The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable back injury by December 24, 2010. A hearing was held on July 2, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after December 24, 2010.

Decision

That the worker is not entitled to wage loss and medical aid benefits after December 24, 2010.

Decision: Unanimous

Background

On December 29, 2009, the worker was helping lift a patient in the course of her employment as a licensed practical nurse ("LPN") when she felt a sharp pain in her low back. On December 29, 2009, the worker was seen for treatment at an out-patient facility and was diagnosed with mechanical low back pain.

On January 20, 2010, the treating physician reported that the worker still complained of pain in her low back even though she had been working on light duties and shorter hours. She noted that the worker's range of motion in her back had improved significantly however it was painful at extremes. There was a small area of mild tenderness over the L4-5 region and neurological examination was intact. There was no sensory motor deficit in her legs. The physician recommended that the worker be off work for two weeks while she attended physiotherapy treatment.

On January 25, 2010, a WCB medical advisor commented that the current diagnosis was non-radicular low back pain and there was no evidence of a pre-existing condition.

File records showed that on March 15, 2010 the worker experienced weak legs and pain in her middle back after lifting a baby at work. The worker attended for medical treatment and was advised to be off work.

In a March 23, 2010 report, the treating physician noted that the worker seemed to be in a lot of pain on examination. The pain was in the lower back joints over L4-L5 and L5-S1. There was no pain over the sacroiliac joints. There was limited range of motion in all directions due to the pain.

An MRI of the lumbar spine was carried out on April 19, 2010. The radiologist's impression was:

Relatively minor disc protrusions at L4-5 and L5-S1 are identified. Somewhat more prominent at the latter. Neither results in nerve root impingement. There is degenerative disc space narrowing at the L5-S1 disc as well.

The worker was seen at a WCB call-in assessment on April 19, 2010. The medical advisor noted that the examination findings were consistent with non-radicular mechanical low back pain. Based on objective medical findings, the medical advisor felt that the worker would be capable of a return to work at modified duties at six hours per day. The medical advisor commented that he was unable to determine a specific pain generator.

The worker's claim was reviewed by a different medical advisor on July 5, 2010. The medical advisor noted that the worker had another flare-up at work in June 2010. The MRI results of April 19, 2010 were reviewed and the medical advisor opined that the worker had L5-S1 discopathy which was most likely present prior to the workplace incident. This likely was contributing to the prolonged period of symptomatology.

In a report dated August 30, 2010, a neurologist reported that he saw the worker for low back complaints. He stated: "The clinical picture is most consistent with mechanical lower back pain. She has no definite evidence of a radiculopathy. I believe she might improve with input from a physical medicine specialist…"

X-rays were taken of the worker's sacroiliac joints on September 23, 2010. The results were reported as being within normal limits.

File records indicated that the worker experienced a flare-up of low back pain on September 23, 2010 while at work. The WCB then arranged for the worker to undergo a reconditioning/work hardening program.

On December 14, 2010, a rehabilitation progress report stated that the worker continued to have complaints of pain, but her function had been improving as seen in her most recent functional test results and her perceived level of disability had been slowly reducing. It was felt that the worker should be placed in the Medium category of physical demands, although she still continued to struggle with meeting the maximum requirement of 50 pounds for bilateral waist to waist lifting. Give these findings, the worker would receive two more weeks of therapy.

On December 16, 2010, the WCB case manager wrote the worker to advise that in his opinion, she was considered fit for her regular duties without restrictions and that any residual restrictions beyond December 25, 2010 would relate to non-compensable factors. The case manager noted that the worker suffered a relatively minor injury to her low back on December 29, 2009 and that her recovery was prolonged due to an underlying degenerative non-compensable condition. The probable compensable diagnosis appeared to be non-specific non-radicular low back pain with normal recovery times expected to be within a few weeks. Beyond this time line, it appeared that any residual symptoms were related to the underlying non-compensable pre-existing factors that appeared to have prolonged the worker's recovery.

In a Rehabilitation Final Report dated December 30, 2010 it was reported that after attending the reconditioning program for an additional two weeks, the worker was able to demonstrate the ability to complete functional tasks with weights of 40 pounds or more while in clinic. Based on the physical abilities she demonstrated during her clinic program and based on her previous functional testing, the worker would place in the medium category of physical demands and would meet the regular job requirements of an LPN as outlined in the NOC and her self-reported job demands. On December 23, 2010, the worker was discharged from the program with a home based program which included a review of proper body mechanics, lifting techniques and the principles of hurt versus harm.

On November 16, 2011, the worker submitted information to the WCB to support that she still had ongoing back problems which she related to her compensable injury.

In a second decision dated December 28, 2011, the WCB case manager advised the worker that no change would made to the decision of December 16, 2010, as it was still considered that her low back problems were not related to her compensable injury. In March 2012, the worker appealed the decision to Review Office.

On April 20, 2012, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after December 24, 2010. Review Office referred to file information to support that the worker's workplace injury, a soft tissue injury, had long since healed and that her ongoing issues currently being treated were entirely related to the pre-existing conditions which were not considered "arising out of and in the course of employment." The worker disagreed with the decision and an appeal was filed with the Appeal Commission.

On July 2, 2013, a hearing was held at the Appeal Commission. Prior to deciding the issue under appeal, additional information was requested from two of the worker's treating physicians. On August 7, 2013, the interested parties were provided with a copy of an MRI report dated August 13, 2012, and were asked to provide their written comments. On August 22, 2013, the panel met further to discuss the case and reach 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.

