The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after October 11, 2007 with respect to his compensable injury. A hearing was held on November 18, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after October 11, 2007.

Decision

That the worker is not entitled to benefits after October 11, 2007.

Decision: Unanimous

Background

On August 24, 2006, the worker filed a claim with the WCB for a right hip injury that occurred on August 22, 2006 which he described as follows:

I was getting out of an ... ambulance and I strained my right hip. I was hunched over with my back to the ambulance and I was stepping down onto the first step of the ambulance with my right foot. As soon as I put my right foot on the step and started to take the weight of my body, I felt a sharp jab in my right hip. I finished off my day with minor discomfort.

The worker further advised the WCB that he returned to work for his shift the next day but with increasing discomfort. He said that he received an injection at the hospital so he was able to continue working. The worker noted that he suffered from a constant throbbing pain in the right hip and that certain movements created sharper jabbing pains. His range of motion was very limited as he could not squat or do any lateral movements with his leg. His hip felt slightly swollen and he was walking with a limp. He was unable to weight bear solely on the right side. The worker indicated that he was not taking any medication for the pain as he was going to see his doctor that afternoon.

On August 24, 2006, the family physician reported that the worker injured his right hip when he slipped when stepping out of an ambulance. The diagnosis was a sprain of the right hip muscles. The physician also stated that the worker had longstanding back pain.

File records showed that at the time of the August 22, 2006 accident, the worker had permanent work restrictions of no lifting stemming from other WCB work-related back injuries.

In a doctor's progress report dated September 1, 2006, the family physician stated: "Initial complaint L hip due to fall...off ambulance, today on exam much more back related."

On December 18, 2006, the worker was seen at the WCB for a call-in examination. The medical advisor noted that the worker had returned to work from a previous work-related low back injury with some low back pain. He developed a flare-up of low back pain and right buttock pain in August 2006 while climbing down from the rear of an ambulance. The medical advisor stated: "The most probable diagnosis of the current compensable injury is back strain and degenerative lumbosacral disc disease. It is noted that the claimant has a significant amount of multilevel pre-existing degenerative changes in the lumbosacral spine and that both of these more recent low back claims appear to involve aggravation of the pre-existing degenerative changes. Today's examination demonstrated abnormal pain behaviour with no significant evidence of nerve root compression...[The worker] has expressed his desire to continue working but feels he is unable to return to work to his previous work activities due to his central low back irritability...Based on today's examination and the history of his symptoms over the two claims, it appears that he continues to report mechanical non-radicular symptoms, more consistent with multilevel degenerative lumbosacral disc disease. He appears to have flare-ups of pain with many of his activities and the current workplace restrictions appear to be appropriate."

In a memo dated January 12, 2007, the WCB medical advisor indicated that the worker appeared to be at maximum medical improvement ("MMI"). The following permanent restrictions were outlined:

• avoid lifting more than 25 pounds.
• avoid repetitive or sustained bending at the waist.

Arrangements were then made for the worker to undergo a Functional Capacity Evaluation ("FCE") on February 20, 2007 as it was questioned whether the permanent restrictions noted above met the job demands of a nurse. The FCE report indicated that the worker did not complete or attempt all the FCE protocol, although his participation was identified to be a full voluntary effort. The results were considered incomplete and were not able to be interpreted.

In claim notes dated April 13, 2007, the WCB medical advisor indicated that he discussed the worker's restrictions with the family physician. The family physician agreed with the 25 pound lifting restriction but was concerned that the worker's low back pain may flare up with these activities. The family physician also commented that the worker had a long history of back pain but he should be capable of managing work activities that fell within his restrictions.

In a doctor's progress report dated June 2, 2007, the family physician reported that the worker's back was "rigid" and the worker was in constant pain. He noted that the pain medication taken by the worker was making him "hyper."

On June 25, 2007, the worker underwent a second FCE. The FCE report stated that the worker's participation was not a maximal effort passing only 3 of 6 validity checks and that the FCE results represented the worker's minimal functional abilities. The worker demonstrated abilities within the sedentary strength demand level.

