The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that he had recovered from the effects of his compensable low back injury.  A hearing was held on March 19, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond February 17, 2012.

Decision

That the worker is not entitled to wage loss benefits beyond February 17, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on May 18, 2011. The worker reported:

I was mixing the dough in the hopper. It is solid. I was moving the hopper. The wheels came out and I got the steel bar to hook it up and I felt pain in my lower back. The next day, I went to work but only could work for four hours.

A chiropractor's first report dated May 29, 2011 diagnosed the worker with nerve root entrapment related to the injury of May 18, 2011.

On June 9, 2011, a WCB chiropractic consultant advised a WCB adjudicator that in his opinion, the diagnosis was a lumbar strain/sprain type of injury. He said the treating chiropractor suspected some disc involvement and had noted possible nerve root entrapment. Chiropractic therapy was approved for an 8 week period.

At the advice of his treating chiropractor, the worker returned to work on July 4, 2011 and worked four hours per day every second day. On July 11, the worker ceased work due to increasing back symptoms. In July and August 2011, the WCB's chiropractic consultant authorized additional chiropractic treatments for the worker.

In early October 2011, the worker returned to modified duty work with his employer. On October 18, 2011, the worker advised the WCB that he was having numbness down his left leg and that it occurred after standing at work for two hours. The job he performed was the mixing job and he had to walk up and down on concrete for two hours. The worker noted that he had a prior back problem in the same area about 15 years ago.

On October 25, 2011, the worker was seen for a call-in assessment by a WCB chiropractic consultant. The consultant's impression of the worker's condition was as follows:

• that the worker in all probability suffered a strain/sprain type injury involving his lumbosacral spine from the accident.
• there was no evidence of nerve root irritation.
• the worker should increase his time frame at work over the next three to four weeks until he was back to full regular duties.
• the worker indicated that his low back and leg pain were the same over the last three weeks and he was attending a chiropractor at a frequency of two times per week. If the current return to work failed or if the worker had difficulty increasing his hours, consideration should be given to an alternate treatment plan for his lumbosacral discomfort such as Active Release Technique/acupuncture.
• the worker's restrictions were to include no lifting greater than 10 to 15 pounds, not to work in a flexed position for prolonged time frames and to be able to sit and stand as required. These restrictions were considered appropriate for a three to four week time frame and then should be reviewed.

On November 8, 2011, the worker advised the WCB that he had pain going down his left leg as well as pain in his low back and left hip. On November 29, 2011, the worker advised that he tried to work 3 ½ hours on November 28, 2011 but could not perform his duties. He now had numbness going down the right leg and he could not sleep.

A surveillance video was taken of the worker's activities on November 3, 8 and 14, 2011. A transcript of the surveillance notes are on file dated November 21, 2011.

A WCB rehabilitation specialist conducted a work site visit and job analysis on December 8, 2011 to determine which job duties would be suitable for the worker given his compensable restrictions. The final report is on file dated December 15, 2011.

In a letter dated February 1, 2012, the WCB advised the worker that he was fit for modified duties with the following temporary restrictions: No lifting greater than 25 to 30 pounds, not to work in a flexed position for prolonged time frames and to be able to sit and stand as required. The hours of work were four hours per day from January 30, 2012 to February 3, 2012, six hours per day from February 6, 2012 to February 10, 2012 and eight hours per day from February 13, 2012 to February 17, 2012. The worker was advised that he should increase his activities at work so that at the end of the three weeks he could resume his normal duties.

A note to file dated February 2, 2012, indicated that the worker only worked two out of the four scheduled hours on January 30, 2012 due to pain complaints.

A note to file dated March 9, 2012 indicated that the return to work program was never completed and that the worker was still totally off work.

On March 8, 2012, the treating chiropractor reported that he was requesting an MRI of the lumbosacral spine due to the worker's symptoms.

In letter dated March 16, 2012, the WCB determined that the worker had recovered from the back strain injury he sustained on May 18, 2011 and that benefits would end as of February 17, 2012. It was noted in the letter that the worker was seen walking about all day in the video surveillance on a day that he called in sick to work on November 3, 2011.

On June 26, 2012, a report from a specialist diagnosed the worker with a lumbar disc herniation. The specialist noted that the worker had back pain which was radiating down the left leg to foot. He noted that the worker injured his back in 1989 and was off work for two years and then re-injured it in June 2011. There was no pain in his left leg at that time. The worker started walking for exercise 7 months ago but then pain started in his leg. The worker had been swimming but had to stop because of pain.

File records showed that an MRI was scheduled to take place on October 3, 2012.

On April 24, 2012, the worker filed an appeal to Review Office of the WCB's March 16, 2012 decision that by February 17, 2012, he had recovered from the effects of his compensable injury.

In a decision dated June 7, 2012, Review Office confirmed that there was no entitlement to wage loss benefits beyond February 17, 2012. Review Office noted that although the worker complained of pain down his left leg, the WCB examination held on October 25, 2011 showed no evidence of nerve root irritation. Review Office indicated it agreed with the WCB chiropractic consultant's opinion that the workplace injury in all probability resulted in a strain/sprain type of injury involving the lumbosacral spine. It found that the restrictions imposed on the worker were appropriate and that the alternate position of packing was within the workers' restrictions. Review Office found no evidence to support that the worker was not capable of completing the graduated return to work program. Review Office determined that the evidence on file did not support a causal relationship between the worker's current difficulties and the May 18, 2011 compensable injury. On November 26, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on March 19, 2013.

