Public Decisions | The Appeal Commission

Decision #49/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a back injury that occurred in the workplace on June 26, 2006. His claim for compensation was accepted and benefits were paid to July 6, 2007 when it was determined by primary adjudication that he was capable of returning to his pre-accident work duties. This decision was confirmed by Review Office on September 27, 2007. The worker disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on February 4, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 6, 2007.

Decision

That the worker is not entitled to wage loss benefits beyond July 6, 2007.

Decision: Unanimous

Background

On June 26, 2006, the worker reported that he was lifting a piece of steel off the floor when he experienced a sharp pain in his low back. He completed the rest of his shift but the pain in his back progressively worsened. The injury was reported to his employer on the same day.

The worker sought medical treatment from a physician on July 3, 2006. The worker’s entrance complaints consisted of recurrent low back pain. He reported lifting a piece of steel weighing 50 lbs. the day before and that he felt sharp pain immediately and was unable to bend. The examination revealed low back pain with radiation to the right leg. There was no numbness in the legs or neck pain. X-rays of the lumbosacral spine showed mild degenerative disc disease between L4-L5 and L5-S1. The diagnosis rendered by the physician was acute lumbosciatica.

On July 7, 2006, the WCB accepted the worker’s claim for compensation and wage loss benefits were paid commencing June 27, 2006.

Subsequent file records showed that the worker attended a physiotherapist for treatment on August 25, 2006. The worker’s subjective complaints were recorded as severe back pain radiating into the left leg and being unable to bend, sit, lift or take long strides. The physiotherapist’s diagnosis of the worker’s medical condition was mechanical back pain with discogenic irritation.

In a progress report dated September 14, 2006, the treating physician reported that the patient was objectively improving and his symptoms were improving.

On September 21, 2006, a CT scan of the lumbar spine was carried out. The results indicated degenerative narrowing at the L4-5 and L5-S1 disc space and vacuum cleft phenomenon at the L4-5 level. At the L3-4 level, there was no disc herniation, spinal stenosis or convincing root compression. At the L4-5 level there was very minor posterior disc prominence and no convincing root compression or central spinal stenosis. At the L5-S1 level, a very minor posterior disc prominence was present with no convincing root compression or central spinal stenosis.

In a progress report dated October 18, 2006, the treating physician reported that the worker’s condition was improving. He noted that there was less right leg radiation, no bowel/bladder changes and no other red flags. The treating physician indicated that he had discussed the CT scan with the patient. He noted minor degenerative changes and no contraindication to a functional exercise program. The treatment plan outlined was to increase functional strengthening. Restrictions were outlined to avoid prolonged positions, no lifting greater than 10 lbs. from floor to waist and no repetitive forward flexion/twisting.

A physiotherapist’s report dated November 13, 2006 indicated that the neurological signs had decreased, with the pain being gone from the worker’s leg and centralized to his lower back.

In a report dated November 22, 2006, the treating physician indicated that the worker’s pain complaints were about the same with less radiation to the legs. The physician indicated that he discussed the concept of hurt versus harm and the need for continued functional progress. He noted that the worker needed reconditioning. He suggested continuing with core stabilization exercises and possibly a work hardening program. He maintained the existing restrictions and suggested four hours a day to start with in the event of a return to work.

On November 29, 2006, after reviewing the worker's CT scan, a WCB medical advisor noted that the diagnosis appears to be back strain with sciatic irritation. In terms of the nature of restrictions, he suggested that the worker avoid lifts of greater than 10 to 15 pounds, avoid repeated bending at the waist and be allowed to change positions as needed. He expected the duration of the restrictions to be four to six weeks.

On November 29, 2006, the employer was advised that the worker was cleared to return to work at four hours per day with work restrictions which were expected to be in place for a period of approximately 4 – 6 weeks. The worker returned to modified duties on or about December 4, 2006.

A report of the treating physician dated December 12, 2006 suggested that there was no radiation. He noted that the worker's pain worsened towards the end of the shift and that he had to leave shifts early due to reported back pain. He recommended further physiotherapy or work hardening and a continuation of the present work restrictions and duties for a further 3 weeks.