In claim notes dated October 5, 2007, the WCB medical advisor stated: "Apparently [the worker] has stated that [the family physician] has given approval to return to regular duties. He has previously reported chronic back pain and stiffness and it had been previously determined that he had reached MMI and permanent workplace restrictions have been recommended and implemented regarding the low back condition...I would not recommend changing these permanent restrictions at this point without further documented objective evidence that he is capable of more."

Further discussions took place regarding the appropriate work restrictions for the worker. On January 16, 2008, it was confirmed that the worker's restrictions were as follows:

• No lifting over 25 pounds.
• No prolonged sitting or standing without the opportunity for frequent stretches, or changes in position.
• No sustained forward flexion and no bending at the waist for the purposes of lifting.

On January 17, 2008, the WCB case manager stated that the diagnosis accepted as compensable was a back strain - aggravation of pre-existing degenerative disc disease. The adjudicator asked the medical advisor to comment on the following: "Given the time elapsed and the worker's current status, would it now be appropriate to change the diagnosis to stipulate "enhancement" of pre-existing DDD [degenerative disc disease]?" On January 17, 2008, the WCB medical advisor agreed that enhancement of the pre-existing L/S spine was probable.

In a letter dated February 25, 2008, the worker was advised that his vocational rehabilitation plan would be completed effective February 22, 2008 and that his weekly wage loss benefits would be $463.92 effective February 23, 2008. Later, the WCB adjusted this amount to $430.02 weekly.

On July 10, 2008, a different WCB medical advisor stated: "The file has been reviewed. On review of the file the body part that was injured was the lower back. The injury resulted in right hip/buttock pain. There is no evidence on file to support a right hip injury. It is appropriate for the worker to be assessed for a PPI regarding his low back injury diagnosed as enhancement of pre-existing degenerative disc disease of the lumbosacral spine."

On July 24, 2008, the worker was seen at the WCB for a PPI assessment. It was noted that the worker's thoracolumbar flexion and extension appeared to be limited by pain response. After the assessment, the WCB medical advisor indicated that a PPI could not be calculated as the measurements may not be an accurate assessment of the worker's thoracolumbar mobility.

On October 21, 2008, the worker was again seen at the WCB for a PPI assessment and a 5% PPI award was calculated based on his thoracolumbar mobility. The medical advisor also noted that the worker planned to undergo further assessment of his back by an orthopedic back specialist which raised the question of whether the worker was at MMI.

On January 21, 2009, the worker advised the WCB that he was offered the opportunity to work in a new department and that his employer and union agreed that the job was likely within his restrictions.

On April 23, 2009, the worker advised the WCB that he tried working 12 hour shifts and that his family doctor recommended that he work at a .6 level as opposed to .8. The WCB case manager advised the worker that his work restrictions did not support part time hours and that it was his choice how many hours he wanted to work. The WCB would continue to pay him based on the deemed earning capacity at full time hours. This decision was confirmed by letter to the worker on April 24, 2009.

In August 2009, the WCB determined that based on WCB Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, the worker had been assessed as no longer having a loss of earning capacity as of September 15, 2009.

In September 2009, the WCB wrote the worker's family physician asking him to provide further medical information to support that the worker was only capable of working a .6 position. In a response dated September 15, 2009, the family physician noted that the worker was working in the new department and that gradually, as he continued to do regular shifts, the worker had increasing spasm and pain in his back which limited his personal life significantly because of the recovery period that was required following a work shift. After he worked three days in a row, the worker's back was bad enough that he could not manage without pain medication. This was making it difficult for the worker to function at work. The physician indicated that at several examinations during this time period, the worker had very limited range of movement, forward flexion in the range of 15 degrees with very firm muscle spasms in his back and a significant increase in depressive symptoms which was directly related to the amount of pain that he was experiencing. Based on these factors, the physician recommended that the worker only work a .6 position.

