The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is presently appealing a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that by June 5, 2008, he had recovered from the effects of his April 25, 2008 compensable injury. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on July 28, 2009 to consider the matter.

Issue

Whether or not wage loss benefits are payable beyond June 6, 2008.

Decision

That wage loss benefits are not payable beyond June 6, 2008.

Decision: Unanimous

Background

While at work on April 25, 2008, the worker injured his left low back region while jack hammering concrete. When seen by a chiropractor on the same day, the worker was diagnosed with a lumbosacral strain/sprain. On May 29, 2008, the worker advised a WCB adjudicator that he had been jack hammering for 3 straight days. The claim for compensation was accepted and eight weeks of chiropractic treatment was authorized to June 20, 2008.

On May 21, 2005, the treating chiropractor reported that the worker complained of left leg pain in his calf and low back. He noted that the worker had lifted a two year old child and aggravated his low back.

A WCB call in examination was carried out on June 5, 2008 by a WCB chiropractic consultant. He noted that the worker had 14 prior compensable low back claims. Following his examination of the worker, the chiropractic consultant opined that the worker, in all probability, suffered a mild soft tissue type of injury involving the lumbosacral spine. There were no distinct nerve root tension signs. The consultant concluded that there was no objective evidence to support ongoing disability and that many of the exam findings were not within the expected norm. He felt that the worker no longer required chiropractic therapy.

On June 16, 2008, the worker was advised that based on the June 5, 2008 examination, the WCB considered that he had recovered from his April 25, 2008 low back injury and that wage loss benefits would end on June 6, 2008.

Subsequent file records showed that the worker attended his family physician for ongoing back complaints. On July 31, 2008, the worker underwent a CT scan of the lumbar spine which showed multilevel disc protrusions, most marked at L3-4 and L5-S1.

On August 7, 2008, a WCB medical advisor reviewed the file information. In his opinion, the current diagnosis of the worker’s condition was a back strain. He stated, “The clinical findings reported are consistent with this and the claimant reported having 5 previous WCB claims for disc problems which would be consistent with the current MRI findings…The claimant’s treating Chiro reported another injury while lifting his child on June 15, 08. There is no cause-effect relationship remaining between the April 25, 2008 C/I [compensable injury] and the current symptoms.”

In a decision dated August 14, 2008, the worker was advised that no change would be made to the previous WCB decision that he had recovered from the mild soft tissue strain that he sustained at work on April 25, 2008. This decision was based on the WCB medical consultant’s opinion of August 7, 2008.

On November 25, 2008, a worker advisor provided the WCB with new medical information from the treating physician dated November 21, 2008 to support that the worker’s recent compensable injury and/or previous compensable injuries continued to contribute to the worker’s ongoing symptoms and restrictions.

On December 15, 2008, primary adjudication referred the case to the WCB medical advisor to advise whether the new medical information submitted would warrant a change to the previous medical opinion on file. The medical advisor’s response to the adjudicator is dated January 7, 2009. He stated:

“Opinion

A clarification must be made with regards to the treating MD’s narrative report opinion. The CT report demonstrates

1. no significant degree of spinal stenosis at L4-5

2. the L5-S1 protrusion is broad based with no reference to bilateral protrusions and no mention of left sided nerve compression

3. radiologist reports that there may be right S1 root compression

The treating MD opined that the diagnosis is spinal stenosis, right S1 nerve compression and possibly left S1 nerve root compression. There is no objective clinical evidence and minimal radiologic evidence of any of these diagnoses. The reported objective findings from the treating Chiro, the treating MD and the WCB Chiro consultant are consistent. There is no discrepancy about clinical findings to be clarified with a call-in exam. The compensable diagnosis remains a strain and fitness to return to regular duties was verified by a call-in exam on June 5, 2008.

With regard to the Worker Advisor’s request for further review of the worker’s prior injuries I have completely reviewed a prior claim.

The Worker’s (sic) Advisor (sic) also speculated on a potential relationship between the worker’s current symptoms and previous compensable injuries. This opinion is predicated on the CT findings alone. If we exclude the CT findings, the objective evidence is that the claimant made a complete recovery after his Dec.4, 2007 injury… The CT findings do demonstrate a man with a back at risk but this was already evident from his previous recurrent episodes of symptomatic non-specific back discomfort. It is speculative to say that his work injuries caused these findings. On the balance of probability it is equally likely that day to day activities are the cause (two episodes are documented on file as related to picking up children).

