The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker isappealing a decision made by the Workers Compensation Board ("WCB")that he had recovered from the effects of his compensable injury and that hewas not entitled to benefits beyond July 29, 2014.  A hearing was held on May 4, 2015 toconsider the matter.

Issue

Whether or not the worker is entitled to benefits after July29, 2014.

Decision

That the worker is not entitled to benefits after July 29,2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred at work on October 23, 2013 after pulling on a piece of plywood that was stuck between a shelf and a cabinet. The claim for compensation was initially accepted based on the diagnosis of a low back strain with neural impingement. A later MRI taken December 16, 2013 revealed the following:

Degenerative disc bulges with associated annular tear at the L3-L4 interspace level. This is frequently seen in association with degenerative discopathy and contribution to patient's symptoms is questionable. No focal disc herniation/nerve root impingement identified.

On January 8, 2014, a WCB sports medicine consultant responded to questions posed by the WCB case manager with respect to the worker's back condition. The medical advisor stated that the diagnosis was non-specific non-radicular low back pain also known as a back strain. The usual timeframe for recovery was 12 weeks. The medical advisor indicated that the degenerative changes on the imaging findings were age appropriate and did not represent a material pre-existing condition.

In February 2014, the worker commenced a reconditioning program and in early April 2014, the WCB considered the worker to be capable of returning to work with temporary restrictions on a graduated basis. By May 5, 2014, it was anticipated that the worker would be back at full-time hours. The duties involved lighter scale tasks and the worker could sit while preparing parts for painting. File records showed that the worker returned to work but complained of having a sore back.

On April 22, 2014, a WCB physiotherapy advisor noted that the return to work schedule outlined in the April 17, 2014 physiotherapy report was for a diagnosis of degenerative disc disease and it was not related to the WCB accepted diagnosis of non-specific non-radicular back pain. It was determined that no restrictions would be required in relation to the compensable diagnosis.

On June 17, 2014, the worker underwent a Functional Capacity Evaluation ("FCE") and was seen at the WCB for a call-in assessment.

By letter dated June 19, 2014, the worker was advised that based on the current medical information, his temporary work restrictions related to his lower back were as follows:

Avoid lifting greater than 10 pounds, avoid repetitive lifting and twisting, avoid prolonged sitting, the opportunity to change positions frequently and avoid reaching outside body habitus.

The worker was advised that he was expected to continue working full hours with the noted restrictions.

On July 2, 2014, a second MRI revealed the following:

No interval change is seen. For right-sided symptoms there is potential for irritation of the exiting right L3 nerve root within the foramina. There is no right-sided nerve root compression, however.

On July 17, 2014, the WCB medical advisor who saw the worker for an examination on June 17, 2014 stated the following:

• the current diagnosis remained non-specific non-radicular low back pain based on the recent clinical examination findings and the lumbosacral MRI.
• Recovery was predicted to occur over 8 to 12 weeks.
• it was unlikely that the worker's current complaints were causally related to the effects of the initial workplace accident.

In a letter dated July 22, 2014, the worker was advised that his current restrictions were not related to the compensable injury and that further medical treatment and time loss would not be covered beyond July 30, 2014.

On October 8, 2014, the worker filed an appeal with Review Office and submitted a report from a neurosurgeon dated August 19, 2014. On October 8, 2014, Review Office returned the file back to initial adjudication to consider the new report.

On October 9, 2014, a WCB medical advisor reviewed the file and stated:

The worker's physician referred him to [the neurosurgeon]. His report indicates pain limited range of motion of the spine with an otherwise normal neurological examination. [The neurosurgeon] notes that the submitted MRI demonstrates 'no obvious distortion of the neural structures.' He does note some osteoarthritic changes of the zygapophyseal joints. He diagnosed the worker with mechanical low back pain and proposes to inject the zygapophyseal joints in order to provide some pain relief. He also indicates that the worker should avoid more strenuous physical activities.

The report submitted by [the neurosurgeon] supports the opinion that the worker's current symptoms are those of non-specific, non-radicular low back pain. His proposed treatment is directed to the degenerative changes noted radiographically. As noted above, the radiographic findings are not related to the work place injury. In my opinion, neither the current diagnosis, the proposed treatment nor the restrictions are related on a patho-anatomic basis to the compensable injury.

By letter dated October 20, 2014, initial adjudication determined that the worker had recovered from the effects of his compensable injury and that his ongoing symptoms and treatment was directed at a pre-existing condition. The case manager also stated that based on WCB policy on pre-existing conditions, the WCB did not provide support for conditions that were not caused by the workplace accident. On November 3, 2014, the worker appealed the decision to Review Office.

