The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Issue

Decision

Decision: Unanimous

Background

While employed as a health care aide on September 13, 2004, the worker reported that she was bathing a resident and slipped on some water that had splashed onto the floor. The worker stated:

"I attempted to grab the tub with my right hand and landed on my right knee, I then grabbed the wheelchair for balance but the wheelchair tipped hitting my right side and shoulder, I have a skinned right knee that hurts going up stairs and sore lower right back and the right side neck, shoulder, also chest and breast on my right side also my left side but not as bad as my right side."

Similarly, a September 14, 2004 WCB report suggests the worker indicated that she fell to the floor on both knees skinning her knees. She is reported to have said that the pain in her lower back was worse than it was before her accident.

A September 16, 2004 WCB report suggests the worker indicated she had already been experiencing an increase in back pain prior to her scheduled vacation days of September 8, 9 and 10. According to the report, her chiropractor told her it was good she had the time off.

Medical information mainly related to the worker’s back condition in the time period after her injury revealed the following:

· September 14, 2004 – the treating chiropractor diagnosed the worker with an acute right pectoralis major strain/sprain and low cervical facet strain.

· September 15, 2004 – the treating physician reported that the worker had painful arms and shoulders and anterior chest wall pain. In his opinion, the worker had soft tissue and muscular injuries.

· September 15, 2004 – x-rays reveal no rib fractures but spondylosis was seen in the thoracic spine.

· November 3, 2004 –the treating chiropractor reported that the worker had considerable pain in the right lumbosacral region. There were no strong indicators of disc or nerve root tension signs.

· December 2, 2004 – a sports medicine specialist assessed the worker with right rotator cuff and biceps tendonitis. She also had non-specific, non-neurologic (mechanical) neck pain and non-specific, non-neurologic (mechanical) low back pain.

· December 23, 2004 – MRI examination revealed “Diffuse but mild disc bulging at L4,5 and mild central disc bulging at L5,S1.”

· March 21, 2005 – the sports medicine specialist noted that the worker had objective physical examination findings of a right L5 radiculopathy. He said he was deferring any further comments until the worker underwent a scheduled caudal epidural corticosteroid injection.

· April 7, 2005 – a sports medicine physician indicated that the worker reported no change in her low back pain and right buttock and leg symptoms following the corticosteroid injection.

· July 6, 2005 – the treating physician reported right L5 radiculopathy.

· August 2, 2005 call in assessment – the WCB medical advisor reported myofascial pain in the neck and shoulder girdle and that the worker had definite evidence of right sacroiliac joint dysfunction with associated muscle weakness. There was no evidence of radiculopathy on the right leg.

· August 18, 2005 – the sports medicine specialist reported a resolving right L5 radiculopathy with residual lumbar spine pain. He stated, “Her reported disability is out of proportion to her objective physical examination findings.”

· September 5, 2005 – a sports medicine specialist reported that the worker’s lumbosacral symptoms had a stronger radicular quality to them. He agreed with the other sports medicine specialist’s impression of a right L5 radicular process. He recommended a transforaminal injection at the right L5 level.

· October 1, 2005 – a physical medicine and rehabilitation specialist reported that the worker’s lumbosacral and right lower limb radicular pain would not be related to her cervical spine findings.

· November 23, 2005 – x-rays showed “Mild degenerative changes in the cervical and lumbar spine with mild disc narrowing at C5-6 and probably L5-S1. Mild L5-S1 instability.”

· November 24, 2005 – an orthopaedic surgeon concluded that the worker’s continued L5-S1 problems were due to the slight instability as well as the central disc herniation as noted on the old MRI studies. He recommended a facet block at L5-S1 as well as a discogram of L5-S1.

· December 14, 2005 – the family physician reported that the worker was still suffering from a lot of back pain and that a facet block and discogram was scheduled for February 1.

· March 22, 2006 – a WCB medical advisor outlined the view that the worker sustained a low back injury superimposed on chronic mechanical low back pain. He said the worker had recovered from any effects of the compensable injury, and any residual effects would be related to her pre-existing condition.

