The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") in relation to his claim for back injury that occurred in the workplace on May 17, 2005. A hearing was held via teleconference on November 8, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 28, 2010.

Decision

That the worker is not entitled to wage loss benefits beyond May 28, 2010.

Decision: Unanimous

Background

On May 17, 2005, the worker injured his low back region when he lifted a bucket of water. On May 19, 2005, the diagnosis outlined by the treating physician was acute lumbar disc pain with tenderness in the paraspinal musculature. The physician noted that the worker had intermittent back pain and a disc prolapse in 2003. The claim for compensation was accepted and benefits were paid to the worker.

On May 25, 2005, the treating physician reported that the worker had right groin pain, back pain and severe low lumbar pain. Physiotherapy and further tests were suggested.

A CT scan dated July 4, 2005 revealed posterior disc bulging at L4-5 without any herniation or nerve root compromise. There was a paracentral disc protrusion contacting the S1 nerve root at the L5-S1 region.

On September 8, 2005, the worker was seen by a neurosurgeon for a medical assessment. He reported that the clinical presentation was probably suggestive of a combined L5 and S1 radiculopathy. He noted that the recent CT scan did not provide a radiological correlation to the L5 radiculopathy while the S1 was most probably related to the bulging at the lumbosacral junction.

An MRI assessment was done on December 19, 2005. The results showed mild degenerative changes at L5-S1 and also a small left posterior disc herniation with displacement and compression of the left S1 nerve root.

On January 4, 2006, the neurosurgeon reported that the worker's clinical presentation once again was suggestive of an S1 radiculopathy, whereas an L5 irritation could also play a role. Surgical decompression was suggested as a form of treatment which the worker opted not to undergo.

On February 24, 2006, a WCB orthopaedic consultant reviewed the file information and opined that the compensable injury was a left L5-S1 disc herniation and there was a continuing cause-effect relationship between the workplace injury and the worker's current condition.

Subsequent file records showed that the worker was assessed by a WCB medical advisor on April 21, 2006. The medical advisor noted that the worker presented with low back pain and left S1 radiculopathy. The worker indicated that he was not willing to consider the possibility of surgery or epidural steroid injection. Given the worker's decision not to undergo surgery, the medical advisor considered the worker to be at maximum medical improvement (MMI) and that the prognosis for return to work at his pre-accident status was fair to poor.

An MRI dated August 12, 2006 of the worker's lumbosacral spine revealed the following findings at the L5-S1 level: Moderate degenerative disc disease; a tear of the posterior annulus with a small left posterolateral disc herniation that entered the left lateral recess, likely contacting the left S1 nerve root; and moderate bilateral facet joint arthropathy resulting in left foraminal narrowing.

In a "Addendum to Examination Notes dated August 22, 2006", the orthopaedic consultant noted that he examined and compared the images on the December 19, 2005 MRI and was of the impression that there was very little difference from the current study except that the disc herniation may have appeared a little smaller.

On February 8, 2007, the WCB arranged for the worker to attend a physiotherapy and sport injury clinic for treatments. On March 14, 2007, the physiotherapist advised the WCB that there was improvement in the worker's mobility and with five acupuncture treatments his pain complaints were significantly reduced. A request was made for the worker to undergo additional treatment/acupuncture which was approved by the WCB.

The worker relocated to Toronto, Ontario and was referred to an orthopaedic surgeon. When seen on February 5, 2008, the orthopaedic surgeon indicated that he was arranging a follow-up MRI and said he had serious doubts as to whether surgical treatment would improve the worker's circumstances since many of his responses were rather histrionic.

On May 26, 2008, the orthopaedic surgeon reported that the new MRI scan of May 20, 2008 showed no surgically appropriate lesion. The worker did have some mild degenerative disc changes at the lumbosacral junction and there was some arachnoidal cyst at the sacrum, but there was nothing to be done from a surgical point of view.

A WCB medical advisor reviewed the file on August 9, 2008 and stated that the diagnosis remained an L5-S1 disc herniation with left S1 nerve root irritation. He noted that no significant pre-existing condition was identified on the file review.

The worker underwent a Functional Capacity Evaluation on November 1, 2008. The final report indicated that the worker was self-limiting in his behavior. The functional testing was stopped premature of any physiological or biomechanical factors being introduced. Overall, full effort was not observed. It was noted that although a low back impairment had been documented, the worker was capable of greater functional abilities than he demonstrated.

On April 13, 2009, the physician reported that the worker considered himself to be permanently and completely disabled from any work and was reluctant to have more treatments. The physician recommended that the worker be reassessed by a WCB multidisciplinary team in Ontario which was later carried out on July 13, 2009. The following conclusions were made following the assessment:

[The worker] presents having had a lumbar strain with development of low back pain and a left sciatica (S1) root syndrome. It has now been present for four years. He continues to report mechanical symptoms and disability associated with his complaints.

