The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

On July 14, 2005, the worker felt a sharp pain in his lower back when lifting at work. He saw his family physician who noted tenderness and muscle tightness along the thoracic-lumbar spine but no radicular signs. He was diagnosed with a low back strain and referred for physiotherapy.

An x-ray taken on July 26, 2005 revealed a mild kyphosis in the thoracic spine as well as degenerative changes in the facet joints of the lumbar spine and a slight retrolisthesis of L5 on S1 which was considered to be congenital in nature.

The worker returned to work for a brief period at the end of July 2005, at which time he went off work due to increased thoracic-lumbar pain at the L3-4 level. He remained off work until September 2005 when he attempted a gradual return to work.

The gradual return to work went well and the worker’s back strain improved. On September 21, 2005 he went off work again after he re-injured his back and began to experience radicular symptoms.

A CT scan done in November 2005 ruled out any nerve root involvement in the spine. Rather, it confirmed pre-existing degenerative changes at the L4-5 and L5-S1.

The physician noted that the worker’s back strain was improving during the gradual return to work. A September 9, 2005 report notes full range of motion with pain at extreme right rotation with no neurological deficits. On September 21, 2005 however, the worker re-injured his back. His physician noted a recurrence of tenderness over the lower lumbar spine laterally on the right as well as the appearance of numbness and tingling in his right foot. The worker was taken off work pending a CT scan.

The worker was called in for an examination by a physiotherapy consultant to the WCB on October 19, 2005. Examination revealed pain complaints on forward flexion between the L3 and L5 discs as well as on segmental compression over L5.

In December 2005 and January 2006, a WCB medical advisor reviewed the file to comment on the worker’s injury and ability to return to work. His opinion was that the worker suffered a lumbar strain as a result of his workplace injury. However, he also suffered from pre-existing degenerative mild facet arthropathy. Given the worker’s functional difficulties, he recommended a four week reconditioning program. After this program, he thought that the worker would be able to return to his full time duties.

In preparation for the reconditioning program the worker had an assessment done by an outside facility (the “Program”) on January 6, 2006. The intake assessment records the worker’s complaints of cervical, thoracic and lumbar spine pain as well as a corresponding decreased level of functioning. After examination and testing, the Program concluded that the worker suffered from myomechanical low back and cervical pain, deconditioning and weakness in the core musculature. Despite these findings, the testing revealed that the worker was still performing within the medium strength demand level. The Program recommended a comprehensive reconditioning program to increase the worker’s overall functional ability and provide him with education on self-management of his pain complaints.

Reporting letters from the Program indicate that the worker did well during his first three weeks but then had increased low back pain on January 31, 2006 which took him off the reconditioning program for two days.

The Program commented that prior to this incident, the worker’s clinical presentation was fine and that his functional capacity had progressed to the medium – heavy strength category. It thought that the January 31, 2006 incident was a flare-up of mechanical low back pain and not an injury given its examination of the worker. It also noted that the worker only put out a sub-maximal effort in the reconditioning program as his physician had told him to participate only as he felt comfortable. By February 20, 2006 however, the Program felt that the worker had returned to the same level of functioning that he was at prior to January 31, 2006.

Ultimately the worker was discharged from the reconditioning program on February 27, 2006, as the Program felt that the worker could return to work. Though the worker had expressed pain complaints and performed worse than expected, they felt that the worker was inconsistent in his level of testing and was not performing to his full ability.

The worker’s physician disagreed. He thought that the worker was unfit to return to work due to limited back function.

The worker then saw another physician who referred him to an orthopaedic surgeon in August 2006. On examination, the orthopaedic surgeon found mainly S1 symptoms. A CT scan was also done that revealed only slight retrolisthesis of the L5 on S1 and mild facet joint degeneration at the L4-5. Based on his examination and the additional tests, the orthopaedic surgeon diagnosed the worker with degenerative disc disease. He recommended exercise and avoidance of activities that caused him pain.

Worker’s Position

The worker says that he is entitled to further wage loss benefits after February 24, 2006 as he felt that he had not recovered from his compensable injury. His advocate conceded that the worker had a pre-existing degenerative back condition but thought that something more might be involved at the L1 area, as this part of his spine was not imaged on the CT scan.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that his back symptoms after February 24, 2006 are related to his compensable injury. We are unable to make that finding.

A review of the medical information reveals that as of January 2006, the worker’s complaints were pain complaints due to mechanical back pain caused from disc degeneration and deconditioning. There is in particular, a lack of medical evidence that the worker continued to suffer from the effects of his compensable back strain.

Though the worker was enrolled in a reconditioning program, this program was designed to assist the worker in increasing his functional capacity. The medical reports from the Program indicate that in January 2006 the worker had increased his functional ability to medium to heavy labour. While the worker suffered a flare-up at this time, the medical evidence suggests that this was due to the worker’s pre-existing condition and not his compensable injury. Further, it suggests that the worker limited his participation in accordance with his pain complaints. Though the worker’s family physician concurred with this self-limitation and advised against a return to work, we do not see any convincing rationale for this limitation other than the worker’s pain complaints and some tenderness over the lower lumbar spine. The later medical report from the worker’s orthopaedic surgeon confirms the source of the worker’s ongoing complaints as being related to his pre-existing condition rather than his compensable injury.

We therefore find on a balance of probabilities that the worker’s ongoing symptoms are not causally related to his compensable injury and that he is not entitled to wage loss benefits after February 24, 2006.

Accordingly, the worker’s appeal is denied.

To be clear, we did consider the advocate’s argument about a possible L1 involvement. In reviewing the medical file and on questioning the worker at the hearing, we did not find any cogent evidence to suggest that there is any pathology arising from L1 involvement, either from the worker’s reports as to where he was injured, or from clinical findings by any of his treating practitioners.