· June 12, 2006 – a WCB orthopaedic consultant outlined his opinion that there was evidence of pre-existing lumbar disc degeneration that may have been briefly aggravated by the compensable injury and that the aggravation ceased long ago. He said there was no convincing historical, clinical or imaging evidence of a lumbar disc herniation with true root involvement. “Note the failure of two specific epidural steroid injections in that regard.” He concluded his report by stating that the injury caused the worker to have muscular complaints. There was no continuing aggravation of the pre-existing condition. There had been ample time for the worker to recover from multiple soft tissue injuries.

· June 19, 2006 – the sports medicine specialist stated, in part, “Neurological examination confirms a very strange sensation examination with hardly any sensation below the knee except for the big toe which is normal. This does not conform to a specific dermatome. There is however some loss of vibration sense on the right leg as well as some early weakness of toe extension on the right side.”

· August 8, 2006 – MRI showed “No disc lesion. Diffuse mild disc bulging at L4-5 and L5-S1 with no significant central or lateral spinal stenosis.”

· September 9, 2006 – the orthopaedic specialist outlined the view that the worker had a number of cortisone injections in her back without much success. A foraminal block only gave her a few days of relief. The worker had persistent L5 radiculopathy with foraminal stenosis at L5-S1. He believed therefore that a decompression of L4-5 on the right side with stabilization of L4-5 and L5-S1 was warranted.

· September 19, 2006 – a WCB senior medical advisor opined that the proposed surgery was not related to the compensable injury. In a letter to the orthopaedic surgeon dated September 19, 2006, he stated “…you will note in the most recent MRI, although there is some disc space narrowing and some diffuse disc bulging, there is no evidence of a frank disc herniation. I also do not identify any convincing clinical signs to suggest root compression or compromise. For this reason, amongst others, the WCB would not be prepared to authorize the proposed surgery…”

· October 30, 2006 – the orthopaedic surgeon indicated that the worker wanted something done to regain some function in life and it was decided to continue with the planned surgery.

· November 24, 2006 – a WCB orthopaedic consultant reviewed the case and agreed with the senior medical advisor’s opinion of September 19, 2006.

On February 6, 2007, a worker advisor requested that the WCB reconsider its decision to deny coverage for the worker’s planned surgery, an L4-5 discectomy, fusion and fixation up to S1 based on a January 22, 2007 report from the treating orthopaedic surgeon. The worker advisor stated that the treating orthopedic surgeon believed that the worker sustained an injury to the right side of the L4-5 disc that compromised the S1 nerve root when she slipped and fell. His opinion was based on the mechanics of injury, the ongoing symptomatology and clinical assessments. The worker advisor requested that a Medical Review Panel (“MRP”) be convened under subsection 67(4) of the Act in the event that the WCB decided not change its previous decision.

On March 28, 2007, the case was reviewed by the WCB’s orthopaedic consultant. He stated,

The new medical information, the letter of January 22, 2007, [the orthopaedic surgeon] notes that the claimant had a specific straight leg raise test on initial examination June 2007 and that a new MRI was requested and it was his opinion that there was a right sided foraminal stenosis at L4-5 due to an acute disc herniation.

This is in significant disagreement with a report by Dr. [radiologist] on the MRI of August 8, 2006, noting at L3-4 no central or lateral spinal stenosis or disc herniation.

At L4-5, minor disc space narrowing, mild diffuse disc bulging with minimal ligamentous hypertrophic changes but no significant central or lateral spinal stenosis and no disc herniation.

At L5-S1, no central or lateral spinal stenosis or disc herniation. Minimal facet OA changes.

In his report of October 30, 2006, [treating orthopaedic surgeon] notes “I have put in a call to Dr. [radiologist] to review this MRI again with me.

There is no record of this opinion if it was obtained.

This latest report does not alter my opinion that the requested surgery is not related to the worker’s workplace accident.”

Based on the opinion expressed by the WCB orthopaedic consultant, the worker advisor was notified on April 11, 2007 that there would be no change made to the previous decision that the worker’s ongoing medical complaints were not directly related to her claim and that the proposed surgery was not related.

