The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On January 16, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for ankle and back injuries that he sustained in a work related accident on January 9, 2004. The WCB accepted the claim for compensation and the worker was paid wage loss benefits to October 12, 2006 when it was determined that he had recovered from the effects of his compensable injury. This decision was confirmed by Review Office in decisions dated December 6, 2006 and April 26, 2007. The worker disagreed and appealed to the Appeal Commission. On November 7, 2007 a hearing took place to determine whether or not the worker was entitled to benefits beyond October 12, 2006.

Issue

Whether or not the worker is entitled to benefits beyond October 12, 2006.

Decision

That the worker is entitled to benefits beyond October 12, 2006.

Decision: Unanimous

Background

The worker reported injuries to his left ankle and back arising from the following work accident that occurred on January 9, 2004 during the course of his employment as a tractor technician:

“I stepped off a little step ladder in the pit for changing oil. When I stepped down I stepped on a bolt or something and roller (sic) my ankle. My ankle was really sore and the next day my back started to bother me and two days later, I could hardly walk because my back was bothering me so much. I tried to keep working but finally had to take time off.”    

On January 15, 2004, the worker attended a physiotherapist for treatment and complained of constant low back pain with left, more than right, leg pain. The diagnosis rendered was a lumbar strain and possible disc protrusion.

Over the next several weeks, the worker continued to seek medical treatment for his back and ankle complaints. At the request of his treating physician, he was examined by a WCB medical advisor on March 1, 2004. The medical advisor indicated that the worker may have an injury to his calcaneal bone and that he had a dysfunctional injury to the left sacroiliac joint with no evidence of radicular pain or radiculopathy.

The worker underwent a number of laboratory investigations which included x-rays, CT and bone scans as well as MRI examinations. These tests revealed no fracture or dislocation in the left foot, mild degenerative changes in the lumbar spine, disc bulging contacting the L5 roots and no abnormalities in the L5-S1 region.

On December 2, 2004, a WCB physical medicine and rehabilitation consultant (a physiatrist) examined the worker’s back. He recorded the mechanism of the worker’s injury as “…a sudden slip with the legs going backwards, falling forwards across a step ladder while holding a large wrench.” The worker reported symptoms primarily in the lumbosacral junction. He said there was no obvious diagnosis identified on examination to explain why there was a high level of symptomatology and what appeared to be mechanical related symptoms with lifting and movement of the back. There was no evidence of significant soft tissue symptoms.

The medical information was reviewed by a senior WCB medical advisor on March 18, 2005. He stated that the worker continued to have non-specific back pain related to his compensable injury. He agreed with the treating physiotherapist that work restrictions for a six month period were appropriate.

The worker was examined by a different WCB medical advisor on May 9, 2005. The worker reported that at the time of his accident on January 9, 2004, he stepped onto a small object with his right foot. He was carrying a 20 pound wrench when his foot slipped and he fell to the ground. After the examination, the medical advisor opined that the symptoms reported by the worker suggested neurogenic claudification arising from spinal stenosis. He said the MRI in September 2004 made reference to multiple factors that all have the effect of causing some narrowing of the spinal canal. He noted that the worker had demonstrable weakness, limited range of motion and muscle atrophy.

The worker was then seen by a neurosurgeon on January 23, 2006. The worker’s neurological examination was considered to be normal. The specialist said there were no objective findings on the radiological and clinical examination indicating a surgically curable or surgically corrective pathology and there was no indication for surgery. The worker’s pain was radiating to both lower limbs but not really to a specific dermatome and did not follow a radicular pattern.

The worker was examined by a WCB orthopaedic consultant on June 27, 2006. In his opinion, the diagnosis of the low back injury sustained in the compensable accident was unclear. The worker’s symptoms were non specific and there was moderate symptom amplification and pain behaviour during the assessment. The MRI report of congenital spinal canal narrowing was clinically relevant. The worker had no symptoms of neurogenic claudifications. He felt that some of the worker’s symptomatology in conjunction with the MRI findings suggested a discogenic component.

An MRI of the lumbar spine was carried out on July 26, 2006. On August 29, 2006, the WCB orthopaedic consultant compared the July 2006 MRI findings to the August 27, 2004 MRI findings. He concluded that there was no clinical or imaging evidence of lumbar root compression to explain the worker’s continued symptoms in his low back and low limbs. In his opinion, there was no evidence of a continuing cause and effect relationship between the workplace injury and the worker’s current symptoms.

On September 14, 2006, primary adjudication advised the worker that he would be paid wage loss benefits to October 12, 2006 as it was determined that he had recovered from the effects of his original low back injury and the other circumstances/symptoms were not related to that injury or to the workplace. This decision was based on the opinion expressed by the treating neurosurgeon dated January 23, 2006 and the opinions expressed by the WCB orthopaedic consultant on June 27, 2006 and August 29, 2006.

In a letter to the WCB dated September 26, 2006, the worker’s treating physician outlined his opinion that the worker’s original work injury continued to affect his ability to work and that he had not recovered from same. He agreed that there was no radiological evidence of a surgical corrective pathology but in spite of that, the worker continued to have symptoms which were temporally related to his compensable injury in January 2004.

On October 12, 2006, a WCB case manager advised the worker that the report from his treating physician did not contain new medical evidence to support his opinion, therefore no change would be made to the decision of September 14, 2006.

The case was considered by Review Office on December 6, 2006 based on an appeal submission by the worker dated October 9, 2006. Review Office agreed that the worker had recovered from the effects of his compensable injury. Review Office could not identify an ongoing relationship between the worker’s current symptoms and his compensable injury. Review Office stated that based on its review of the mechanism of injury, the lack of a current diagnosis and the fact that the worker’s symptoms were not consistent with an anatomic distribution, the WCB could no longer establish a cause and effect relationship between the worker’s current symptoms and the compensable injury.

