The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 4, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being June 27, 2001.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond May 27, 1998.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond May 27, 1998.

Background

The claimant has several back claims with the Workers Compensation Board (WCB) dating back to 1991.

On December 2, 1997, a co-worker was helping the claimant lift a battery charge box weighing approximately 100 lbs. off of a paint tract. When the co-worker left, the claimant bent down to take paper off another box when he found himself unable to move or breathe. On the same day the claimant was taken by ambulance to hospital and x-rays of the lumbar spine showed moderate degenerative changes involving the lumbar spine with some narrowing and disc degeneration at L4-L5 and L5-S1. There was also slight narrowing at L3-4 and moderate facet arthropathy involving the lower lumbar spine. The claimant was diagnosed with muscular back pain. The claim was accepted by the WCB and benefits commenced on December 3, 1997.

On January 14, 1998, an orthopaedic specialist reported that the claimant had previously been seen for lower back problems in 1983. With respect to the December 1997 accident, the claimant complained of occasional pain in both lower limbs. The claimant was diagnosed with degenerative lumbar disc disease. The specialist further stated, “He might have sprained his lower back superadded on the pre-existing degenerative lumbar disc disease. I would think that he is improving at the present time. He was advised to continue the physiotherapy and start active exercises including swimming, which he will start. He will be reviewed by me in about a month’s time. He was advised to stay off work at least until I see him next time.”

A WCB medical advisor reviewed the case on January 30, 1998 at the request of primary adjudication. The medical advisor was of the opinion that there was probably an ongoing cause-effect relationship between the claimant’s current signs/symptoms and the compensable injury in view of the pre-existing degenerative disc disease. He stated that there was indication that the pre-existing condition had prolonged the time loss and that the pre-existing condition had been aggravated.

A follow-up report was received from the orthopaedic specialist on January 17, 1998. He stated that he was not certain that the claimant would improve any further. The claimant still had back pain and movements of the lumbar spine were associated with pain in the lowest part of the lumbar spine. Neurological status was unchanged. The specialist suspected that the claimant was going to have problems with his lower back related to the pre-existing degenerative lumbar disc disease especially when he does anything aggressive with his back.

On February 23, 1998, the claimant returned to work at 4 hours per day. On April 9, 1998, the orthopedic specialist reported that the claimant had been working half time and when his work was really heavy, he found it difficult to continue working even for 4 hours per day.

On April 24, 1998, a CT of the lumbar spine was performed. The results showed “Multilevel facet arthropathy with degenerative disc disease at L4-5 and L5-S1. Mild central stenosis at L3-4 and L4-5.”

In a report dated May 14, 1998, the orthopaedic specialist noted that the claimant still complained of back pain along with pain in the right lower limb on the L5 nerve root. Neurological status was within normal limits. Straight leg raising was negative. The lumbar spine was 50 percent normal. The specialist explained to the claimant that the problem with his back was namely degenerative disc disease and facet arthropathy and he was better off to lose some weight and increase his activity level with walking, cycling, etc.

A WCB medical advisor reviewed the case on May 15, 1998. He indicated that the claimant’s pre-existing condition as demonstrated in the CT scan was the sole barrier to the claimant’s return to full time work.

On May 22, 1998, the claimant was notified by primary adjudication that partial wage loss benefits would be paid to May 27, 1998 inclusive and final as the weight of evidence established that he had recovered from the effects of his workplace injury.

The next medical report on file was from the orthopaedic specialist dated April 29, 1999. It was noted that the claimant underwent a CT myelography of the lumbar spine which showed an L3-4 disc prolapse of small to moderate size with possible compression of the L3 nerve root. The specialist stated that neither he or the claimant was keen on performing surgery as the claimant did not really have any neurologic deficit and seemed to be managing within his restrictions. If the claimant’s symptoms were really bad and interfered with his lifestyle, an L3-4 laminectomy with discectomy at the same level would be considered.

On May 18, 1999, the case was again reviewed by a WCB medical advisor based on the CT myelogram results. The medical advisor was of the opinion that the new evidence did not support the claimant’s contention that his continued difficulties were directly related to the compensable injury. The medical advisor noted that the disc herniation at L3-4 level on the right was likely an incidental finding based on the following facts:

• the claimant complained of pain in both legs,
• the first mention of right leg pain was May 14, 1998,
• the right leg pain was in the L5 root.