File records showed that the worker underwent a laminectomy and posterolateral fusion from L4 to the sacrum using iliac crest bone on February 23, 2007. In a follow-up report dated April 13, 2007, the orthopaedic surgeon reported that the worker had a significant decrease in back pain and had no further leg symptoms.

On May 15, 2007, the WCB orthopaedic consultant reviewed the surgery findings. He quoted the following from the surgical report:

We then continued with a laminectomy of L5 and L4 allowing us access to the foramen at L4-5 and L5-S1. Especially at the L4-5 level there was obvious stenosis as well as a thickening capsule causing some impingement of the foramen. This had to be de-roofed to obtain a complete decompression of the nerve root. Disc was then exposed and found to be slightly bulging, but we did not continue with excision of this. (emphasis added)

The orthopaedic consultant indicated that in other words, there was no pathological L4-5 disc herniation which could have been related to the compensable injury and that the other findings identified chronic degenerative disease with facet joint arthritis, unrelated to the compensable injury. He further stated that if there was a small ganglion at one or other level, this would not be related to the compensable injury and it was surprising that it was not identified on the MRI. The consultant stated that for these reasons, he was unable to change his previous opinion. The consultant made reference to the orthopaedic surgeon’s comments in his April 13, 2007 report when he stated “Patient is certainly happy with the results and there is certainly much less pain than before. She has no leg pain whatsoever.” The consultant stated that when considering there was no disc herniation identified, this strongly suggested that the surgery was for pre-existing lumbar disc degeneration and facet osteoarthritis.

In a letter dated May 17, 2007, the WCB case manager wrote to the Worker Advisor Office to advise that he was unable to change his prior decision that the recent back surgery was not related to the workplace claim and that the worker had recovered from her workplace injury of September 13, 2004.

In a submission to Review Office dated May 30, 2007, the worker advisor outlined the worker’s opinion that the file information supported that she continued to experience back symptoms following her September 13, 2004 injury that did not respond to conservative treatment. It was the worker’s opinion that the April 13, 2007 report from the orthopaedic surgeon supported that the surgical treatment performed February 23, 2007 relieved her leg symptoms and she was now recovering from the September 13, 2004 symptoms. Based on these factors, the worker felt the WCB should accept responsibility for her surgical repair and recovery.

On June 12, 2007, Review Office determined that the surgery performed on February 23, 2007 was not a WCB responsibility. Review Office noted that there was no convincing evidence of a disc herniation related to the compensable injury based on numerous examinations and MRI studies. It stated that once the operative report became available, it was the opinion of the WCB orthoapedic consultant that the procedure was done solely in relation to non-compensable conditions. Review Office stated that while the surgery performed on February 23, 2007 appeared to be successful, this fact was not evidence of a relationship to the compensable injury, but rather supported that the worker had recovered from the effects of the compensable injury and that the corrected pre-existing condition had been the ongoing source of her symptoms.

In a submission to Review Office dated July 11, 2007, the worker advisor submitted a July 4, 2007 report from the orthopaedic surgeon clarifying his position regarding the relationship between the February 23, 2007 surgical treatment of the worker’s back and her September 13, 2004 compensable injury. The orthopaedic surgeon stated the following in his July 4 report:

“As you know, she has had continued low back pain following a back injury. This culminated in surgery which was performed on the 23 of February, 2007. The fact that we did not remove the disc at L4-5 during the surgery was based purely on the grounds that the annulus was stable at this stage after the fixation had been completed. It is therefore not unreasonable to leave the annulus intact which will prevent further disc herniation to the canal. This has nothing to do with the fact whether this was injured or not prior to the surgery, ie at her compensatable (sic) injury. I did not state that the disc at L4-5 was not pathological, all I stated was that it was not necessary for us to remove the disc as the bulging had been alleviated by the fixation and slight distraction.

