The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In this case the worker is seeking wage loss benefits and other benefits after March 25, 2005. As an employee of a federal government entity she is covered under the Government Employees Compensation Act (GECA). In Manitoba the GECA incorporates the wage loss and medical aid provisions of The Workers Compensation Act (the Act). In general terms, if the worker is unable to work or requires ongoing medical treatment, wage loss benefits and other benefits are provided in accordance with the Act.

The worker has a pre-existing condition. In some cases, workers with pre-existing conditions are eligible for wage loss benefits. The WCB’s pre-existing condition policy, No. 44.10.20.10, deals with eligibility for wage loss for workers with pre-existing conditions.

Worker’s Position

The worker attended the hearing with a worker advisor who made a presentation on her behalf. She answered questions posed by the worker advisor and the panel.

The worker described the workplace accident. She advised that she works in an intake position and meets with approximately 30 clients per day. The injury occurred when she stood up and leaned forward to click her computer mouse to receive her next client. She felt a severe pain in her lower back. She stated that she had trouble straightening up after the pain struck. She remained at work for less than an hour and was driven home by a co-worker. She then saw her family doctor who diagnosed her condition as a strain. The family doctor then referred her to a chiropractor. She has been treated by a sports medicine specialist and a neurosurgeon but was advised that surgery was not indicated for her condition. She has also received physiotherapy treatments and injections in her back.

Regarding her symptoms, she advised that initially her symptoms just related to her lower back but that after she attempted a return to work, she developed pain in her legs. She advised that her left leg continues to be a problem but that her right leg is symptom free unless she overdoes it.

The worker advised that she has attempted to return to work many times. Her most recent attempt to work was in June 2006. She had attempted to work six hours per week. She had only begun the return to work when her pain increased. She was sitting at her desk unpacking when the pain increased. She does not know which particular motion caused the increase in pain.

She advised that her condition depends on activity. If she increases her activity then her pain increases. She stated that if she sits too long it hurts, if she lies too long it hurts but if she keeps moving she does better. She is able to walk for 40 minutes every second day. She can only stand for 10 to 15 minutes and sometimes can sit for an hour or two. She advised that forward bending is the most difficult movement.

The worker advised that she has altered her activities of daily living because of her injury.

In her closing statement the worker described her experience in dealing with the WCB as unbelievable. She did not feel that her case had been dealt with fairly.

The worker advisor noted there is evidence that the worker has an L4-5 disc herniation and that the worker’s symptoms came on at the time of the workplace accident and have not subsided to any material degree since the accident. He disagreed with the WCB’s position that the worker had an aggravation of her pre-existing condition which has resolved.

The worker advisor referred to the neurosurgeon’s July 2004 report where the neurosurgeon reviewed an MRI and stated that the radiologic findings (MRI) may explain the worker’s symptoms. The worker advisor submitted that based on this report there is a connection between the worker’s disc herniation and workplace accident. He stated that if the disc herniation was present before the workplace accident that there has been a continuous aggravation by the worker’s attempts to return to work. The worker advisor acknowledged that more recent diagnostic testing shows a progression of changes but that the disc continues to approach the L5 nerve root.

In a written submission received after the oral hearing, the worker advisor noted there is evidence of a disc protrusion and degenerative changes. He submitted that the medical evidence can not conclusively show what is responsible for the worker’s ongoing symptoms. He asked that the panel apply the pre-existing conditions policy and provide the worker with further benefits.

Analysis

The issue before us was whether the worker is entitled to compensation benefits beyond March 25, 2005. For the appeal to be successful we must find that the worker’s symptoms after this date are caused by her workplace injury. We were unable to make this finding. After considering the complete file, the evidence and argument presented at the hearing and the subsequently received medical reports and submission, we find, on a balance of probabilities, that the worker is not entitled to benefits beyond March 25, 2005. We also find that the worker is not suffering a loss of earning capacity as a result of the workplace injury of August 2003. In other words, the worker’s inability to work is not related to her workplace injury.

In reaching this decision we place significant weight on the following:

• at the time of the injury, the worker had degenerative changes in her back. This was noted in an x-ray taken on August 29, 2003, just four days after her workplace accident.

• the mechanism of injury, leaning forward to click a mouse after rising from a chair, does not support a finding that the worker experienced an acute traumatic injury.

• opinions of WCB medical advisors including an orthopedic specialist that the worker suffered a strain of the lumbar spine which may have aggravated her pre-existing degenerative condition but which aggravation has resolved.

• report from the worker’s treating neurosurgeon dated February 11, 2005 that found the worker’s function to be relatively intact.

• report of the worker’s treating neurosurgeon dated August 22, 2006 that when he examined the worker in June 2005 he found the range of motion of the lumbar spine had increased, straight leg raising test was bilaterally negative, and no sensorimotor abnormality of the lower extremity noted. The report does not note any radicular or nerve related findings at that time.

• report dated August 31, 2006 from worker’s treating sport medicine specialist that worker suffers from chronic low back pain and non-radicular leg referral pain. He noted that he was unable to elicit any neurological signs such as positive dural tension or gross dermatomal or myotomal dysfunction, which is consistent with the neurosurgeon’s report and the nerve conduction studies.

• MRI report of January 18, 2005 which noted an overall appearance of degenerative changes at the L4-5 level which appear to have progressed since the prior examination.

We find that the evidence does not support the continuous aggravation or enhancement of the worker’s pre-existing condition. Rather we find that the evidence confirms that the worker’s degenerative condition is progressing or worsening as such conditions do naturally and that any ongoing symptoms are consistent with progressive degenerative disc disease and are not related to the workplace injury of August 2003.

It was suggested that the worker suffers radicular pain as a result of the workplace injury. We did not find any work related cause of radicular pain and note that the treating neurosurgeon specifically ruled out any neurological diagnosis and described the worker’s condition as mechanical low back pain.