Arrangements were made for the worker to attend a work hardening/reconditioning program. In a memo dated March 19, 2007, the physiotherapist noted that the worker complained of pain with sustained or repeated lumbar flexion and increased pain with lifting moderate to heavy loads. He indicated that currently he can stabilize his pain to his lumbar spine and that his treatment had focused on core strengthening and pain control. In his view, the worker “will always be at risk to reinjure.”

In the discharge report dated March 21, 2007, the diagnosis rendered by the treating physiotherapist was mechanical back pain which was discogenic and chronic in nature.

In a progress report dated April 5, 2007, the treating physician noted that the worker reported a slight improvement in his symptoms after completing the work hardening/reconditioning program. He noted that the worker's extension and rotation were full and that he was demonstrating more range of movement. Restrictions at this point in time would be preventive.

On April 11, 2007, the worker advised his WCB case manager that he no longer had a job to return to and was told that unless he got significantly better, he could not go back to his pre-accident work.

On April 13, 2007, a WCB medical advisor requested that a call-in examination be arranged in order to respond to questions that were posed by primary adjudication.

In a progress report dated April 27, 2007, the treating physician noted that restrictions were preventive and that the worker appeared to have reached maximum medical improvement.

On May 7, 2007, the worker attended a WCB call-in examination and reported that he was experiencing daily ongoing episodes of back pain that occurred with any prolonged standing, bending forward or lifting. He had aching pain in his low back and to the right of midline and occasional shooting pains into the area of his right lateral leg down towards the area of his right heel. The prolonged aching discomfort in his right leg had disappeared. No radiation of pain on a regular basis is occurring down his left leg. CT of September 2006 was notable for very minor disc prominence at the L-4 and L5-S1 level without convincing root compression or spinal stenosis.

Following his assessment, the medical advisor indicated that the worker presented with a history that was suggestive of radiculopathy, however, the findings on examination were more consistent with a strain. The only findings related to his capacity to move his lower spine. There are no abnormal neurological findings. The medical advisor indicated that he reviewed the worker’s prior WCB claims. He stated,

“…a CT scan done in November 2003…demonstrated a “large right paracentral disc herniation” that “results in effacement of the thecal sac at the L4-5 level.” As well there is a central disc herniation imaged at the L3-4 level. These disc protrusions are no longer visible on the CT scan of September 2006.

In response to the adjudicative questions it would appear that based on the claimant’s reports of ongoing pain symptoms, and his demonstrated diminished range of motion that the strain type injury has not yet completely resolved.

In my opinion the pre-existing multilevel disc protrusions are no longer responsible for his inability to return to his regular duties; however may have had a contribution to prolonging the duration of his claim. It is possible that the June 2006 workplace incident represented a disc protrusion at the same level as was imaged in 2003 but was resolved by the time that another CT scan was arranged (four months post injury).

At the present time, the claimant is not totally disabled. It is reasonable to conclude, based on the absence of abnormal CT findings and the lack of physical findings that he would be considered to have recovered in the next 8 weeks.”

In a conversation with his worker advisor dated May 9, 2007, the worker indicated “that the only way his back is better is that he doesn't have any pain in his leg.”

In a June 6, 2007 report, the treating physician noted that the existing restrictions were preventive. On June 6, 2007 as well the treating physician made a referral to another physician for a caudal injection. In terms of his current diagnosis, he suggested nonspecific low back pain possibly secondary to multiple level minor disc protrusions.

In a letter dated June 14, 2007, the worker was advised that wage loss benefits would end on July 6, 2007 as it was determined by primary adjudication that he was no longer disabled from performing his pre-accident duties as a result of his work injury. On August 23, 2007, the worker appealed this decision to Review Office. He contended that he was unable to return to work “at full capacity” due to his restrictions and that he would have a hard time finding employment due his condition.

On August 31, 2007, the results of the caudal epidural injection were provided. The neurological results were reported as negative.

On September 25, 2007, Review Office determined that the worker was not entitled to wage loss benefits beyond July 6, 2007 in relation to his June 26, 2006 compensable injury. Review Office noted that the attending physician initially diagnosed the worker with a lumbar strain and there was indication of a prior similar injury three years earlier with ongoing occasional flare-ups. Review Office determined that the CT scan findings of September 21, 2006 were pre-existing in nature and were not related to the incident of June 26, 2006. Review Office agreed with primary adjudication that the June 26, 2006 compensable injury was not a factor in the worker’s inability to return to his pre-accident occupation.

