The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position

The worker was represented at the hearing by a worker advisor who made a presentation on her behalf. The worker answered questions asked by her representative and the panel.

The worker provided information regarding her back condition and workplace accident. She advised that she worked in a sales position and in approximately May 2000 developed pain in her legs. In 2001 she was referred to an orthopedic surgeon who diagnosed her with spinal stenosis and degenerative spondylolisthesis. In February 2001, the orthopedic specialist performed surgery on the worker’s back. The worker advised that she was cleared by her physicians to return to her regular duties without restrictions in May or June 2002. She was let go by her employer and found new employment in the same field with her current employer in October 2002.

The worker advised that she was able to perform her duties and did not miss time from work for her back until November 2003 when she had an incident at work. She applied to the WCB in relation to this incident but her claim was not accepted. She also had a motor vehicle accident in February or March 2004.

The worker advised that she returned to work in May 2004 to regular duties and regular hours. She did not have any problems with her back until the December 2004 workplace accident where the chair she was sitting on slipped from under her and she landed on the ground. She did not feel any symptoms at the time of the accident. The next day her back became sore. She advised that her symptoms have continued, although she has good days and bad days. She described her level of activity and current medication use.

In answer to a question, the worker advised that she has not attended the treating orthopedic surgeon since July 2005. She advised that the orthopedic surgeon told her that if she cannot tolerate the pain with medication, surgery can be done by fusing with a bone from her pelvic area. She advised that she does not wish to have this done.

The worker advised that she has not worked since shortly after the workplace accident.

The worker’s representative submitted that the WCB erred in evaluating and interpreting the medical information on file when it determined that the worker was no longer entitled to benefits. The representative noted that although the worker had significant surgery for her pre-existing condition, she was able to return to a sales job. The representative submitted that a comparison of the diagnostic tests demonstrates little, if any change to the degenerative condition. He submitted that if the worker’s back problem is not due to progressive changes in the worker’s degenerative condition, it must be due to an aggravation caused by the December 2004 workplace accident.

The worker’s representative asked the panel to give weight to the opinion of the treating orthopedic surgeon, particularly the report of June 28, 2006. The representative asked the panel to apply Board Policy 44.10.20.10 which provides that where a worker’s inability to work is due to a compensable injury in concert with a pre-existing condition, the loss of earning capacity is compensable.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond August 31, 2005. For the appeal to succeed, the panel must find that the worker’s loss of earning capacity is due to her workplace injury. The panel was not able to make this determination. The panel finds, on a balance of probabilities, that the worker’s workplace injury is not contributing, to a material degree, to the worker’s loss of earning capacity and that the worker is not entitled to wage loss benefits beyond August 31, 2005.

The panel notes that the worker has a significant pre-existing condition for which she received surgical treatment in 2001. The surgery included an L4/5 decompressive laminectomy and fusion.

At the hearing, the worker denied any difficulties with her back post surgery, however, the treating orthopedic surgeon notes in his report of March 11, 2005, that the worker could get mechanical back pain with over activity. He repeats this observation in his June 28, 2006 report and notes the worker was intermittently symptomatic.

The panel also notes that in November 2003 the worker was disabled and missed work as a result of an incident where she was unable to get up from a chair. There did not appear to be a significant event to trigger the worker’s symptoms. This suggests the worker’s degenerative condition is subject to aggravation from minor events.

At the hearing, the worker advised that she did not think she hurt herself in the accident, did not have any specific symptoms, and continued with her duties for the balance of the work day. The symptoms commenced the next day. The panel has considered the mechanism of injury in the December 2004 workplace accident and finds that the accident was a minor event and would not likely cause an ongoing aggravation of the worker’s pre-existing condition.

The panel notes that the MRI of May 29, 2005 did not demonstrate a new disc herniation or measurable entrapment and notes the treating orthopedic surgeon’s observation that the MRI is “unable to say whether the pre-existing lumbar degenerative disc disease and L4/5 degenerative spondylolisthesis has been further aggravated by her work related injury.” The panel also notes and relies on the opinion of the WCB orthopedic consultant set out in a memo dated July 27, 2006 that “There is no objective marker to support enhancement of any of her pre-existing problems. These conditions are also naturally progressive.” The panel finds that the diagnostic tests do not show or confirm that the worker’s condition continues to be aggravated or enhanced.

The panel is unable to find that the December 2004 accident is contributing to the worker’s ongoing loss of earning capacity. The panel notes that in March 2005 the treating orthopedic specialist reported that the worker had a reasonable range of motion yet in July 2005, he reported a further decrease in the range of motion. The panel is unable to relate this worsening of the worker’s condition more than six months after the accident to her workplace injury. The panel finds that the worker’s worsening condition is consistent with worsening symptoms due to her pre-existing condition, which is a progressively deteriorating type of condition. The panel relies upon the opinion of the WCB medical consultant, set out in a memo dated January 26, 2006, that indicated if the worker’s symptoms and findings are worsening, it is much more likely to be due to progressive degenerative changes rather than the effects of an acute injury.