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 are not related to his compensable low back injury. A hearing was held on February 6, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits beyond April 2, 2012.

Decision

That the worker is not entitled to further benefits beyond April 2, 2012.

Decision: Unanimous

Background

On May 20, 2011, the worker injured his low back region from lifting heavy weights during the course of his employment as a courier driver. His claim for compensation was accepted based on the diagnosis of a low back strain and benefits and services were paid. In July/August 2011, the worker commenced a graduated return to work performing alternate duties with restrictions. In November 2011, the worker was terminated from employment for reasons unrelated to his compensable injury.

On November 29, 2011, the worker was seen by a WCB medical advisor at a call-in examination and an MRI assessment was recommended. On December 16, 2011, the worker underwent an MRI of his lumbar spine which showed the following:

The L5-S1 level demonstrates a moderate central and left paracentral disc protrusion. This contacts and results in slight posterior displacement of the left S1 root. The central canal and foramina are well maintained. IMPRESSION: Left L5-S1 paracentral disc protrusion affecting the left S1 root.

On December 27, 2011, the WCB medical advisor who examined the worker on November 29, 2011 provided the following medical opinions to the WCB case manager:

• The current diagnosis was disc protrusion affecting the left S1 root.
• The current reported MRI findings were compatible with the described workplace injury.
• There were no changes to workplace restrictions.
• Await outcome of the neurosurgical referral.

In his report dated February 1, 2012, the treating neurosurgeon outlined his examination findings and stated that the clinical presentation suggested some mechanical low back pain. He could not detect any obvious signs of an ongoing left-sided radiculopathy and he did not think that the disc herniation seen on MRI had surgical relevance. It was recommended that the worker pursue an intense regular physiotherapy program with the goal of stabilizing the lumbosacral segment.

The WCB then arranged for the worker to undergo a four week daily work hardening program with the goal of returning him back to full regular work duties.

By letter dated March 14, 2012, the worker was advised that he would be paid full wage loss benefits while attending the work hardening program which would run from March 12, 2012 to April 5, 2012. At the end of the work hardening program, his benefits would end as he would be considered capable of returning to his full regular duties.

In the work hardening discharge report dated April 5, 2012, it was indicated that the worker demonstrated the ability to work as a courier driver handling medium level loads.

A doctor progress report dated April 18, 2012 indicated that the worker had pain and stiffness with bending and turning and that physiotherapy did not help much. The worker had stiffness and tightness in his calves and thighs and stiffness in his back. Forward flexion was 90 degrees, extension was full and lateral flexion was full. The worker had normal rotation. The physician indicated that the worker could return to regular duties over the next two to three weeks.

The worker next contacted the WCB on July 23, 2013 stating that he had never recovered from his compensable injury and that he was still experiencing back pain and discomfort. On August 6, 2013, the worker advised the WCB that he was seeking reinstatement of WCB benefits, back pay and a buyout.

The WCB received a copy of MRI results of the worker's lumbar spine dated May 7, 2013 which outlined the following findings:

Small diffuse disc herniation at L5-S1 without significant thecal sac compression/nerve root impingement.

Posterior facetal degenerative changes at L4-L5 and L5-S1 levels.

On August 9, 2013, a WCB case manager advised the worker that the May 7, 2013 MRI results were reviewed along with other file information and that the WCB would not be reinstating his benefits. On August 14, 2013 the worker appealed the decision to Review Office.

On October 9, 2013, Review Office determined that the worker was not entitled to benefits beyond April 2, 2012 as it was unable to find a causal relationship between the worker's current back complaints and his compensable injury. Review Office's decision was based on its review of all the medical reports on file which included the findings of the treating physician and neurosurgeon, the WCB medical advisor, the neurosurgeon's findings, the MRI results of December 16, 2011 and May 7, 2013 and its review of the work hardening program discharge report. On November 1, 2013, the worker disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.

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.