I would therefore not consider this to have changed at all. Furthermore, the fact that this was such a long time between the injury, 2004 and surgery, 2007, it would indicate that there was facet arthrosis which had developed due to persistent mechanical failure of the disc itself. This can lead to the degenerative change of the facet joint causing the cyst to have developed which I mentioned in my report. Nothing has therefore changed to persuade me that this is not a compensationable (sic) claim.”

Prior to considering the appeal, Review Office obtained the following opinion from a WCB orthopaedic consultant assigned to Review Office. He outlined the following opinion on July 25, 2007:

· The worker’s surgery of February 23, 2007 was made necessary due to pre-existing degenerative changes at two levels of the lumbar spine and not necessarily the compensable injury;

· There was no strong clinical evidence of a compensable disc herniation. He stated the rationale for the surgery being performed was for degenerative disc disease at two levels and in any case, any compensable disc herniation was removed at the time of surgery.

· The facet arthrosis and the development of a cyst was associated with degenerative disc disease and not necessarily any associated compensable injury.

In a decision dated August 23, 2007, Review Office found that the February 23, 2007 surgery was not the responsibility of the WCB. Based on the orthopaedic consultant’s opinion of July 25, 2007 and the reasons noted in the previous Review Office decision of June 12, 2007, Review Office confirmed its previous finding that the evidence did not support a relationship between the February 23, 2007 surgery and the worker’s September 13, 2004 injury.

The MRP

An MRP was convened on February 22, 2008 comprised of two orthopaedic surgeons, a radiologist and the Chairperson. The MRP results are contained in the MRP report dated March 17, 2008.

The file review outlined six aspects of the worker's history with regard to her September 13, 2003 injury:

• initial reports by a chiropractor and the family physician in the period between September 13, 2004 and October 15, 2004 suggested a relatively minor soft tissue/ muscular injury with a relatively short anticipated recovery time;

•  The December 2004 MRI of the lumbar spine showed mild disc bulging at L4-5 and mild central bulging at L5-S1; there was no root compression or spinal stenosis;

•  Caudal epidural steroid injections in April and May 2005 did not help with the worker's lower back pain. Lumbar transforaminal steroid injections in November 2005 and January 2006 were not successful;

•  the June 2006 file review of a orthopedic consultant suggested pre-existing lumbar disc degeneration which may have been briefly aggravated by the compensable injury. In his view, there was no convincing historical, clinical or imaging evidence of a lumbar disc herniation with true root involvement;

•  the worker underwent a L4-S1 fusion and fixation in February 2007;

•  the April 2007 review of the file by a different WCB orthopedic consultant suggested that the need for the surgery was unrelated to the workplace accident. In his view, the positive outcome of the surgery and the absence of disc herniation, strongly suggested the surgery was done for pre-existing lumbar disc degeneration and facet osteoarthritis.

In the course of her interview with the MRP members, the worker was asked why in initial examinations after her workplace injury of September 13, 2004, none of the care providers mentioned a concern with her right leg becoming heavy after the accident or placed any emphasis on back and leg discomfort. The worker indicated that it must have been because she was overwhelmed by headaches and right shoulder pain at the time.

In summarizing the imaging related to the worker's lumbar spine, the MRP concluded “the most recent pre-operative MRI examination demonstrates minimal degenerative change as described. There is no significant central canal neural foraminal compromise at any of the levels scanned”.

In drawing this conclusion, the MRP relied upon the following information:

•  When radiography was performed in 2003, the alignment of the lumbar spine was normal. Disc spaces are maintained; mild spurring is noted along the anterior aspects of L2, L3, and L4. Facet joints are not well assessed;

•  The most recent pre-operative study from 2005 suggests no appreciable change. Mild multilevel vertebral body spurring remains. The disc spaces remain well preserved;

•  The lumbar spine MRI performed on August 8, 2006 suggests alignment is normal with the conus terminating at an appropriate level. The L3-4 level appears normal; the disc signal is normal; there is no significant herniation or protrusion. At the L4-5, there was shallow, diffuse bulging. Minimal facet overgrowth was present. There was no significant compromise of the central canal or the neural foramina. The L5-S1 level demonstrated perhaps minimal intervertebral disc space narrowing and slight signal change. There was no significant herniation or protrusion. The central canal and foramina were well maintained.

