The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker had not recovered from the effects of his compensable injury and was entitled to further benefits beyond August 21, 2012. A hearing was held on February 19, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond August 21, 2012.

Decision

That the worker has limited entitlement to benefits beyond August 21, 2012.

Decision: Unanimous

Background

On July 22, 2009, the worker filed a claim with the WCB for a right hip injury that occurred at work on July 19, 2009. The worker advised the WCB call centre that he was lifting a tray and half-way up he heard a "pop" in his right hip. He tried to continue working but by the afternoon his buttocks were tingling and he was in pain. The claim for compensation was accepted based on the diagnosis of a low back strain. This compensable diagnosis was later changed to aggravation of a pre-existing degenerative disc disease at L5-S1 with right SI nerve root compression. On March 28, 2011, the worker underwent an L5-S1 right microdiscectomy which was accepted as a WCB responsibility.

In a follow-up report dated May 17, 2011, the treating surgeon reported that nothing unusual was found at surgery other than the compressed nerve root. He noted that the worker had not shown any improvement from his dysesthetic pain since the day of surgery and a referral to a pain clinic was recommended.

A report from the pain clinic dated June 18, 2011 outlined treatment recommendations which included facet joint injections on the right side at L4-5 and L5-S1. This procedure was authorized by the WCB on June 29, 2011. On September 3, 2011, the pain clinic reported that the worker did not experience a change in his pain after the injections. On October 7, 2011, the pain clinic recommended approval for spinal cord stimulation.

On October 28, 2011, the worker was seen at the WCB's office for a call-in examination to determine the current diagnosis, the need for a functional capacity evaluation and to respond to the pain clinic's request for spinal cord stimulation. The WCB orthopaedic consultant opined that the diagnosis of the compensable injury remained a right L5-S1 disc herniation and status-post surgical microdiscectomy, right L5-S1 disc herniation. There was no evidence of a new condition or identification of a patho-anatomic pain generator to explain the worker's continuing symptoms. The consultant opined that the worker's current presentation did not have a direct relationship to the compensable injury. It was felt that a trial of spinal cord stimulation was contraindicated and there was no need for any restrictions.

In November 2011, the WCB referred the worker to a rehabilitation facility for a four week daily reconditioning program and to a clinical psychologist for pain management treatment.

In a report to the WCB dated February 15, 2012, the clinical psychologist outlined the opinion that the worker was experiencing Adjustment Disorder with some depressed mood, associated with chronic pain. The psychologist indicated that she did not know how the worker would be able to manage a return to work despite his strong desire to do so. She stated: "…I have met with many individuals through various insurers and certainly have seen those whose ambivalent motivation may be having a negative impact on their progress to return to work. [The worker] does not appear to be one of those individuals."

In a further report dated March 23, 2012, the clinical psychologist stated: "In the absence of a medical diagnosis, other than post-surgical pain, after all other possible etiologies are ruled out, it may be necessary to consider a diagnosis of Pain Disorder, given that pain is the predominant presenting symptom, although the psychological factors associated with it are not clearly evident. Somatoform Disorder, Not Otherwise Specified also may be considered. His symptoms do not clearly seem to fit a diagnosis of Conversion Disorder or other specific Somatoform Disorder…I anticipate that the prognosis for a successful return to work is guarded at best."

The worker underwent an MRI on April 1, 2012, related to his lumbosacral spine. The results showed a shallow right posterolateral disc herniation at the L5-S1 level minimally indenting the right S1 root. Bilateral apophyseal joint osteoarthritis was present and no other abnormalities were seen.

On April 24, 2011, a physical medicine and rehabilitation consultant advised the WCB that despite decompression surgery, the worker continued to have severe ongoing right leg pain. Based on the recent MRI findings, he recommended a review by a neurosurgeon to determine if the worker would benefit from further surgery.

The WCB arranged for the worker to undergo EMG and Nerve Conduction Studies on June 12, 2012 and to see a neurosurgeon for an assessment.

In a report to the WCB dated July 5, 2012, the neurosurgeon reported that the discomfort experienced by the worker was largely musculoskeletal. He reported that there may be some radiculopathy that accounted for the worker's intermittent pain extending to his lower extremities and the numbness of the plantar lateral aspect of the foot that was present for the past two to three years was probably residual. The neurosurgeon felt that further surgery was not indicated and that the worker should pursue a regular physiotherapy program with the goal of stabilization and reconditioning of the lumbosacral spine.

