The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his low back pain was more consistent with the natural history of osteoarthritis in his lumbosacral spine rather than his work related accident of August 29, 2011. A hearing was held on November 14, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after March 26, 2012.

Decision

That the worker is entitled to wage loss benefits from March 27, 2012 to January 11, 2013.

Decision: Unanimous

Background

On August 29, 2011, the worker suffered injury to his low and upper back region from lifting and carrying heavy objects at work. The worker reported that he had a previous WCB claim for a back injury that was filed in July 2011. He noted that the symptoms and pain in his back had gotten worse and that his work duties had not changed. The August 29, 2011 claim for compensation was accepted by the WCB and benefits and services were paid to the worker while he underwent physiotherapy treatments for his back condition, which was diagnosed as a sprain/strain of the lumbosacral spine.

In early October 2011, the worker returned to light duty work. On November 14, 2011, the worker advised the WCB that he continued to work part-time modified duties but whenever he tried to do a little more he would experience a flare-up of back pain. The worker indicated that it was his upper back that was giving him problems and that his low back was pretty much healed.

An x-ray report of the lumbosacral spine dated August 31, 2011 stated the following:

"Alignment unremarkable. The L4-5 disc space is slightly narrowed with minor degenerative spurring anteriorly throughout the spine. Degenerative changes are present in the lower facet joints. Vertebral heights are well maintained with no fractures demonstrated."

On December 23, 2011, the worker was seen at a WCB call-in examination by a WCB medical advisor. The medical advisor made the following comments concerning the worker's medical condition/status:

• the initial diagnosis to account for the worker's initial reported right mid-back symptoms was a strain. The natural history of mid back strain for recovery was four to eight weeks. As it was now 16 weeks since the August 29, 2011 compensable injury, the worker's back pain was no longer accounted for on the basis of a simple back strain. As the worker continued to work, it was possible that this had prolonged his recovery from the right mid-back strain.

• the current reported low back pain was a strain. The natural history for recovery from a low back strain was similar to a mid back strain. The worker's currently reported low back and mid-back symptoms were considered somewhat prolonged in the setting of strain injuries.

• current workplace restrictions were to avoid lifting greater than 35 pounds and to avoid prolonged sitting or standing without the ability to change position. With these restrictions in place, the worker should be able to work full days but may require assistance at the work site.

On January 1, 2012, the treating physiotherapist reported that the worker was discharged from treatment with a home exercise program.

On January 15, 2012, the worker underwent a CT of the lumbosacral spine. The results showed minimal joint space narrowing at the L2-L3 level. There was mild diffuse annular disc bulging. No evidence of herniation, spinal stenosis or nerve root involvement. At L3-L4 level, there was mild diffuse annular disc bulging without definite nerve root involvement. There was no spinal stenosis. There was no evidence of disc herniation, spinal stenosis or nerve root involvement at L5-S1 but there was right-side L5 pars defect.

On January 30, 2012, the WCB medical advisor who examined the worker on December 23, 2011, noted to the file that he reviewed the x-ray and CT scan results. He felt that the radiological changes were consistent with pre-existing degenerative changes (osteoarthritis) commonly seen in people that are the same age as the worker. He said the L5 pars defect was likely a congenital lesion or had been present from an early age. He felt that the worker's reported low back pain was more consistent with the natural history of osteoarthritis in the lumbosacral spine rather than the August 29, 2011 compensable injury.

The medical advisor stated that there were no current workplace restrictions specifically related to the August 29, 2011 compensable injury. Given the worker's age and time away from regular duties, the medical advisor recommended a graduated return to full duties.

The medical advisor also commented that the worker had likely recovered from his LS spine strain of approximately 22 weeks ago and in light of his known pre-existing degenerative osteoarthritis, it was likely that the worker had a back at risk on an ongoing basis. He also stated that the worker's pre-existing osteoarthritis in his LS spine delayed his recovery from the August 29, 2011 compensable injury.

By letter dated January 30, 2012, the worker was advised by Rehabilitation and Compensation Services ("RACS") that wage loss benefits would be paid to February 6, 2012 inclusive and final as it was felt that he no longer was suffering the effects of the workplace injury. It was the adjudicator's opinion that the worker's ongoing symptoms were not related to the workplace injury but rather to a pre-existing condition.

On April 17, 2012, the worker appealed the January 30, 2012 adjudicative decision to Review Office. The worker submitted two medical reports to support his position that he was entitled to further compensation benefits. One report was dated March 20, 2012. It stated that the worker had not been diagnosed with osteoarthritis in the past. The other report dated March 6, 2012 indicated that because of the physical nature of the worker's job duties, it was believed that his pain was job related and that his pre-existing degenerative changes got aggravated by physical exertion.

On May 31, 2012, Review Office determined that the worker was entitled to wage loss benefits to March 26, 2012. Review Office indicated that it agreed with the opinion expressed by the WCB medical advisor dated January 30, 2012 and in light of his opinion, found that the worker was entitled to eight weeks of wage loss benefits from January 30, 2012 to March 26, 2012 which represented an 8 week time frame that the worker should have returned to work on a graduated basis (as per the medical advisor's recommendation). On August 19, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on November 14, 2012.

At the hearing held on November 14, 2012, the worker was provided with a copy of his compensation claim for a low back injury that occurred at work on July 20, 2011. The worker was advised by the appeal panel that his July 2011 claim was not under appeal and that he would have the opportunity at a later time to provide comment.

Following the hearing and discussion of the case, the appeal panel requested medical information from a rehabilitation and physical medicine specialist whom the worker attended for treatment related to his back condition. A report from the specialist was later received and was forwarded to the worker for comment. On February 7, 2013, the panel met further to discuss the case and rendered its final decision.

Reasons

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of March, 2013