In response to a series of questions posed, the MRP replied:

•  The worker's current condition was not a result of the September 13, 2004 compensable injury.

•  The worker had a pre-existing condition affecting her lower back. The pre-existing condition was related to degenerative changes in her lumbar spine;

•  The most probable diagnosis of the compensable workplace injury of September 13, 2004 is soft tissue strain of low back;

•  The pre-existing condition did not adversely affect her symptoms and/or recovery from the workplace injury. Her back pain improved quickly and her focus appeared to be more on the shoulder and neck pain and her headaches. The pre-existing condition was temporarily aggravated by the workplace injury. Resolution probably occurred between two and four weeks after the injury;

•  Based primarily on the fact the worker did not have a demonstrated disc protrusion, the surgery was not performed for pathology resulting from her workplace injury;

•  Imaging studies of the worker's lumbar area support a current diagnosis of lumbar disc degeneration;

The Oral Hearing

In September 2009, the worker appealed Review Office’s decision dated August 23, 2007 to the Appeal Commission. An oral hearing was arranged.

During the course of the hearing, the worker offered a description of the workplace accident. She indicated that she fell backwards hitting the ground and hitting the right side of her back slightly above the belt line.

Following this description of the accident, the panel referred the worker to her accident report which suggested she had fallen “on my right knee” rather than her back. The worker indicated that “I don't remember the knee, so I could be wrong, you know.” Later in the oral proceeding, the worker was asked to comment on notes from her accident report and an interview with the WCB on September 14, 2004 in which she is alleged to have indicated that she fell on the floor on her knees and skinned both knees. The worker responded “I didn't have no skinned knees”.

The worker went on to describe the consequences of her surgery. She said “I couldn't feel better. I've had no pain in my back. It's the best decision I ever made”.

In her view, her recovery from her surgery was a confirmation of the existence of her problems and of her surgeon's diagnosis.

During questioning from the panel, the worker was asked to comment on medical reports relating to her reported symptoms in the first few weeks after her accident. In particular, she was asked why her chiropractor did not identify any lower back or lumbar spine issues when he assessed her just two days after the accident. The worker suggested that her back was bothering her but that headaches were overruling the pain in her back.

In response to questioning from the panel the worker initially indicated that she was not seeing anyone for her back before September 13, 2004. The worker was asked to respond to information on the file suggesting that she was seeing her chiropractor for back problems before the incident of September 13, 2004. She said “I don't recall that, but if it says that then I must have been”.

Subsequently, the worker was asked to respond to the suggestion that she had nine chiropractic treatments for her lower back between August 2004 and September 2004. The worker confirmed that she was seeing both her chiropractor and her family doctor about her back problems before September 13, 2004.

During questioning, the worker confirmed that her chiropractor had removed her restrictions in October 2004 and that she subsequently aggravated her lower back moving another patient.

Reasons

The Statutory Framework

The statutory and policy considerations guiding the panel's decisions are set out in subsection 4(1) of The Workers Compensation Act as well as in board policies relating to elective surgical procedures (42.10.10) and pre-existing conditions (44.10.20.10).

Subsection 4(1) of the Act states:

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund . . .

The elective surgical procedure policy (42.10.10) indicates:

1. The WCB will accept responsibility for the costs associated with elective surgery and the worker's subsequent recovery if

a) the surgery is required as a result of a compensable injury; and

b) prior approval has been received from the WCB Healthcare Department.

. . .

4. Decisions of the Healthcare Department regarding authorization of elective surgery may be reconsidered and appealed in accordance with the normal process prescribed by the Act.

The policy relating to pre-existing conditions (44.10.20.10) provides that:

(a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Analysis

Based on balance of probabilities, the panel finds that the February 23, 2007 low back surgery should not be accepted as a WCB responsibility.