In a letter dated August 15, 2012, the worker was advised that the WCB was unable to relate his current condition to the original workplace injury and that consults with the clinical psychologist did not identify a psychological diagnosis that could be related to his injury. Therefore wage loss and medical aid benefits would end on August 21, 2012. In September 2012, the worker appealed the decision to Review Office. The worker referred to medical reports to confirm his position that he was still suffering from low back and right leg nerve pain and decreased range of motion stemming from his compensable injury and that he should be entitled to further benefits.

On October 11, 2012, the employer's representative submitted that the evidence on file failed to support the continuation of benefits beyond August 21, 2012 given the opinion expressed by the WCB orthopaedic consultant in October 2011 that a direct relationship between the worker's presentation and the compensable injury no longer existed.

On November 7, 2012, Review Office determined that the worker was entitled to benefits beyond August 21, 2012. Review Office referred to medical and laboratory test results on file to support that enhancement of the worker's pre-existing condition had occurred. It felt that the worker had not recovered from the effects of his compensable injury and that he continued to suffer a loss of earning capacity. Review Office stated that it was unable to find the evidence to support that the worker was able to perform his pre-accident duties which consisted of working 12 hours per shift.

Review Office also determined that the worker had suffered a psychological injury that was predominantly attributable to his compensable back injury. In making this determination, Review Office referred to reports on file by the WCB's orthopaedic consultant, his family physician, the physical medicine and rehabilitation consultant and the opinion of the worker's treating psychologist dated February 15, 2012. On November 13, 2012, the employer appealed Review Office's decision to the Appeal Commission and a hearing was held on February 19, 2013.

Reasons

Applicable Legislation:

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years.

Employer’s submission:

The employer was represented by an advocate and a manager. Another manager sat in on the hearing as an observer. It was submitted that when making its decision, the WCB disregarded professional opinions on file, both medical and psychological. The employer's position was that the evidence on file did not support the finding that the worker was entitled to benefits beyond August 21, 2012. The medical investigations on file were reviewed and it was submitted that they did not support that there was any further need for medical aid and in fact, in the earlier part of the claim, the WCB medical consultants indicated that any further medical aid would not make a difference and would not cure and provide relief from the injury resulting from the accident. With respect to wage loss benefits, given the WCB medical advisors' opinions that there was no loss of function, there was no reason for the worker not to be able to participate and continue on with his employment with the employer. His job was available for him and there was an openness and willingness for the employer to have the worker back into his pre-accident job. The worker did attempt a return to work, however he was not able to function. The reason for the lack of function had not been defined, but the employer submitted that in view of the medical evidence, it could not be considered due to the work-related injury.

With respect to a psychological injury, it was submitted that there had been no psychological diagnosis identified on the file. While the treating clinical psychologist presented possible differential diagnoses, she at no time defined a specific psychological diagnosis that could be treated or that could be given some attention and some resolution.

With respect to the enhancement of a pre-existing condition, it was acknowledged that there was degenerative disc disease at multiple levels of the lumbar spine and that the WCB endorsed micro-surgery for the resolution of the L5-S1 disc. However, physical recovery from the surgery proved to be positive and had it not been positive then there would have been evidence of a pathoanatomical concern or lesion. There had not been any identification of same. It was submitted that just the fact of surgery does not establish unending disability or wage loss benefits or does not create a loss of earning capacity for a worker.

Overall, it was submitted that the worker was not entitled to benefits beyond August 2012. In fact, he was probably given the benefit of the doubt for an extremely long period of time with respect to eligibility for benefits. The employer was sympathetic to the worker's presentation but did not believe that his current presentation, almost three years later, was related to the very minor event in the workplace, superimposed on a pre-existing condition.

Worker’s submission:

The worker was assisted by a worker advisor at the hearing and was accompanied by his wife. The WCB Review Office reasons were reviewed and the worker was in support of the decision. It was submitted that the WCB had provided evidence to support its decision of a continued relationship to the compensable injury and loss of earning capacity. The worker described the multiple physicians seen and the many medical treatments he had received since suffering the workplace injury. Even with the help of the specialists and tests, the worker stated that the pain in his back and right leg had not gone away. His physical range of motion had not changed and he continued to have nerve damage. To manage the pain, he took medications which did not take the pain away, but only masked it. The worker noted that roughly 70 percent of the population over the age of 40 show signs of disc degeneration. Most people do not know they have disc degeneration because it is asymptomatic. Trauma may cause this condition to result in ongoing symptoms. It was submitted that a ruptured disc causing an L5-S1 herniation would constitute such a trauma.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits beyond August 21, 2012. For the employer’s appeal to be successful, we must find on a balance of probabilities that after that date, the worker had recovered from the effects of his compensable injury and no longer suffered a loss of earning capacity. For the reasons outlined below, we are able to make that finding in part.

