The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on October 23, 2007 at the request of a worker advisor, acting on behalf of the worker. The panel discussed this case on October 23, 2007 and again on December 19, 2007.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 18, 2006.

Decision

That the worker is entitled to wage loss benefits beyond November 18, 2006.

Decision: Unanimous

Background

The worker injured her low back on May 30, 2005 while trying to start a chain saw during the course of her employment as a firefighter. She immediately sought medical attention and a CT scan was arranged. The CT scan results revealed that the worker had mild facet joint osteoarthritis at L5-S1. The WCB accepted the worker’s claim for compensation on the basis of right sided sciatica nerve irritation. The WCB did not accept responsibility for the diagnosis of degenerative disc disease and osteoarthritis of the lumbar spine. The worker was subsequently treated with a facet and nerve block at L4-L5 on two occasions but her back pain did not cease.

As the worker’s back pain continued, an orthopaedic specialist arranged for the worker to undergo an MRI examination to take place on January 23, 2006. The MRI results show that the worker had a small central L4-L5 disc protrusion which did not cause significant spinal stenosis.

When seen at a follow-up visit on February 3, 2006, the orthopaedic specialist commented that the MRI confirmed an annular disruption of L4-L5 with definitive stenosis of the foramina on the left side. “This is in spite of the report by [the radiologist] who claims there is no stenosis. The axial views clearly show the problem. Furthermore, there is quite significant narrowing of the L4-L5 disc space with signs of the annular disrupture clearly seen also on the sagittal view. There are also early Modick signs of instability at the anterior margins at L4-L5.” He felt the worker could return to work on February 6, 2006 but there was a 50% chance that she would require future surgery at the L4-5 level.

On February 6, 2006, the worker returned to work as recommended by the orthopaedic specialist but had to stop work on April 10, 2006 because of back pain.

On May 24, 2006, the orthopaedic specialist reported that the worker complained of persistent back pain which was mechanical in nature with referred pain to both legs. The left side was worse than the right side. A review of the MRI scan confirmed the acute underlying tear at L4-5. He indicated that an L4-5 discectomy fusion and fixation was being planned.

On June 15, 2006, a WCB medical advisor reviewed the file and suggested that an independent radiologist review the January 23, 2006 MRI given the different interpretation of the results between the radiologist and treating orthopaedic specialist.

In a report dated July 19, 2006, the second radiologist made the following comments following his review of the January 23, 2006 MRI assessment:

“There is desiccation and slight loss of vertebral body height at the L4-5 level.

At the L4-5 level, there is a shallow central broad based protrusion. There is also a small annular tear along the peripheral margin of this disc protrusion. There is no compromise of the central canal nor foramina. The disc appears to just contact both L5 roots. The other levels appear well preserved with no significant disc protrusion. There is no evidence for central canal nor foraminal stenosis at any of the levels scanned.”

On August 24, 2006, a WCB orthopaedic consultant reviewed the file with regard to the surgeon’s request for the worker to undergo surgery. He stated “there appears to be some disagreement in imaging study interpretation, but overall no definite isolated right L5 root lesion, the diagnosis of right L5 root pathology has to be mainly clinical, and I will arrange a call-in examination for confirmation of the diagnosis and consideration of the proposed surgical treatment.”

The worker was examined on October 10, 2006 by the WCB orthopaedic consultant. He concluded that the diagnosis of the workplace injury appeared to be a musculotendinous lower back strain and an aggravation of pre-existing L4-5 disc degeneration. He said the absence of any clinical improvement in spite an 18 month period of all modalities of conservative management, suggests that the aggravation persisted symptomatically but with no significant signs.

He advised the worker that in his opinion, there was no guarantee that the proposed L4-5 disc excision and fusion would result in an improvement to the level of returning to her previous occupation, regular duties and hours. He noted that the persistence of apparently disabling symptoms, even worsening, according to the worker’s statements, were difficult to explain in relation to the workplace injury/ies of this claim. The orthopaedic consultant also considered the file information concerning work restrictions for the worker. He outlined the following restrictions for the worker:

• No continuous standing/sitting over 30 minutes;
• No bending, twisting or lifting over 10 pounds;
• No push/pull heavy objects; and
• Duration – six months.