Prior to the March 2013 hearing, the worker submitted a report from his treating sports medicine specialist. He noted that the worker had an MRI in October 2012 which showed a disc with the annular tear approaching the S1 nerve roots and potential irritation. The specialist wrote: "I referred him to Neurology who saw him and thought this was consistent with left S1 root irritation without clear clinical nerve dysfunction and he has been referred to…Physiatry however that appointment is pending at this time….Unfortunately, he is unable to do his job at this time and since the injury due to the radicular back pain and leg pain that is a result of his injury sustained. I have only become involved in his care since July of 2012 however."

Following the hearing, the appeal panel met to discuss the case and requested information from a treating physiatrist. The panel also requested copies of the worker's prior compensation claims with the WCB related to his back. The requested information was later obtained and a copy was forwarded to the worker for comment. On May 22, 2013, the panel met further to discuss the case and render its final decision.

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.

Subsection 4(1) of the Act provides:

4(1) 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, subject to the following subsections.

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.

The worker’s position:

The worker was self-represented at the hearing and the services of an interpreter were provided. The worker's evidence was that he had worked for the employer for 28 years as a baker. He was mixing some dough and was trying to lift part of the hopper which went off its rails when he felt his back become numb. After the incident, his back became worse and he was sent home. He received treatment from a chiropractor and later attempted to return to work for two hour shifts. After only half an hour, he would experience increased back pain and numbness down his left leg so he would have to go home. Since the spring of 2012, the pain in his leg had become significantly worse.

The worker stated that he still had pain in his leg due to the injury he sustained at his workplace. His doctor provided a note which indicated that he has not been able to return to work.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond February 17, 2012. In order for the worker’s appeal to be successful, the panel must find that the injuries the worker sustained in the workplace accident of May 18, 2011 continued to affect his earning capacity beyond February 17, 2012. We are not able to make that finding. In the panel's opinion, the injury suffered by the worker while lifting the hopper in the course of his employment was limited to a strain/sprain to his lower back and by February 17, 2012, this injury had resolved. We are unable to relate his ongoing lower back issues to the workplace injury.

At the hearing, the worker stated that since February 2012, he continued to have difficulties with his lower back. The pain also extended down his leg and there were some days where he could not even move his left leg. Because of worsening leg pain after a swimming incident in the spring of 2012, he sought treatment from a sports medicine specialist and a neurologist. The sports medicine specialist provided a note dated February 25, 2013 which indicated: "Unfortunately, he [the worker] is unable to do his job at this time and since the injury due to the radicular back pain and leg pain that is the result of his injury sustained. I have only become involved in his care since July of 2012 however." The worker advised that he had been referred to a physiatrist who had been giving him needles in his spinal cord. He also took medication every day. Since starting the medication and injections, he estimated that the pain was reduced by about 40 percent.

The most recent medical reports identify the worker's current presentation as being consistent with a left S1 root irritation. An MRI of the worker's lumbar spine dated October 3, 2012 identified that the S1 nerve roots may be irritated at L5-S1 due to the close proximity of an annular tear. A neurologist's report dated October 31, 2012 indicated that the worker's presentation was consistent with left S1 root irritation without clear nerve dysfunction. The treating physiatrist's report of February 26, 2013 stated: "In summary, this patient has chronic left S1 radicular pain associated with significant pain behaviour and perhaps some fear avoidance behaviour."

On a balance of probabilities, the panel is unable to relate the annular tear and S1 root irritation to the workplace accident. On October 25, 2011, a call-in examination was conducted by a WCB chiropractic consultant. At that time, the consultant conducted a thorough examination and reported that he found no evidence of nerve root irritation. His conclusion was that as a result of the workplace incident of May 18, 2011, the worker in all probability suffered a strain/sprain type injury involving his lumbosacral spine.

The panel also notes that imaging studies taken of the worker's lumbar spine show existing degenerative processes which were present as early as 1993. Earlier CT scans described on the worker's previous WCB claims files report that in January 1993, the worker had a small central lumbosacral L5-S1 disc protrusion which was approaching the right S1 nerve root. An October 1995 examination showed partial resolution of the L5-S1 disc but the development of a moderately large central and left posterolateral L4-5 disc which was compressing the L5 nerve root and was likely causing radiculopathy.

The neurologist treating the worker in 2012 described the October 3, 2012 MRI as demonstrating some degenerative changes, primarily at L5-S1.

It is the panel's understanding that annular tears are not uncommon when a person has degenerative disc disease, as this worker does.

Given the presence of degeneration in the worker's lumbar spine and the absence of evidence of nerve root irritation at the time of the call-in examination in 2011, the panel finds on a balance of probabilities that the annular tear occurred at a point in time after the call-in examination and did not form part of the injuries suffered in the workplace accident of May 2011. As such, we are not able to relate the worker's current presentation and his ongoing loss of earning capacity beyond February 17, 2012 to the effects of the workplace accident. We therefore find that the worker is not entitled to wage loss benefits beyond February 17, 2012.

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 27th day of June, 2013