At the request of the case manager, a WCB medical advisor reviewed the file on October 28, 2009. He stated that there was no change in the diagnosis related to the August 22, 2009 workplace incident and there was no objective evidence that would prevent the worker from meeting the job demands of the new department if he stayed within the permanent workplace restrictions in place and used proper body mechanics.

In a letter dated October 29, 2009, the worker was advised that following review of the family physician's September 15, 2009 report by a WCB medical advisor, there would be no change to his permanent compensable work restrictions as it was felt that he was capable of performing his job duties on a full time basis.

On November 10, 2009, the treating physician stated: "In summary, [the worker] has worked very hard to try and continue in his...nursing job. I think that he could do so at .6 but not at full time work. The decision has been made to not allow him to do this and I am very concerned that this was done without anybody doing any kind of reassessment or evaluation of his situation, and I would appreciate it if you would review his case and consider doing so."

In claim notes dated November 23, 2009, the WCB medical advisor indicated that there had been no new significant objective changes reported recently and the previous permanent workplace restrictions were still appropriate.

On December 2, 2009, the family physician spoke with the WCB case manager to suggest that the worker undergo an MRI as it was felt that his condition had deteriorated.

On December 28, 2009, an MRI of the worker's lumbosacral spine was performed and the impression was: "No significant disc protrusion is identified. There is advanced disc desiccation and disc narrowing at T11-T12, L4-5 and L5-S1. There is minor lower lumbar facet OA [osteoarthritis]."

In a memo dated January 15, 2010, the case manager advised the worker that his file was being referred to a WCB orthopedic advisor to review and interpret the recent MRI which showed more advanced degenerative changes. The worker was of the view that his back had further degenerated because he was forced to return to work and that work was aggravating his back condition.

A WCB orthopedic consultant reviewed the file on January 22, 2010 and stated, in part:

The family physician continues that the worker is capable of alternate work with "permanent restrictions as previously defined. Part time (0.6) work only."

In response to this, it is difficult to explain why in the course of the report the physician has indicated that the claimant is worse, with increased symptoms, and yet not working, and at the same time thinks the claimant is capable of working 0.6 hours within the restrictions. Also how did he and the claimant arrive at, and agree upon, precisely 0.6 some time ago?

Finally, earlier in the file the diagnosis of the compensable injury was stated to be enhancement of pre-existing degenerative disc disease of the lumbosacral spine.

I can accept this as a one time diagnosis, if there was evidence that an aggravation had elevated the baseline level of symptomatology, but with this diagnosis it was clearly demonstrated that the claimant was capable of modified duties, full time, and agreed to by his family physician.

There is no evidence of further aggravation of the pre-existing condition, which is therefore not worse as claimed by the family physician. Changes in an imaging study would be anticipated but would have to be carefully correlated with clinical assessment. In my opinion, from the information available, the claimant is capable of full time employment within the stated restrictions.

In e-mail correspondence dated January 29, 2010, the employer informed the WCB that the worker had resigned from his position.

On February 2, 2010, the WCB advised the worker that he was not entitled to wage loss benefits from the WCB and that no changes were being made to his permanent workplace restrictions. The worker was advised that he had a longstanding history of degenerative changes affecting his spine and that the WCB initially accepted his claim as a low back strain. It was felt that the enhancement of a preexisting condition was a one time event and did not infer that worsening, acceleration or progression of his pre-existing condition would result from the work incident. It was also noted that on October 21, 2008, prior to commencing his new position, the worker reported a worsening of his condition and capability. This was four months before the new position started on February 17, 2009. A causal relationship between his alleged increase in symptoms/decrease in function and his new position could be not established. The evidence continued to support a natural progression in the degenerative process.

On February 18, 2010, the worker's union representative indicated that they were appealing the decision made on November 23, 2009 that the worker was no longer entitled to a wage top up despite having permanent restrictions. She said the worker did not agree with the decision as his physician indicated that he was only able to work a maximum of 0.6 EFT.