Based upon a request by Review Office, primary adjudication asked a WCB medical advisor to review the worker’s prior back claims to see if they had any impact on his current claim. In his response dated October 25, 2007, the medical advisor noted following the 2003 CT scan, a physician had reported that multilevel disc protrusions are usually indicative of a pre-existing condition. He went on to state:

“…it is probable that the claimants’ (sic) previous back injuries had an impact on the current claim. The fact that he had previous disc protrusions and then upon re-injuring his back he had radicular symptoms raises the possibility of influence of a pre-existing illness. In my opinion that influence likely prolonged his recovery but that the negative CT and the minimal findings suggested that the influence of his pre-existing condition had ended (when the claimant was assessed at the WCB). With that in mind it is my opinion that he does not require compensable restrictions as a result of any of the previously reported workplace injuries.”

On November 8, 2007, primary adjudication advised the worker that based on the review by the WCB medical advisor, it was agreed that his prior back claims would have had an impact on his current claim but based on his most recent CT scan, any possible aggravation from his previous claims would have ended. There would not have been any enhancement by his previous claims. It was therefore concluded that the worker’s ongoing complaints were related to his pre-existing status.

In a letter dated February 18, 2008, the treating physician offered the following comments:

“The current diagnosis appears to be a nonspecific low back pain with no ominous/neurogenic features. Given the findings on CT, the continuing subjective complaints, and the plateau in recovery, this appears to be an enhancement of preexisting degenerative change.

The diagnosis on the basis of a temporal relation is likely related to the workplace accident on June 26, 2006. [The worker] continued to report low back pain with sustained postural positions, and lifting.”

The treating physician noted that his response

“…is tempered by the fact that the [worker] was seen only for this latest injury. However, the previous injuries may have possibly played a material role. However, it is noted that the [worker] did return to his regular duties after these previous injuries. As such the influence of the previous injuries at this time can be considered possible rather than probable given the medical evidence available.”

In a submission dated February 26, 2008, a worker advisor asked Review Office to reconsider its decision of September 25, 2007. The worker advisor outlined the position that there was file evidence to support a combined effect between the workplace accident and the worker’s pre-existing condition which prevented the worker from returning to his pre-accident employment. Included with the submission was the letter from the treating physician dated February 17, 2008.

The worker advisor noted that the worker was able to perform his regular duties prior to his compensable injury; she argued that he was unable to perform his regular duties after the compensable accident which suggests an ongoing non-recovery. She relied upon the May 7, 2007 notes of the Medical Advisor suggesting that the strain type injury had not completely resolved and that subsequent progress reports from the treating physician supported continued non-recovery.

Prior to consider the worker advisor’s appeal, Review Office asked a WCB senior medical advisor to review the file and to respond to four questions:

· What is the most probable diagnosis of the injury sustained by the worker on June 26, 2006?

· Does the medical evidence establish the existence of a relevant pre-existing condition in the lumbosacral spine?

· Did the compensable injury of June 26, 2006 result in an enhancement of a pre-existing condition in the lumbosacral spine?

· Did the compensable injury of June 26, 2006 contribute to the worker being incapable of returning to his pre-accident work beyond July 6, 2007?

In addressing these questions, the WCB senior medical advisor responded to the Review Office on March 28, 2008, and made the following conclusions:

“…the claimant was improving by September 2006. The CT scan of September 21, 2006 indicated degenerative changes but there were no disc herniations, spinal stenosis or convincing compression at L3-4. While there was a minor posterior disc prominence at L4-5, there was no convincing compression identified and no central canal stenosis. At L5-S1 there was a minor posterior disc prominence.

The claimant's pain was better by October 2006 with less right leg radiation, no bladder or bowel changes and no other red flags.

By November 13, 2006, the worker's leg pain was gone.

By April 5, 2007, the worker had completed his work hardening program and had slight symptom improvement. In terms of his objective signs, he had active forward flexion to 80 degrees, extension was full as was rotation. Straight leg raising was negative.”