While the panel has considered the entirety of the record both written and oral, its determinations are based on the following key findings:

In making this determination, the panel notes that the worker initially indicated in the oral hearing that she was not receiving treatment for a lower back problem prior to her September 13, 2004 injury. However, when the worker's memory was refreshed by reference to her September 16 interview with her adjudicator she corrected her evidence. She confirmed that she was seeing both her chiropractor and her family doctor about her lower back problems before September 13, 2004. The panel accepts the worker's corrected oral evidence which is supported by numerous documentary references on the record including records of chiropractic treatment.

Relying on the contemporaneous notes from the September 16, 2004 interview of the worker which it finds to be reliable, the panel notes that the worker identified back pain in the days before her scheduled vacation of September 8 - 10, 2004.

The panel observes that its conclusions with regard to a pre-existing condition are strongly reported by a series of medical opinions including those of the MRP, a WCB medical advisor (March 22, 2005), a WCB orthopaedic consultant (June 12, 2006), a WCB senior medical advisor (September 19, 2006) and a WCB orthopaedic consultant (May 15, 2007).

While the orthopaedic surgeon may be a dissenting view on this point, the panel accepts the weight of medical opinion which strongly suggests a pre-existing medical condition not related to the workplace injury of September 13, 2004.

The panel notes that the 2008 MRP had the opportunity to carefully consider the orthopaedic surgeon's opinions as well as the reports of March 22, 2005, June 12, 2006, September 19, 2006 and May 15, 2007.

Based on a balance of probabilities, the panel accepts the view of the MRP noting that it is carefully considered and well supported by imaging information as well as medical opinion. The panel notes that this perspective is also supported by contemporaneous medical documents, contemporaneous recorded statements of the worker and by the worker's corrected oral evidence.

on September 13, 2004, the worker was injured in a workplace incident in which she slipped while bathing a patient and fell on her knees;

During her oral evidence, the worker suggested that she was injured when she slipped and fell on her back while bathing a patient. She indicated she did not fall on her knees and did not have skinned knees.

Recognizing that it has been many years since the actual incident, the panel, based on a balance of probabilities, does not accept the worker's version of the workplace accident as related during the oral hearing.

In doing so, the panel expressly accepts the version of the accident as presented in the worker's accident report and her statements to the WCB of September 14, 2004. The panel considers these contemporaneous statements to be more reliable.

The panel accepts the worker's candid admission during the oral hearing that her memory might be imperfect:

“I don't remember the knee, so I could be wrong, you know.”

while the primary injuries suffered by the worker as a result of the September 13, 2004 workplace accident were related to her upper body and shoulders, she did suffer a mild aggravation of her pre-existing lower back injury;

In making this determination, the panel places heavy reliance on contemporaneous medical examinations and statements by the worker.

The panel considers it significant that both the chiropractor and family physician were well aware of and treating the worker for lower back issues before September 14, 2004. Yet, the chiropractor's report of September 14, 2004 is focused on upper body injuries such as a pectoralis strain and a cervical facet strain. No lumbar region concerns are documented. Similarly, the family physician's report of September 15, 2004 is focused on pain to the arms, shoulders and anterior chest wall. Notwithstanding the physician's extensive examination, lower back problems are not identified as a material consequence of the workplace accident of September 13, 2004.

The panel accepts that the worker also suffered a minor soft tissue strain of her lower back as a consequence of the September 13, 2004 workplace accident. It notes the September 14, 2004 interview of the worker does indicate that her lower back pain was worse after the incident then before.

The panel's view in this regard is supported by the MRP and the medical reports of March 22, 2005, June 12, 2006, September 19, 2006 and May 15, 2007.

in terms of the mild aggravation related to her workplace injury of September 13, 2004, the worker was fully recovered on or before November 1, 2004. There was no enhancement of her pre-existing condition. It has not been suggested that the pre-existing condition was compensable

In making this determination, the panel's views are strongly supported by the report of the MRP which noted:

“The pre-existing condition did not adversely affect her symptoms and/or recovery from the workplace injury. Her back pain improved quickly and her focus appeared to be more on the shoulder and neck pain and her headaches. The pre-existing condition was temporarily aggravated by the workplace injury. Resolution probably occurred between two and four weeks after the injury”.

