB should cover the worker’s surgery as the condition requiring surgery was due to a work related cause, namely workplace duties.

On June 17, 2005, the worker advisor submitted a report from the worker’s physician dated June 13, 2005 for consideration by Review Office. The worker advisor felt that the report supported the position that the worker’s degenerative disease was occupationally related.

In further correspondence dated July 4, 2005, the worker advisor provided Review Office with a copy of the operative report dated May 24, 2005 for consideration. The report indicated that the worker’s diagnosis was spinal stenosis/lumbar neurogenic claudication.

On August 10, 2005, a WCB case manager wrote to the worker advisor to state that the new medical information he submitted was reviewed by a WCB healthcare advisor and it remained the opinion of the WCB that the worker’s ongoing difficulties were a result of his pre-existing back condition and not related to his January 6, 2004 compensable injury.

On August 15, 2005, the case manager wrote to the worker advisor to clarify that it was the WCB’s position that the worker’s ongoing difficulties were a result of his pre-existing back condition and it was not related to his January 6, 2004, February 17, 2003, October 15, 1998 or July 14, 1997 compensable injuries.

The case was considered by Review Office on August 19, 2005. Review Office indicated that the worker’s degenerative disc disease at L3-4 was evident on file through the November 1997 x-ray which was four months post-injury and thus, the degenerative process was well in effect prior to the commencement of the worker’s 1997 claim. Review Office was of the opinion that the degenerative condition of the spine was a natural process and not work related. Review Office therefore confirmed that the worker was not entitled to benefits beyond March 9, 2005 and that the WCB was not responsible for the worker’s surgery on May 24, 2005. It also confirmed that the worker’s degenerative conditions were not related to the worker’s four lumbar back claims or his occupation in general. On May 11, 2006, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Applicable Legislation

In this case the worker is seeking additional wage loss benefits. Under the Act, the worker is entitled to wage loss benefits if he has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

As the worker has a pre-existing condition, WCB Policy No. 44.10.20.10, Pre-existing Conditions, is applicable. This policy provides when wage loss benefits are payable for pre-

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

Worker’s Position

The worker attended a hearing with a worker advisor who made a submission on the worker’s behalf. The worker answered questions posed by his representative and the panel.

The worker’s representative advised that the worker had worked for the accident employer for over 30 years and had injured his back at work on previous occasions in 1997, 1998 and 2003. He noted that none of the prior injuries resulted in time loss.

The representative submitted that the 2004 workplace accident enhanced the worker’s back condition to the point that surgery was required. The representative submitted that under WCB policy No. 44.10.20.10 the worker’s surgery and time loss are the WCB’s responsibility as the January 2004 injury enhanced the worker’s pre-existing condition.

Regarding the third issue, the representative noted that while there is medical evidence on file that the worker’s duties over the years have played a role in his condition, the worker is not advancing an argument that his condition is an occupational disease. The representative acknowledged there is no medical evidence that workplace injuries caused the degenerative problem in the worker’s back.

The worker described his prior injuries and noted that after his 2003 accident he continued to have pain but was able to return to work. He described the 2004 injury. He advised that pain was in the same area but closer to the spine and was more intense. The worker described the medical treatments he received. He described his attempts to continue to work after the injury.

The worker advised that he had surgery on the recommendation of his orthopaedic surgeon as his symptoms continued. He advised that the surgery was successful and that he returned to work and is currently working full-time.

Analysis

There were three issues before the panel. The first issue is whether the worker is entitled to wage loss benefits and services beyond March 9, 2005. For the appeal of this issue to be successful, the panel must find that the worker’s loss of earning capacity and the need for continued services after March 9, 2005 were due to the workplace injury. For the reasons that follow, the panel did find that the worker’s loss of earning capacity and need for services after March 9, 2005 were due to the workplace injury and accordingly the worker is entitled to wage loss benefits and services after March 9, 2005.

The second issue was whether responsibility should be accepted for the worker’s May 24, 2005 back surgery. For the appeal of this issue to be successful, the panel must find that the surgery was required as a result of the workplace injury. The panel did find that the surgery was required as a result of the workplace injury and that responsibility should be accepted for the surgery.

The panel notes that WCB medical consultants opined that the worker’s pre-existing condition had been aggravated by the workplace injury. The panel also notes (in a memo dated December 10, 2004) that a WCB orthopaedic consultant found there was no evidence of enhancement of the pre-existing condition. The panel does not agree with this conclusion. The panel finds that the worker’s condition was enhanced, as surgery was ultimately necessary to relieve the aggravation (in accordance with WCB policy 44.10.20.10, this is an enhancement of the pre-existing condition).

In reaching this conclusion, the panel attaches significant weight to the following evidence:

- the worker had not missed any time from work for symptoms related to his back until the 2004 injury.

- the worker’s symptoms resulting from the 2004 injury were more severe than symptoms before the injury. Unlike the previous injuries the symptoms did not resolve with treatment.

- Although the worker underwent various forms of treatment his symptoms were consistent and continual from January 2004 until surgery was performed. The evidence demonstrates that the worker had no relief from the symptoms or recovery from the aggravation until the surgery was performed. After the surgery, the worker’s symptoms were relieved and he returned to work.

With regard to wage loss benefits, the panel finds that the symptoms which began after the 2004 injury prevented the worker from working full time at his regular employment and caused the worker’s loss of earning capacity.

The panel notes that the worker’s treating physicians were supportive of a relationship between the worker’s employment which resulted in his January 2004 accident and his pre-existing condition.

The third issue before the panel was whether the worker’s degenerative back conditions are related to his four lower back claims or to his occupation in general. At the hearing the worker’s representative advised that the worker was not arguing this issue in its entirety and acknowledged that the medical evidence did not support a finding that workplace injuries caused the worker’s degenerative back conditions. He also acknowledged that the worker is not advancing the argument that his condition is an occupational disease. The panel finds, on a balance of probabilities, that the worker’s degenerative back conditions are not related to his prior lower back claims nor to his occupation in general.

The appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 25th day of October, 2006