The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue in this appeal is whether or not the worker is entitled to wage loss benefits beyond January 9, 2007.

Both the worker and an individual representing the employer appeared in person at the hearing of this appeal. Each party was accompanied by a representative who made submissions on their behalf. In both cases, the submissions of the representatives were well prepared and helpful to the panel.

In addition to receiving the file material relating to this particular claim, the panel was provided with the file material from a number of previous claims made by the worker, all relating to low back injuries which were accepted by the WCB. There were seven such previous claims made during the period 1993 to 2005, inclusive.

The Parties’ Submissions and Evidence

The worker’s representative made an opening statement in which she outlined the worker’s position that because her back was not well enough to return to work she suffered from an ongoing loss of earning capacity, relating to the compensable injury which occurred on January 23, 2006. The representative acknowledged that the worker had a pre-existing back condition which was dealt with surgically in 1997. She submitted that for the following 10 years the condition of the worker’s back was generally stable until the compensable injury of January 23, 2006. In the worker’s view, her condition had not resolved by the time that the WCB terminated wage loss benefits on January 9, 2007.

In her testimony, the worker discussed the earlier compensable injury she sustained in 1995. She also testified that in 1997 she underwent surgery to her lower back which, she said, resulted in a miraculous and full recovery. Her evidence was that after 1997 any injuries to her back were insignificant, relating merely to pulled muscles.

With respect to the injury that occurred on January 23, 2006, the worker testified that the accident occurred near the end of her shift while she was lifting 10 litre juice boxes, filled with syrup.

She said she went to the doctor the next day and reported stabbing pain which took her breath away. The pain shot down her leg to the back of her knee. She testified that some days the pain went all the way down her leg and made her bedridden.

She testified that notwithstanding the fact that her benefits were terminated in January of 2007 she continues to suffer from severe pain. She has returned to work on a .6 basis. She stated that she continues to have pain in her lower back radiating down her leg which is worse after she works a shift.

The worker’s representative highlighted the evidence from the worker’s physician who comments on the fact of the worker having a decreased range of motion and pain in her buttock and thigh. The physician is of the view that the worker has an ongoing inability to return to full time work. The worker’s representative pointed out that this physician has never suggested that the worker has recovered from the compensable injury of January 23, 2006.

Further, the worker’s representative submitted, although the WCB medical advisor has suggested that the worker’s condition should have resolved, the worker’s symptoms have not in fact resolved.

The employer’s representative confirmed that the employer is sympathetic to the worker’s condition. However, it is the employer’s position that that condition is not related to the worker’s compensable injury of January 23, 2006. In support of this position, the employer’s representative pointed to the medical evidence including the results of an MRI and CT scan both taken in 2006 and a call in exam with a WCB medical advisor all of which, the representative submitted, point to ongoing difficulties which relate to pre-existing degenerative disc disease and the effects of the back surgery performed in 1997 rather than to the injury of January 23, 2006.

The employer’s representative pointed out that responsibility for the surgery performed in 1997 was not accepted by the WCB as being compensable. She also submitted that there was no evidence of an enhancement of the worker’s pre-existing condition.

The employer’s representative stated that the opinion of the WCB medical advisor that the worker had recovered from the effect of the January 2006 accident, was based not on recovery norms but on the evidence revealed through diagnostic testing. She pointed out that the CT scan performed in 2006 revealed changes on the opposite side to the side where the worker was experiencing symptomatology. She also submitted that the worker had experienced flare-ups of her back condition over the years since 1995.

In response, the worker stated that while she has experienced back injuries since 1995, she would not characterize those injuries as “flare-ups”. Rather in each instance, she said, she re-injured her back as the result of a specific work-related accident. She testified that after those accidents the pain was always on the right side but her back completely resolved in each instance, after about 2 weeks. However, since the accident of January 2006, she said there has never been a time when she has been symptom free. She testified that she has never fully recovered from the compensable injury of January 23, 2006 and, therefore, the WCB ought to continue to be responsible for her loss of earning capacity.

Analysis

In considering the issue before the panel in this appeal, the panel must determine whether the worker’s inability to return to work continues to be related to the compensable injury that she sustained on January 23, 2006. We did not find her inability to return to work to be related to her compensable injury.

In making this decision we have taken into account in particular, the following medical evidence.

· Responsibility for wage loss benefits after January 23, 2006, and acknowledgement of loss of earning capacity was originally made by the WCB on the basis of a diagnosis of low back strain. The worker’s prior medical history indicates that the worker had pre-existing medical conditions of L5-S1 spondylolisthesis, pars defect and degenerative disc disease. The worker has acknowledged the existence of these pre-existing conditions.