File information showed that the worker’s employer took the position that it was unable to accommodate the worker with a job that met the restrictions outlined above.

A videotape surveillance was taken of the worker’s activities between September 21, 2006 and November 20, 2006. The videotape surveillance was reviewed by the WCB orthopaedic consultant who examined the worker on October 10, 2006. He observed from the videotape that the worker:

· had no difficulty with stooping or recovery to the upright position; and

· was capable of standing or sitting for over 30 minutes

On December 7, 2006, the orthopaedic consultant further commented that the worker demonstrated no evidence of impairment of function in the low back. The worker’s activities along with the examination findings of October 10, 2006 were at extreme variance with recommended restrictions documented elsewhere on the file, i.e. cannot stand or sit for more than one half hour; no bending, twisting or lifting over 10 lbs. no standing or sitting over 30 minutes, no push/pull of heavy objects. The consultant commented that the restrictions recommended after his call-in examination were rescinded.

On December 20, 2006, it was determined by the WCB case manager that effective November 18, 2006, there was no evidence of any ongoing symptoms or difficulties with respect to the compensable injury in relation to the workplace accident and that the request for surgery was not authorized. The rationale for the decision was outlined as follows:

• the worker demonstrated physical abilities beyond those medically reported and reported by the worker;
• she demonstrated physical capabilities beyond the medically supported restrictions;
• the worker appeared to be pursuing employment activities in alternate occupation, without reporting to the WCB.

On January 9, 2007, the treating orthopaedic specialist noted that he was arranging for the worker to undergo a further MRI scan to evaluate the worker’s L4-5 area.

The MRI scan of January 11, 2007 revealed the following impression: “Small annular tear posteriorly, involving the L4-L5 disc. Diffuse central disc bulging, minimally encroachment on the anterior thecal sac at this level.”

The worker underwent a Functional Capacity Evaluation (FCE) on February 14, 2007. The report indicated that the worker did not complete the FCE protocol and that her participation was a full voluntary effort. The worker demonstrated the ability to do light rated work activities.

On February 21, 2007, primary adjudication asked the WCB orthopaedic consultant to review the file information which included the FCE results, the MRI findings and the report from the worker’s treating orthopaedic specialist. On February 27, 2007, the WCB orthopaedic consultant stated that his opinion remained unchanged. He said the worker’s stated pain and loss of function continued to be inconsistent with the evidence of unrestricted physical activities involving the lumbar spine function on surveillance.

On April 2, 2007, the WCB case manager advised the worker of the opinion expressed by the WCB orthopaedic consultant on February 27, 2007 and stated that the WCB’s decision of December 20, 2006 remained as is.

On May 3, 2007, an occupational health medical officer issued a letter suggesting that the worker “is not able to perform Fire Fighting duties or obtain the re-certification as an emergency Medical Responder. She may do the theory portion of the EMR course. She can at this time do a sedentary job that requires no lifting, bending or twisting at the waist.”

A submission was then received from a worker advisor dated June 1, 2007. The worker advisor contended that the worker’s current low back condition was a result of the combined effects of her duties as a firefighter and the May 30, 2005 incident. The worker felt she had not recovered and was not fit to resume her demanding duties as a firefighter. The worker also explained her activities during September 2006 and November 2006 with regard to the video surveillance and provided evidence to support that she was not working outside of her restrictions.

On June 25, 2007, the worker had surgery involving anterior discectomy and disc replacement of the L4-L5.

