The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back complaints were not related to his compensable injury of August 31, 2009. A hearing was held on October 23, 2013 to consider the matter.

Issue

Whether or not the worker's back difficulties beginning in July 2011 are related to the compensable injury of August 31, 2009.

Decision

That the worker's back difficulties beginning in July 2011 are not related to the compensable injury of August 31, 2009.

Decision: Unanimous

Background

The worker's case was previously the subject of an appeal panel hearing held on November 2, 2012 at which time it was determined that the worker suffered an injury to his back on August 31, 2009 during the course of his employment as a truck driver. For complete details of the worker's claim, please see Appeal Commission Decision No. 119/10 dated December 9, 2010.

In order to determine the type of WCB benefits that the worker was entitled to with respect to his compensable accident, primary adjudication considered the existing medical information on file as well as the results/opinion of a WCB medical advisor who had examined the worker at a call-in examination on February 14, 2011. Primary adjudication also spoke with the worker to obtain information regarding the type of treatment he received since his accident.

In a decision dated March 3, 2011, the worker was advised that the WCB had no evidence to support total disability beyond that which would normally be expected for recovery of a right hip strain type injury. As wage loss benefits had been paid for 8 weeks which would be a normal recovery time for this type of injury, wage loss benefits would not be paid beyond October 26, 2009.

On October 24, 2011, the worker contacted the WCB to advise that he was experiencing difficulties that he related to his compensable accident. The worker stated that he did not return to work following his recovery from the February 2011 injury. In July 2011, he returned to driving a gravel truck and around the same time he sneezed and jolted his back. He felt that this had aggravated his old injury. The worker indicated that he felt pain in his spine and hips and felt that he was no longer capable of working as he did not want to make things worse.

The WCB requested and obtained medical information from the worker's treating physician dated October 26, 2011 and the results of a CT scan taken October 8, 2011.

In his report dated October 26, 2011, the treating physician indicated that the worker reported pain localized to his low back radiating down his left lower limb when seen on September 23, 2011. The worker likened his symptoms to those that occurred two years and ten years ago and that the WCB had been involved with those episodes. The worker described that his symptoms worsened over the past 4 to 5 months to the extent that the pain disturbed his sleep. The physician noted that the CT scan demonstrated a large L4-5 disc herniation with likely impingement upon numerous left-sided nerve roots.

On November 15, 2011, a WCB medical advisor reviewed the worker's file and opined that the worker's sneeze which he described to primary adjudication on October 24, 2011 would not be considered an adequate mechanism of injury to substantiate a workplace accident even if it occurred at work. With the respect to the L4-L5 disc herniation, the medical advisor stated that it was unclear as to whether it occurred at some time in the past or in relation to an incident at work or otherwise in mid 2011. It was commented that the other changes noted on the October 8, 2011 CT scan including posterior end plate bony spurring and the mild broad based disc bulge at L5-S1 are likely degenerative in nature and consistent with changes commonly found in asymptomatic persons of the worker's age cohort. The medical advisor indicated that the worker's current left sided low back/lower limb symptoms as being similar to the symptoms he experienced in the past (predominantly right sided low back/lower limb symptoms) was unaccounted for. This was particularly the case in light of past right-sided symptoms radiation and a current left sided disc herniation.

On November 16, 2011, the WCB case manager advised the worker that based on the WCB medical opinion outlined on November 15, 2011 and the fact that his original claim was accepted as a strain, the WCB was unable to relate his current reported symptoms in 2009 to his workplace accident. Therefore the WCB was unable to accept responsibility for his recent medical treatment and wage loss.

On April 2, 2013, the worker wrote Review Office as he disagreed with the WCB's decision that he was not entitled to further compensation benefits. The worker indicated his present herniated disc was an extension of his previous sacroiliac issues. The worker indicated that he was hunched over while driving at work and was barely able to walk. As this all happened at work he felt that he was entitled to receive compensation benefits.

On April 11, 2013, Review Office referred the worker's file back to primary adjudication to obtain up-dated medical reports regarding the worker's current medical condition. The new medical information received and on file was as follows:

• MRI report of the lumbar spine dated January 13, 2012
• MRI report of the lumbar spine dated December 11, 2012
• Report from a sports medicine specialist dated June 26, 2013
• Report from a neurosurgeon dated June 28, 2012 and June 3, 2013

In a decision dated June 9, 2013, Review Office determined that the worker was entitled to limited wage loss and medical aid benefits after October 26, 2009 and that the worker's back problems beginning in July 2011 were not related to his compensable injury of August 31, 2009.

Review Office found that the worker's August 2009 compensable injury of a low back and right hip strain had continued after October 29, 2009 until February 14, 2011. Review Office stated that there was entitlement to medical aid because of the comments made by the treating physiotherapist on February 2, 2011 that "weakness remained" [at the injury site/right hip/sacroiliac joint.] Review Office also accepted the WCB medical opinion of February 14, 2011 that there were no longer any residual effects of an injury.