The senior medical advisor concluded that the most likely diagnosis was a perturbation of a lumbar disc condition with a probable sciatic radiculopathy involving either the L5 or S1 nerve roots. In terms of a pre-existing condition, he concluded that the worker probably had lumbar disc disease. He noted that in individuals with lumbar discopathy, there are frequent perturbations on an annual basis with 60% of individuals having a perturbation annually. In his view, the June 26, 2006 workplace injury was probably not responsible for ongoing workplace disability.

The senior medical advisor rejected the suggestion that the workplace injury of June 26, 2006 led to a permanent worsening of an underlying condition. He concluded instead that the worker suffered a temporary worsening of a pre-existing condition.

On April 1, 2008, Review Office advised the worker that no change would be made to its previous decision and that his claim would be referred back to primary adjudication to consider his request for preventive vocational rehabilitation services or benefits. Review Office noted that a WCB medical consultant conducted an analysis of the worker’s back injury claims dating back to 1999. Review Office stated:

“It was his opinion that the most likely diagnosis of your June 26, 2006, injury was a perturbation of a lumbar disc condition with a probable sciatic radiculopathy involving either the L5 or S1 nerve roots. He also felt that your June 26, 2006 injury had resulted in only a temporary worsening of your pre-exiting condition, but no enhancement or permanent worsening of your underlying condition to necessitate any ongoing workplace disability. Lastly, he did concur with comments of your doctors and Worker Advisor, that you do have a back at risk of re-injury.”

On May 14, 2008, the worker advisor appealed Review Office’s decision of September 25, 2007 and an oral hearing was requested.

In a decision dated June 6, 2008, the worker was advised of the WCB’s decision that he did not qualify for Preventive Vocational Rehabilitation.

A hearing was scheduled to take place at the Appeal Commission on October 1, 2008 but was rescheduled to February 4, 2009. At the oral hearing, the panel heard the evidence of the worker as to the nature of his pain and injuries both prior to and subsequent to July 6, 2007. The worker testified that between July 2007 and May 2008, he endured daily back pain. He noted that he had received a cortisone injection which did not appear to help to any material degree. He suggested that while he currently continued to experience back pain, he was experiencing less leg pain than in July, 2007. The worker expressed a desire for re-training. It learned that he had found alternative employment in a related field in May 2008. His advocate made extensive submissions suggesting that there was an enduring loss of earning capacity extending beyond July 6, 2007 as evidenced by ongoing restrictions, the opinion of his treating physician dated February, 2008 and a number of other factors.

Following the hearing, the appeal panel requested additional information from the worker’s treating physician. The information from the treating physician was later received and was forwarded to the interested parties for comment. A comment from the worker's representative was received by the panel on February 19, 2009. The worker's representative repeated her suggestion that the medical advisor's suggested recovery period of eight weeks from May 7, 2007 was speculative and not borne out by subsequent facts. She suggested that the referring letter of June 2, 2007 and the notes to the fluoroscopy report affirmed her submission that the consequences of the June, 2006 injury had not resolved.

On February 25, 2009, the panel met to render its final decision on the issue under appeal.

Reasons

The Legislation

Subsection 4(1) of The Workers Compensation Act states that:

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 be paid by the board out of the accident fund, subject to the following sections.

Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends or the worker attains the age of 65 years.

Pre-Existing Condition Policy

Policy 44.10.20.10 provides that:

a) 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

b) where a worker has:

1) recovered from the workplace accident to the point 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.

Aggravation is defined as 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 is defined to be where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Pre-existing condition is defined to be a condition that existed prior to the compensable injury.

Overview

Based upon a balance of probabilities, the panel finds that:

· the worker has recovered from his June 26, 2006 workplace accident to the point it is no longer contributing, to a material degree, to any loss of earning capacity; and,

· the worker's 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 worker's pre-existing condition is not a compensable condition.

Key Findings

In making these findings, the panel relies upon the following key findings of fact, which it makes based upon a balance of probabilities:

· prior to the June 26, 2006 workplace accident, the worker suffered from a pre-existing non compensable degenerative disc disease leaving him with a back at risk;

· the worker's pre-existing condition was aggravated by the workplace injury of June 2006;

· by October and November of 2006, the worker was beginning to show signs of recovery from the temporary aggravation of his pre-existing condition;

· by no later than May, 2007, the worker was no longer experiencing any neurological consequences from his workplace injury;

· by July 6, 2007, the worker had recovered from the effects of his workplace injury of June 2006 such that the compensable injury was no longer a material factor in the worker's inability to return to work ;

· the compensable injury did not permanently and adversely affect the pre-existing condition or make necessary surgery on the pre-existing condition.

