The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

With the assistance of the Worker Advisor Office, the worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") under Order No. 520/2010 dated July 15, 2010. The worker contends that his ongoing and current low back difficulties are related to his 2008 compensable injury and that chiropractic treatment was helping to alleviate his symptoms. A hearing was held on May 12, 2011 to consider the matters.

Issue

Whether or not the worker is entitled to benefits after January 29, 2010; and

Whether or not responsibility should be accepted for chiropractic treatment after January 15, 2009.

Decision

That the worker is not entitled to benefits after January 29, 2010; and

That responsibility should not be accepted for chiropractic treatment after January 15, 2009.

Decision: Unanimous

Background

The neurosurgeon recommended further tests and a neurological neurophysiological evaluation.

Based on an appeal brought forward by the worker's employer in relation to the decision made by Review Office's in November 2008, an appeal panel hearing took place on April 16, 2009. Under Appeal Panel Decision No. 56/09 dated June 4, 2009, the appeal panel confirmed that the worker was entitled to wage loss benefits and medical aid benefits after August 18, 2008 as it was felt that the worker's sciatica condition had not resolved by that date. The appeal panel also determined that the worker's workplace injury occurred during a specific work-related activity, "i.e. when he bent over to pick up the rebar."

On April 29, 2009, an MRI of the lumbar spine showed the following findings:

• At L3-4, there was mild facet joint osteoarthritis and mild diffuse bulging of the intervertebral disc. No disc herniation was seen;
• At L4-5, there was mild to moderate facet joint osteoarthritis and mild diffuse bulging of the intervertebral disc. No disc herniation was seen;
• At L5-S1, there was moderate facet joint osteoarthritis and there was a very small central disc protrusion which was slightly indenting the thecal sac. No other abnormality was seen.

In a report dated May 7, 2009, a chiropractor reported that the worker was seen on April 1, 2009 with complaints of lumbar spine and right leg pain, with a history of onset in January 2008. The chiropractor's diagnosis was L5-S1 discogenic back pain, likely related to an L5-S1 disc herniation. The chiropractor felt that the worker required further chiropractic treatment for another month to monitor exercise progression, continue rehabilitation and minimize symptomatology.

In a follow up report dated May 29, 2009, the neurosurgeon noted that the worker's clinical condition was essentially unchanged since his initial visit in March. He noted that electrodiagnostic testing was relevant for some mild focal peroneal neuropathy. He said the clinical presentation and radiological findings were not suggestive of a radiculopathy.

On June 27, 2009, the treating chiropractor reported that the worker was showing steady improvement in his medical status but had not yet reached maximum therapeutic benefit.

On July 8, 2009, a WCB chiropractic consultant reviewed the chiropractic reports at the request of primary adjudication. The consultant outlined the opinion that ongoing chiropractic treatment should not be covered by the WCB. He noted that the worker had previously been treated by a different chiropractor and there did not seem to be significant progress in the worker's condition. He was not convinced that the worker's current chiropractic treatment was significantly benefiting the worker.

In a decision dated July 15, 2009, primary adjudication advised the worker that chiropractic treatment after January 15, 2009 would not be covered by the WCB based on the comments of the WCB chiropractic consultant.

The worker underwent MRI assessments on July 27, 2009 of the sacrum and lumbar spine.

On October 5, 2009, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor noted that the MRI of the lumbosacral spine and sacrum dated July 2009 had identified what was described as a small focal disc protrusion at L5-S1 with minimal impingement on the right SI nerve root of uncertain clinical significance. At this point, the diagnosis appeared to be non-specific low back pain with non-radiculopathic right leg pain. Radiculopathy had not been confirmed. He noted that pre-existing spondylosis consisting of degenerative disc disease ("DDD") and facet osteoarthritis ("OA") had been well documented and while not clearly aggravated or enhanced, had at a minimum likely contributed to the delay in recovery from the initial incident of January 2008.

The medical advisor noted the neurosurgeon's opinion that there was no obvious etiological relationship between the disc herniation seen on MRI in April 2009 and the symptoms experienced by the patient. The medical advisor said that this appeared to indicate that the current condition (nonspecific low back pain and non radicular right leg pain) was unrelated to the minimal L5-S1 disc abnormality noted on the MRI. Accordingly, it was difficult to account for the prolonged 22 month history of non-specific low back pain and associated functional limitations, without an apparent corresponding acute structural abnormality in relation to the compensable injury. It seemed likely therefore that the current symptoms/condition reflected either the natural progression of the degenerative spinal condition unrelated to any specific workplace incident/injury or the effects of ongoing aggravation of the pre-existing degenerative spinal condition: DDD/OA secondary to workplace factors/incident. The medical advisor felt that a review and comparison of the MRI findings (January 2008, April 2009 and July 2009) would help to determine if there had been material change in the status of the structures at the L5-S1 segment.

