Decision #155/07 - Type: Workers Compensation
Preamble
A hearing was held on September 27, 2007, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal following the hearing on September 27, 2007.Issue
Whether or not the worker is entitled to benefits beyond November 20, 2006.Decision
That the worker is entitled to benefits beyond November 20, 2006.Decision: Unanimous
Background
On August 5, 2003, the worker injured her right leg and low back in a work related incident. The claim was accepted by the Workers Compensation Board (WCB) based on the diagnosis of a strain. A CT scan performed on September 9, 2003 revealed that the worker had lumbar disc herniations at L4-5 and L5-S1 on the right side and multi-level degenerative lumbar disc disease.
In a decision by Review Office dated November 28, 2003, it was determined that the worker’s disc herniation arose out of and in the course of her employment.
Between December 2003 and December 2004, the worker underwent further laboratory tests which consisted of an MRI on December 7, 2003, a CT myelogram on March 11, 2004 and nerve conduction studies on April 30, 2004. She was also treated by an orthopaedic specialist and a neurologist. The worker underwent two intervertebral cortisone injections for right S1 sciatica but this did not improve her symptoms.
On June 16, 2005, the worker was examined by a WCB medical advisor who found that the worker continued to present with a right L5 and S1 radiculopathy. A repeat MRI was suggested to determine whether the worker’s condition had changed over the past year and a half.
On August 10, 2005, a physical medicine and rehabilitation specialist (a physiatrist) noted that the worker’s overall presentation was consistent with previous MRI studies which identified a disc herniation at L5-S1 with displacement of the right S1 nerve root. A caudal epidural under image guidance was arranged. At a follow-up visit on September 28, 2005, the worker reported no significant benefit from the epidural injection and a transforaminal injection was suggested.
MRI results dated August 25, 2005 showed disc herniations at L3-L4, L4-L5 and L5-S1. It stated the worker had a congenitally narrow spinal canal at all levels. There was a significant superimposed spinal stenosis at L4-L5 due to early ligament flavum thickening and the described relatively large diffuse right posterolateral disc protrusion. Compared to the prior MRI of December 7, 2003, there was no significant interval change. All three described disc protrusions were present and the degree of spinal stenosis had not altered.
The worker underwent a transforaminal injection on December 13, 2005 but experienced no benefit from the procedure.
On January 4, 2006, an orthopaedic specialist reported that the worker complained of severe low back pain, right leg pain and dysthesias. She had decreased range of motion in all planes and the physical examination was limited due to pain. He noted that the worker was considering surgery.
In a report dated January 13, 2006, the orthopaedic specialist noted that there were concerns in matching the worker’s symptoms to the pathology noted on the August 25, 2005 MRI. The risks associated with surgery were also discussed.
The worker underwent a functional capacity evaluation on February 14, 2006. The worker’s participation during the evaluation was not a full voluntary effort. The worker reported pain from her neck through to her low back, into her right leg primarily and in her arms and shoulders.
The file was reviewed by a WCB orthopaedic consultant on February 16, 2006. In his opinion, the worker had recovered from a possible right L5-S1 disc herniation. He felt the proposed surgical treatment was not a WCB responsibility. He said there was no evidence that the worker had symptomatic disc herniations. He rescinded the long term restrictions outlined on June 22, 2005.
On May 29, 2006, the treating physician commented that the worker had a positive response to an L5 transforaminal injection that lasted until May before her symptoms increased.
In a report dated June 4, 2006, the treating physiatrist indicated that the worker described a very good, but temporary response to the L5 transforaminal injection. He stated “Her response is suggestive that it is the L5 root that is the symptomatic problem and not the SI.”
On August 28, 2006, the worker was informed of the WCB’s position that she had recovered from the effects of her compensable injury and that her ongoing complaints would be related to the degenerative findings noted on test results. The worker was advised that wage loss benefits would be paid to November 20, 2006 inclusive. On November 14, 2006, this decision was appealed by the worker’s advocate. In support of his position that the worker “…continued to suffer the results of her work related injury due to an enhancement of a pre-existing condition which was asymptomatic prior to her injury” the advocate provided the case manager with medical reports dated October 19 and October 31, 2006 for consideration.
A WCB orthopaedic consultant reviewed the new information submitted by the worker’s advocate at the case manager’s request. In a memo dated January 16, 2007, the orthopaedic consultant commented that his opinion remained unchanged. He stated,
“It is clear that the treating specialists are unable to decide what is the ongoing diagnosis.
This being the case, there is also no diagnosis of an ongoing symptoms complex related to the workplace injury of this claim.
Further, it is clear the imaging findings have basically not changed during the entire period of this claim, 3 1/2 years.
This strongly indicates that these changes are chronic, pre-existing, and unaffected by the workplace injury of this claim.”
