The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for an injury to her low back and tailbone which occurred when she slipped and fell on ice at work on March 22, 2007. The claim for compensation was accepted and the worker received benefits up until December 21, 2008, when it was determined by the WCB that the worker had recovered from the effects of her compensable injury. The decision was subsequently confirmed by Review Office. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. An appeal panel hearing was held on October 27, 2009, to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after December 21, 2008.

Decision

That the worker is entitled to wage loss and medical aid benefits after December 21, 2008.

Decision: Unanimous

Background

On March 22, 2007, the worker slipped and fell on ice, landing on her tailbone and lower back. She felt faint and nauseous and was immediately seen by a staff nurse who directed her to attend a walk in clinic. The attending physician diagnosed back strain and noted that the worker was unable to bend either forward or backward, could not walk on her heels and was barely able to toe walk. The straight leg raise test on the right side was limited to 10 degrees. An xray was ordered and she was prescribed Tylenol 3’s and anti-inflammatory medication.

X-rays of the lumbosacral spine taken March 22, 2007 showed five lumbar vertebrae with a mild scoliosis convex to the left. The disc spaces, facet joints and SI joints were normal. There was an acute anterior angulation of the distal coccyx which could be seen as a normal variant. No fracture or dislocation was seen.

When seen by her family physician on March 24, 2007, he noted tenderness on her spinal cord and lower back, and prescribed a muscle relaxant and Advil.

In May 2007, the worker returned to modified duties but had to stop after several days due to pain. Her family physician referred her for a CT scan of the lumbar spine which was conducted on May 24, 2007. The report confirmed a small broad based posterocentral disc protrusion at L4-L5 and the presence of bilateral L5 spondylolysis with grade I spondylolisthesis which had “a long standing appearance but may have been exacerbated by the patients (sic) recent fall.”

On July 12, 2007, the worker was assessed by a WCB physiotherapy consultant at the request of the worker’s treating physiotherapist. The worker complained of a constant ache across the entire lumbosacral area with pain radiating more to the right side. She had attempted a return to work but had been unable to continue due to back and tailbone symptoms. The worker was having difficulty with the activities of daily living including vacuuming and unloading the dishwasher. She was taking medication although it was not providing any long term relief of her symptoms. Following the examination, the consultant reported that the worker was suffering from mechanical low back pain and right hip strain, with limited active spinal lumbar range of motion. He concluded that she was capable of returning to work with modified duties to be gradually removed over a six to eight week period.

In a report to the family physician dated August 1, 2007, an orthopaedic specialist indicated that he had reviewed the x-rays and the CT scan of May, 2007 and that these confirmed that the worker had:

“…a grade 1 spondylolisthesis of L5. However there is also an acute disc herniation noted centrally at L5-S1. L4-5 appears to be normal. There is a well based disc bulging at L4-5, this is probably due to the listhesis effect of L5 and partly due to a bulging disc. . . This girl has had chronic pain for about 4 months which is unrelenting and has not changed much. . . I believe that we can consider her for a L5-S1 posterolateral fusion.”

On September 5, 2007, a WCB medical advisor reported that the spondylolysis and associated spondylolisthesis “may represent an incidental pre-existing condition, but equally may have been caused by or aggravated by the compensable injury”. He wrote to the orthopaedic specialist advising that a nuclear medicine SPECT scan had been requested to assist in determining whether the worker’s spondylolysis was an acute condition and/or whether there was evidence of aggravation of the spondylolysis as a result of the March 2007 injury.

In a response to the WCB dated September 11, 2007, the orthopaedic specialist advised that chronic spondylolisthesis is a well known indication for spinal surgery. He noted that it causes mechanical back pain which is often aggravated by an incident such as trauma.

On September 17, 2007, the bone scan examination showed “…no scintigraphic evidence of an active spondylolysis.”

The WCB medical advisor reported on October 16, 2007 that:

“…the spondylolysis and associated spondylolisthesis [which] are, on balance of probabilities and based on the bone scan, likely pre existing conditions. A degree of aggravation of these conditions is possible but by no means certain. It is not clear that the majority of the reported symptoms are accounted for by an aggravation of the pre ex condition”.

In his opinion, however, the worker’s current back difficulties were likely due to the combined effect of the compensable injury and possibly a contribution from the pre existing spondylolysis and associated spondylolisthesis.

The WCB orthopaedic consultant then reviewed the file and advised that surgery was not indicated. He suggested conservative treatment and a review after one year. The family physician was also contacted. He advised that the worker was not improving and that “she can hardly do anything. She cannot sit for any length of time”.