Prior to considering the worker advisor’s appeal, Review Office sought the advice of a WCB orthopaedic consultant assigned to Review Office. In response to questions posed by the Review Office dated July 16, 2007, the WCB orthopaedic consultant responded as follows on July 18, 2007:

1. Question: What was the diagnosis at the time of the compensable injury of May 30, 2005?

Answer: The most probable diagnosis is aggravation of pre-existing degenerative disc disease of the lumbar spine at the L4-5 level. This was also associated with mild facet osteoarthritis and conflicting results as to whether or not there was mild central spinous due to associated disc bulging and hypertrophy of the ligamentum flavum. Subsequent clinical examinations do not redemonstrate hard radicular findings indicative of nerve root entrapment at this level. The reported tear involving the annulus fibrosis of the L4-L5 intervertebral disc is part of a degenerative process and does not necessarily have to arise out of any trauma. The associated reported disc dissection is also part of the degenerative process occurring at the L4-L5 intervertebral disc.

2. Question: What was the diagnosis in November 2006? Is there medical evidence to support a causal relationship between the diagnosis and the compensable injury?

Answer: There was no appreciable change in diagnosis in November 2006. The compensable injury is not the cause for these degenerative changes reported at the L4-L5 intervertebral disc level.

3. What was the diagnosis following the MRI in January 2007? Is there medical evidence to support a causal relationship between the diagnosis and the compensable injury?

Answer: The diagnosis remains unchanged following the MRI of January 2007; CI occurring on May 30, 2005 is not the cause of these changes occurring at the L4-L5 intervertebral disc level, but, could have aggravated these pre-existing changes.

4. Question: Does the medical evidence on file support that the worker has a pre-existing condition? If yes, what is the pre-existing condition? Does the evidence support that the work place accident aggravated or enhanced the pre-existing condition?

Answer: The medical evidence on file does support the fact that the worker has a preexisting (sic) condition, namely degenerative disc disease and mild osteoarthritis involving the lumbar spine. The workplace incident may have aggravated this pre-existing condition. It is now two years since the original CI, and any aggravation of the pre-existing condition should have resolved and any further ongoing symptoms can be attributed to the preexisting (sic) degenerative changes noted at the L4-L5 level. It should also be noted that it has also been associated with mild osteoarthritic changes involving the posterior facet joints at two levels.

5. Question: If the pre-existing condition was aggravated does the medical evidence on file support that the aggravation of the pre-existing condition has resolved? If yes, when did it resolve?

Answer: see #4

On July 19, 2007, Review Office determined that the worker was not entitled to wage loss benefits beyond November 18, 2006. Review Office noted that it reviewed the surveillance that was taken in September 2006 and November 2006 and found there was significant inconsistencies in what the worker reported her function to be and what she demonstrated on the surveillance video. Review Office also relied on the opinions expressed by the WCB orthopaedic consultant and WCB orthopaedic consultant assigned to Review Office. It was of the opinion that the evidence on file including the diagnosis (aggravation of a pre-existing condition), treatment rendered, time that has passed and the level of function demonstrated by the worker on the surveillance video supports that there was no longer a causal relationship between the worker’s current difficulties and the compensable injury of May 30, 2005.

In August 7, 2007, the worker's treating surgeon provided a six week post operative report which indicated:

The patient is ecstatic with the results. She has marginal pain left only on certain activities. She can reach down to her ankles without problems and has no extension pattern. She has no numbness or tingling in the legs anymore. On examination, she can bend down as mentioned. She has no pain on rotation and there is only mild localized tenderness at the L4-5 levels. X-rays ar every satisfactory and there is about a 7 degree angulation during flexion and extension at the level of the prosthesis.

In August 2007, the worker advisor appealed the Review Office decision to the Appeal Commission.

In September 2007, the worker's surgeon provided an additional post operative report. He stated:

The patient is extremely happy with the results and has stated that “you have given me back my life”. The patient certainly has a full range of motion of her back with slight limitation of flexion but she informs me that this has been the same all her life. There is no neurological deficit at this stage... .

The patient will continue with rehabilitation. She certainly could return to light duties on the 1^st of October but will have to wait until the 1^st of January to return to full active duty where the limitation will need to be 150 pounds lifting.