In a letter to the worker dated February 13, 2007, the case manager stated the following:
“Review Office order 781/2003 established that you had sustained a disc herniation arising out of and in the course of your employment. At the time that decision was rendered, your complaints emanated from either of the L4-5, or L5-S1 discs. [The orthopaedic surgeon] has reported that he has “…no way of demonstrating which of these levels in her lumbar spine are contributing to the symptom complex that she is describing…”. [the treating physiatrist] has reported that the S1 nerve root is not the pain generator and cites L5 as the probable cause. [the treating physiatrist] however, further notes that there is pre-existing spinal stenosis at this level and further refers to pre-existing degenerative changes at this level. Later evaluation by [the orthopaedic surgeon] reveals that he wishes to explore L3-L4 as the potential cause of your complaints. This would be corroborated by the most recent MRI, which depicted left far posterolateral disc protrusion at L3-L4. Please note that an injury at the L3-L4 level has not been accepted by the WCB.”
Based on the above observations and the opinion expressed by the WCB’s orthopaedic consultant, the case manager stated “…the existence of a disc protrusion at L3-L4, along with the fact our treating physicians are now gearing their care towards exploring L3-L4 as the cause of your ongoing complaints, supports my opinion your ongoing complaints are not related to the accepted compensable injury, but are more probably the result of your pre-existing medical condition. Therefore…there is no change in my decision as expressed in my letter of August 28, 2006.”
The case was then considered by Review Office based on an appeal submission by the worker and her advocate. In its decision dated April 26, 2007, Review Office determined that the worker was not entitled to benefits after November 20, 2006. Review Office found that the evidence did not establish that the worker continued to experience the effects of her compensable injury. It found that there was no conclusive evidence to support the physiatrist’s opinion regarding a possibility that the workplace injury caused the L4-L5 disc herniation which “might have enhanced an underlying condition”. It found that the multilevel spinal stenosis and degenerative condition was anticipated to cause the worker’s ongoing symptoms. On May 23, 2007, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and a hearing was arranged. On September 13, 2007, the advocate provided the appeal panel with additional medical information which showed that the worker underwent surgery on June 28, 2007.
Reasons
In this appeal, the Panel was asked to consider the issue of whether or not the worker is entitled to benefits beyond November 20, 2006.
Evidence
As indicated in the background, the worker injured her right leg and lower back on August 5, 2003. At the hearing of this appeal she described the mechanism of her injury saying that she was going down a ramp pushing a heavy cart filled with mail and other things when the cart started to pull her. As she went down the ramp the cart got away from her and crashed into a wall at which point the worker fell over the cart and collapsed to the ground.
On August 26, 2003, the worker’s physician diagnosed her condition as one involving a disc protrusion.
A WCB medical advisor reviewed the history of the injury and the worker’s CT scan and commented:
“Essentially a lumbar extension against resistance, which could theoretically increase intradiscal pressure. Also, given the absence of prior back condition and temporal relationship with Compensable Injury (CI) two symptoms (back and leg pain), on balance of probabilities the CI likely caused the disc herniation(s).”
The claim was therefore accepted and benefits and services were paid accordingly.
On November 4, 2003, the employer appealed that decision, requesting reconsideration by the Review Office. The Review Office, in a decision dated November 28, 2003, confirmed the finding that the worker sustained a disc herniation which arose out of and in the course of her employment. It commented that although the history of injury was not typical of disc herniation, the CT scan showed that the worker had multi-level degenerative disc disease. The Review Office agreed with the medical opinion that lumber extension against resistance could increase intradiscal pressure and given the fact that this worker had no prior back symptoms, found that the claim was acceptable.
The worker’s symptoms continued and she remained unable to work.
On August 28, 2006, a WCB case manager determined that the worker was considered to have recovered from the effects of the workplace injury and advised that wage loss benefits were to cease as of November 20, 2006.
The worker asked the Review Office to reconsider the case manager’s decision. In a decision dated April 26, 2007, the Review Office found that it was unable to establish that the worker was continuing to experience the effects of the workplace injury. In so finding, the Review Office referred, among other things, to a report from the WCB’s orthopedic consultant dated February 16, 2006, in which the consultant provided the opinion that although the workplace injury resulted in symptoms consistent with a right L5-S1 disc herniation and S1 radiculopathy, he would expect recovery from this within four to six months with conservative management and was, therefore, of the opinion that the worker had recovered from the possible right L5-S1 disc herniation.
On January 16, 2007, the WCB orthopedic consultant reviewed the worker’s file again and indicated that his opinion remained unchanged. In his view, there was no diagnosis of an ongoing symptom complex related to the workplace injury. He considered the imaging findings which had been essentially unchanged over the course of the claim, to be “chronic, pre-existing, and unaffected by the workplace injury”.
This is in contrast to the evidence set out by the worker’s treating physicians as set out below.
One of the worker’s treating physicians in a report dated May 29, 2006 indicated that the worker had a positive response to a transforaminal injection at the L5 level: the worker reported it as “best ever”, “was the right spot”. On June 4, 2006, the worker’s physician indicated that the worker’s positive response to this injection suggested that the L5 root was the problem rather than the S1 level. Given that the worker had had a temporary response to the injection he recommended a surgical solution.
