The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker sustained an injury to his low back region in a work related accident. His claim for compensation was accepted by the Workers Compensation Board (“WCB”) and benefits were paid during his absences from work and during his participation in vocational rehabilitation. In November 2007, the worker claimed that he was experiencing ongoing back pain and was unable to continue with his job as a courier. In December 2007, it was determined that the worker was still capable of working within his restrictions and that he was not entitled to further benefits. This decision was confirmed by Review Office on February 14, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on March 18, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to additional workers compensation benefits.

Decision

That the worker is entitled to additional workers compensation benefits.

Decision: Unanimous

Background

On October 3, 2001, the worker reported that he injured his low back region while cutting rebar and moving concrete during the course of his employment as a production supervisor. Following the accident, the worker was treated by his family physician and was initially diagnosed with an acute lumbar strain. Upon further testing which included a CT scan dated January 10, 2002, the diagnosis changed to an acute L4-5 disc prolapse with resolving radiculopathy on the left side.

The worker was subsequently assessed by an orthopaedic specialist as well as a physical medicine and rehabilitation specialist. In an MRI report dated July 11, 2002 there is reference to an annular tear and to the fact that “there may be a very tiny disc herniation present at the site of the annular tear”. In a subsequent report dated September 3, 2002, the orthopaedic specialist refers to the MRI and notes drying out and loss of shock absorption of the discs at L4-5 and L5-S1 levels. He too refers to the annular tearing laterally on the left at L4-5, and states “there is no convincing evidence of either disc herniation or entrapment”.

In a report dated March 14, 2003, a physical medicine and rehabilitation specialist stated that the worker presented with mechanical back pain. Neurological examination was normal and there were no findings of active nerve root irritation. He suggested a number of medications and recommended that the worker continue with acupuncture treatments.

On September 11, 2003 the orthopaedic consultant to the Review Office stated that:

He is still symptomatic related to his degenerative disc disease. He has not completely recovered. The degenerative changes at L4-5 have been enhanced by the CI if he developed an associated herniation and the MRI suggests this.

In March 2004 the Board’s orthopaedic consultant stated that “an annular tear or a tiny disc herniation should have healed by now”, and concluded in a report dated May 27, 2004 that the worker’s ongoing back problems were not likely related to the compensable injury. In a later review by the Board’s Senior Medical Advisor in July 2004, he acknowledged the findings of the Board’s orthopaedic consultant and noted that to the extent there was a left L4-L5 disc herniation there had been a “resolution of same”. Permanent restrictions were imposed following a Functional Capacity Evaluation in April 2004 which indicated that the worker demonstrated the ability to work at “medium” work, but was limited to “light” work. The WCB orthopaedic consultant thought it doubtful that the worker could tolerate medium work in the future, and noted that the worker had other medical problems with his neck, shoulders, hand, both hips, knees and left ankle which might also affect his ability to work.

In a memorandum dated December 9, 2004, a WCB vocational rehabilitation consultant provided a rationale to support the conclusion that the worker was deemed capable of earning $356.99 per week in NOC 0621, Retail Trade Manager, effective January 1, 2005. The worker was dissatisfied with that assessment and in March 2005 found alternate employment with a courier company delivering light packages.

Progress reports from the family physician in July and October 2006 confirm that throughout that period the worker was suffering from chronic mechanical and disc-generated back pain and that the worker was actively employed on a full time basis.

On November 14, 2007, the worker advised the WCB that his low back pain had been getting worse and that he had problems with his neck. He said his doctor had told him to stop work until he saw a neurosurgeon in March 2008, but that he would continue working as a courier until the WCB made a decision about his time loss.

In a progress report dated November 7, 2007, the family physician stated that the worker had ongoing arthritic and disc-related back and neck pain and was finding it difficult to manage his occupation. The worker was also finding further sedation and blunting as his prescriptions were increased for pain relief. The family physician indicated that the worker might need to withdraw from his occupation and consider aggressive physiotherapy.

An MRI dated September 9, 2007 reported degenerative changes, and areas of stenoses were seen within the cervical and lumbar spines.

In a decision dated December 18, 2007, the worker was advised that following consultation with a WCB healthcare consultant, it was determined that he was still capable of working within his restrictions. The case manager noted that the MRI taken in July 2002 was compared with the MRI done in September 2007 and that there were minimal changes found. Given this finding, the case manager was unable to reach the conclusion that the worker had suffered a loss of earning capacity or that he was incapable of working within the previously outlined restrictions. On January 5, 2008, the worker appealed the case manager’s decision and the file was forwarded to Review Office for consideration.

On January 2, 2008, the family physician reported that the worker continued to experience chronic pain with increasing leg weakness and that he was having trouble with the demands of his sedentary occupation. The physician was fearful that the worker was at risk for an accident in light of his poor concentration, balance and weakness. On January 14, 2008, the WCB case manager advised the worker that she had reviewed this report and that she remained of the view that the worker may not be capable of performing the duties of a courier, but could work as a retail sales manager.

A letter from the pain clinic dated January 26, 2008 stated that the worker was agreeable to proceeding with a diagnostic lumbar epidural steroid injection.

Prior to considering the worker’s appeal, Review Office asked a WCB sports medicine consultant to review the file and provide his opinion on three questions, and his response of February 5, 2008 is as follows:

· The probable diagnosis of the worker’s condition is mechanical low back pain. On a balance of probabilities, the low back pain was discogenic but this was not definitive.

