The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was insufficient evidence to support that his current difficulties were related to his compensable injury and therefore he was not entitled to wage loss benefits after May 21, 2013. A hearing was held on June 26, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after May 21, 2013.

Decision

That the worker is not entitled to wage loss benefits after May 21, 2013.

Decision: Unanimous

Background

On December 12, 2011, the worker filed a claim with the WCB for injury to his low back and both hips that occurred on October 17, 2011 when he twisted the wrong way while working underneath a bus. Following the accident, the worker sought treatment from a chiropractor and a general practitioner and his claim for compensation was accepted based on the initial diagnosis of a lumbar strain/sprain injury and a possible disc injury.

On January 20, 2012, the worker underwent a CT scan of his lumbar spine. The results showed a mild disc bulge at L4-L5. Irritation of the exiting nerve roots was possible at both levels. Note was also made of various degenerative changes.

On June 12, 2012, the worker was seen by a WCB sports medicine advisor for an assessment of his medical condition. The examination findings showed that the worker had a positive left straight leg raise in the supine position at 45 degrees associated with lumbar pain radiating down the left lower extremity. There was also the presence of right ankle clonus and weakness of the left L3 to S1 myotomes. The medical advisor arranged for the worker to see a neurosurgeon regarding his ongoing symptoms and a lumbar MRI was also arranged.

On June 26, 2012, the worker was seen by a neurosurgeon who reported that the clinical presentation suggested some mechanical back pain. The specialist reported that the pain extending into the worker's left lower extremity may be radiculopathic in nature but there were no convincing findings on the MRI aside from foraminal stenosis. The specialist stated that he would see the worker again once he received the new MRI results. He felt the worker should continue with conservative treatment.

An MRI of the worker's lumbosacral spine took place on September 19, 2012. At the L4-5 level, there was a minor disc bulge and mild facet arthrosis. There was no evidence of nerve root compromise or stenosis. There was facet arthrosis at L5-S1 but no evidence of nerve root compromise, stenosis or foraminal narrowing.

When seen by his treating physician on October 16, 2012, the worker was assessed with: "Persisting left L5 sciatica, likely related to some peripheral sciatic nerve irritation or damage."

On December 27, 2012, the worker was seen by a physical medicine and rehabilitation specialist who provided the following impression of the worker's condition: "There is no definitive clinical or electrophysiologic evidence to confirm a diagnosis of left-sided sciatic neuropathy or lumbosacral plexopathy, L3, L4, L5 or S1 radiculopathy, or a generalized polyneuropathy." It was felt that the worker had mechanical low back pain with a functional overlay presenting as left leg weakness.

When seen by his treating physician on February 21, 2013, the worker was assessed with chronic left sciatica at L5. The physician also stated that the worker remained disabled from work.

On April 11, 2013, the WCB's sports medicine advisor expressed the following opinions:

• the probable diagnosis was a lumbar strain and/or radicular features based on the reported mechanism of injury and the initial clinical findings.
• the current diagnosis appeared to be a nonspecific pain presentation in light of the December 27, 2012 neuromuscular specialist's findings.
• a medical relationship between the current non-specific pain presentation and the workplace injury could not be established.

By letter dated April 16, 2013, the worker was advised that the WCB was unable to accept further responsibility for his claim after April 23, 2013 based on the WCB medical opinion of April 11, 2013. On August 21, 2013, the worker appealed the decision to Review Office.

On October 22, 2013, Review Office concluded that the worker was entitled to wage loss benefits to May 21, 2013. Review Office referred to medical information to support that there was no diagnosis other than a lumbar strain which was provided by the treating practitioners and that the diagnostic test results did not provide a diagnosis to account for the worker's left lower extremity difficulties. There was insufficient evidence to support a causal relationship between the worker's current difficulties and the October 2011 compensable injury. Review Office also stated that a time limited four week reconditioning program or graduated return to work should have been provided to the worker given that he had been away from the workforce for 18 months. This entitled the worker to wage loss benefits for an additional four weeks up to May 21, 2013.

On February 18, 2014, the worker appealed the above decision to the Appeal Commission and submitted a report from his treating physician dated December 13, 2013. The worker stated that he was still seeing a physician on a regular basis and claimed that there was sufficient evidence to support a relationship between his current difficulties and the October 2011 injury.

