The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury and therefore was not entitled to wage loss or medical aid benefits beyond January 24, 2013. A hearing was held on September 19, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond January 24, 2013.

Decision

That the worker is not entitled to wage loss and medical aid benefits beyond January 24, 2013.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right L4 radiculopathy that he sustained in a workplace accident on August 15, 2005 during the course of his employment as a diesel mechanic. At the present time, the worker has permanent work restrictions to avoid lifting greater than 10 pounds, no crouching or stooping, no repetitive or sustained overhead work, the ability to change posture frequently and no prolonged walking or standing on cement.

On November 29, 2011, the worker was seen by a WCB physical medicine consultant at a call-in examination. In response to questions posed by the case manager, the consultant stated:

What are the worker's current medical findings?

There was no evidence on the current clinical examination of any medical findings that would be able to be ascribed to the original work incident of August 15, 2005, now at the point six years remote. There were minor postural abnormalities that are likely longstanding that is (sic) preexisting to the incident in question. There was some stiffness of the lumbar spine and also some muscle stiffness across the hips. There was however no significant mechanical irritability able to be elicited on the current clinical examination. There was no evidence of any lumbar nerve irritability or nerve involvement on the current examination either.

What findings are related to the CI?

On a balance of probabilities there does not appear to be any findings that would be considered as related to the compensable injury, of now six years remote.

Are there any treatment recommendations related to the CI?

Therefore, there would not be any treatment recommendations to make, as related to the injury of August 15, 2005.

On December 12, 2011, the treating physician provided the WCB with the following information related to the worker's back condition:

[the worker]…has multi level disc degenerative disease involving the cervical and lumbar spine.

I am enclosing an MRI cervical spine from November 9, 2011…As you can see, he does have significant spondylosis comprised of cervical osteophytes and disc degeneration. Fortunately there is no evidence of cervical spinal stenosis of a severe nature. The MRI of the lumbar spine demonstrates L2-L3 protrusion and significant compression of the thecal sac on the left L3 root. Initially the L4-L5 nerve root also has compression.

I compared that to his previous MRI lumbar spine done September 8, 2009, again showing multi level degenerative disc narrowing and disc protrusions.

The significant protrusion appears to be at the L3-L4 level with associated nerve root encroachment.

Objectively, he has had pain in the L3-L5 distribution. Sensory findings in the muscular involvement (Myotomes) corresponds and are correlated.

On February 2, 2012, it was determined by the WCB's Pain Management Unit (PMU) that the worker did not appear to be experiencing any psychological disorder related to the compensable injury that would be a barrier to working within his restrictions.

In a report to the WCB dated March 6, 2012, the treating physician referred to the opinion expressed by the WCB physical medicine consultant on November 29, 2011. The physician stated:

I would argue that this is not just related to an acute compensable injury. This is related to chronic work place stress on his spinal vertebral column and vertebral disc over a long term period, related to heavy lifting and being a diesel mechanic.

I have reviewed all of the imaging studies including the MRI done November 9, 2011. The same findings are present as compared to previous imaging studies. All of the changes are degenerative in nature, in my opinion, could be related to (Oxidative stress) and extreme pressure and compression of the spinal column and vertebral column from chronic lifting as a diesel mechanic…I do believe that if he does have foraminal stenosis then a surgical opinion could be considered.

On July 19, 2012, a WCB senior medical advisor was asked to review the worker's file and respond to questions posed by the case manager. In a report dated August 31, 2012, the medical advisor outlined his opinion that there were pre-existing factors that likely affected the worker's low back condition which included the pre-accident lumbar CT scan findings and the pre-existing history of low back pain and right leg symptoms. He stated that the medical information did not substantiate an ongoing L4 radiculopathy stemming from the August 15, 2005 injury. The medical advisor further stated:

To the extent that the August 15, 2005, injury aggravated the pre-existing L3-L4 discopathy noted to be present at the December 2, 2004 lumbar CT scan, this influence has likely resolved, in light of the combination of i) the clinical information cited above indicating resolution of an L4 radiculopathy and ii) stability of the imaging findings at the L3-4 segment on comparison of imaging reports pertaining to a December 2, 2004 lumbar CT scan, a January 6, 2006 lumbar CT, a March 22, 2006 lumbar MRI and a September 8, 2009 lumbar MRI.