It was felt that the evidence clearly suggested that the worker had not recovered from the enhancement of his pre-existing degenerative disc disease to the point that he was able to work full time. Therefore he remained entitled to benefits outlined in subsection 4(1) of the Act.

In a submission to Review Office dated April 19, 2010, the accident employer's advocate outlined the position that the worker's difficulties were due solely to his well-documented pre-existing multi-level disc degeneration which was not enhanced by the minor mechanism of injury. The worker's professed inability to work full-time was due to self-limiting behavior and complaints of pain that was not commensurate with his physical condition.

A copy of the April 19, 2010 submission was provided to the worker's union and their response is on file dated May 6, 2010.

On June 8, 2010, the employer advised Review Office that further to their submission of April 19, 2010, they were appealing the decision to provide the worker benefits and services beyond December 2006. The employer felt that by December 2006, the worker had recovered from his minor compensable injury of August 2006 and that his ongoing difficulties were due solely to his pre-existing multi-level degenerative disc disease ("DDD") as noted at the call in examination on December 18, 2006. It noted that the worker failed the validity checks at the February 20, 2007 FCE so that his true capabilities could not be determined.

A copy of the June 8, 2010 submission was forwarded to the worker's union representative and their response is on file dated July 9, 2010.

In a decision dated July 22, 2010, Review Office determined that the worker was not entitled to benefits after October 11, 2007. Review Office indicated there was no argument that the worker had DDD that existed prior to the compensable injury and that the August 22, 2006 accident at least aggravated it. Review Office found that the worker's 2006 accident did not enhance the pre-existing DDD of his spine. Review Office felt that the accident did not cause the annular tear identified in the December 2009 MRI report.

Based on the weight of evidence, Review Office determined that the worker had recovered from the effects of his December 2006 accident by October 5, 2007. Review Office referred to the October 5, 2007 report from the family physician that the worker reported "mild pain on extreme range of movements" and examination found "mild limitation in the range of movements." This indicated to Review Office that the worker had recovered from his acute back injury. Weight was also placed on the fact that the worker reported a worsening of his condition despite not working in May/June 2007 and the general practitioner reported the worker was "rigid from T12 down." This evidence supported that the worker's right hip sprain resolved comparatively quickly.

On August 13, 2010, the worker was advised that following a review of his claim by a WCB psychiatric advisor, the WCB was unable to relate the diagnosis of depression or Major Depression to the compensable injury.

On October 15, 2010, an independent radiologist reviewed the worker's MRI of September 9, 2005 and December 28, 2009. He stated in part:

Overall, compared to the 2005 MRI scan, the only definite interval changes include slight worsening of the disc degenerative changes at the L4-5 and L5-S1 level as well as the development of an annular tear at the L1-2 level. On the 2005 MRI scan and (sic) the area of abnormal signal intensity in the narrow space of the L3 vertebral body inferiorly has largely resolved and there is now just a small degenerative Schmorl's node in this location indicating that the signal abnormality was clearly degenerative in nature in 2005. There has been no other interval change between the two examinations.

After reviewing the independent radiologist's comments dated October 15, 2010, the WCB orthopedic medical advisor stated on November 17, 2010 that: "It remains my opinion that there is no imaging study evidence to indicate aggravation of the claimant's pre-existing degenerative disc disease arising specifically out of the compensable injury of this claim."

On November 18, 2010, the WCB advised the worker that based on the opinion outlined on November 17, 2010, no change would be made to the previous adjudicative decision made on his claim.

In a letter dated March 2, 2012, the worker asked Review Office to reconsider its previous decision to deny him benefits after October 2007. The worker stated that the decision was based on a medical resident's comments that he "was better than I had been in years." The worker indicated that this statement was taken entirely out of context and he was just stating that he was having a better day than he had been in quite some time. This was due to the fact that he had taken pain medication prior to his appointment. He felt that Review Office should objectively look at his medical history after the October 2007 appointment which clearly indicated that his injury was far from being resolved.

In March and June 2012, the worker provided Review Office with additional medical information to consider which consisted of two medical reports from his family physician dated February 7, 2012 and June 6, 2012 and from an occupational health physician dated December 15, 2010.