Reasons

Applicable legislation and Policy:

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's Appeal of Claims Decision form indicated that he felt he should be entitled to wage loss benefits beyond May 21, 2013 because he was still seeing a physician on a regular basis and both he and his doctor believed that there was sufficient evidence to support a relationship between his current difficulties and the October 2011 injury. The worker relied on a report dated December 13, 2013 from his physician which provided a narrative of the worker's history and current condition, and stated that:

• He had been seeing the worker as his family physician on a regular basis since the work-related injury to his lumbosacral area on October 17, 2011.
• The worker had remained disabled from his regular employment since shortly after the injury.
• Clinically, the worker suffered an acute lumbosacral and left lumbar strain with the development of left sciatica shortly afterwards.
• The worker was last reassessed on November 26, 2013.
• Clinically, the worker has chronic degenerative lumbar disc and joint disease with chronic lumbosacral strain. This is associated with clinically chronic left sciatica mainly in the L5 distribution but also involving S1 and L4 with associated left leg moderate weakness, particularly on dorsiflexion with some chronic sensory deficits.
• These findings are new and developed shortly after his accident of October 17, 2011.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after May 21, 2013 were related to the injury he sustained in the workplace accident of October 17, 2011. We are not able to make that finding. On a balance of probabilities, we find that the worker's compensable injury was limited to a lumbar strain with radicular features and that this injury had resolved by May 21, 2013.

In coming to our decision, the panel relied on the following evidence:

• The injury was initially accepted in October 2011 as an acute lumbar strain with some radicular features involving sciatica down the left leg.
• The CT scan of January 20, 2012 suggested some possible irritation of exiting nerve roots at both the L4-L5 levels and the L5-S1 levels.
• By the time the worker was seen by a neurologist on June 26, 2012, there was some pain which the neurologist acknowledged could be radiculopathic, but the overall clinical presentation suggested mechanical back pain.
• By September 19, 2012, the MRI indicated no evidence of nerve root compromise. The panel notes that MRI imaging is considered to provide better visualization of the spinal cord than a CT scan.
• When seen by a physical medicine specialist in December 2012, the worker was considered to be suffering from mechanical low back pain with a functional overlay presenting as left leg weakness. There was no definitive clinical or electrophysiologic evidence to confirm a diagnosis of left-sided sciatic neuropathy or lumbosacral plexopathy, L3, L4, L5 or S1 radiculopathy, or a generalized polyneuropathy.
• On April 11, 2013 the WCB medical advisor reviewed the medical information and opined that the worker's diagnosis at that time was a nonspecific pain presentation and a medical relationship to the workplace injury could not be established.

In the absence of medical evidence to establish an ongoing injury, the panel is unable to find that the worker is entitled to further wage loss benefits. By May 21, 2013, according to electrophysiologic testing, the radiculopathic features of the worker's injury were no longer clinically present. The MRI showed no signs of any anatomical injury within the spinal cord. With respect to the acute lumbar strain, the panel finds that the strain injury would have resolved, given that approximately 19 months had passed by. The panel notes that both the MRI and CT scan identified pre-existing degenerative changes present in the worker's spine and we find on a balance of probabilities that these pre-existing degenerative changes were more likely the source of the worker's ongoing back complaints, rather than the lumbar strain injury suffered over a year and a half earlier.

The panel has considered the December 13, 2013 report from the family physician. We have also considered the comments made by the worker at the hearing that the neurologist only examined him very briefly (a four minute appointment) and that the physical medicine specialist only checked his nerve from the knee down to the toes, instead of at his back. We acknowledge the worker's concerns regarding the specialists' opinions, but note that the panel's understanding is that there are very specific neurological tests which are used to identify radicular symptoms, and while they may not make sense to laypersons, these are standard tests which are administered. The panel is satisfied that the specialists are well qualified in conducting the examinations to test for radiculopathy, and we accept their findings that there is no definitive clinical or electrophysiologic evidence to confirm an ongoing diagnosis. While the family physician referenced some remaining chronic left sciatica, his overall diagnosis primarily listed chronic degenerative lumbar disc and joint disease with chronic lumbosacral strain. We accept the family physician's assessment that chronic degenerative conditions are the cause of the worker's ongoing difficulties, but we do not accept that this degeneration is a continuation of the symptoms which developed after the accident of October 17, 2011.

Based on the foregoing, the panel finds that the worker's compensable work injury had resolved and he is not entitled to benefits beyond May 21, 2013. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 15th day of August, 2014