On May 31, 1999, the claimant was informed by primary adjudication that no change would be made to its previous decision and that wage loss benefits would not be approved beyond May 17, 1998. The claimant was advised that his case had been reviewed by a WCB medical advisor who offered the opinion that his current difficulties were the result of his pre-existing back condition and was not directly related to the December 2, 1997 lower back injury.

On April 4, 2000, a worker advisor wrote to the WCB indicating that the claimant disagreed with the decisions of May 22, 1998 and May 31, 1999. The worker advisor submitted a report from the orthopaedic specialist dated March 3, 2000 which she believed supported the position that the claimant was entitled to ongoing benefits. In his report of March 3, 2000, the orthopaedic specialist stated in part that some of the claimant’s symptoms were due to the disc prolapse at the L3-4 level which was noted on the CT myelography and that the condition could have been caused by the work related accident.

Following consultant with a WCB medical advisor on May 9, 2000, primary adjudication wrote to the worker advisor on May 24, 2000. Primary adjudication stated that it was the medical advisor’s opinion that the L3-4 disc herniation was related to the pre-existing degenerative disc disease and that the claimant’s current symptoms were consistent with degenerative disc disease. It was determined therefore that no change would be made to the May 22, 1998, decision that the claimant had recovered from the affects of the workplace injury.

On June 23, 2000, the case was considered by Review Office at the worker advisor’s request. Review Office determined that the claimant had recovered from the compensable injury of December 2, 1997 and that he was not entitled to wage loss benefits beyond May 27, 1998. Review Office noted that the claimant had significant degenerative disc disease at L4-5 and L5-S1 with facet arthropathy at L3-4 and L4-5 and that the claimant had difficulty with his back as early as 1983. The comments put forward by the treating orthopaedic specialist in his report of March 3, 2000 was also taken into consideration. Review Office stated there was no concrete information that would indicate the claimant remained disabled as a result of the temporary aggravation of the pre-existing condition.

On December 4, 2000, an Appeal Panel hearing was held at the request of the worker advisor who appealed Review Office’s decision of June 23, 2000. Following the hearing and discussion of the case, the Appeal Panel requested additional medical information from the claimant’s treating physician. On December 27, 2000, the treating physician responded to the Panel’s request and his report was forwarded to the interested parties for comment.

On January 19, 2001, the Panel met again to discuss the case. The Panel decided to have the claimant re-evaluated by his treating orthopedic specialist with regard to the current status of his L3-L4 disc herniation. Arrangements were then made for the claimant to be examined by the orthopedic specialist on March 21, 2001 and for a repeat CT scan of the lumbar spine. The orthopedic specialist’s final report of April 25, 2001 along with the CT scan results of March 13, 2001, were forwarded to the interested parties for comment. On June 4^th, 8^th and 27, 2001, the Panel met to render its final decision on the issue under appeal.

Reasons

Chairperson Sargeant and Commissioner Finkel:

This is the case of a worker with a lengthy history of back injuries. The most recent, which occurred in December 1997, was accepted by the Board as a compensable injury, with wage loss benefits paid for almost six months.

In May 1998, the initial adjudicator determined that the worker had recovered from the effects of the December 1997 accident. It was further determined that any difficulties he continued to suffer were related to a pre-existing back condition unrelated to the compensable injury. The adjudication branch upheld this decision in two additional considerations, in May 1999 and May 2000. The Review Office also upheld this decision in a ruling, dated June 23, 2000.

It is from that decision that the claimant appeals to this Commission. The specific issue that was before us was whether or not the claimant is entitled to payment of wage loss benefits beyond May 27, 1998.

For the appeal to be successful, the panel would have to determine - on a balance of probabilities - that the claimant's ongoing problems with his back, which prevent him from returning to work, are causally related to the workplace injury of December 2, 1997.

A majority of the panel was not able to make that determination.

The panel took a considerable length of time to conclude this case: the hearing was held on December 4, 2000. It is incumbent upon us to ensure that all information necessary to reach a decision is available. To that end, we initially sent out for further medical history, from his attending physician. When that information was returned, we found we still needed more information and referred the claimant for another CT scan, as well as a medical examination by an orthopaedic specialist.

Once all of the information was in hand, we were unable to find a causal link between the current problems and the workplace incident of December 1997.

According to the most recent radiological and physical examinations of the claimant, he suffers from a considerable degree of degenerative disc disease at all levels of his lower spine, including disc narrowing and advanced facet arthropathy. Of particular note is that, at the L3 - L4 level, he has a small lateral disc protrusion on the right, which involves the exiting right L3 nerve root.