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(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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker should be entitled to additional coverage for the injury she suffered on December 29, 2009. On that date, she was assisting a co-worker to lift a patient when she experienced a sharp pain in her low back. She was diagnosed with mechanical low back pain and placed off work. She returned to light duties on January 8, 2010. On January 18, 2010, she saw her physician for ongoing low back symptoms and was put off work for two more weeks. The worker returned to light duties on January 25, 2010 and continued until March 17, 2010 when she lifted a child and felt a sharp pain in her low back. Since that time, the worker continued to experience low back pain which was exacerbated by prolonged sitting, standing, walking and heavy lifting. The worker participated in a work hardening program which concluded December 23, 2010. It was expected that at the end of the program, she would be able to perform her regular duties as an LPN with no restrictions. It was submitted that although the worker improved her level of function following the work hardening program, she continued to experience low back pain. The pain was in the centre of her low back and depending on her activity or exertion, would radiate into both legs. The worker underwent a rhizotomy and chiropractic treatment, but her low back continued to be symptomatic. It was not until the worker was surgically treated for her low back condition on October 19, 2012 that she experienced a good recovery. She has since been able to resume her regular duties as an LPN.

Overall, it was submitted that the medical information on file identified the L4-L5 as the symptomatic area following the December 29, 2009 incident. The worker had not fully recovered from the December 29, 2009 incident when she injured her back lifting a child on March 17, 2010. Medical information on file identified the L5-S1 as the problematic area following the March 17, 2010 injury. Because the worker had a good recovery following surgical treatment of the L5-S1, it was submitted that this confirms that the L5-S1 was the source of her ongoing difficulties. It was also submitted that the evidence supported a causal relationship between the March 17, 2010 injury and the worker's ongoing low back difficulties.

Employer’s position:

The employer was represented by an advocate who did not attend the hearing but provided a written submission. The employer's position was that while the worker unfortunately had a serious back condition, the medical evidence did not support that its cause was work-related. Long term responsibility for the claim should therefore not be accepted by the WCB. The coverage up to December 2010 was reasonable and the WCB did fund a reconditioning and work hardening program for the worker to assist her in recovering from the acute effects of the December 2009 work injury. It was submitted that any ongoing symptoms and disability past that point would be due to the pre-existing degenerative disc disease and not due to the acute effects of the worker injury.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after December 24, 2010 are related to the injuries she sustained in the workplace accident of December 29, 2009. On a balance of probabilities, we find that the work related low back injury had resolved by December 24, 2010 and that the worker’s current difficulties are attributable to degenerative changes in her lumbosacral spine.

In coming to our decision, the panel relied on the following evidence:

• The medical reports generated in the period immediately following the workplace injury do not identify a neurological injury. The initial emergency department report from the date of the accident diagnosed the worker with mechanical low back pain. The first report from the family physician dated January 4, 2010 diagnosed the worker with muscle spasm on the lower back. Neurological status and sensory-motor exams were intact.
• On January 25, 2010, the WCB medical advisor identified the current diagnosis as non-radicular low back pain.
• At the call-in examination on April 19, 2010, the WCB medical advisor concluded that the findings were consistent with non-radicular mechanical low back pain. This was repeated by another WCB medical advisor in a review conducted July 5, 2010.
• On August 30, 2010, the worker was examined by a neurologist. The neurologist concluded that the worker's clinical picture was most consistent with mechanical lower back pain and that she had no definite evidence of a radiculopathy.
• In a rehabilitation final report dated December 30, 2010, it was reported that at the end of the 6 week program, the worker was able to demonstrate the ability to complete functional tasks with weights of 50 pounds or more while in clinic. Based on the demonstrated physical abilities, the worker was placed in the Medium category of physical demands and was considered able to meet her regular job requirements.
• Although the worker reported subsequent episodes of back pain after the WCB discontinued her claim, the panel feels that the original injury of December 29, 2009 had resolved and any later incidents were separate occurrences, typical of a person with degenerative processes or a "back-at-risk."
• The MRI of April 19, 2010 indicated relatively minor disc protrusions at L4-5 and L5-S1, neither of which resulted in nerve root impingement. There was degenerative disc space narrowing at the L5-S1 disc as well. A subsequent MRI taken August 13, 2012 showed no abnormalities from L1-2 to L4-5, but at L5-S1 there was a small left paracentral focus disc protrusion that mildly contacted the ipsilateral S1 nerve root and a small annular tear.
• The panel considered the worker advisor's submission that the worker's successful recovery following the October 19, 2012 surgery is indicative that the L5-S1 area was the cause of her difficulties. We are not able to accept this submission. The surgical procedure performed on October 19, 2012 was an anterior discectomy and Pro-Disc replacement at L5-S1. It was intended to treat a disc herniation at L5-S1 and an annulus tear. As outlined above, the early medical reports consistently reported no evidence of radiculopathy or neurological injury. We are not able to link the neurological condition requiring surgery in October 2012 (disc protrusion contacting the S1 nerve root and annular tear) back to the injury sustained almost three years earlier in December 2009, particularly in the absence of any signs of radiculopathy in 2009 and 2010.

Overall, we find that the medical evidence does not support the finding of an ongoing workplace injury beyond the completion of the rehabilitation program and it is therefore the panel's decision that the worker is not entitled to wage loss or medical aid benefits after December 24, 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 20th day of September, 2013