The Appeal CommissionThe Workers Compensation Act of Manitoba

As stated in the preamble, this appeal deals with the relationship between the worker’s need for work restrictions and his 1998 compensable injury. The determination of this issue hinges on whether the worker ever recovered from the effects of his 1998 compensable injury.

Background

In 1998 the worker had two workplace injuries - one on May 6, 1998 and one on September 8, 1998. Both left the worker with a disc herniation at the L5-S1 level. It is the later workplace accident that is at issue in the appeal before this panel.

On September 8, 1998, the worker re-injured his back at the L5-S1 level, which had been herniated in his May 6, 1998 accident. Physical examination by a physiotherapist revealed clinical evidence of radiculopathy that was confirmed on a November 23, 1998 CT lumbar myelogram:

“At L3-4 level, there is diffuse disc bulging without evidence of disc herniation, spinal stenosis or nerve root compromise.

At L4-5 level, there is mild diffuse disc bulging without evidence of disc herniation, spinal stenosis or never root compromise.

At L5-S1 level, there is central and slightly left paracentral disc protrusion with caudal migration of disc material on the left, most certainly involves the left S1 nerve root. This is slightly bigger than the previous examination of June 1998…”

He was referred by the WCB to a physiatrist on December 18, 1998. The physiatrist noted in his January 11, 1999 report that the worker continued to have signs and symptoms of left lower lumbosacral root irritative symptomatology with approximately 50% improvement in his symptoms. He also noted that functionally the worker was able to do his activities of daily living as well as most of his activities about the house, though more slowly. Epidural steroid injections were given to the worker which further improved his symptoms by approximately 25%.

In the spring of 1999 the worker began working at modified/alternate duties which increased his symptomatology, causing increased back and right buttock pain as well as difficulty straightening out. He continued working despite his symptomatology. By August 1999, the physiatrist felt that the worker’s disc injury had improved with residual nerve irritation. He also had secondary muscle origin symptomatology that had responded to treatment, as well as mechanical back symptomotology related to the facet joints. Following up on this assessment, a WCB medical advisor examined the worker at the WCB on October 4, 1999. It was his opinion that the worker had still not recovered from his workplace accident and that he continued to display signs and symptoms consistent with facet arthropathy as well as facet and disc injury. He also noted that the worker displayed little evidence of pain behaviour but that pain was the worker’s main problem.

An MRI was then done on January 25, 2000. It revealed the following:

“…At the L5-S1 level, there is mild degenerative narrowing and desiccation of the intervertebral disc. There is a small central and slightly left paracentral disc herniation. There is no evidence of central spinal stenosis. The disc material contacts the left S1 nerve root but there is no definite evidence of displacement or compression of the left S1 nerve root…”

The MRI was reviewed by an orthopaedic consultant to the WCB who thought it preferable to send the worker for a surgical consultation. The orthopaedic consultant nonetheless examined the worker on July 20, 2000. Contrary to the WCB medical advisor, he thought that the worker displayed a “surprising degree of symptom amplification”. He recommended a consultation with the WCB’s Pain Management Unit (“PMU”) for assessment of a chronic pain syndrome (“CPS”). He added that if the worker did not qualify for a diagnosis of CPS, he should be returned to his regular full-time occupation.

The worker was first seen by the PMU for a psychological assessment on October 3, 2000. Tests were administered that suggested that there was a non-organic component to the worker’s pain with a tendency to have his pain aggravated by emotional factors but that he did not have a tendency to catastrophize or exaggerate his symptoms. Consistent with the WCB medical advisor, the PMU noted mild pain behaviours but found that he did not meet the diagnostic criteria for CPS as his disability was not proportionate in all areas of functioning. That said, it did suggest that the worker had a “back at risk” and might benefit from preventive restrictions.

The worker’s family physician disagreed. He thought that the worker was still not physically able to return to his regular duties. He noted that clinically the worker continued to show ongoing stiffness in his lumbosacral spine with poor range of movement especially on extension and flexion, as well as ongoing back pain with spasm. He thought that the worker should remain on modified light duties with limited lifting, bending, sitting and standing.

On July 18, 2001, the worker experienced a sudden flare-up of low back pain and a CT myelogram was performed on August 1, 2001. At the L5-S1, it showed a small central L5-S1 disc herniation. Given these results and the worker’s ongoing symptoms, an orthopaedic surgeon suggested a left-sided L5-S1 discectomy and decompressive surgery of the left S1 nerve root.

Another WCB medical advisor reviewed the worker’s file on October 9, 2001. He thought that the worker’s L5-S1 disc herniation was probably related to the worker’s compensable injury and that he likely required permanent restrictions. He concurred with the orthopaedic surgeon’s recommendation for surgery, as without it, the worker would be required to live with his left leg pain. Based on this assessment, the WCB accepted responsibility for the surgical procedure.

The surgical procedure was carried out on November 8, 2001. During the surgery it was noted that the worker had also suffered a small dural tear due to the adhesions between the ligamentum flavum and the dural sac. This was repaired and a laminectomy of the S1 and L5, as well as a discectomy of the L5-S1 was done.