The worker's compensable diagnosis was accepted as a L5-S1 disc herniation with radiculopathy. He has seen numerous specialists and undergone multiple treatment modalities (including microdiscectomy surgery) without any significant improvement in his complaints of pain. Despite the fact that the mechanism of injury was relatively minor and the worker has been almost completely absent from the workplace for over three years now, he continues to report symptoms which prevent him from working even modified duties. The treating family physician supports the worker's position of total disability.

It is notable, however, that three separate medical specialists (WCB orthopaedic consultant in October 2011, rehabilitation physiatrist in March 2012 and WCB sports medicine consultant in December 2012) have examined the worker and each concluded that there is no physical or pathoanatomical basis for the worker's degree of symptomatology. Particularly concerning to the panel are the inconsistencies on testing noted in the specialist's examinations. This would suggest that the worker's continuing symptoms are no longer connected to the injuries sustained in the workplace accident. We place significant weight on the opinions of these three specialists.

On the other hand, the panel cannot ignore the fact that the worker has had surgery on his lumbar spine and even though the surgery was described as being of a relatively minor nature, according to WCB Policy 44.10.20.10, the worker's condition is considered to be an enhancement by virtue of the surgery. We also acknowledge that the MRI of April 1, 2012 indicates that there remains a small L5-S1 disc herniation which minimally indents the right S1 root. In his report of July 5, 2012, a treating neurologist acknowledged that there may be some mild residual radiculopathy that accounts for intermittent pain in the lower extremities and numbness of the foot. In view of this, we do not feel that it can be said that the worker is fully recovered from his compensable injury. There are still some residual effects of the L5-S1 disc herniation with radiculopathy.

Accordingly, in the panel's opinion, the worker's earning capacity is still affected by his compensable injury. The Rehabilitation Assessment Report of November 23, 2011 described the worker's pre-accident position as being of a medium industrial level. The worker described his job as being physically demanding and it involved some heavy lifting. The shifts worked by the worker pre-accident were 12 hour shifts during which time he would both sit and stand. Given the residual effects of his compensable injury, the panel finds that the worker's earning capacity remains potentially impaired as he is prevented from returning to his pre-accident level of employment. We do find, however, that the worker could return to modified work with appropriate restrictions for his residual injury, which the neurologist described as: "mild radiculopathy that accounts for the intermittent pain extending to the lower extremities and the numbness of the plantar lateral aspect of the foot." These restrictions have yet to be determined by the WCB and compared to the modified duties available from the employer.

With respect to the claim for a psychological injury that is predominantly attributable to the compensable back injury, the panel notes that the diagnosis of Adjustment Disorder which was accepted by the Review Office was expressed in the clinical psychologist's report of February 15, 2012. This report was prepared prior to the examination by the rehabilitation physiatrist on March 5, 2012. After reading the results of the physiatrist's March 2012 examination, the psychologist stated: "It has not been possible to determine any psychological condition or history that clearly appears to be associated with his symptoms." She no longer cited Adjustment Disorder as a possible diagnosis and she was now considering possible diagnoses of Pain Disorder or Somatoform Disorder, Not Otherwise Specified. She did not provide an opinion as to any causal link between these new differential psychological diagnoses and the compensable injury.

At the hearing, the worker was asked whether he was undergoing any psychological treatment or counseling. He advised that he was not, nor was any suggested by the psychologist. The worker was also not taking any anti-depressants or other medication intended to treat a psychological condition. The worker's family physician did prescribe a trial of anti-depressant medication in early 2012, but this was discontinued after a few months as it was of no effect.

In view of the foregoing, the panel is not satisfied on a balance of probabilities that as of August 21, 2012, the worker had a compensable psychological condition for which he is entitled to benefits. The worker's entitlement to benefits beyond August 21, 2012 is therefore limited to medical aid associated with his residual radiculopathy and wage loss benefits arising from his inability to return to his pre-accident employment.

The employer's appeal is allowed in part.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of April, 2013