An oral hearing took place on October 23, 2007. In the course of her evidence before the Panel, the worker detailed the variety of tasks that a firefighter in a small fire department might be required to perform. In her view, “my position requires that I be able to perform a lengthy list of physical tasks…”

After an extensive review of the medical information on file, the worker addressed the 2006 video surveillance tapes. In her view, “the overall video shows me conducting no activity that would allow anyone to draw the conclusion that I was physically able to return to firefighting. There are specific acts captured on video that WCB makes reference to that I will dispute individually, but the total video merely shows me carrying out my reduced level of day-to-day activities in a light duty capacity.”

The worker provided evidence suggesting that the “apparently heavy box” she was carrying weighed less than ten pounds. She noted that the commercial sign she was seen to lift was made of corrugated board “which is similar to cardboard but lighter.”

The worker agreed that she had pushed a clothing rack, hung shirts on a wall and carried single grocery bags but noted these activities were not inconsistent with her restrictions of “no continuous standing/sitting over 30 minutes, no bending, twisting or lifting ten pounds, and no push/pull heavy objects.”

In the worker’s words “lifting six T-shirts is certainly less than ten pounds and pushing a clothing rack that is on wheels would clearly not be pushing or pulling something heavy. These are simple, light tasks that were accomplished without difficulty”. Likewise, while she acknowledged carrying a fire extinguisher, she observed that “the actual weight of the extinguisher is eight and one-half pounds...”

She worker also noted that in terms of her activities at her family business, she had advised a WCB employee of this fact in May 2006.

The worker noted that she had surgery on June 25, 2007 for the purposes of a discectomy of the L4-5 and ProDisc replacement. In her view “since the surgery, I have noticed that my posture is greatly improved. I no longer stoop and my right foot does not turn out anymore. The pain in my leg is completely healed and I have only occasional pins and needles in my feet.”

In the submission of the worker advisor:

Our position is that medical information supports that [the worker] did not recover from the injury, from that 2005 injury, that she maintained ongoing symptomatology that eventually had to be surgically treated; and that although the video surveillance demonstrates that she is performing some medial tasks, it didn’t demonstrate anything that's equivalent to what she would have to do in her duties as a firefighter.

In order to assist with its deliberations, the appeal panel requested that additional information be obtained from the worker’s treating orthopaedic surgeon prior to deciding whether or not the worker is entitled to wage loss benefits beyond November 18, 2006.

The information received by the panel was forwarded to the worker and worker advisor for comment. On December 19, 2007, the panel met and rendered its final decision with regard to the issue under appeal.

Reasons

From the beginning it was quite clear that she had a problem a [sic] the L4-5 level which included the diagnosis of an annulus tear. An annulus tear can be compared to a ligamentous tear of an ankle injury. This means that she had an acute injury to do this. This typically could happen with the injury as described to me by [the worker].

A degenerative type disease does not normally occur with an annulus tear. She is young and therefore has well maintained disc spaces throughout except for this level and this certainly could be explained on the basis of her injury.

Did there continue to be a loss of earning capacity in November 2006?

Based on a balance of probabilities, the Panel finds that there was a loss of earning capacity. The Panel’s determination is based on its finding as to the nature of the worker’s job duties, its conclusion that the worker was a credible witness and its conclusions that the worker suffered an acute injury.

The Panel accepts the statements by the worker that her “position requires that I be able to perform a lengthy list of physical tasks” and that there were no light duties available for her to perform. Based upon our consideration of the job duties, our understanding of the acute nature of her injury and our assessment of the worker’s credibility, the Panel accepts, on a balance of probabilities, that she suffered a loss of earning capacity. Our views on this point are buttressed by the support of her treating physician at the time and her treating surgeon.

Largely for the reasons offered by the worker in her oral evidence as well as our own observations, the Panel rejects the conclusion that the video evidence demonstrates no loss of earning capacity. In its view, the video evidence provided does not suggest that the worker was exceeding her workplace restrictions at the time.

Conclusion

Considering the record as a whole and based on a balance of probabilities, the Panel finds that the worker continued to suffer a loss of earning capacity beyond November 18, 2006. The worker is eligible for wage loss benefits beyond November 18, 2006.

The appeal is allowed.

Panel Members

B. Williams, Presiding Officer
B. Simoneau, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 17th day of January, 2008