On June 18, 2012, Review Office asked its medical advisor to review the claim and provide his medical opinion as to the relationship between the worker's ongoing complaints and his August 2006 accident. The medical advisor's response to Review Office is on file dated June 25, 2012. In it, the medical advisor opined that the worker had had degenerative changes in the lumbo-sacral spine for many years and that the probable worsening in the worker's clinical status involved an increase in subjective pain complaint. He concluded that the worker's current lumbar complaints were probably causally related to the workplace event in question. On July 11, 2012, Review Office provided the worker and the employer's advocate with a copy of the June 25, 2012 medical opinion and asked them to provide comment.

In a follow up memorandum, the medical advisor to Review Office reviewed the MRI of August 21, 2012 and current medical reports. In his opinion, the current diagnosis was chronic benign mechanical low back pain as well as chronic right gluteal strain and his prior opinion remained unchanged.

On October 23, 2012, Review Office determined that the worker was not entitled to benefits after October 11, 2007. Review Office noted that the worker had multiple MRIs that showed slowly progressing degenerative changes and no nerve root compromise or stenosis which could account for the worker's "bilateral lower extremity pain".

Review Office indicated that it placed little weight to the conclusions outlined by the occupational health physician. It stated that no other treating healthcare professional referenced a gluteal muscle strain or myofascial pain. It followed that Review Office did not accept the opinion outlined by its medical advisor that the worker had a current diagnosis of "chronic right gluteal muscle strain."

With respect to the worker's right hip, Review Office upheld its previous decision that: "...the worker's right hip sprain resolved comparatively quickly."

Review Office noted that its medical advisor indicated that the worker had "chronic benign mechanical low back pain" and that there was a probable relationship between this diagnosis and the August 2006 accident. Review Office indicated that while it accepted the doctor's diagnosis, it did not accept his opinion regarding the nature of its relationship to the August 2006 accident. Review Office indicated that it was unable to relate the worker's ongoing level of disability to the accident.

In December 2012, the worker appealed Review Office's October 23, 2012 decision to the Appeal Commission. On November 18, 2014, a hearing was convened to consider the worker's appeal.

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 self-represented at the hearing and was accompanied by his spouse. The worker described the events on August 23, 2006 and stated that he was stepping out the side door of an emergency transport and he wasn't aware of how far the step was. When he went to take the step, he caught the step with the back heel of his running shoe. He did a slip out and banged his tailbone on the floor of the ambulance. It gave him a "bit of a jolt and, you know, gave me a good shakeup."

The worker stated that he was sore but the injury did not really affect him that night. The next day he reported for work and within half an hour into his shift he started to develop a limp and some severe pain in the buttock with problems mobilizing. Due to short staffing, the worker was mandated to stay, despite his physical condition. He was told to go to the emergency department to get something to help deal with the pain, which he did. The worker was given an injection of Toradol which helped a bit, but by the end of the night he limped home. The next day, he was unable to walk. The worker felt that while initially there may have been an aggravation of his pre-existing condition, he felt that by being forced to work for the eight hour shift, an enhancement occurred.

The worker felt that once his physician started to express that this was becoming a permanent injury, this was when things started to go wrong. The worker took issue with statements about him made by the employer's advocate which he felt were inappropriate and were intended to discredit him. The worker submitted that the employer had not brought forward any medical documents with any validity. The worker relied upon medical reports, including reports from the Medical Advisor to Review Office, an occupational health physician, and his own family physician to support the position that his ongoing difficulties were related to the August 2006 accident.

Overall, the worker's position was that his injury should be accepted as an enhancement of a pre-existing condition. He submitted that his condition was not degenerative because his documented degenerative changes were so mild that they would not have caused the problems he was having.

