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 L4-L5 disc injury was not related to his 2011 compensable accident. A hearing was held on February 19, 2014 via teleconference to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's L4-L5 disc injury in relation to the August 15, 2011 compensable accident.

Decision

That responsibility should not be accepted for the worker's L4-L5 disc injury in relation to the August 15, 2011 compensable accident.

Decision: Unanimous

Background

On August 15, 2011, the worker injured his low back when a dolly kicked out as he was setting down an air conditioning unit.

When seen for medical treatment on August 15, 2011, the treating physician noted that the worker had moved a 400 pound air conditioning unit when he pulled his low back. The worker initially had tingling and numbness going up and down his back and into his legs but now he only had back pain and pain radiating to his left leg. The examination revealed tenderness over the paraspinal muscles to the left of his lower thoracic and upper lumbosacral spine. Range of movement was greatly reduced and the worker was not able to completely straighten his left leg. There was no acute neurological fall out noted in the legs. The diagnosis was a back strain and an x-ray of the lumbosacral and thoracic spines was ordered.

X-rays of the thoracic spine dated August 15, 2011 revealed a long gentle thoracic scoliosis convex to the left. The thoracic vertebrae appeared intact and the discs appeared normal. There was no paravertebral soft tissue swelling. The lumbosacral spine showed mild to moderate disc narrowing at the L5-S1 disc. The remaining discs were normal. The posterior alignment was anatomic and the sacroiliac joints were clear.

On August 23, 2011, the worker was assessed with "L5-S1 disc lesions, radicular sciatic pain" by his treating physiotherapist.

In September and October 2011, the treating physician reported that the worker had a bulge and tenderness around the L3-L4 area and an MRI assessment was arranged.

On December 22, 2011, the worker underwent an MRI of his lumbar spine. The results showed mild disc bulging at L4-L5 which was in contact with the traversing L5 neve roots bilaterally. The neural foramina remained normal in size. At L5-S1, there was a broad-based, small to medium sized, left posterolateral disc protrusion which was in contact with the left S1 nerve root which was slightly posteriorly displaced. The L5-S1 foramina remained adequate in size. The impression was: "Broad-based left posterolateral disc protrusion at L5-S1. Mild disc bulging at L4-L5."

On December 30, 2011, the treating physician reported that the worker was being referred to an orthopaedic surgeon with respect to the disc lesions found on the MRI assessment.

The worker's file was reviewed by a WCB medical advisor on March 29, 2012, at the request of the case manager. The medical advisor outlined the following opinions:

• the initial diagnosis was a low back strain with left-sided sciatic irritation.
• gradual recovery would take over 2 to 3 months.
• the current diagnosis was low back strain and possible left S1 radiculopathy.
• the disc protrusion at the L5-S1 level was pre-existing as it was documented in 2004 on CT scan and was probably contributing to a delay in recovery from the more recent workplace injury.

In May 2012, an orthopaedic surgeon reported that the worker had a sequestrated disc herniation at L5-S1 which explained his left-sided leg pain. On May 18, 2012, an L5-S1 laminectomy and discectomy was carried out. Following surgery, the worker attended physiotherapy treatments and eventually returned to full time regular duties by January 30, 2013.

In a consultation report to the family physician dated May 21, 2013, the treating orthopaedic surgeon reported that the worker was doing well until about a month ago when he suddenly developed severe pain when bending forward to lift up a toy.

An MRI assessment was carried out on May 23, 2013 and the findings showed a small left posterolateral disc protrusion at L4-L5. Epidural fibrosis was suspected around the traversing left S1 nerve root.

In a decision dated May 30, 2013, the worker was advised that the WCB was unable to accept responsibility for his low back difficulties which began in April 2013 or that his back condition was related to his compensable injury of August 15, 2011. The decision was based on the opinion expressed by a WCB orthopaedic consultant dated May 29, 2013 that there was no recurrent disc protrusion at the L5-S1 level and that the disc protrusion at L4-L5 was not the result of the workplace injury of August 15, 2011.

On June 25, 2013, the treating surgeon outlined his opinion that the L4-L5 injury that was presently causing the worker's back and leg pain was related to his compensable injury of August 2011.

In a memo dated June 27, 2013, the WCB orthopaedic consultant referred to the surgeon's letter of June 25, 2013 which stated that the treatment plan was for L4-5 disc excision and L4-S1 fusion; that the x-rays of 2009 showed no L4-5 injury and that the L4-5 disc lesion was the result of the workplace injury. The WCB consultant stated:

1. Plain x-rays do not generally demonstrate disc herniations. In my opinion, the L4-5 disc protrusion was the result of the natural history of degenerative disc disease (DDD). It is unlikely that a single episode of trauma would cause two traumatic disc protrusions, and the symptoms following the workplace injury were consistent with S1 nerve root involvement by the L5-S1 disc protrusion.
2. Current symptoms are in part caused by S1 nerve root epidural fibrosis. The recommended treatment for this complication of the WCB-approved surgery would be fusion at L5-S1 with accompanying decompression of the nerve root. This is part of the surgery currently recommended by the attending O/S, in addition to treatment of the non-compensable L4-5 disc lesion.

On July 4, 2013, the WCB advised the worker that it was still of the position that his L4-L5 disc protrusion was not related to his compensable accident. The worker disagreed and an appeal was filed with Review Office.

On September 19, 2013, Review Office outlined rationale to support its position that there was insufficient evidence to support a causal relationship between the diagnosis of a disc protrusion at L4-L5 and the worker's August 15, 2011 compensable injury. On November 30, 2013, the worker appealed Review Office's decision to the Appeal Commission and an oral 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.

The worker has an accepted claim for an injury to his back. He is appealing the WCB determination that his L4-L5 disc injury is not related to his August 15, 2011 workplace accident.