On October 29, 2007, the orthopaedic specialist advised the WCB that it was safe to proceed with conservative measures as there was no neurological deficit seen during his last examination of the worker. He noted that if mechanical pain persisted, surgery would be done as planned.

The worker was seen by a neurosurgeon on December 12, 2007. The neurosurgeon stated:

“The clinical presentation is mainly suggestive of mechanical/musculoskeletal pain (the proximal component). The more distal mild discomfort of the calves and intermittent short-lived tingling sensation experienced by the patient may be radiculopathic secondary to the bulging of the disc seen at L5-S1. Given the moderate nature of the discomfort and the absence of any significant radiculopathy, I would recommend an expectant attitude as far as surgical decompression and stabilization is concerned. The patient should get back to a regular physiotherapy program with the goal of stabilizing the lumbosacral segment.”

On December 13, 2007, a chiropractor diagnosed the worker with chronic lumbar facet irritation and muscle strain.

An MRI of the lumbar spine dated February 8, 2008 showed no central or lateral spinal stenosis or disc herniation at L3-L4 or L5-S1. At L4-L5 there was diffuse disc bulging but no central or lateral spinal stenosis or disc herniation.

On April 1, 2008, the family physician wrote to the WCB stating that one year post injury, the worker could hardly sit for longer than 10 minutes. She could not drive longer than 30 minutes by herself before she was in excruciating pain. A referral to the Mayo Clinic was suggested.

In a follow up report dated March 31, 2008, the neurosurgeon noted that the worker was still experiencing mild low back discomfort, particularly with strenuous activity, and that her range of motion in the lumbar spine was improved but mildly restricted. He reported that the sensorimotor function of the lower extremities was intact and expressed the opinion that conservative treatment be continued with stabilization of the lumbosacral spine.

In April 2008, a WCB medical advisor concluded that the current compensable diagnosis was non-specific low back pain based on the file information and the MRI of February 2008. He expressed the view that the worker had not recovered from the effects of the compensable injury given the ongoing pain reports and activity restriction. He saw no reason for a referral to the Mayo Clinic based on the recent MRI findings and recent improvement in the worker’s condition possibly related to the benefit of chiropractic treatment.

On June 18, 2008, a physical medicine and rehabilitation consultant (physiatrist) indicated that the worker had a clinical history consistent with a resolving disc herniation with delayed recovery. He related the delayed recovery to “chronic use of opioid medication, her relatively passive therapy and possibly her underlying spondylolisthesis” and an element of reactive depression.

On August 5, 2008, the worker commenced a graduated return to work program with restrictions, including no heavy lifting greater than ten pounds, no repetetive or sustained bent, flexed or stooped postures, and no prolonged sitting. The worker discontinued working on August 19, 2008 due to increased pain, which she attributed to driving to work and performing work duties.

On September 8, 2008, the physiatrist reported that the worker was unable to tolerate a return to work primarily due to a sitting intolerance when driving to and from work. He noted in his report that the physical examination was entirely normal and requested a repeat MRI scan. He noted that the worker had a prior documented L4-5 disc herniation with symptoms that may still be related to the lesion.

The MRI of the lumbar spine was done on September 26, 2008. The radiological report revealed minimal grade 1 L5-S1 spondylolisthesis.

On November 12, 2008 a WCB medical advisor expressed the opinion that the worker was suffering from non specific low back pain, and that based on the continuity of symptoms, it was related directly to the compensable injury.

In a report dated November 21, 2008 the physiatrist noted that the worker was continuing to experience low back pain and lower limb pain ‘that appears to be related to a slowly resolving L4-5 disc herniation”. While her physical examination was reported as being normal, he noted that her report of sitting intolerance would be consistent with a symptomatic disc herniation. In a subsequent report dated November 26, 2008, the physiatrist reported that the worker had a caudal epidural injection and that her sitting tolerance had improved the most and her walking intolerance had improved slightly. The worker had estimated that her condition had improved by approximately 50%. The worker’s physical examination was again noted as being normal and a return to work was recommended.

The worker was scheduled to return to work on a graduated basis commencing on December 8, 2008. She worked until December 12, 2008, but was unable to continue due to the increase in low back and leg pain. As a result, the family physician reported on December 16, 2008 that the worker was considering the fusion which had previously been proposed by the treating orthoapedic specialist.

On January 28, 2009, a WCB orthopaedic consultant reviewed all the file information and was of the opinion that the worker sustained a strain and contusion of the lumbar spine in the slip and fall accident. He accepted that the pre-existing condition of spondylolisthesis had been asymptomatic but found no evidence that the accident resulted in an aggravation of the pre-existing condition. He concluded that the worker had recovered sufficiently to commence a graduated return to work by December 2008.