In my August 7, 2008 opinion I noted that the radiologic findings were consistent with the past history of recurrent episodes of back discomfort. To clarify this opinion, the CT demonstrates that he has pre-existing (an acute injury doesn’t cause multilevel disc changes) multilevel disc pathology and the claimant is therefore susceptible to recurrent episodes of back discomfort. I made no inference about the previous work injuries causing this disc pathology.”

In a decision dated January 7, 2009, primary adjudication upheld the decision that the worker had recovered from his April 25, 2008 work injury and was fit to return to work following the June 5, 2008 call in examination. This decision was mainly based on the medical opinion expressed by the WCB medical advisor on January 7, 2009.

On February 2, 2009, Review Office confirmed that the worker was not entitled to wage loss benefits beyond June 6, 2008. Review Office agreed with the WCB medical advisor that it was speculative to take a position that the worker’s work injuries had produced the CT scan findings. Review Office felt that the CT scan findings were an underlying condition and were not compensable.

Review Office indicated that the worker had 4/5 Waddell’s signs at the June 5, 2008 call in exam which were an indicator of credibility. Review Office felt that the worker had a back at risk and was susceptible to ongoing strains superimposed on the degenerative lumbar spine. Review Office felt that the worker’s April 25, 2008 strain had resolved as indicated in the WCB chiropractic consultant’s exam of June 5, 2008. On March 26, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

On July 20, 2009, the worker provided the appeal panel with additional medical information to which he would be referring at the hearing. This included a report from a neurosurgeon as well as other healthcare information.

Reasons

Applicable legislation:

The issue before the panel is whether or not wage loss benefits are payable beyond June 6, 2008. Under subsection 4(1) of The Workers Compensation Act (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.

Worker’s position:

The worker was self represented at the hearing. He described what happened on the day of the accident. He was operating a jackhammer in an awkward position when he felt a twinge in the left side of his back, at the L4-L5 level. He went to his chiropractor who provided him treatment. After several visits, he was not feeling any better and eventually he sought treatment from a physician. He asked his physician to send him for a CT scan, and the results indicate multi-level disc protrusions. The worker submitted that this confirms his back condition. In the meantime, the WCB examined him and deemed him fit to return to work. The worker disagreed that he could go back to work because no light duties were available with his employer, which is in the construction industry. The worker relied on a report dated November 21, 2008 from his treating physician which, he submitted, explains why he should be entitled to further compensation. The worker stressed that he was not looking for any handouts from the WCB. In his words, he just wanted assistance and retraining to become an active person in society again.

Employer’s position:

A representative from the employer was present at the hearing. The employer did not dispute that the worker had a legitimate injury, but simply expressed concern that the employer not be assessed with the costs of the claim. The employer’s representative noted that out of a 25 year work history, the worker was only employed with them for a total of 28 work days. The treating physician described the worker’s condition as “an accumulative fact of multiple injuries” and the employer’s position was that it should not be responsible for the pre-existing condition of the worker’s back.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his back after June 6, 2008 are related to the injuries he sustained in the workplace accident of April 25, 2008. While we do not doubt that the worker currently experiences pain and limitation of motion in his low back and hips, the question to be determined is whether these difficulties are the result of his workplace accident, or whether they are attributable to degenerative changes in the worker’s back. On a balance of probabilities, we find that the work related back sprain had resolved by June 6, 2008 and that the worker’s current difficulties are attributable to degenerative changes in his lumbosacral spine.

In coming to our decision, the panel relies on the following evidence:

The medical evidence relied on by the worker was the November 21, 2008 report from the treating physician, which stated:

The final diagnosis is multi-level disc protrusion with most marked areas at L3, L4, L5, S1 with the nerve root compression at S1 on the right side possible on the left side as well.

In my opinion, this is an accumulative fact of the multiple injuries to his back which creates multiple disc herniation with some spinal stenosis and compression of the S1 root on the right, possible on the left as well, and in my opinion the most significant impact was his last injury of April 25^th 2008.

The treating physician’s opinion, however, is not supported by the medical facts on file. By memo dated January 7, 2009, the WCB medical advisor noted the deficiencies in the treating physician’s diagnosis and the panel agrees with the medical advisor’s assessment that the objective clinical evidence does not support the treating physician’s diagnoses. The panel therefore places little weight on the opinion expressed in the November 21, 2008 report.

Overall, the panel is left with an impression of a fluctuating lower back condition which is consistent with a finding of a back at risk due to degenerative disc disease. We did not identify sufficient support in the medical evidence to be satisfied on a balance of probabilities that the worker’s ongoing low back difficulties are work related. We therefore find that wage loss benefits are not payable beyond June 6, 2008. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of September, 2009