This particular protrusion was a matter of some debate between the advocates for the claimant and the employer. The claimant's advocate argued that the protrusion was a result of the workplace accident. The employer's advocate noted that the protrusion was not identified until 1 1/2 years after the accident and, therefore, could very well have occurred at any time in the interim.

In support of the contention that the claimant did not have any disc protrusion in the aftermath of the accident is that he made no report of problems with his lower limbs until May 1998, 5 1/2 months after the accident. And, at that time, the problems reported with his right leg were consistent with an L5 nerve root problem. Add to this, that throughout the period of this claim, the claimant's neurological tests were either negative or within normal limits.

An x-ray taken the day after the accident showed moderate degenerative changes in his lumbar spine with, in particular, some narrowing and disc degeneration at L4 - L5 and L5 - S1, as well as slight narrowing at L3 - L4. It also showed moderate facet arthropathy in the lower lumbar spine, but no other abnormalities. It should be noted that an x-ray will not show a disc protrusion or herniation. Nonetheless, there were no signs and symptoms, at that time, which would indicate disc problems at L3 - L4.

The initial diagnosis was acute back strain. Given his history of back injuries, there can be little doubt that this accident aggravated his previous back problems. And, as noted by a Board medical advisor, his pre-existing problems slowed down his rate of recovery. Still, by mid-February (2 1/2 months post-accident), his orthopaedic specialist was recommending that he return to work on a part-time basis to help with his reconditioning.

By early-May (5 months post-accident), the Board medical advisor had concluded that the claimant had recovered from the effects of the December accident and that any barrier to returning to work full-time was due to he pre-existing back problems, which were not related to the compensable injury. This is not to say that he was not without back problems, but that his ongoing problems were not compensable.

The claimant's wage loss benefits were terminated, at that time, pursuant to section 1 (b) of WCB Policy 44.10.20.10, which reads:

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.

It was argued before us, by the claimant's advocate, that his pre-existing condition had been enhanced and he was, therefore, entitled to ongoing wage loss benefits. In addition, the orthopaedic specialist, to whom he was referred most recently, gave the same opinion. But, he also gave the opinion that "most of his problems are related to the pre-existing condition of degenerative arthrosis and degenerative lumbar disc disease." He estimated that this contributed to about 75% of his back problems, while noting that it is very difficult to make such an estimate.

This specialist also opines that he believes the December 1997 accident precipitated the disc prolapse at L3 - L4. But, he provides no evidence to support this. We note that it was this same specialist who, in May 1998, found the leg pains complained of by the claimant to be consistent with L5 nerve root involvement. We also note that a CT scan in April 1998 showed only mild central stenosis at L3 - L4 and L4 - L5. No nerve root involvement was indicated.

So, even if we accept that his L3 - L4 prolapse contributes to the remaining 25% of his back problems, we have no convincing medical evidence on a balance of probability to support that this problem was caused by his accident.

The panel found the claimant to be a very credible witness when he appeared before us. And, we have no doubt that he continues to suffer from considerable pain in his lower back. However, a majority of us was unable to find a link between his current problems and the workplace accident of December 2, 1997. We conclude - on a balance of probabilities - that the claimant had recovered from the effects of that accident by May 27, 1998 and, therefore, is not entitled to wage loss benefits beyond that time.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of July, 2001

Commissioner's Dissent

When the claimant returned to work in February 1998, he was able to do half of what he was able to do prior to his accident, working 4 hours a day. This attempt at returning to work led to increased symptomatology and dysfunction, again forcing him to discontinue all work. In spite of time away from work, the claimant’s symptoms continue and still significantly compromise his ability to function.

The orthopaedic specialist stated in his report of March 3, 2000 that he is certain that some of the claimant’s symptoms are from his disc herniation. He wrote: “This condition could have been caused by the work related accident.” In other words, the claimant’s continuing disability or symptomatology was caused, in part by his degenerative disc disease and in part by his December 2, 1997 workplace accident.

Board Policy 44.05 Arising out of and in the course of unemployment

This Board policy states that, “if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.”

The claimant worked for the employer for 30 years as a painter/sandblaster.

The claimant is a seasoned worker. His current problems have yet to be resolved and age should not be the barrier. To this commissioner, repeated injuries to one’s back causes scarring, scarring that is labeled as pre-existing and/or degenerative back conditions.

For the above reasons, this commissioner agrees with the submission made to the Appeal Commission by the worker advisor on December 4, 2000, and benefits and services should be reinstated.

B. Leake, Commissioner