Further consideration as to whether the August 15, 2005, CI temporarily aggravated or permanently enhanced a pre-existing condition is deferred pending radiologic review of the spinal imaging studies to date.

A neuroradiologist reviewed MRIs and CT scans taken between 2006 and 2011. On September 27, 2012, the specialist summarized his interpretation of the tests as follows:

Overall, between the report from 2004 and the examination from 2011, there have been significant interval changes most notably improvement in the disc herniations at the L3-L4 and L4-L5 levels first identified in 2004.

There are worsening disc degenerative changes throughout the lumbar spine at virtually all imaged levels between 2004 and 2011.

There is progressive development of a disc herniation at the L2-L3 level between 2004 and 2011 with worsening central spinal stenosis at the L2-L3 level.

On November 9, 2012, a WCB medical advisor reviewed the file and stated:

It is probable that aggravation in relation to the 2005 workplace injury has since resolved. This conclusion is substantiated by a combination of the following factors:

· A material tissue lesion in relation to the workplace injury has not been objectively identified either on clinical grounds or on the basis of serial spine imaging.

· Serial spine imaging has demonstrated the presence of progressive degenerative changes. It is considerably more likely that these changes account for reported ongoing difficulties rather than ascribing these difficulties to the influence of the 2005 workplace injury.

· A very detailed physical examination was undertaken by a WCB Physical Medicine consultant on November 29, 2011. This medical consultant was not able to identify objective evidence of a tissue lesion that would be ascribable to the 2005 work place injury.

· The natural history of the diagnosis in this case would include resolution by this time. It is now over seven years post injury and one would anticipate the considerable probability of complete resolution of the tissue effects of the workplace injury by this time.

On December 6, 2012, primary adjudication determined that the worker had recovered from the effects of his August 15, 2005 compensable low back injury and that he was not entitled to wage loss or medical aid benefits beyond January 24, 2013. The case manager's opinion was based on the above file information that the worker's ongoing back symptoms were more likely related to his pre-existing condition of severe disc degeneration.

On February 5, 2013, the Worker Advisor Office submitted to Review Office that the worker had not recovered from his 2005 compensable injury and his current low back condition was causally related. In support of their position, reference was made to the following comments made by the worker's treating physician dated December 13, 2012:

It is my understanding that you indicated that material tissue lesion in relationship to the work place injury has not been objectively identified on clinical grounds.

This material kind of injury is not possible to detect on clinical grounds as it is more of a molecular and cellular injury which is not easily delineated on any kind of imaging process. Simply the sensitivity of our tests are limited and cannot go beyond a certain threshold for detection.

I agree that the medical consultant would not be able to objectively assess a material injury.

I disagree that the work place injury from 2005 has resolved. This is probably/possibly an impossible statement as it does not truly identify how this could be determined without detection methods.

I do not believe that the natural history of the injury in 2005 diagnosis (sic) would include resolution by this time.

There have been cells that have been damaged and destroyed and probably the cellular reserve for the spine at the cellular level is probably very marginal based upon this workplace job description, the injury in 2005 and pressure and physical forces on the back over the years.

I do not agree that in all probability complete resolution of the tissue effect would have taken place as the quantitative cell support and infrastructure was damaged at that time and probably will never be repaired completely.

On December 18, 2012, the WCB medical advisor stated that no change would be made to his medical opinion outlined on November 9, 2012. He felt that the treating physician's submissions regarding mechanisms to account for ongoing physiologic effect of the workplace injury were speculative rather than probable.

On March 20, 2013, the worker's case was considered by Review Office and it was determined that the worker was not entitled to medical aid or wage loss benefits beyond January 24, 2013. In coming to its decision, Review Office agreed with the WCB senior medical advisor's opinion that the worker had a pre-existing condition involving his back prior to the workplace accident in 2005, that this affected multiple levels of his spine and that the file did not substantiate an ongoing L4 radiculopathy stemming from the August 15, 2005 injury. Reference was also made to the neuroradiologist's findings that the previously identified right posterolateral disc herniation had virtually completely resolved and there was no focal compression of the L4 nerve roots.