On December 4, 2009, an external radiologist reviewed all MRIs. In summary, the radiologist stated that in the multiple MRI examinations of the lumbar spine, there were mild disc degenerative changes at the L5-S1 level with a very small central and right paracentral disc herniation at the L5-S1 level which demonstrated a small high signal intensity annular tear. There was no spinal stenosis and no definite displacement or compression of the right S1 nerve roots. The disc herniation appeared quite stable over multiple examinations.

In a memorandum dated January 19, 2010, the WCB medical advisor stated the following:

In summary the evidence on file does not support the contention that the back symptoms reported in January 2008 and subsequently are likely to relate in a material way to a specific workplace incident or influence. Rather, on balance, symptoms are more likely reflective of a pre-existing degenerative back condition (degenerative disc disease and facet osteoarthrosis) which was reportedly intermittently symptomatic prior to 2008. The typical natural history of this condition is for symptoms to wax and wane often without apparent trigger, and in some patients to progress in severity over time. The neurosurgeon's report and the assessment of the MRI films appears to be most consistent with the initial orthopaedic surgery opinion (June 11 08) on file.

In a decision dated January 21, 2010, primary adjudication advised the worker that there was no entitlement to benefits after January 29, 2010. It was felt that the worker's ongoing symptoms related to pre-existing degenerative disc disease and facet osteoarthritis which was intermittently symptomatic prior to 2008. It was felt that the worker had recovered from his compensable injury of January 11, 2008 and his ongoing complaints were related to his non-compensable pre-existing condition.

On January 26, 2010, the Worker Advisor Office submitted additional information. It included a report from chiropractic radiologist who reviewed the MRI of the lumbar spine dated January 22, 2008. His impressions were as follows:

1. A central disc protrusion with annular tear at L5-S1.
2. Degenerative disc bulge at L4-5.
3. Mild anterior wedged deformities of T10 to T12, likely physiological phenomenon.

The worker advisor noted that the worker was told by his treating chiropractor that the pain generator was the disc protrusion and annular tear at L5-S1. The worker advisor contended that the worker continued to have low back and right leg difficulties related to the January 11, 2008 compensable injury and that responsibility should be accepted beyond January 29, 2010. The worker advisor also referred to the June 27, 2009 report by the treating chiropractor. She contended that the report supported that the worker was getting benefit from chiropractic treatment and he therefore was entitled to coverage of chiropractic treatment beyond January 15, 2009.

In a report dated February 8, 2010, a neurologist noted that the worker continued to complain of right lower lumbar pain, burning discomfort radiating fairly diffusely into his right leg, and right foot tingling, with all symptoms exacerbated with sitting and some other position maneuvers. It was noted that neurological examination did not demonstrate any objective abnormalities whatsoever and despite some non-pathologically brisk reflexes, no myelopathic features were otherwise seen. The specialist commented that there was no definite evidence of a significant neurological/neuropathic lesion. The specialist indicated it was possible that the disc protrusion was more painful than one might expect and he was experiencing some myofascial pain discomfort. The mild focal peroneal neuropathy at the knee may contribute to his foot paresthesias.

On March 3, 2010, the WCB medical advisor noted that he reviewed the report from the neurologist and the chiropractic radiologist and said there was no information presented that would lead him to alter his opinion outlined on January 19, 2010. On March 4, 2010, the worker was advised that no change would be made the January 21, 2010 decision. On April 7, 2010, the worker advisor appealed the decision to Review Office.

On July 15, 2010, Review Office determined that there was no entitlement to benefits after January 29, 2010. Review Office pointed to specific file evidence to support that the compensable injury of a lumbar strain with clinical signs of sciatica was no longer contributing to the worker's current low back difficulties. It found that the three MRI results did not show any material change in the structure at the L5-S1 level. It did not find medical evidence to support the finding of a very small central and right paracentral disc herniation at the L5-S1 had a causal relationship with the compensable injury of January 11, 2008. Review Office found the evidence to suggest that the most likely diagnosis for the worker's current low back difficulties was non-specific low back pain with non-radiculopathic right leg pain. Review Office also stated it was unable to find evidence to support the compensable injury was contributing to the worker's lower back difficulties after January 29, 2010, that the pre-existing low back condition was enhanced by the compensable injury or that the pre-existing low back condition was a compensable condition.

Review Office also determined that responsibility should not be accepted for chiropractic treatment after January 15, 2009. Review Office agreed with the opinion expressed by the WCB chiropractic consultant dated July 8, 2009. It also noted that on May 29, 2009, after two months of chiropractic treatment, the neurosurgeon reported: "The clinical condition of the (worker) is essentially unchanged since his initial visit in March (one month prior to chiropractic treatment)." By the worker's own account, chiropractic treatment provided temporary relief. Review Office concluded that the worker had been provided chiropractic treatment with little evidence of significant therapeutic benefit. On July 28, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of 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.

Provision of medical-aid services to injured workers is payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.