Employer's position:

The employer was represented by an advocate and its human resources director. The employer supported the decision that the worker was not entitled to benefits after October 11, 2007. It was submitted that the worker had a reasonable recovery period given the mechanism of injury, the diagnosis of mechanical back pain and the long history of pre-existing disc degeneration and prior injury. The employer also noted that it did accommodate the worker with a suitable position, from which he resigned in January 2010. The employer explored all options they could think of, and when they could not come up with anything, the worker was then referred for vocational rehabilitation.

The panel was asked to place greater weight on the opinions of the WCB orthopedic consultants who indicated that the worker was capable of full time employment. Overall, the employer's position was that it disagreed that the mechanism of injury of stepping out of an ambulance and placing weight on one's foot would have enhanced a pre-existing degenerative disc disease. It also disagreed that having to work for eight hours the next day would have caused an enhancement and submitted that there was no medical evidence of that occurring. The employer did not disagree with the worker's diagnosis of chronic benign mechanical low back pain, but just did not feel that this condition was related to the 2006 incident.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after October 11, 2007 were related to the injury he sustained in the workplace accident of August 23, 2006. 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 right hip strain and aggravation of pre-existing degenerative disc disease and that these injuries had resolved by October 11, 2007. The panel does not accept that the ongoing low back symptoms complained of by the worker are attributable to the August 23, 2006 workplace injury.

At the hearing, the worker described a mechanism of injury which differed from earlier reports. The worker advised that he was stepping out of the side door of an emergency transport vehicle when he caught the back heel of his shoe. The worker stated that he did a slip out and banged his tailbone on the floor of the ambulance. The injury was sore yet did not really affect him that night but the next day when he reported for his shift at 3:30 pm, the stiffness set in and he had trouble mobilizing. He developed a limp and severe pain in his buttock. This description differs from the reports of accident given at the time of the injury as the prior descriptions do not include any trauma to the tailbone. The Worker Incident Report given on August 24, 2006 stated: "I was hunched over with my back to the ambulance and I was stepping down onto the first step of the ambulance with my right foot. As soon as I put my right foot on the step and started to take the weight of my body, I felt a sharp jab in my right hip." Similarly, the Employer Accident Report indicated that while exiting an ambulance at the rear, the worker: "found steps very akward (sic) and while stepping down felt a sharp pain to his right hip."

In the panel's view, the exact mechanism of injury is important as it gives context to the type of injury which would be expected to have resulted from the accident. Given that the Worker Incident Report was provided within two days of the accident, the panel finds that the description of the accident as a "sharp jab in the right hip" while taking weight onto the right leg is more likely to be accurate and we accept that this was the mechanism of injury which occurred on August 22, 2006.

In the immediate period following the accident, the worker was seen by his family physician. The Doctor's First Report of August 24, 2006 reports a sprain to the right hip muscles and pain with movement of the hip. It was only at the subsequent examination on September 1, 2006 that the worker began to make complaints regarding low back pain.

Similarly, in the Worker's Incident Report, the notes regarding the injury all focus on the right hip. The worker's complaints were of a constant throbbing pain in the right hip which limited his range of movement and caused him to walk with a limp. Notably, there was no mention of the low back symptoms in this report.

In view of a mechanism of injury which consisted of stepping down awkwardly with no direct trauma to the tailbone and the initial reports which focused exclusively on injury to the right hip, the panel finds that the primary injury suffered by the worker in the accident of August 22, 2006 was a right hip strain.

Ten days later, by September 1, 2006, the worker was complaining of increased low back pain to this family physician. At the time of the accident, the worker had a longstanding history of low back pain and permanent restrictions regarding lifting were in place. The worker had a "back at risk" and the panel accepts that the relatively minor mechanism of injury and/or the altered gait caused by the hip injury likely caused an aggravation of the worker's pre-existing DDD.

The panel was provided with a copy of the worker's WCB claim file related to a May 7, 2005 low back injury sustained when the worker was performing a two person transfer. In a Doctor's Progress Report dated June 30, 2006, the worker was reported as having subjective complaints of constant pain and stiffness, with objective findings of stiffness, muscles tight and decreased range of motion. The worker was capable of continuing to work at his regular job with restrictions of no lifting. This was the last medical report prior to the accident of August 22, 2006. The panel relies on this report to be generally reflective of the worker's low back condition prior to his August 22, 2006 workplace accident.