· There was insufficient evidence to indicate an objective deterioration in the worker’s level of function which would prompt a change in restrictions. The consultant suggested waiting for the results of the epidural steroid injection to see if it helped to decrease the worker’s symptomatology.

· A call in examination was not recommended given the recent physical examination findings outlined by the pain clinic.

On February 14, 2008, Review Office determined that the worker was not entitled to additional workers compensation benefits. In arriving at its decision, Review Office placed weight on the findings of the WCB orthopaedic consultant who examined the worker on March 16, 2004 and the opinion expressed by the WCB senior medical advisor dated July 27, 2004. Review Office stated that the two WCB consultants shared the opinion that the compensable injury was not continuing to be a major contributing factor to the worker’s symptoms. It stated that this same conclusion was supported by the primary physician who indicated significant improvement in the worker’s symptoms by November 2004. It was not until approximately one and one half years later that the worker began to experience increasing and progressive symptoms, suggesting that the worker’s current increase in symptoms was not related to the compensable injury but rather to other factors. Review Office indicated that there were no changes to the worker’s job duties and no reported work related event to account for the worker’s new and increased symptoms. It found that these symptoms, on a balance of probabilities, were more likely related to the natural progression of the worker’s pre-existing condition.

Review Office also relied on the opinion expressed by the WCB sports medicine consultant that the current diagnosis of the worker’s condition was mechanical low back pain, probably discogenic in nature, and that there was insufficient evidence to indicate an objective deterioration in the worker’s level of function to prompt a change in his restrictions.

Review Office concluded that the evidence did not support that any additional restrictions were required as a result of the compensable injury as it was not contributing to a material degree to any increased loss of earning capacity.

A report was received from the treating neurosurgeon dated March 11, 2008. He noted that the worker’s clinical presentation remained suggestive of musculoskeletal/mechanical pain at the cervical and particularly the lumbosacral segments. He could not detect signs of cervical radiculopathy. He suggested that the worker go back to a regular physiotherapy program with the goal of stabilizing and reconditioning the lumbosacral spine.

On March 20, 2008, the Appeal Commission received the worker’s application to appeal Review Office’s decision of February 20, 2008, although it did not proceed to a hearing at the worker’s request, as he was continuing to seek further medical information.

In a report outlining epidural steroid injection treatment dated April 19, 2008, the pain clinic reported that the worker’s level of pain decreased from a 6/10 prior to the injection to a 1/10 approximately three days after an injection on February 20, 2008. A repeat steroid injection was arranged for May 3, 2008 and it resulted in a reduction in his pain level from 8/10 to 0/10 for a five day period. A final injection on September 20, 2008 led to improvement for seven days. According to the June 21, 2008 report from the anesthesiologist who administered the injections, these results suggest that inflammation may be a significant contributing factor to his pain, and quite possibly results from either compression and or irritation of the nerve roots as suggested in the worker’s September 2007 MRI.

As the worker continued to experience significant lower back pain, a diagnostic facet joint injection at L4-5 and L5-S1 bilaterally was performed December 13, 2008 which again resulted in significant improvement in his lower back pain. The worker’s level of pain decreased from 8/10 prior to the injection to 2/10 after the injection, lasting for a period of three weeks. A repeat L4-5 and L5-S1 medial branch injection was arranged to see if his response was consistent.

On January 26, 2009, the worker filed another appeal with the Appeal Commission from the decision made by Review Office and an oral hearing was arranged.

Following a second bilateral L4-5 and L5-S1 facet joint injection on April 4, 2009, the worker again experienced some relief, although not to the same degree as previously. Again the anesthesiologist concluded that the significant improvement experienced by the worker suggests a facet joint component to his pain.

On March 2, 2009, the family physician reported that the worker was experiencing “Acute on (sic) chronic lumbar pain…the pain is a searing, burning pain in his R sacroiliac region” and that he is permanently disabled.

A hearing was held at the Appeal Commission on March 18, 2009. Following the hearing and after discussion of the case, the appeal panel requested further information from the specialist at the pain clinic regarding the specific sources of the worker’s current symptoms. A response from the specialist was later received and was forwarded to the worker for comment. On June 18, 2009, the panel met to render its final decision on the issue under appeal and considered a final submission by the worker dated June 11, 2009.

Reasons

Further, it is significant that none of the Board’s consultants had before them the results of the subsequent diagnostic testing which in our view supports the conclusion that the cause of the pain is discogenic, and confirms the conclusions of the Board’s own orthopaedic consultant in September 2003 that the degenerative changes at L4-5 have been enhanced. The worker underwent lumbar epidural steroid injections on three separate occasions, with each one resulting in significant improvement in pain. Similarly the diagnostic facet joint injections also resulted in significant improvement in the worker’s lower back pain, all of which is strongly suggestive that inflammation is a significant contributing factor to his pain, likely resulting from either compression and/or irritation of the nerve roots.

Having considered the evidence of the worker, the reports of his treating physician, and the results of his subsequent diagnostic testing, we are satisfied on a balance of probabilities that there was in fact an enhancement of the degenerative changes at L4-5 resulting from the compensable injury. We find that it was this enhancement that was first identified by the WCB orthopaedic consultant in September 2003 which led to the worker being unable to continue with his duties as a courier in 2007. Accordingly he ought to be entitled to further benefits although the precise extent of that and the nature of any continuing restrictions ought to be left to the Board to determine.

The appeal is allowed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 27th day of July, 2009