Review Office did not find that the worker's back difficulties after February 14, 2011 were in any way related to his compensable injury of August 31, 2009. Review Office found that the compensable injury in August 2009 was a ligamentous strain/sprain type injury in the absence of any significant or diagnostic findings to suggest otherwise. Review Office noted that the worker's complaints in 2009/2010 were right-sided and now his current complaints were left-sided. Review Office did not accept that the worker's left-sided complaints were a consequence of his August 2009 compensable event. Review Office did not find evidence that the sneezing event in July 2011 enhanced the August 2009 compensable injury. On July 15, 2013, the worker appealed the June 9, 2013 decision by Review Office to the Appeal Commission and a hearing was arranged.

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.

The worker has an accepted claim arising from an August 2009 workplace accident. The worker had further back difficulties beginning in July 2011.

Worker's Position

The worker was self-represented at the hearing. He explained his reasons for appealing the WCB decision and answered questions from the panel.

The worker advised that he has had "inflamed sacroiliacs" since 2000. He said that he never received proper treatment for this condition and that as a result he continues to have problems which result in missed work.

The worker was critical of the workers compensation program. He feels that the WCB has not helped with his claim; rather, it pays for a while and then cuts him off. He thinks that his condition has worsened over the years since his 2000 workplace injury because he did not get proper treatment. He said that he would like retraining but acknowledged that he liked truck driving. He is worried that if he returns to driving he might "blow another disc."

Regarding symptoms that arose in 2011, he said that his left leg became numb and his left foot cramps all the time ("24 x 7"). He said periodically he has a "lightning bolt" pain in his lower back. This pain did not exist before 2011.

The worker said that he is now seeing a sports medicine physician and has an upcoming appointment on the afternoon of the hearing. The physician has told him that over time his condition has improved. In October 2011 he said he filed a claim for a blown disc. He noted that he has had 2 MRIs which show nerve damage. He is having a 3rd MRI in December 2013.

The worker advised that he saw a neurosurgeon who advised that surgery is not recommended. The neurosurgeon told the worker his condition should improve.

The worker was asked if he could identify a specific event that occurred in September 2011 which resulted in the symptoms that he felt at that time. He related the symptoms to his long term back problems. He advised that his back continues to worsen.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker's back difficulties beginning in July 2011 are related to the compensable injury of August 2009. For the worker's appeal to be successful, the panel must find that the symptoms he experienced commencing in July 2011 are related to the August 2009 injury. The panel is not able to make this finding. The panel finds, on a balance of probabilities, that the worker's back difficulties beginning in July 2011 are not related to his 2009 workplace injury.

The panel notes that the worker's 2009 claim was for a ligamentous strain/sprain of the right back/hip. His symptoms in 2009 were all right-sided. However, the worker's current symptoms are left sided. The panel cannot relate the left sided symptoms commencing in 2011 to the 2009 claim. In reaching this conclusion the panel relies upon the following:

• All medical information on the file suggests right-sided symptoms and diagnosis. This includes a January 16, 2010 sports medicine specialist who notes complaints of right hip pain for 4 to 5 months, with a diagnosis of a lumbar ligamentous sprain/strain injury, and a February 2, 2011 physiotherapist diagnosis of right SI joint dysfunction and right piriformis pain syndrome. Neither report references neurological deficits.

• The worker was examined on February 14, 2011 by a WCB medical advisor who noted that the worker "insists his main complaints are on the left side and that at this time he is asymptomatic on the right side." The physician commented that in terms of the 2009 workplace injury, "the claimant shows no residual effects or any evidence of an injury as described." He opined that the findings are of mechanical low back pain.

• The worker has been followed by a sports medicine specialist since November 23, 2011. In a report dated June 26, 2013 the physician noted that the worker "…continued to be experiencing left leg radicular symptoms related to an L4/5 disc herniation and focal nerve root compression."

• The worker's file was reviewed by a second WCB medical advisor in November 2011. The medical advisor noted the inconsistency between the past right sided symptom radiation and the current left sided disc herniation. He concluded that "…the evidence on file does not support that the two are connected beyond the susceptibility to each by virtue of degenerative changes in (the worker's) LS spine rather than any prior workplace related change."

• The current medical difficulties focus on a left L4-5 disc herniation. The panel notes that this finding is in a different anatomical location in the lumbar spine. While it may explain the worker's current symptoms, it does not correlate with the symptoms originally described by the worker following the 2009 workplace injury.

In closing, the panel notes that the worker relates his current back problems to multiple claims dating back to a workplace injury in 2000. He claims that he did not receive proper treatment after the 2000 workplace injury. The specific issue before the panel is the relationship of the current symptoms to the 2009 workplace injury. The panel is not able to adjudicate the issue of a relationship between his current symptoms and the 2000 workplace injury. The worker should contact the WCB or seek advice from the Worker Advisor Office if he wishes to pursue this matter.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of November, 2013