Support for the key findings

l Prior to the accident the worker suffered from a pre-existing non compensable degenerative disc disease leaving him with a back at risk

In making its determination that the worker suffered from a pre-existing degenerative disc disease, the panel relies upon the worker's abnormal spinal imaging dating back to November 2003 as well as to previous complaints of recurring lower back plain.

The worker's November 2003 CT scan indicated disc herniations at L3-4 and L4-5 as well as probable nerve root pressure flowing from a disc bulge at L5-S1. In the panel's view, multi-level disc protrusions of this nature usually indicate a pre-existing condition related not to any workplace injury but to the worker's personal circumstances.

In making its findings on this point, the panel relies upon both the October 25, 2007 report of the WCB medical advisor and March 28, 2008 report of the WCB senior medical advisor who suggested a probable pre-existing diagnosis of lumbosacral discopathy with empirical research suggesting that in individuals with lumbar discopathy, there are frequent perturbations with 60% of individuals having a perturbation annually.

. The panel notes that after the 2003 CT scan, a physician had reported that multilevel disc protrusions are usually indicative of a pre-existing condition. It observes that the both the x-ray taken shortly after the 2006 workplace injury and the 2006 CT scan also indicated mild degenerative disc disease between L4-L5 and L5-S1.

To similar effect, the panel notes that the treating physiotherapist characterized the worker's back as always “at risk to reinjure” and as “discogenic and chronic in nature.”

l The worker's pre-existing condition was aggravated by the workplace injury of June 2006

The panel accepts that the worker's pre-existing condition was aggravated by the workplace injury of June 26, 2006. In particular, it accepts the finding of the WCB senior medical advisor dated March 28, 2008 that the 2006 compensable injury was probably a perturbation of a lumbar disc condition with a probably sciatic radiculopathy involving either the L5 or S1 nerve root.

The panel relies upon and finds as credible both the October 25, 2007 report of the WCB medical advisor and March 28, 2008 report of the WCB senior medical advisor.

In particular, the panel notes that the March 28, 2008 report of the WCB senior medical advisor is both analytically complete and carefully supported by a wealth of evidence from the record.

l By October and November of 2006, the worker was beginning to show signs of recovery from the temporary aggravation of his pre-existing condition

The panel notes that the conclusion that the worker was beginning to show signs of recovery is strongly supported by the reports of the treating physician and the treating physiotherapist.

As early as September 14, 2006, the treating physician was reporting that the worker was objectively improving and his symptoms were improving. By October 18, 2006, the treating physician was noting an improved condition with less right leg radiation, no bowel/bladder changes and no other red flags. On November 22, 2006, the treating physician indicated that the patient's pain complaints were about the same with less radiation to the legs.

Similarly, the physiotherapist's November 13, 2006 report indicated that the neurological signs had decreased, with the pain being gone from the patient's leg and centralized to his lower back.

As of December 12, 2006, the treating physician suggested that there was no radiation. By April 5, 2007, the treating physician noted that the worker reported a slight improvement in his symptoms after completing the work hardening/reconditioning program. In particular, he noted that the worker's extension and rotation was full and that he was demonstrating more range of movement. By April 27, 2007, the treating physician was noting that restrictions were preventive and that the worker appeared to have reached maximum medical improvement.

In the panel's views, these observations are both credible and mutually reinforcing. They suggest a material improvement in the worker's condition both as measured by improved range of motion and by reduced radiating pain.

l By May 2007, the worker was no longer experiencing any neurological consequences from his workplace injury;

There is ample evidence to support the finding that the worker had recovered from any neurological consequences of his workplace injury by May of 2007. In this regard, the panel places heavy reliance on the findings of the WCB medical advisor who examined the worker on May 7, 2007. He found no abnormal neurological findings. It notes that his views receive substantive support from the treating physician, from the physician who administered the caudal epidural and from the WCB senior medical advisor.