On February 5, 2009, the worker was advised by her case manager that in the opinion of the WCB, she had recovered from the effects of her workplace accident and was physically able to participate in the graduated return to work program outlined in December 2008. The WCB was further of the view that an aggravation of the worker’s pre-existing spondylolysis had not occurred and that any current symptoms experienced by the worker were unrelated to her March 2007 accident. The worker was advised that partial wage loss benefits would be paid to December 8, 2008 inclusive and final. On February 16, 2009, the worker appealed this decision to Review Office.

In a March 5, 2009 decision, Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits after December 21, 2008. Review Office found that the worker sustained a musculoskeletal strain injury to her low back at the time of her compensable injury. It found no evidence to support a more significant injury in light of the “negative investigations” including the X-ray of March 22, 20007, the MRIs of February 8 and September 26, 2008 and the bone scan of September 27, 2007. Review Office concluded there was no evidence to suggest that the worker’s pre-existing condition(s) were aggravated by the workplace event, or that the need for medical treatment after December 21, 2008 was related to the workplace injury.

On April 1, 2009, a worker advisor provided Review Office with a March 13, 2009 report from the treating orthopaedic specialist and requested a reconsideration of the March 5, 2009 Review Office Decision. The worker advisor contended that the March report supported a relationship between the worker’s pre-existing spondylolisthesis and the March 22, 2007 compensable injury. She contended that the worker’s claim met the requirements of Policy 44.20.10.40, Spondylolysis/Spondylolisthesis and that she was therefore entitled to benefits after December 21, 2008.

In his report dated March 13, 2009, the specialist stated, in part:

“Clinic evaluation does confirm persistent L5 nerve root complaints.

The patient therefore has decided to go ahead with surgery, which I had suggested two years ago. This will be a simple L5-S1 laminectomy, decompression foraminotomy and fusion. However, due to the small size of the L5 vertebra and early degenerative changes at L4-5, fusion will extend to L4 vertebrae as well.

The current diagnosis is L5 spondylolisthesis, chronic back pain and leg pain.

The patient has an underlying spondylolisthesis, which was aggravated with the slip on ice and subsequent fall in 2007.”

In a decision dated April 8, 2009, Review Office advised that in its opinion the orthopaedic specialist had provided no evidence in his report to show a causal link between the worker’s complaints after December 21, 2008 and the March 22, 2007 workplace accident.

On May 14, 2009, the worker advisor provided Review Office with an operative report dated May 8, 2009 which showed that the worker underwent a laminectomy at L5 and foraminotomy of the L5 nerve roots bilaterally. The worker advisor indicated that this medical evidence supported a causal relationship between the worker’s ongoing low back and tailbone symptoms and the March 22, 2007 compensable injury.

In a letter to the worker dated May 26, 2009, Review Office indicated that there would be no change to the prior Review Office decision. In its view, while the surgical report explained what was done at the time of surgery, it did not establish a direct causal relationship between the worker’s complaints after December 21, 2008 and the workplace event. On May 27, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

• The September 26, 2008 MRI report which revealed minimal grade 1 L5-S1 spondylolisthesis.

• The November 12, 2008 report of the WCB Medical Advisor expressing the opinion that based on the continuity of the worker`s symptoms her non specific low back pain was related directly to the compensable injury.

At the time of her fall on March 22, 2007 the worker was a healthy, active young mother of three children who was employed in a part time capacity. Her evidence was that prior to the accident she had no prior injuries or difficulties with her back. She was able to run, bike, drive, work and play with her children. Following her injury her activities were extremely limited. Much of her time was spent in bed. She was unable to work, drive, perform household chores, sit with her children to read them stories or assist them with their homework, or attend their hockey games and other activities.

After March 22, 2007 the worker made several attempts to return to work on a gradual basis. Each attempt, other than the most recent attempt following her May 2009 surgery, was a failure. This was notwithstanding the very sincere efforts on the part of the employer to accommodate the worker’s restrictions, and the worker’s obvious motivation to return to work.

We are satisfied that these unsuccessful attempts at returning to work were entirely attributable to the fact that the worker was continuing to suffer from the effects of her workplace injury. Her gradual returns failed due to the fact that she had not at any time achieved a functional recovery from the effects of her injury.

While there was a request by the worker’s advocate during the course of the hearing for approval of the surgery held in May 2009, that issue was not before this panel. We leave it to the Board to determine that issue.

The worker’s 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 20th day of November, 2009