Worker's Position

The worker was self-represented. He submitted that his L4-L5 disc injury is related to his 2011 workplace accident. He said that he did not have an L4-L5 injury prior to 2011 and that the scans and tests show that he did not have this until 2011.

The worker disagreed with the opinion of the WCB medical advisor who found that the L4-L5 disc injury is unrelated. He noted that the WCB medical advisor has never examined him. He said that his treating orthopaedic surgeon never mentioned a degenerative condition.

The worker agreed with the job duties described by the accident employer. He noted that on most jobs there was a second worker who would assist with heavy lifting.

He advised that in February 2013 he found work with a different employer. The work was similar but with more service work.

Regarding the two non-work incidents, he said the first incident was in 2009 and involved tripping over a dog. He missed a couple days of work as a result. The most recent incident, on May 21, 2013, involved bending down to pick up his son's toy car. He said he felt a sharp pain and that it was the same as he felt when he previously injured his back.

The worker said that at this time his back is "horrible." He said that he is waiting for the WCB to approve physiotherapy.

Employer's Position

The employer was represented by its Office Administrator. The employer representative advised that the employer agrees with the WCB decision that the worker's L4-L5 injury is not related to his workplace injury. She noted that the worker had prior back claims and that it was not reasonable to attribute all the worker's problems to the 2011 claim. She questioned whether the worker's claim ought to be treated as a cumulative claim.

The representative noted that the worker returned to regular duties but the return was gradual over 3 months. She described his duties as a HVAC tech. She said they included climbing ladders, carrying a tool pouch which could weigh up to 50 pounds, moving equipment which could weigh more than 50 pounds, and moving air conditioning units and hot water tanks. She said they had tools to assist with moving equipment and also that additional help was provided for heavy jobs.

Analysis

The issue under appeal is whether responsibility should be accepted for the worker's L4-L5 disc injury in relation to his August 15, 2011 workplace accident. For the worker's appeal to be successful, the panel must find that the worker injured his L4-L5 disc in the August 15, 2011 workplace accident. After considering all the evidence, including the worker's claim file and the evidence provided at the hearing, the panel was not able to find that the worker's L4-L5 disc injury is related to his August 15, 2011 workplace accident.

In reaching this decision, the panel places significant weight on the medical treatment provided to the worker subsequent to his 2011 work injury. A review of the medical treatments shows that it was aimed at the symptoms related to the L5-S1 even though the L4-L5 disc protrusion was noted:

• August 31, 2011 report from treating physiotherapist indicates the worker has "L5-S1 disc lesions, radicular sciatic pain".

• December 30, 2011 report from family physician notes the worker "is still experiencing significant symptoms on the L5-S1 left sided nerve distribution area with tingling, numbness, shooting pain, severe pain radiating from his lower back into the lateral gluteal area, left lateral thigh and into the lower leg into the ankle area."

• March 29, 2012 opinion from WCB medical advisor that the current diagnosis was "low back strain and possible left S1 radiculopathy." The medical advisor commented that "the disc protrusion at the L5-S1 level is pre-existing (as it was documented in 2004 CT scan) and is probably contributing to a delay in recovery from the more recent workplace injury."

• June 6, 2012 memo from WCB orthopaedic consultant indicating that surgery for L5-S1 excision was authorized by WCB, post-op reports indicate continuing S1 nerve root deficit, and MRI demonstrated degenerative lumbar disc disease which would be a pre-existing condition.

• August 29, 2012 report from orthopaedic specialist that "On examination the patient certainly has some hyperesthesia in the L5 dermatome."

The panel notes that the WCB accepted responsibility for the L5-S1 laminectomy which the worker underwent on May 18, 2012. The worker returned to work in November 2012 to his regular duties on a graduated basis and by late January 2013 he returned to full time hours. He started working for another employer in February 2013.

The worker reported that on May 21, 2013, he experienced severe pain when he bent over to pick up a child's toy. An MRI scan performed on May 23, 2013 after this incident shows that "at L4-L5 there is a small broad-based left posterolateral disc protrusion which is in contact with the traversing left L5 nerve root. The left side of the thecal sac is slightly indented. Disc findings at this level are more clearly left-sided than on the previous exam. The neural foramina remain normal in size."

The panel finds that it is most likely that the incident at home caused the worsening of the pre-existing L4-L5 disc injury. The panel relies upon the May 29, 2013 opinion of the WCB orthopaedic consultant that:

"The report of the MRI dated 23-May-2013 is now on file and had been compared with the report dated December 2011. In the interval between the MRI's, a left sided laminotomy was carried out for excision of the protruded L5-S1 disc, the surgery funded by WCB. The current clinical findings are explained by a combination of a) Epidural fibrosis around the left S1 nerve root at the site of surgery, and b) Increased left sided protrusion of previously noted L4-L5 disc protrusion.

There is no recurrent disc protrusion at L5-S1 level, but the epidural fibrosis is considered to be a post-operative complication. The sudden onset of increased low back pain, when bending to pick up a toy, is explained by increased disc protrusion at L4-L5. The disc protrusion at L4-L5 is not considered to be the result of the workplace injury."

In a further memo dated June 12, 2013, the WCB orthopaedic consultant addressed the question of the relationship between the workplace accident and the L4-L5 disc protrusion. He opined that "the L4-L5 disc protrusion was the result of the natural history of degenerative disc disease ("DDD"). It is unlikely that a single episode of trauma would cause two traumatic disc protrusions, and the symptoms following the workplace injury were consistent with S1 nerve root involvement by the L5-S1 disc protrusion."

The panel finds that the worker's L4-L5 disc injury is not related to his August 15, 2011 workplace accident. 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 17th day of March, 2014