The diagnostic imaging evidence subsequent to September 13, 2004 is strongly supportive of the view that the worker was fully recovered by November, 2004. There was no significant herniation or protrusion identified. As the MRP found, diagnostic imaging demonstrated minimal degenerative change. In its view there was no significant central canal neural foraminal compromise at any of the levels scanned.

The panel also notes and relies upon the worker's confirmation in oral evidence that her chiropractor removed certain restrictions in October 2004.

There was no enhancement of her injury. It was not suggested that the pre-existing condition was in and of itself a compensable injury.

 the surgery of February 23, 2007 was required to address the worker's pre-existing condition and not the consequences of her September 13, 2004 workplace injury.

While the orthopaedic surgeon suggests the worker's surgery was necessitated by the workplace accident of September 13, 2004, the MRP indicated that:

“…based primarily on the fact the worker did not have a demonstrated disc protrusion, the surgery was not performed for pathology resulting from her workplace injury”.

The panel adopts the opinion of the MRP. In the panel's view, the opinions of the MRP are strongly supported both by the orthopaedic surgeon's post operative report and by the conclusions of the medical reports of March 22, 2005, June 12, 2006, September 19, 2006 and May 15, 2007.

In particular, the panel places heavy reliance on the following excerpt from the orthopaedic surgeon's post operative report:

“We then continued with a laminectomy of L5 and L4 allowing us access to the foramen at L4-5 and L5-S1. Especially at the L4-5 level there was obvious stenosis as well as a thickening capsule causing some impingement of the foramen. This had to be de-roofed to obtain a complete decompression of the nerve root. Disc was then exposed and found to be slightly bulging, but we did not continue with excision of this. (emphasis added)”

In the panel's view, it is particularly notable that the surgical report did not identify a significant herniation or protrusion but only a slightly bulging disc at the L4-5 level.

A series of other medical reports strongly support the panel's findings in this regard:

• September 19, 2006 – a WCB senior medical advisor opined that the proposed surgery was not related to the compensable injury. In a letter to the orthopaedic surgeon dated September 19, 2006, it was indicated “…you will note in the most recent MRI, although there is some disc space narrowing and some diffuse disc bulging, there is no evidence of a frank disc herniation. I also do not identify any convincing clinical signs to suggest root compression or compromise. For this reason, amongst others, the WCB would not be prepared to authorize the proposed surgery…”

• The March 28, 2007 report of the WCB orthopaedic consultant found:

“At L4-5, minor disc space narrowing, mild diffuse disc bulging with minimal ligamentous hypertrophic changes but no significant central or lateral spinal stenosis and no disc herniation.

At L5-S1, no central or lateral spinal stenosis or disc herniation. Minimal facet OA changes”.

· The May 15, 2007 report of the WCB orthopaedic consultant found there was no pathological L4-5 disc herniation which could have been related to the compensable injury;

• The July 25, 2007 opinion from a WCB orthopaedic consultant which held that the worker’s surgery of February 23, 2007 surgery was made necessary due to pre-existing degenerative changes at two levels of the lumbar spine.

The panel agrees with the worker that her back condition appears to have stabilized and perhaps improved since her surgery. However, this does not assist the worker's submission.

In the panel's view, a successful surgical result does not establish a relationship to the compensable injury of September 13, 2004. The successful result also could be supportive of the inference that the worker had recovered from her compensable injury but that the surgery was necessary to address the effects of her pre-existing condition.

Conclusion

Based on balance of probabilities, the panel finds that the surgery was not required to address the results of the September 13, 2004 workplace injury.

In the panel's view, the worker suffered a slight aggravation of a pre-existing condition in her workplace injury of September 13, 2004. By November 1, 2004 or earlier, the aggravation had fully resolved and was no longer contributing to the ongoing loss of earning capacity. The pre-existing condition was not enhanced as a result of the accident. There was no suggestion by the worker that the pre-existing condition was itself a compensable injury.

Accordingly, the appeal is denied.

Panel Members

B. Williams - Presiding Officer

Signed at Winnipeg this 14th day of July, 2010