Immediately after the surgery, the worker’s leg symptoms nearly completely resolved though his low back pain remained chronic. He was referred for physiotherapy and it was anticipated that he would be able to return to work by February 2002. Unfortunately by that time, the worker’s symptoms took a turn for the worse to the point that they were the same or worse than what they were prior to the surgery. An MRI performed on March 21, 2002 revealed at the L5-S1 a “good deal of enhancing scar” with a component within the canal where the laminectomy was performed which abutted the first sacral root. There was however no evidence of a disc herniation.

The orthopaedic surgeon referred the worker to a neurosurgeon for an injection of epidural steroids. In the meantime, the worker returned to light duties.

The neurosurgeon saw the worker on June 18, 2002. He diagnosed the worker with neurogenic claudication – bilateral L5 secondary to the L5-S1 disc herniation. He did not however feel that the worker had significant neural compression and could not entirely explain the worker’s discomfort. He nonetheless tried a trial block of local anaesthesia and cortisone into the L5-S1 neural foramen without much success. In a telephone conversation with the WCB case manager, the neurosurgeon commented that the worker showed definite pain behaviour; he did not walk properly and his symptoms could not be explained neurologically. He offered that most people make a good functional recovery from the type of surgery the worker had and it was difficult to explain the worker’s difficulties.

In August 2002, the worker underwent a Functional Capacity Evaluation (“FCE”) which revealed that his participation in the FCE was not a full voluntary effort. Video surveillance and an investigation (which essentially dealt with another accident that the worker claimed he had had in the fall of 2002) were then carried out.

Shortly thereafter a WCB medical advisor was shown video surveillance of the worker. The WCB medical advisor noted that the surveillance showed the worker walking, bending, and stooping easily. He was observed to golf, carry objects of weight, climb stairs, ladders, negotiate uneven ground without difficulty, push and pull an auto-bin container full of home renovation debris and carry his golf bag with one arm. Based on this displayed activity, the WCB medical advisor thought that the worker would be able to return to his regular duties with preventive restrictions of avoiding repetitive lifting of greater than 75 pounds.

In September 2002 the worker returned to full regular duties. Subsequently his symptoms deteriorated once again. He was seen by the neurosurgeon who ordered an MRI to see if there was some new pathology since he had returned to work. The MRI was done on October 30, 2002. At the L5-S1 it revealed degenerative disc narrowing as well as diffuse soft tissue enhancement about the thecal sac and the S1 roots bilaterally. Bilateral nerve root enhancement was present as well at the S1 roots. There was also evidence of a small residual or recurrent central disc herniation slightly indenting the thecal sac. A WCB medical advisor did not think that MRI accounted for the worker’s “dramatic presentation”. He commented that there was no clear objective finding to support a recurrence of the 1998 work injury or of a new acute injury having occurred with his return to work.

A medical report provided by the worker’s family physician to the Appeal Commission at the panel’s request outlines the worker’s symptoms from 2002 forward. It notes multiple visits to deal with constant back and left leg pain and flare-ups. These visits were also mentioned in a prior report of August 15, 2005 which is more summary in nature. It also indicates that he had referred the worker to a physiatrist who ordered another MRI; the findings were similar to the earlier MRI. The family physician asked the WCB to consider re-opening the worker’s case even though he acknowledged that it would be hard to do so due to the video surveillance. He thought that the worker still required job restrictions that would include lifting up to 30 lbs., repetitive and prolonged sitting, standing and walking limited to 20-30 minutes at a time with allowance of frequent breaks.

The worker was examined at the request of the WCB in September 2005. A physiotherapist consultant performed an assessment on September 27, 2005 with respect to establishing a permanent impairment award. The assessment revealed some impairment in the worker’s range of motion though the extent of the impairment was guessed at given inconsistencies in the worker’s ranges of motion depending on whether he was sitting or lying down.

The worker was also examined by a WCB medical advisor on September 27, 2005. The medical advisor found signs and symptoms of L5-S1 discopathy. She thought that based on the diagnosis, treatment to date and pathology noted on imaging studies, that permanent restrictions would normally be appropriate as was outlined by a senior WCB medical advisor in a memo dated October 9, 2001. She also stated:

“Unfortunately [the worker] has not always presented as a forthright historian and his physical capabilities have been documented as being greater than his reported and demonstrated abilities in a formal setting. This does not negate the fact that [the worker] sustained a lumbar disc herniation at the workplace and underwent surgical intervention of the same which resulted in post-operative epidural scarring. In my opinion, a case such as this would normally result in permanent restrictions of avoiding repetitive bending or twisting of the lumbosacral spine, repetitive heavy lifting of over 30 lbs., occasional heavy lifting of greater than 50 lbs., and prolonged use of heavy machinery over uneven ground.”