Review Office concluded that there was more file evidence to support that the worker's ongoing back difficulties are no longer related to the compensable injury sustained on August 15, 2005. It found that the worker's pre-existing back condition was aggravated initially and that this had resolved. On March 26, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Prior to the hearing, the worker submitted a report from an occupational health physician dated September 4, 2013. The report concluded:

By my assessment, [the worker] does have multi-level degenerative disc disease, and in particular at L2-L3 level a left L3 nerve root compression that has undergone significant progression in the interval changes since 2004. This is likely associated with his recurrent exacerbation of left sided back pain with leg symptoms. He does have reduced lumbar, and significantly, thoracic range of motion. I do not have previous examination results to compare with. I suspect these deficits are longstanding. I understand that while he has WCB permanent restrictions, he never underwent a partial permanent impairment award.

His multi-level degenerative disc disease did predate the 2005 injury; given his work history, cumulative work related exertions have contributed significantly to the development and progression of his lumbar degeneration. Since the 2005 injury in particular he has recovered to the level of function he had before, with ongoing symptoms that have precluded his ability to find alternate employment and manage everyday activities. There has been further degeneration of the lumbar spine, particularly at L3-L4 with a more symmetrical pattern of back and leg symptoms. While there is no new diagnosis, there has been significant enhancement of his pre-existing lumbar degeneration with ongoing back restrictions and greater symptom intensity and poorer activity tolerance which remains WCB's responsibility.

On September 19, 2013, a hearing before an appeal panel was held.

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 accompanied by his spouse at the hearing. The worker submitted that the reason why he felt he should be receiving benefits was that his back was still the same as it was and even though the WCB doctors said he was healed, his doctor said that he was not. An occupational health physician he consulted told him that the WCB had not dealt with him properly and that they ought to be accepting responsibility for his condition. The worker stated that it was his understanding that as a result of his previous successful appeal to the Appeal Commission, the WCB was supposed to find him a different occupation because he could no longer work in his identified NOC as a service writer. The worker indicated that after the last appeal, the WCB told him that they were reviewing his case and that they were sending him to a doctor. He then heard nothing for eight months until they contacted him and told him that they made the decision that he was cut off. The WCB said that as far as they were concerned, the worker was healed and that was the end of his claim. The worker disagreed with this as his back was no good and he could not return to his pre-accident work as a diesel mechanic.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits beyond January 24, 2013. In order for the worker’s appeal to be successful, the panel must find that after that date, the worker continued to suffer from the effects of his compensable injuries. On a balance of probabilities, we are not able to make that finding.

The panel does not doubt the worker's evidence that his back is symptomatic and that he experiences sharp pain in the low back and numbness and tingling down his legs (sometimes on the left and sometimes on the right, depending on what he is doing). We find, however, on a balance of probabilities, that these symptoms are more likely attributable to the natural progression of degenerative changes than to the right L4 radiculopathy the worker suffered in the workplace accident of August 15, 2005. In coming to this conclusion, the panel relied on the following:

• The WCB senior medical advisor's August 31, 2012 opinion that pre-existing factors have likely materially affected the worker's low back condition to date and that the medical information on file does not substantiate an ongoing L4 radiculopathy stemming from the August 15, 2005 injury;
• The September 27, 2012 review by an external neuroradiologist which noted improvement between 2004 to 2011 in the disc herniations at the L3-L4 and L4-L5 levels, and worsening disc degenerative changes throughout the lumbar spine at virtually all imaged levels between 2004 and 2011;
• The WCB medical advisor's November 9, 2012 opinion that medical evidence of enhancement occurring in relation to the 2005 workplace injury was not found and that it was probable that the aggravation in relation to the 2005 injury had since resolved; and
• The occupational health physician's conclusion that since the 2005 injury the worker has recovered to the level of function that he had before and that he currently has multi-level degenerative disc disease, in particular at the L2-L3 level.

The panel notes that our jurisdiction in this appeal is limited to considering the effects of the acute injury the worker suffered in the workplace accident of August 15, 2005. The long term effects of working as a diesel mechanic for many years has not been previously considered by the WCB and is not before us. Accordingly, the opinions of the worker's family physician and the occupational health physician regarding the cumulative effects of the worker's employment history are minimally relevant for the purposes of this appeal.

We therefore find that the worker is not entitled to wage loss and medical aid benefits beyond January 24, 2013 in relation to the right L4 radiculopathy injury he suffered in the workplace accident of August 15, 2005. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 6th day of November, 2013