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 workplace accident by July 23, 2012. A hearing was held on December 2, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond July 23, 2012.

Decision

That the worker is not entitled to benefits beyond July 23, 2012.

Decision: Unanimous

Background

The worker suffered an injury to her low back on June 20, 2011 while bathing a client. A doctor's first report dated June 22, 2011 diagnosed the worker with a muscle spasm to the low back and inflammation of the sacroiliac joint. On June 21, 2011, the treating chiropractor reported that the worker had degeneration at L4-L5 and L5-S1 levels. The worker's claim for compensation was accepted based on the diagnosis of low back strain and benefits and services were paid.

By July 2011, the worker was cleared to return to work at reduced hours by her treating physician and chiropractor.

On October 19, 2011 the worker returned to work but left after 2.5 hours. The worker advised the WCB that she would not be participating in the return to work until her back had recovered.

In a decision dated October 21, 2011, a WCB adjudicator noted that there was no new medical information to support that the worker was unable to participate in the return to work program. The worker was therefore advised that effective October 26, 2011 no further wage loss benefits would be paid.

Subsequent records showed that the worker sought treatment for her back condition and that the WCB obtained up-to-date medical information in this regards. On February 29, 2012, a WCB medical advisor reviewed the file and noted:

• the treating physician's reports never indicated any evidence of radicular pain. There was evidence, however, that there was right-sided low back pain radiating into the buttocks. A report from a hospital emergency facility on October 19, 2011 indicated that the worker complained of pain in the low back radiating to the right leg.
• the listed medical reports and the current CT scan findings support a diagnosis of radicular pain associated with her low back injury.

The WCB reinstated the worker's wage loss benefits based on the fact that her ongoing medical problems were related to her original compensable injury.

On May 15, 2012, the worker was seen by a neurosurgeon who noted that the submitted CT scan of the lumbosacral spine showed evidence of osteoarthritic degeneration at the zygapophyseal joints at multiple levels. At the L4-L5 level, there was some additional hypertrophy of the yellow ligaments and broad-based bulging of the disc. The combined result was a mild to moderate stenosis of this segment. The neurosurgeon also felt that the clinical presentation was suggestive of some mechanical low back pain and he could not detect any obvious signs of radiculopathy. Recommendations were made to continue with physiotherapy with the goal of stabilizing/reconditioning the lumbosacral segment.

On May 30, 2012, a WCB medical advisor commented that the degenerative findings in the worker's spine had caused a significant delay in her recovery. He noted that the initial diagnosis was a low back strain and that the natural recovery for this condition was 6 to 8 weeks. On May 30, 2012, the WCB case manager noted to the file that he spoke to the WCB medical advisor who confirmed that the worker suffered from a back strain in the environment of pre-existing degenerative disc disease.

In a report dated May 30, 2012, an orthopaedic surgeon noted that the worker was returning for a facet block at L4-5 and L5-S1 and that the worker could return to work. On June 6, 2012, a WCB medical advisor indicated that the proposed injection was not related to the compensable injury and there was no change to the previous WCB medical opinion with return to work recommendations.

On June 7, 2012, the WCB case manager contacted the worker by phone to advise her of the WCB's opinion that following a 6 week return to work plan for reconditioning purposes that her compensable injury would have resolved.

On June 13, 2012, the WCB case manager provided the worker with details of her return to work program along with her work restrictions. It was confirmed to the worker that following the graduated return to work program she would have recovered from her initial workplace injury. The worker was advised that the WCB would pay wage loss benefits for a six week period from June 12 to July 23, 2012 inclusive and final.

On July 26, 2012, a WCB medical advisor commented that the present information from the MRI completed on July 18, 2012, confirms the environment of degenerative disc disease at T12-L1 and also the lower lumbar region. There was no evidence to support any residual injury related to the worker's back strain. Based on the compensable injury diagnosis, the worker had recovered from any effects of the compensable injury and any residual complaints were related to her pre-existing condition.

Based on an appeal submitted by the worker in July 2012, Review Office determined on August 7, 2012, that the worker was not entitled to benefits beyond July 23, 2012. Review Office referred to the following evidence to support its finding that the worker had recovered from the effects of her June 2011 accident by July 24, 2012:

• the worker had a long history of back complaints.
• the worker had a CT scan of the lumbosacral spine in 1999 due to "low back pain radiation to right hip and knee." Degenerative changes were found and the study predated any of the worker's compensable accidents.
• the imaging studies show progressively worsening degenerative changes of the worker's lumbosacral spine.
• the MRI findings found no disc protrusion or herniation and no nerve root compression or displacement.
• the findings of the neurosurgeon outlined on May 15, 2012 that the clinical presentation was suggestive of some mechanical low back pain and he could not detect signs of radiculopathy.
• the May 30, 2012 orthopaedic surgeon's comment that "I have also suggested a return to work program."

On September 19, 2013, the worker appealed Review Office's decision 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. Relevant provisions of the Act include:

• ss. 4(1) provides that 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.

• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

• ss. 39(2) 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.

• ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

The worker has an accepted claim for a workplace injury. She received benefits until July 23, 2012 and is asking the Appeal Commission to find that she is entitled to wage loss benefits after this date.

Worker's Position

The worker was self-represented. She read her submission to the panel and answered questions asked by the panel.

The worker explained that she is a home care worker and that her duties are very broad, and include providing personal care to clients at their homes such as assisting with dressing, hygiene, bathing, shaving, mouth care, skin care, nail care, peri care, hair care, eye drops, eardrops, applying ointments, assisting with transfers and positioning. The work included the use of mobility aids, mechanical lifts, making food, ensuring medication is taken, toileting or bedpans, urine bags or urinals and commodes, changing incontinent pads, taking garbage out, sweeping and washing dishes.

The worker told the panel she believes her current inability to work is due to the workplace injury. She said she injured her back on June 20, 2011 while giving a large patient a bath. She said the pain she felt that day was different than the back pain she had previously experienced. She said "I had lightning strikes with certain movement."

The worker advised that months went by with her being treated according to an old CT scan from 2007 where she had a muscle strain injury. She said that her family physician didn't do much except for pain medication and provide notes for work. She got frustrated and looked for a second opinion at a sports injury clinic. Only then did she feel her injury got a more thorough examination.

She ultimately had a new CT and was advised by her family physician that she had "a slipped disc and a tear in a disc and bulging disc. This contacts the right L5 nerve root and through all this I am suffering to this day and pain hasn't gone away yet." She noted that her family physician sent a letter to WCB on December 28, 2011 supporting her position that she had a disc herniation.

The worker noted that her benefits were reinstated, only to be discontinued by the WCB. She said that her current difficulties are the result of her workplace injury.

Employer's Position

The employer was represented by an advocate. The employer representative noted that the medical evidence indicates the worker sustained a fairly minor back sprain/strain injury as a result of her work duties. He noted that it appeared that the accepted accident was simply an aggravation of her pre-existing conditions and that the medical evidence indicated that she recovered from the acute aggravation phase of her pre-existing back condition.

He submitted that "Based on the compensable injury diagnosis and on a balance of probability, the worker has recovered from any effect of the compensable injury. Any residual complaints are related to her preX condition."

Analysis

The issue before the panel is whether the worker is entitled to benefits beyond July 23, 2012. For the worker's appeal to be accepted the panel must find, on a balance of probabilities, that the worker's inability to work after July 23, 2012 is due to her compensable workplace injury. The panel was not able to make this finding.

The worker told the panel that her condition had been misdiagnosed, and that she suffered from a nerve injury which prevented her from returning to work. She relied upon a November 2011 CT scan to support his position.

In addressing this appeal the panel notes the worker has a long history of back difficulties prior to the June 2011 injury, including 3 workplace injury claims. Because of her back difficulties the worker had 2 CTs and an MRI of her lumbar spine between 2007 and 2012:

· CT scan on November 20, 2007 noted an Impression of a "shallow focal disc herniation noted posteriorly at the L4-L5 level. Moderately advanced degenerative changes involve apophyseal joints as well at the L4-L5 level."

· CT scan on November 22, 2011 findings included "At L4-L5 a right sided paracentral disc protrusion is present. This contacts the right L5 nerve root. No significant central spinal stenosis is present. Apophyseal degenerative joint changes are evident."

· MRI on July 18, 2012 findings included "At L5-S1 there is a shallow disc prominence with a right paracentral annular tear. This lies adjacent to the right S1 nerve root however the right S1 nerve root is not displaced or compressed." The noted Impression is degenerative changes involving the thoracolumbar junction and lower lumbar spine.

The panel finds that these reports do not support the worker's position that she has a nerve injury related to her June 21, 2011 workplace injury.

The panel also notes that the worker was seen by a neurosurgeon on May 15, 2012. The neurosurgeon reviewed the recent CT scan and examined the worker. He opined that the worker's presentation is suggestive of some mechanical low back pain. He was not able to detect any signs of radiculopathy. He recommended physiotherapy. The panel finds that the neurosurgeon's opinion does not support the worker's position that she has a nerve injury.

The worker was also seen by an orthopaedic surgeon on May 30, 2012. The orthopaedic surgeon examined the worker. He reported that the neurological examination shows no motor or sensory deficit at this stage. He recommended facet blocks and suggested a return to work program. The panel finds that this examination does not confirm the worker's position.

Finally, the panel notes that the worker's file was reviewed on several occasions by a WCB medical advisor. The medical advisor has expressed different opinions on the worker's condition from time to time. However, his most recent opinion, provided subsequent to the July 2012 MRI scan, is that the worker had a back strain. He noted that the MRI confirms the environment of DDD (degenerative disc disease) at the T12-L1 and in the lower lumbar region. He opines there is no evidence to support any residual injury related to the back strain. He concludes that on a balance of probabilities, the worker has recovered from the effects of the compensable injury and that any residual complaints are related to her pre-existing condition.

The panel finds, based on the above evidence and on a balance of probabilities, that the worker's stated inability to work is not related to her June 2011 workplace injury and that any loss of earning capacity after July 23, 2012 is not related to her workplace injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of December, 2013