On December 18, 2006, the worker was examined at a call-in examination by a WCB medical advisor. At that time, the worker was reporting low back pain with neurological examinations being negative. The probable diagnosis was identified to be back strain with degenerative lumbosacral disc disease and the low back claim was seen to involve aggravation of the pre-existing degenerative changes. The examination of that date demonstrated abnormal pain behaviour with no significant evidence of nerve root compression. It would therefore appear that there was no identifiable anatomic injury to the worker's lumbosacral spine and that the ongoing symptoms consisted of pain complaints.

In February and June 2007, the worker underwent FCE testing. At the first FCE, the worker did not attempt all the FCE protocol based on self-reported inability to perform the activities. The results were therefore incomplete. At the second FCE, the worker did complete the FCE protocol but his participation was indentified to not be maximal effort passing only 3 of 6 validity checks. The results of Sedentary strength demand level were considered to be the worker's minimal functional abilities.

It is always difficult to differentiate between the effects of an aggravation and the natural worsening progression of a degenerative low back condition. Generally speaking, an aggravation of pre-existing DDD would be expected to improve over time. The Doctor's Progress Report of October 5, 2007 reports mild pain on extreme range of movements and mild limitation in the range of movements. The report states that the worker is able to work with restrictions of no repetitive lifting, no bending of hip and no lifting more than 25 lbs. This would suggest that as of October 5, 2007, the worker had recovered to his pre-accident baseline, as outlined in the June 30, 2006 Doctors Progress Report.

At the hearing, the worker submitted that the October 5, 2007 report was misleading because at the time, he was taking pain killers and he had just come from physiotherapy and massage therapy. He was limbered up and feeling good. The results, however, were short lived and did not represent his true condition. The worker also noted that nowhere in the October 5 notes did it indicate that he was recovered. The report did not state that he was healed or that he was ready to return to full duties. The worker submitted that he was still entitled to benefits after that day as he was not better and there were still restrictions on his ability to return to work.

The panel has had the opportunity to review not only the October 5, 2007 Doctor's Progress Report but also the clinical notes provided by the family physician's clinic. There is a notation that on October 4, 2007, the worker called and left a message. He wanted a note from the family physician stating that he could have clearance to go back to work as a nurse. An appointment was made for October 5, 2007.

The notes for October 5, 2007 were prepared by a resident and read as follows:

• (S) Pt is here today to write him a note to return to his normal work activities. Pt states that he is able to do more activities now with less pain.
• (O) Pt was asked to walk in the room and to bend his back and to do multiple movements with his shoulders and hands. The pt. was able to perform those movements with mild limitation of the ROM.
• (A) Low back pain, right hip pain improved.
• (P) We wrote a note for pt to return to his normal level of duties with restriction of bending, lifting objects more than 25 pounds and bending his hip. I wrote a WCB form for him.

On a balance of probabilities, the panel finds that the October 5, 2007 medical notes reflect a recovery by the worker to his pre-accident baseline. We acknowledge the worker's explanation that the report did not indicate a full recovery but the clinical notes do indicate a clear representation on the part of the worker that he was feeling better and the physical examination confirmed that representation. As noted earlier, it is difficult to distinguish the effects of an aggravation from the ongoing symptoms related to a pre-existing condition, but in this case, based on the length of time since the accident, the lack of neurological findings, the fact that the ongoing symptoms consisted primarily of complaints of pain in the context of abnormal pain behaviour and invalid FCE results, and the documentation of the physical examination performed by the resident on October 5, the panel is satisfied that the aggravation suffered by the worker on August 22, 2006 had resolved by October 5, 2007. The worker had recovered to the level he was at prior to the workplace accident when stepping out of the ambulance.

It is therefore the panel's decision that the worker is not entitled to benefits after October 11, 2007. 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 8th day of January, 2015