We discussed surgery with [the worker] and reiterated that it would not be guaranteed to rid him of his symptoms, and did have a low incidence of not insignificant risk. His comment was that he did not to wish to proceed with surgery and given his overall presentation, it is our opinion that is the correct one for him. For all intents and purposes, [the worker] has reached maximum medical rehabilitation.

On August 8, 2009, a WCB medical advisor reviewed the file and stated that the worker was judged to be at maximum medical improvement. Permanent work restrictions were outlined.

On March 5, 2010, a WCB medical consultant reviewed the file with respect to a PPI evaluation. Based on his review, the consultant noted there was a pre-existing contributory diagnosis, which was of major contribution with regard to any permanent impairment related to the lumbar spine. The pre-existing diagnosis was degenerative disc disease and an L5-S1 disc bulge noted in 2002.

On March 30, 2010, the medical consultant reviewed the worker's 2002 claim and noted that the worker injured himself in a non-work-related accident while lifting furniture. The worker was seen by an orthoapedic specialist and was diagnosed with having a lumbosacral disc protrusion with S1 radiculopathy. The consultant noted that a CT of the lumbar spine taken February 6, 2003 demonstrated minimal disc bulging at L3-L4 and mild to moderate diffuse posterior disc bulging which approached the adjacent dural sac at L4-L5. It was reported that the worker had a congenitally small spinal canal. There was also a small left postero-lateral disc protrusion at the L5-S1 region which involved the left S1 nerve root. There was also minor early lower lumbar facet arthropathy at L4-L5 and L5-S1.

On April 30, 2010, a WCB orthopaedic consultant outlined his opinion that there was no clear current diagnosis. "Imaging studies show an unchanged L5-S1 left sided disc herniation, which as noted above may have no clinical significance or correlation with his ongoing complaints…As there is no identifiable pathoanatomic diagnosis to explain the claimant's continued stated loss of function, his current condition has no cause/effect relationship with the compensable injury of claim [number]."

A decision was sent to the worker on May 14, 2010 indicating that compensation benefits were not payable beyond May 28, 2010 as it was felt that he had recovered from his May 17, 2005 compensable injury and no longer had a loss of earning capacity beyond that date. The worker disagreed with the decision and an appeal was filed with Review Office.

On July 8, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond May 28, 2010. Review Office noted the medical evidence clearly showed that the worker had undergone imaging studies showing a L5-S1 disc herniation with left S1 nerve root involvement prior to May 17, 2005, and that he also previously reported clinical findings consistent with an L5-S1 disc herniation and resulting S1 radiculopathy. Contrary to the worker's report that his prior problems lasted only about 2 to 3 weeks in 2003, the prior claim showed that the worker had already been off work for six months with these complaints when he filed a claim for compensation in January 2003. There was indication that the worker's problems dated back at least as far as 2000 based upon a history he had provided to an orthopaedic consultant in 2003. Review Office was satisfied that the compensable injury of May 27, 2005 was probably a lumbosacral strain causing an aggravation of the underlying degenerative processes in the worker's lumbosacral spine. Review Office was of the opinion that the compensable injury was no longer playing a contributory role in the worker's ongoing low back and left leg complaints. In August 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held via teleconference.

Reasons

• CT imaging studies from February 6, 2003 (which were not referenced in the early adjudication of the claim) noted degenerative changes at L3-4 and L4-5 and a small left posterolateral disc protrusion at L5-S1, which involved the left S1 nerve root. Thus there were pre-existing degenerative changes in the worker's lumbar spine, and significantly, a pre-existing disc protrusion and S1 nerve root involvement at L5-S1.
• This pre-existing condition was not disabling as the worker's evidence was that he worked during 2003, 2004 and 2005 as a custodian, and in fact, held two jobs at one point in time. He was also active in sports playing soccer, running with his kids, and riding a bicycle.
• The WCB orthopaedic consultant reviewed imaging studies from February 6, 2003, July 4, 2005, December 19, 2005, August 12, 2006 and May 25, 2008 and noted that the abnormality described at L5-S1 was unusually consistent throughout the period of five years. This led him to question the clinical significance of the disc herniation.
• The medical reports from the period immediately following the workplace accident do not suggest an acute radiculopathy. The hospital emergency report form dated May 17, 2005 diagnosed mechanical back pain. Similarly, the doctor's first report of May 19, 2005 indicated tender paraspinal muscles but did not reference any radicular symptoms.
• The reports from the worker's family physician confirm impaired earning capacity in 2009 and 2010, but do not support a causal relationship between the worker's condition in 2009/2010 and the workplace accident;
• The imaging studies indicate the presence of degenerative changes throughout the worker's lumbar spine, and the natural progression of these findings is to become increasingly symptomatic as time goes on.

Overall, the panel finds that the injury the worker suffered on May 17, 2005 was limited to a lumbosacral strain and that any symptoms he experienced beyond May 28, 2010 cannot be attributed to the 2005 workplace injury. It is more likely that the worker's current condition is attributable to the natural progression of the degenerative processes present in his lumbar spine. We therefore find that the worker is not entitled to wage loss benefits beyond May 28, 2010. 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 28th day of December, 2011