WCB Policy 44.120.10 Medical Aid (the “Policy”) sets out a coordinated approach to delivery of medical-aid services. As it relates to chiropractic treatment, the Policy provides as follows:

1. Medical Aid Providers

 The WCB will engage the services of doctors, chiropractors, physiotherapists, dentists, psychiatrists and other healthcare providers who belong to organizations that have a formal certification and licensing or registration process, only if they are in good standing with their licensing body.

2. Medically Prescribed Treatments, Devices and Their Related Accessories

To minimize the impact of workers’ injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices …

        a.  Medically Prescribed Treatments and Prosthetic Devices

The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.

The WCB Healthcare Position Statement provides chiropractic guidelines which, in part, state as follows:

Discontinuation of Treatment

You should discontinue treatment of WCB clients (once initiated) when it does not or no longer provides significant and sustained therapeutic benefit. The WCB does not accept non-responsiveness to treatment as a rationale for prolongation of therapy. The WCB believes the continuation of treatment beyond the point of efficacy may foster chronicity and patient dependence on the practitioner.

Worker’s position:

The worker attended the hearing accompanied by a worker advisor. It was submitted that the evidence supported that the worker's ongoing low back and right leg symptoms were causally related to the January 11, 2008 compensable injury. It was noted that the worker did not miss any work due to his low back or right leg difficulties prior to the workplace incident and there had been continuity in the symptoms since that time. Medical reports from the treating orthopedic surgeon, consulting chiropractor, family physician and treating chiropractor supported a causal relationship between the worker's L5-S1 disc herniation and the injury of January 11, 2008. The neurologist also acknowledged the possibility that the disc protrusion was more painful than one might expect and that the worker was experiencing some myofascial pain discomfort.

With respect to the second issue, it was submitted that although the worker only received temporary relief from the chiropractic treatment, it reduced his symptoms enough to enable him to cope from day to day. The treating chiropractor's report of June 27, 2009 provided clinical evidence that the worker's low back and right leg symptoms did improve with chiropractic treatment and therefore it was submitted that the WCB should cover the costs of treatment beyond January 15, 2009.

Employer's position:

An employer advocate appeared on behalf of the employer at the hearing. The employer's position was that it agreed with the decisions made by the WCB. The evidence on file indicated that the worker had extensive pre-existing degenerative conditions affecting his back, including multiple sites of osteoarthritis. There were several doctors' opinions on file indicating that his pre-existing conditions were the cause of his ongoing problems. While the worker may have sustained an aggravation of his pre-existing conditions due to his work, the evidence indicated that any aggravation had long since subsided. There was absolutely no evidence that the workplace duties caused a long term enhancement of the worker's pre-existing degenerative condition. It was submitted that, if anything, wage loss benefits might have been paid somewhat excessively on the claim.

Analysis:

There are two issues before the panel on this appeal. We will address each one separately.

1. Whether or not the worker is entitled to benefits after January 29, 2010

In order for the worker’s appeal on this issue to be successful, the panel must find that the difficulties the worker experienced with his back after January 29, 2010 are related to the injuries he sustained in the workplace accident of January 11, 2008. On a balance of probabilities, we are unable to make that finding.

The worker's WCB file discloses that the worker's medical condition received thorough investigation. After his benefits were initially ended in August 2008, his claim was later reopened to permit further investigation into a disc herniation identified by the treating orthopaedic surgeon. The worker was referred for further imaging studies and was seen by both a neurosurgeon and a neurologist. An independent radiologist was consulted to review the imaging studies. None of these investigations were able to identify a neurologic/neuropathic lesion as the source of the worker's ongoing low back symptoms.

At the hearing, the worker testified that he started to receive facet block treatments in January 2011. The treatments were successful in that within one week after receiving the injections, the pain to his legs was gone. He had total relief for approximately three months, after which the pain returned back to its original level. It is the panel's understanding that facet block injections can be used as a diagnostic indicator as to the source of back pain. If the injections are successful, this suggests that the facet joints are likely the primary generator of the low back pain.

The WCB medical advisor's memos of October 5, 2009, January 19, 2010 and March 3, 2010 concluded that the worker's back symptoms reported in January 2008 and subsequently were more likely reflective of a pre-existing degenerative back condition (degenerative disc disease and facet osteoarthrosis). The worker's success with the facet block injections tends to confirm this conclusion.

2. Whether or not responsibility should be accepted for chiropractic treatment after January 15, 2009

The guidelines for the provision of chiropractic treatment outlined above provide that chiropractic treatment should be discontinued when it does not or no longer provides significant and sustained therapeutic benefit. The medical file indicates that the worker did not ever achieve sustained relief with chiropractic treatments in 2009. The relief was only temporary. It would appear that the only treatment which provided true relief to the worker was the facet block injections in 2011.

As the chiropractic treatments did not provide significant and sustained therapeutic benefit, the panel finds that responsibility should not be accepted for these treatments after January 15, 2009. The worker's appeal on this issue 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 6th day of July, 2011