Based upon his examination of May 7, 2007, the WCB medical advisor noted that the prolonged aching discomfort in the worker's right leg had disappeared. He suggested that no radiation of pain on a regular basis was occurring down the worker's left leg. He concluded that there were no abnormal neurological findings. In his view,

“The pre-existing multilevel disc protrusions are no longer responsible for his inability to return to his regular duties; however may have had a contribution to prolonging the duration of his claim. It is possible that the June 2006 workplace incident represented a disc protrusion at the same level as was imaged in 2003 but was resolved by the time that another CT scan was arranged (four months post injury).”

This view is supported by the treating physician who in June 2006 offered a diagnosis of nonspecific low back pain possibly secondary to multiple level minor disc protrusions. Likewise, the treating physician's diagnosis by February 18, 2008 was nonspecific low back pain with no ominous/neurogenic features. Similarly, the neurological results flowing from the August 12, 2007 caudal epidural were also reported as negative.

l By July 6, 2007, the worker had recovered from the effects of his workplace injury of June 2006 such that the compensable injury was no longer a factor in the worker's inability to return to work;

At the time of his May 7, 2007 report, the WCB medical advisor suggested:

“…it would appear that based on the claimant’s reports of ongoing pain symptoms, and his demonstrated diminished range of motion that the strain type injury has not yet completely resolved.

The panel accepts these findings and considers them to be credible based upon a balance of probabilities.

The panel notes that the worker was demonstrating no neurological abnormalities and that he had demonstrated material improvement in his condition in the fall of 2006, the winter of 2006/2007 and the spring of 2008. Given the extended length of time of recovery from the workplace injury and the medical advisor's conclusion that the worker's strain type injury was not resolved, the panel accepts as credible based upon a balance of probabilities, the medical advisor's view that the worker would be fully recovered from his strain type injury by July 6, 2007. It notes that the additional eight weeks for recovery is not unreasonable given the nature of the injury diagnosed.

To the extent that the worker was experiencing back difficulties after this date, it is the panel's view based upon a balance of probabilities, that they were not related to the workplace injury of June, 2006. The panel notes the worker had a pre-existing degenerative condition related to an unstable spine.

The panel notes that the May 2007 report of the medical advisor is strongly supported and enhanced by the March 28, 2008 report of the senior medical advisor who concluded that:

“Based on the objective medical evidence at my disposal and the substantial improvement in the injured worker's physical findings, the June 2006 [injury] is not probably responsible for ongoing workplace disability. That event led to a temporary worsening based on objective criteria. Those criteria are largely resolved. The restrictions are described as preventative…This same logic applies to the [worker's] physical therapist’s statement of having a back at risk.”

l The compensable injury did not permanently and adversely affect the pre-existing condition or make necessary surgery on the pre-existing condition.

In concluding that the compensable injury did not permanently and adversely affect the pre-existing condition, the panel prefers the March 28, 2008 opinion of the WCB senior medical advisor to the February 18, 2008 opinion of the treating physician.

In considering the worker's signs and symptoms after the 2006 injury, the senior medical advisor noted that the worker went:

· from having a lumbar list to demonstrating no lumbar list;

· from having abnormal neurological examinations to normal neurological examinations;

· from abnormal lumbar forward bending to having a normal lumbar range of motion;

· from an abnormal CT scan in 2003 demonstrating probable disc herniation to a CT scan in 2006 without any significant abnormalities apart from mild degenerative changes

In the panel's respectful view, while the treating physician relies heavily upon a temporal relationship, he never satisfactorily addresses the relative improvement in the worker's condition subsequent to the 2006 injury.

The panel considers the March 28, 2008 report to be more carefully and thoughtfully documented. It notes that the March 28, 2008 report is also well supported by the October 25, 2007 opinion of a WCB medical advisor who stated:

Conclusion

Based upon a balance of probabilities and considering the record as a whole, the panel finds that:

· the worker has recovered from his June 26, 2006 workplace accident to the point it is no longer contributing, to a material degree, to any loss of earning capacity; and,

· the worker's 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 worker's pre-existing condition is not a compensable condition.

Accordingly, the appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 16th day of April, 2009

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