The WCB medical advisor changed her opinion however after viewing some video surveillance of the worker which was taken on November 21 and 22, 2005. She noted that the worker was able to ride his bicycle on uneven ground, balance and negotiate his bike over rough terrain in a forward flexed position without any hesitation, difficulty or evidence of pain behaviour, pushing, pulling, kneeling, lifting, crouching and prolonged standing activities without any difficulties. She concluded that he had recovered from his 1998 workplace accident and that the restrictions noted in the September 27, 2005 call-in notes were preventive in nature.

This was also the opinion of the orthopaedic consultant to Review Office. In a memorandum dated August 1, 2006, he indicated that the worker continued to require restrictions as outlined by the WCB medical advisor following her examination of the worker in September 2005. He also indicated that the worker had made a full and complete recovery from any and all of his compensable back injuries. He stated, “The only need to impose preventative (sic) restrictions is due to the fact he has degenerative disc disease at L5-S1 & L2-L3. The fact that he had a previous disc herniation & surgery in a degenerative disc in itself does not necessitate the imposition of restrictions.” However, in discussion with a Review Officer, the WCB orthopaedic consultant thought that based on the wording of WCB Policy 44.10.20.10, the worker’s pre-existing condition was enhanced by the compensable injury and resulting surgery and that any restrictions would be compensable as a result. He further advised that the worker’s demonstrated functional abilities were the most important indicator that he made a very good recovery from the compensable injuries, in particular the 1998 injury.

Medical Information Requested by the Panel

As indicated in the preamble, the panel requested medical information from the worker’s treating chiropractor and family physician.

The worker’s treating chiropractor replied to the panel’s request in a February 15, 2007 report. This report indicates that the chiropractor treated the worker in the same anatomical regions as his compensable injury between May 12, 2004 and October 27, 2005. He noted that when he first saw the worker on May 12, 2004 he presented with an irritation of his L5-S1 disc herniation with left leg radiculopathy that had not resolved. He also noted that the worker only got short-term relief with chiropractic care and continued to suffer aggravations with physical work.

The worker’s family physician provided a 21 page report dated January 29, 2007. This report indicates that he has been the worker’s physician since 1992. It also outlines the worker’s visits to him between 2001 and 2007 and concludes:

“In summary, [the worker] sustained a work-related injury on two occasions in early 1998 and September 1998. He subsequently required a L5, S1 discectomy and laminectomy for his L5, S1 disc herniation resulting in nerve impingement. Unfortunately his improvement was only short-term with subsequent recurrence of his low back pain two months post-op. He had undergone extensive Physiotherapy both pre-op and post-op along with seeing multiple specialists in the fields of Orthopedic, Neurosurgery, Rehabilitation Medicine and Pain Clinic and Chiropractor, etc. He continues to experience chronic low back pain with left leg pain and numbness. He is currently taking [opioid medication] for pain control. He should remain on permanent light duty with avoidance of repetitive bending, standing, sitting or walking greater than 20-30 minutes each time and should be allowed frequent breaks to do his stretching at work. He should also restrict his lifting to less than 30 pounds. His injury is considered to be permanent in nature and his job restriction should be put under indefinite term.

Employer’s Position

The employer has argued that policy 44.10.20.10 should not have been used in the Review Office decision as there is no scientific or credible evidence that the compensable injury “permanently and adversely” affected the pre-existing condition and therefore the pre-existing condition has not been enhanced.

It says that the worker’s restrictions are for preventive reasons as opposed to his compensable injury. While it agrees with the WCB medical advisor’s September 27, 2005 opinion that the worker’s surgery would normally call for compensable restrictions, it says that given the worker’s demonstrated activity on surveillance and the discrepancies in his self-reported pain and limitations, compensable restrictions are not required in the present case. It also says that although the worker might require some restrictions due to his pre-existing degeneration in other parts of his spine and the number of back injuries that he has had, those restrictions are also preventive in nature.

Worker’s Position

The worker disagrees. He says that he suffered an enhancement of his pre-existing degenerative disc disease as well as further injury in the form of epidural scarring which abuts his sacral nerve root. He says that because of this he requires restrictions that are related to his compensable injury and should not be considered preventive in nature.

Analysis

To accept the employer’s appeal we must find on a balance of probabilities that the worker recovered from the effects of his 1998 compensable injury and that any ongoing need for restrictions is strictly preventive in nature. We are unable to make that finding.

The employer says that although the worker suffered an injury which would normally call for compensable restrictions, this particular worker does not require them because he has demonstrated on video surveillance that he is capable of working his full-time regular duties. We do not agree with this submission. The panel finds that the worker was not performing functions outside of his noted restrictions and therefore place little weight on the surveillance and the resulting opinion of the WCB medical advisor to the worker’s recovery and preventive restrictions.

While the worker’s presentation and reported physical limitations has been noted on file to be exaggerated, the medical evidence nonetheless records a continuity of non-remitting signs and symptoms consistent with a L5-S1 discopathy which are continually aggravated by physical activity. The combination of the continued aggravation and his increased use of medication for pain control demonstrate an ongoing relationship to the compensable injury. We therefore find that the worker has not recovered from his September 1998 compensable injury and that he continues to require compensable restrictions.