On April 12, 2007, a worker advisor provided Review Office with a report from the treating chiropractor dated February 10, 2007. The worker advisor contended that the worker had not recovered from the effects of his compensable injury. She stated, “Based on the fact that [the worker] had no prior back problems until he had his January 9, 2004 workplace injury which involved a sudden accelerative/decelerative/rotational forces compounded by the momentum of a fall, based on continued symptomology as a result of the compensable accident in the low central sacral spine with current objective findings from [the chiropractor] of ‘taut and tender fibers were palpated at the lumbosacral junction’ and with [the worker] having current ongoing pain radiating down both legs, on the balance of probability, [the worker] has not recovered from the effects of his compensable accident.”

On April 26, 2007, Review Office confirmed its decision of December 6, 2006. Review Office noted that the worker’s description of injury to his treating chiropractor outlined in the report of February 10, 2007, was quite different than what was reported at the time the worker filed his claim for compensation.

Review Office noted that when the worker filed his compensation claim he only reported injuries to his left ankle and back and there was no indication of any fall or injury to the abdomen or shoulder, nor significant bruising that would last a year. Review Office accepted the initial description of injury to be the more accurate description of the workplace event. Review Office gave little weight to the conclusion arrived at by the treating chiropractor as his opinion was based on what he described as the accident history. Review Office also referred to the opinion expressed by the WCB orthopaedic consultant on April 26, 2007 as a basis for its decision. On June 7, 2007, the worker advisor appealed Review Office’s decision and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. Subsection 4(2) of the Act provides that where a worker is injured in a workplace accident, wage loss benefits are payable for the loss of earning capacity that results from the injury. Policy 44.10.20.10, Pre-Existing Conditions, deals with cases where a worker has both a workplace injury and a pre-existing condition.

Worker’s Position

The worker was represented by a worker advisor who made a submission on his behalf. The worker answered questions posed by the panel.

The worker’s representative reviewed the medical reports on file and in particular the reports from WCB medical advisors. She submitted that the worker’s symptoms have been constant since the workplace accident. She noted that the opinion of the orthopedic consultant to Review Office supported an ongoing relationship between the worker’s symptoms and his workplace injury.

The worker described the accident which resulted in his injury. He advised that he was changing an oil filter on a semi and had stepped off a small ladder in the pit area. When he placed his foot down he stepped on something and fell. He fell sideways across the top of the short ladder and landed face first on the ground. He had bruises on the side as a result of the accident. He said that the first thing he noticed after the accident was his ankle followed by his lower back.

The worker advised that he is currently working at a light duties position. He also advised that he is recovering from a serious non-work condition.

Analysis

The issue before the panel was whether the worker is entitled to benefits beyond October 12, 2006. For the appeal to be successful the panel must find a relationship between the workplace injury and the worker’s ongoing symptoms. The panel finds there is a relationship between the worker’s ongoing symptoms and his workplace injury.

At the hearing. the worker provided a detailed description of the accident. The panel accepts the worker’s description of the accident and specifically that he slipped on something as he stepped off a small ladder and twisted as he fell to the ground. The panel finds that the accident as described by the worker is consistent with, although more detailed than, the original description and that the symptoms the worker reports are consistent with the mechanism of injury.

The worker’s representative reviewed the various medical reports and demonstrated that the worker’s symptoms have remained constant since the injury on January 9, 2004. In this regard the panel notes the February 15, 2004 physiotherapist report which describes the worker’s complaints as constant low back pain with radiation down the back of the leg to the ankle and arch of both feet, left worse than right. The panel also notes that a WCB medical advisor who examined the worker on June 27, 2006 records symptoms as including low back pain and pain shooting into both legs, left more than right.

The panel notes that the worker has been examined by WCB medical advisors on four occasions: March 1, 2004, December 2, 2004, May 9, 2005 and June 17, 2006. As well, his file was considered by a WCB senior medical advisor who agreed in a memo dated March 18, 2005 that:

The worker’s file was also considered by the orthopedic consultant to Review Office. In a memo dated April 26, 2007 the consultant provided the following comments on the worker’s condition:

1. What is the working diagnosis consistent with the workplace injury of January 2004?

Discogenic injury L4-L5 without significant neurological compromise, necessitating surgical intervention.

2. (a) Is there a combined effect between the worker’s pre-existing pathology and the workplace injury of January 2004?

Yes. There is radiological and MRI evidence of pre-existing multi-level degenerative disc disease.

(b) If yes, does it (the pre-x) contribute materially to the worker’s ongoing disability after October 12, 2006, (when WCB terminated his benefits)?

Yes. The pre-x can contribute to intermittent ongoing back symptoms.

(c) If yes to (b), what evidence supports your position?

The pre-existing degenerative condition is progressive.

3. What are the worker’s current work capabilities?

This is dependent on his current physical examination.

4. If restrictions are necessary on the worker’s work activities, what do these relate to?

Any imposed restrictions are related to his current physical examination and the fact that he has progressive degenerative disc disease.

The panel places significant weight upon the consultant’s opinion regarding the presence of a discogenic injury at L4-5, in deciding that the worker is entitled to benefits beyond October 12, 2006.

The panel also notes that the worker’s treating physician and chiropractor have provided opinions in support of an ongoing relationship between the worker’s symptoms and workplace injury.

The panel finds, in accordance with Policy 44.10.20.10, that the worker’s loss of earning capacity is caused in part by his workplace accident, a discogenic injury at L4-5, and in part by a non-compensable pre-existing condition, degenerative disc disease, or the relationship between them and that the worker is entitled to benefits beyond October 12, 2006.

The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of December, 2007