The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing a decision made by the Workers Compensation Board (“WCB”) Review Office which determined that the employer was not entitled to cost relief, as there was no pre-existing condition which contributed to the worker’s symptoms and delayed his recovery. A file review was held on March 24, 2010 to consider the matter.

Issue

Whether or not the employer is entitled to cost relief.

Decision

That the employer is not entitled to cost relief.

Decision: Unanimous

Background

On August 19, 2008, the worker was driving a forklift and claimed that he injured his back when he got off the forklift to pull a heavy metal plate. He reported that his back “went crunch”, he had difficulty breathing and had to leave work before the end of his shift.

The worker sought medical attention on August 21, 2008 and was diagnosed with low back pain. The physician observed that the objective findings were normal and advised the worker to return to regular duties on August 23, 2008.

The worker sought treatment from another physician on August 25, 2008 and was diagnosed with a right shoulder strain and left flank strain. He was advised to remain off work until September 7, 2008.

The worker saw a third doctor on September 16, 2008 with complaints of numbness and weakness of the legs and arms and severe low back and neck pain. X-rays of the cervical, dorsal and lumbosacral spine disclosed no significant abnormalities. The worker was diagnosed with lumbar and cervical sprains and advised to remain off work for 5 days.

On September 18, 2008, the worker’s family physician noted increased pain and spasms and decreased range of motion. He diagnosed a back strain and reported that the worker was capable of modified duties involving no lifting, bending or twisting.

The worker’s claim for compensation was accepted on October 28, 2008 based on the diagnosis of a right shoulder strain and left flank strain.

On October 29, 2008, the worker’s family physician reported that the worker was assaulted outside of work and had sustained rib contusions and possible rib fractures.

On November 19, 2008, an MRI of the thoracic and lumbosacral spine was carried out and showed changes suggestive of juvenile osteochondrosis. Shallow disc protrusions were noted at posterior L4-5 and posterolateral L5-S1. In a December 8, 2008 report the worker’s attending physician noted the shallow posterior disc protrusions in the lumbar area, but stated that he “cannot conclude that these findings are a result of the forklift accident at work”.

A WCB medical advisor concluded on January 7, 2009 that “the relevance of the MRI findings is speculative”, and that while the MRI demonstrated evidence of pre-existing juvenile osteochondrosis affecting the thoracic spine, “it seems doubtful that this is relevant to the current condition which appears to involve largely the lower/lumbar spine”.

On January 20, 2009, the worker was examined by the same WCB medical advisor and was diagnosed with non-specific low back pain. The medical advisor stated that a degree of left L5-S1 radiculitis was a possibility; however, there was no objective evidence of this. While the MRI had demonstrated lumbar disc protrusions with possible nerve root involvement, he concluded that “One can only speculate on the relevance of the identified disc protrusions to the work injury.” He found it difficult to account for the ongoing reported severity of the worker’s symptoms and his associated functional limitations given the back strain-type injury sustained five months previously. He considered the examination to be notable for the worker’s marked pain behaviors and multiple Waddell signs. The medical advisor anticipated that the worker should be able to continue his half work day at modified duties while undergoing physiotherapy.

On March 4, 2009, the medical advisor was asked to comment on whether there was a pre-existing condition that contributed to the worker’s recovery on the claim. The medical advisor stated, “…there does not appear to be a definite relevant pre existing condition. The juvenile osteochondrosis noted at the T spine is not likely relevant to the present condition. The disc findings noted on MRI may be reflective of a degree of pre existing DDD but this is speculative.”

The worker returned to his full time regular duties on March 30, 2009 after a graduated return to work.

On April 1, 2009, the employer was advised by the WCB that it was not entitled to cost relief as there was no significant pre-existing condition affecting the worker’s recovery. On June 29, 2009, the employer appealed the decision to Review Office.

On August 17, 2009, Review Office confirmed that the employer was not entitled to cost relief. In making its decision, Review Office gave significant weight to the January 20, 2009 and March 4, 2009 opinions expressed by the WCB medical advisor that there did not appear to be a relevant pre-existing condition contributing to the worker’s medical status. Review Office found that the medical evidence did not support the presence of a pre-existing condition which contributed to the worker’s symptoms and resulted in the worker’s recovery being delayed.

On September 4, 2009, the employer’s representative appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Although the worker’s immediate complaint was of pain in the lower back, he continued to complain of pain in his lower and upper back and shoulder blades throughout January and February 2009. On February 2, 2009 his attending physician noted that the left rhomboid muscle was tender and “obviously swollen.” The WCB medical advisor expressed the opinion on March 4, 2009 that the reported rhomboid strain did “not appear to be materially related to the ci” and noted that the worker’s attending physician “agreed that it was difficult to account for the severity of the reported ongoing symptoms and the migration of symptoms to the rhomboid area also”.

In respect of the issue of a pre existing condition, the Medical Advisor noted that:

“…there does not appear to be a definite relevant pre existing condition. The juvenile osteochondrosis noted at the T spine is not likely relevant to the present condition. The disc findings noted on MRI may be reflective of a degree of pre existing DDD but this is speculative.”

The opinions of the WCB Medical Advisor are supported by the worker’s own attending physician who was unable to relate the evidence of disc protrusions in the November 2008 MRI to the workplace injury.

In the circumstances we concur with the findings of the Review Office made on August 17, 2009 that the medical evidence does not support the presence of a pre-existing condition which either contributed to the worker’s symptoms or resulted in the worker’s recovery being delayed.

The employer is therefore not entitled to cost relief under Policy 31.05.10 and the employer’s appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 14th day of May, 2010