The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

The Worker’s Position

The worker was assisted by a worker advisor at the hearing. The position advanced on behalf of the worker was that based on the medical evidence on file, the worker’s back difficulties continue to be related to her compensable accident of January 5, 2006. It was submitted there was an aggravation in the form of a muscle strain which resulted from the compensable accident and which has not resolved. It was stressed that there were no contrary medical opinions from any WCB medical advisors and the reports of the treating physician and the neurosurgeon were relied upon to state that, based on the mechanism of injury, a relationship continued to exist between the workplace accident and the worker’s current back condition.

The Employer’s Position

A representative from the employer participated in the hearing by teleconference. The employer’s position was that no responsibility should be accepted for the worker’s back difficulties. The claim for WCB benefits was not submitted until two years after the incident date and the worker continued to work her regular duties during this time. There was also a delay of six months before the worker sought chiropractic treatment, and this was in mid-July when she was not actually working due to the summer break. It was submitted that had the injury been significant back in January 2006, it would have required treatment during the more acute stage of the injury. Further, it was noted that the medical information supported that the worker had a degenerative condition which was likely due to the aging process and that the condition was likely continuing to degenerate.

Analysis

The issue before the panel is whether or not the worker’s current low back complaints are related to the January 5, 2006 compensable injury. In order for the appeal to be successful, the panel must find on a balance of probabilities, that the worker has continued to suffer from the effects of the injuries she sustained in the January 5, 2006 workplace accident. We are not able to make that finding.

Descriptions of the worker’s back pain from the time of the January 5, 2006 workplace accident suggest that the worker suffered a neurological type of injury. At the hearing, the worker described experiencing a sharp pain in her left lower hip which would then be like a shooting pain down the back of her left leg. The treating physician reported that when he saw the worker on January 11, 2006, she was: “complaining of pain in both lumbosacral areas radiating down the posterior aspect of the left thigh to the knee.” On January 13, 2006, he reviewed x-rays with the worker. The x-rays showed mild to moderate degenerative disc changes at L5-S1.

There was then a gap in the medical evidence as the worker did not seek any further help from the treating physician for her back until 2008, although she was seen about 14 times during the interim for other medical complaints. The worker’s evidence is that she continued to work her regular duties for the accident employer, although in March 2006 she was transferred to a different facility which was a less demanding position as she had more help there and did not have to make long trips between buildings. The worker did not seek further medical attention until July, 2006, when she started to see a chiropractor. At that time, she had been off work for approximately one month, since mid-June.

Following the hearing, the panel requested further medical information from the chiropractor. A narrative report from the chiropractor dated April 8, 2009 states:

[The worker] first presented for examination and treatment on July 20, 2006. At that time, she related chronic ongoing problems for a period of 3-5 years with pain, stiffness and weakness in her low back, neck, as well as headaches. She also reported pain from heel and radiation up legs.

…

It is my opinion that with some structural factors [the worker’s] problem is mechanical. It is also my opinion that the chronicity of this condition is not going to allow [the worker] to return to full duties at what the job demands.

The worker’s response to the additional information from the chiropractor alleged that the report of 3-5 years of chronic ongoing problems with her back condition was not accurate reporting. She explained that her visit to the chiropractor encompassed two separate areas of concern (one non-compensable and one compensable) which required separate treatment. The first was an ongoing foot pain and the second was the compensable low back condition. The foot pain involved a shooting pain from the foot which radiated up the leg and often kept her awake at night. A physician who was treating her foot thought that the pain could be caused by a pinched nerve in the knee area and suggested that she go to a chiropractor to see if it could be relieved. This prompted the worker to see the chiropractor in mid-July. She said that she had not used a chiropractor before, but thought she would try it.

The condition from which the worker currently suffers is described by the neurosurgeon as most likely being mechanical low back pain. The report of December 1, 2008 defines this as musculoskeletal pain originating from zygapophyseal joints of the lumbosacral spine and/or the paraspinal muscles. The treating physician’s report of May 26, 2008 states that: “My current diagnosis regarding her back disability is degenerative changes in the lumbar spine.” The 2006 x-ray and the 2008 MRI both reveal degenerative changes in the worker’s lumbar spine. In the panel’s opinion, it is reasonable to assume that the worker had pre-existing degenerative changes in her low back at the time of the January 2006 workplace accident. This pre-existing condition, however, may not have been symptomatic at the time.

The question the panel must grapple with is whether the 2006 workplace accident aggravated or enhanced the pre-existing degenerative condition, or whether the workplace injury resolved and the current condition complained of by the worker is simply the progression of the worker’s pre-existing low back degenerative changes. On a balance of probabilities, the panel is of the opinion that the latter scenario applies. We find that the compensable low back injury which the worker suffered on January 5, 2006 has resolved and that the low back pain that she is currently experiencing is related to the pre-existing degenerative changes in her back. We do not accept that there has been a persistent continuation of symptoms from the time of the accident until the present. In coming to this decision, the panel relies on the following evidence:

• The worker’s reports of pain near the time of the injury describe a sharp low back pain which radiated down the back of the left leg. Her treating physician also noted pain of that description. This would suggest that the worker suffered a neurological type of injury in January 2006.
• The later medical reports from 2008 and 2009 indicate that there is no neurological condition. Both the neurosurgeon and the chiropractor are of the opinion that the cause of the worker’s current low back pain is mechanical.
• After the injury in January, 2006, the worker did not miss time from work and she continued to perform her job duties. Although in March, 2006, she transferred to a less demanding position, she was still performing fairly physical work which required her to be on her feet for many hours per day. From this, the panel concludes that the workplace injury was relatively minor, as it did not disable her from employment.
• After initial consultations in January, 2006, the worker did not seek any further medical assistance from her treating physician. Again, this would suggest a minor injury. There was no further follow up or diagnostic testing recommended. She continued to see him periodically for a number of other problems, but not for her back condition. In January, 2007, during her annual examination, she advised him that she had been attending a chiropractor since mid-July 2006 for back pain, but that was the extent of their discussion of her back condition. It was not until January 2008 that the worker reported to her treating physician that the pain in her back had become an overwhelming problem and it was at that point that an MRI was ordered and the worker was referred to a neurosurgeon. This was approximately two years post-accident.
• The worker commenced treatment with her chiropractor in mid-July 2006. At that time, she had been off work for approximately one month. It is therefore difficult to relate the need for treatment to the performance of work duties.
• Further, the worker’s own explanation for why she finally sought chiropractic treatment in July 2006 was that she had a shooting pain from her heel, for which her foot specialist suggested she consult a chiropractor. It was not her low back pain alone which prompted her to seek medical attention.
• For almost two years, the worker paid for the chiropractic treatment using her private insurance benefits, and then when they were exhausted, she paid out of her own pocket. Presumably, if the worker had felt that the chiropractic treatments related to the workplace injury, she would have turned to the WCB for coverage earlier.
• The panel notes that there is some discrepancy as to whether or not the worker described to her chiropractor a 3-5 year history of chronic low back pain. As her treating physician indicated in his May 26, 2006 report that for two years prior to the accident, he had no record of back or leg pain, the panel accepts that the worker’s degenerative condition was asymptomatic at the time of the accident. It is our opinion, however, that the sharp pain which the worker described from the accident resolved and that the gradually increasing pain which the worker complained of to her treating physician in 2008 (and which constitutes her current back condition) is different in nature to the sharp pain which she described after her accident in January 2006.

We therefore find that responsibility for the worker’s current back difficulties should not be accepted. The worker’s appeal is dismissed.