In a letter dated October 19, 2006, the worker’s physician summarized his treatment and diagnostic interventions. He again noted that the worker had no positive responses to the injections at the S1 level but had had temporary benefits from the injections to the L5 level. He provided his opinion that the worker’s clinical diagnosis was persistent right L5 radicular pain. He further stated:
“If in fact the right L5 spinal nerve is the pain generator, the anatomical findings most likely responsible are the spinal stenosis and the disc herniation at the L4-L5 level. The lumbar spinal stenosis would not be considered a result of a specific injury. However, if the CI was considered to be the ‘cause’ of the L4-L5 disc herniation, then the disc herniation at that level has resulted in an anatomical change and might have enhanced an underlying condition.”
Then in a report dated October 31, 2006 the worker’s orthopedic surgeon stated:
“It is reasonable to assume that if the patient had no symptoms prior to her work injury and is having right-sided back pain and leg pain and dysesthesias subsequent to the injury, that the disc herniation findings are likely either the result of or were exacerbated by the work injury.”
Ultimately the worker had surgery to treat her symptoms. Specifically she underwent a PLIF at the L4-L5 and L5-S1 levels. The discharge summary from the hospital where the surgery was performed noted that her clinical radiological evaluation showed degenerative disc disease at L4-L5, L5-S1 with foraminal stenosis.
At the hearing of this appeal the worker testified that she has improved and is now feeling much better subsequent to the surgery. She stated that she loves her job and anticipates going back to work.
In a letter dated September 13, 2007 the worker’s treating physician, having reviewed all of the above medical evidence including the discharge summary from the hospital where the worker’s surgery was performed, concluded by stating “… that the medical evidence supports the workplace injury …”
Findings
In our view, the evidence supports a finding that the worker is entitled to benefits beyond November 20, 2006.
Shortly after the worker sustained her injury, the radiologic evidence showed a pre-existing degenerative disc condition together with a disc herniation. It was determined by the WCB that the disc herniation was caused by the workplace injury and benefits were paid accordingly.
It is true that the radiologic evidence has remained unchanged from the time of the workplace injury. The worker’s symptoms remained unchanged, as well, until she underwent surgery in June 2007. That surgery addressed the disc herniation at the level that was considered to have been injured by the workplace accident.
There is no question that in this matter the Board acknowledged that the workplace injury caused the disc herniation. The WCB Medical Advisor, however, by February of 2006 offered the opinion that the workplace injury should have resolved in a reasonable period which, in his view, was four to six months and therefore the worker should have been considered to have recovered from a possible right L5-S1 disc herniation.
Although the WCB physician characterized the L5-S1 disc herniation as “possible”, the worker’s physiatrist subsequently described the L5 level as the “probable symptomatic” level. And following that the worker’s orthopedic surgeon in a letter to the worker’s advocate dated October 31, 2006 stated that “it is reasonable to assume that if the patient had no symptoms prior to her work injury and is having right-sided back pain and leg pain and esthesia subsequent to the injury, that the disc herniation findings are likely either the result of or were exacerbated by the work injury”.
We find, therefore, that the evidence supports the worker’s position that the chain of causation between her injury of August 2003 and her ongoing symptoms post November 20, 2006, remained unbroken.
At the hearing of this matter the employer’s representative, acknowledged there was no question that the worker was a longstanding, loyal employee who had unquestionably had a difficult time over the years with her back. The position of the employer, however, was that based on the medical evidence the worker had a pre-existing condition which was only temporarily aggravated by the compensable injury.
The position of the worker was that in fact her pre-existing condition had been enhanced as the result of the accident which took place in August of 2003, rather than merely aggravated.
In our view the medical evidence taken as a whole supports a finding that the worker’s pre-existing condition was indeed enhanced as the result of the compensable injury.
In so finding we have made reference to Board Policy 44.10.20.10 (the “Policy”). That Policy states as follows:POLICY PURPOSE
Section 4(1) of the Workers Compensation Act states:
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections."
The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The traditional approach of dealing with pre-existing conditions that categorizes them as being either static or deteriorating has been simplified in this policy by dealing with the two concepts in the same framework.
POLICY
1. WAGE LOSS ELIGIBILITY
…
b. Where a worker has:
- 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
- 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
- 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.
… However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.
The Policy sets out the following definitions:
Aggravation
The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.
Enhancement
Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.
We find on a balance of probabilities that the compensable injury which occurred on August 5, 2003 continued to affect the worker’s pre-existing condition after November 20, 2006 and made surgery necessary on that condition.
Accordingly, based on the above definitions and in accordance with the provisions of the Policy, we find that the workplace injury enhanced the worker’s pre-existing condition which was ultimately remedied by surgery in June of 2007.
The worker is, therefore, entitled to benefits beyond November 20, 2006.
Panel Members
S. Walsh, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
S. Walsh - Presiding Officer
Signed at Winnipeg this 19th day of November, 2007