Worker’s Position

The worker was self-represented at the hearing. The worker stressed that he was not faking or exaggerating his pain and difficulties which he felt were a direct result of his workplace injury. It was submitted that it was nonsense to say that his back problems were the result of pre-existing degenerative changes and not the herniated L5-S1 disc which was still evidenced in the May 7, 2013 MRI. The worker felt that the WCB did the exact opposite of what the treating neurosurgeon had suggested; that is, instead of putting the worker into a regular intense physiotherapy program, the WCB put him in a one-month hardening program which the worker had difficulty completing. The WCB had predetermined that they would terminate his benefits at the end of the hardening program, without any provision for a physical examination to determine how his back and body responded to the program or assessment as to whether or not the program was successful, which the worker stated it was not. The worker objected to the WCB's conclusion that the degenerative issues evidenced in the May 7, 2013 MRI were pre-existing. He noted that the December 16, 2011 MRI showed no evidence of any degenerative issues and actually showed that the L2-3, L3-4 and L4-5 levels of the lumbar spine were all well-maintained.

Overall, the worker submitted that there was no pre-existing condition in his lower back area or an intervening event since the work-related injury where his L5-S1 disc became herniated and caused a nerve root impingement. The worker felt that the WCB may have compromised the potential to completely avoid a surgical procedure by not giving him the means or method to partake in a regular intense physiotherapy program, as suggested by the neurosurgeon. He asked that his benefits be reinstated effective April 2, 2012 in the neighborhood of $700 per week. He reiterated that he did not have a pre-existing condition and was asymptomatic before the workplace injury, with no intervening event after the workplace injury.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits beyond April 2, 2012. In order for the worker’s appeal to be successful, the panel must find that at that time, the worker continued to suffer from the effects of his workplace injuries. We are not able to make that finding.

In the panel's opinion, the evidence supports the finding that by April 2, 2012, the worker had recovered from his compensable low back strain. In coming to this conclusion, the panel relied on the following:

• The worker relies heavily on the December 16, 2011 and May 7, 2013 MRI reports which indicate there is a disc herniation and nerve root impingement at L5-S1. He believes that this herniation is the cause of his ongoing pain. The difficulty with this submission is that the type of pain which is associated with a disc herniation and nerve root impingement, that is, a radiculopathy, has not been identified by the medical practitioners who have examined the worker.
• A nerve root impingement which causes a radiculopathy will normally show up as pain/ numbness in the leg and foot, or a shooting sciatic pain down the back of the leg. The medical reports do not report any such symptoms and the worker's evidence at the hearing was that his pain was mostly experienced when sitting for any significant length of time.
• The report of the family doctor dated June 15, 2011 indicated tenderness around the lumbosacral region, but no focal neurological defects. The family doctor's assessment was mechanical injury of the lower back.
• The call-in examination performed by the WCB medical advisor also indicated no evidence of radiculopathy.
• The neurosurgeon's assessment of February 1, 2012 did not detect any obvious signs of radiculopathy and he felt that the disc herniation seen on MRI had no surgical relevance at the time. The neurosurgeon opined that the clinical presentation suggested some mechanical low back pain.

Based on the aforementioned medical reports, the panel finds that the worker's compensable injury was limited to a mechanical low back strain. The neurosurgeon recommended an intense regular physiotherapy program with the goal of stabilizing the lumbosacral segment and the panel is of the view that the four week work hardening program was in keeping with this recommendation. In the April 5, 2012 discharge report, the physiotherapist and occupational therapist with the program indicated that the worker achieved results which would enable him to work as a courier handling weights in the Medium category (20-50 lbs). The therapists also opined that it may have been possible for the worker to further increase his strength but that his improvements while in the work hardening program were limited by his poor attendance and less than full participation while present.

Overall, the panel is satisfied that the worker experienced sufficient recovery from his compensable injury such that he could have returned to his pre-accident work as a courier. With further dedication to home exercises and stretching on his own, the worker could have improved even more. The panel feels that the worker no longer had any loss of earning capacity and we therefore find that he is not entitled to further benefits beyond April 2, 2012. 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 21st day of March, 2014