· The worker was examined by a WCB medical advisor on April 20, 2006, regarding the injuries sustained on January 23, 2006. As the result of that examination, the physician concluded that the worker was suffering from mechanical back pain with irritation of the right S1 joint. He stated that this was likely related to the reported workplace injury which would be expected to have caused the strain-type injury. He went on to advise that the examination did not reveal any evidence of nerve root irritation and that the claimant had likely aggravated her pre-existing back condition, as well as sustaining an irritation to the right S1 joint.

· A CT scan was subsequently taken of the worker’s back. After reviewing the CT report the WCB medical advisor stated there did not seem to be any findings that could be directly attributed to the compensable injury. The existence of degenerative pre-existing changes was confirmed.

· A second WCB medical advisor who reviewed the worker’s claim on October 1, 2006, felt that the worker’s recurring history since the accident, of improvement followed by flare-ups, was consistent with the degenerative changes noted on x-rays and on the CT scan. It was her opinion that the strain-type injury sustained on January 23, 2006, should have long since healed. On November 2, 2006, she reiterated this opinion. She did, however, arrange for an MRI, consistent with a request from the worker’s physician. It was the medical advisor’s opinion that an MRI might assist in determining whether the effects of the compensable injury had resolved; whether the worker’s ongoing difficulties were related to a pre-existing condition or whether there was still contribution from the compensable injury.

· Upon receipt of the MRI results the worker’s file was referred back to the WCB medical advisor for further review. Results of the MRI performed on November 10, 2006, were suggestive of small bilateral laminectomy defects at the L5-S1 level with non-enhancing, probably post-operative scar tissue extending into the adjacent epidural space, producing mild mass effect on the thecal sac. There was minimal bilateral neural foraminal narrowing at L3-4 and L4-5 but no evidence of spinal canal stenosis.

· On December 20, 2006, the physician provided an opinion in which she stated that although the injury may have caused a temporary aggravation of the pre-existing condition, the MRI showed no worsening and in fact showed improvement at the L4-5 level. In her opinion, therefore, this suggested that any temporary aggravation had resolved.

· She also stated that it was possible that the scar tissue from the 1997 surgery was causing further symptoms but since that surgery was not WCB responsibility, neither were the complications of scarring.

· The worker’s physician states:

“… must consider present permanent residual sequela WCB responsibility [ie] probable post op scar result /symptom complex …”

The panel assumes the physician is referring to the surgery which was performed on July 15, 1997. However, the panel noted a medical summary found in the file relating to the 1995 claim in which the WCB impairment awards medical advisor stated, in discussing this surgery:

“It would appear to me that this lady’s back injury was of a minor nature and that at surgery it was determined that the L4-5 disc was not protruding and therefore was not the source of this lady’s problem. …

the procedures performed were related to her pre-existing spondylolisthesis and pars articularis defect and, therefore, there is no causal relationship between the injury and the surgery which as [sic] performed.”

· As a result, the surgery was determined by the WCB to relate solely to the worker’s pre-existing condition and was therefore not considered compensable or the responsibility of the WCB.

The WCB provides benefits where a worker’s loss of earning capacity is causally related to workplace accident. In particular, section 4(1) of The Workers Compensation Act (the “Act”) states:

Compensation payable out of accident fund

4(1) 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. [emphasis added]

The WCB will not provide benefits for disablement which results solely from the effects of a worker’s pre-existing condition because such a condition is not considered to fall within the definition of “personal injury by accident arising out of and in the course of employment”.

The subject of pre-existing conditions is addressed in WCB Policy 44.10.20.10 (the “Policy”).

That Policy provides in part as follows:

A. POLICY

1. WAGE LOSS ELIGIBILITY

1. Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.
2. 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.

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. 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 most recent report from the worker’s physician identifies ongoing back symptoms and indicates a need to consider present, permanent sequela as a WCB responsibility with probable post-op scar effect.

However, since the surgery referred to was not required as the result of a compensable injury and the compensable disc did not require surgical intervention, the WCB is not responsible for any consequences of that surgery.

The panel noted that according to the WCB medical advisor, the most recent MRI identifies that the worker’s L4-5 disc had actually improved since the last investigations were performed.

There is no evidence, therefore, of an enhancement or worsening of the worker’s pre-existing disc disease.

In this claim the worker’s loss of earning capacity was accepted by the WCB in connection with the diagnosis of low back strain. The panel accepts the findings of the WCB medical advisors that the strain caused a temporary aggravation of the worker’s back condition.

We find, however, based on a review of all of the evidence that the workplace accident of January 23, 2006, is no longer contributing to a loss of earning capacity by the worker.

Subsection 39(2) of the Act provides as follows:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

Having reviewed all of the evidence, including medical reports and the reports of diagnostic testing, and after hearing oral evidence from the parties and submissions from their representatives, the panel is of the view that the evidence does not support, on a balance of probabilities, a finding of a connection between the compensable injury which occurred on January 23, 2006, and the worker’s ongoing symptoms.

Since the panel is unable, on a balance of probabilities, to find that any inability of the worker to return to work continues to be related to the compensable injury we find there is no longer a loss