On December 15, 2014, Review Office determined that the worker was not entitled to benefits beyond July 29, 2014. Review Office's decision was based on the WCB medical opinion outlined on October 9, 2014. Review Office stated that the imaging results demonstrated changes in the worker's lumbar spine that were longstanding and not caused by the workplace accident. It was felt that these changes were not aggravated or enhanced by the compensable injury of a strain in accordance with the WCB policy on pre-existing conditions. Review Office confirmed that based on a balance of probabilities, the worker had recovered from the workplace accident and it could not account for the worker's need for medical aid and loss of earning capacity beyond July 29, 2014. On February 20, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on May 4, 2015.

Following the hearing, the appeal panel met to discuss the case and requested a narrative report from the treating neurosurgeon regarding the worker's medical status and treatment that he received prior to and subsequent to August 19, 2014. The requested report was later received and was forwarded to the worker for comment. On June 26, 2015, the panel met further to discuss the case and to render a decision. The panel considered the final submission made by the worker dated June 17, 2015 (email correspondence).

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.

Subsection 4(1) of the Act 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.

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.

The worker has an accepted claim for an injury arising from an October 2013 accident. He is seeking wage loss and medical aid benefits after July 29, 2014.

Worker's Position

The worker was represented by his wife who explained the worker's reason for appealing. The worker answered questions from the panel.

The representative advised that the worker worked for the employer since 2004 and has never had an incident with his back. She advised that his current physician has treated him since 1996 and can confirm he has never treated him for a back injury until this work injury.

The representative described their dealings with the WCB and outlined the major events in his claim.

The worker described his injury which occurred when he was moving a sheet of plywood. He said that he felt a sharp pain which he thought was a muscle pain. He said that his back is painful when he bends or twists.

Regarding his participation in a work hardening program, he said that his back was getting stronger while participating in the program but still hurt. He said the pain felt like a pinch.

The worker returned to work a couple times. The last return to work was in July 2014 but it ended in September 2014. He found that he could not do the job. The worker's representative advised that after the worker returned to work he had a sudden onset of symptoms while driving to work, where his whole leg, buttock and foot went numb. The representative took him to an emergency ward.

The worker's representative disagreed with the WCB position that the worker does not have a nerve injury. She said the neurosurgeon explained that his discs are crushed. In reply to a question the worker's representative advised that the physicians have not said his condition is due to arthritis or degeneration.

The worker answered questions regarding his recent medical visits including information on the injections he is receiving and his physiotherapy.

The representative advised the worker is currently on long term disability through his work and is currently attending physiotherapy three times a week. He is also seeing a neurosurgeon and a pain clinic physician.

Employer Position

The employer did not participate in the appeal but provided a letter, dated April 20, 2014, confirming that the worker had been employed by the employer since September 2004 working as a heavy duty truck body shop technician. The employer noted that prior to his October 24, 2013 injury, the worker worked approximately 40 hours per week and performed his duties with no restrictions and without any type of job modifications.

Analysis

The worker is seeking wage loss and medical aid benefits beyond July 29, 2014. For the worker's appeal to be approved the panel must find that the worker continued to incur a loss of earning capacity and required medical assistance as a result of this workplace accident after July 29, 2014. The panel was not able to make this finding.

The worker has maintained that he sustained a disc/nerve injury as a result of his workplace injury and that his injury is preventing him from returning to work. The panel has considered all the medical evidence and is unable to find, on a balance of probabilities, that the worker sustained a nerve/disc injury. The panel notes the recent opinion of the neurosurgeon that he could not identify a nerve injury. As well the MRIs on file do not identify a radicular injury related to the workplace injury.

In finding that the worker is not entitled to further benefits the panel relies upon the May 22, 2015 report of the neurosurgeon. In this report he opined that:

"By and large, I think that [worker] is experiencing mechanical low back pain. This accounts for the pain at the lumbosacral and upper gluteal region but probably also the component extending into the right thigh. The etiology of the occasional numbness that the patient is reporting is unclear. The MRI does not provide any obvious radiological correlate to a radiculopathy. I do not think that surgical intervention is indicated at this point in time. I think that a regular physiotherapy program/exercise routine with the goal of stabilizing and reconditioning the lumbosacral segment is the most rational approach at this point in time. At the same time, the patient should avoid more strenuous physical activities involving repetitive bending and heavy lifting but also protracted standing or sitting. Given the length of the history (18 months) there is a possibility that the condition of the patient might become a chronic one."

The panel also relies upon the October 9, 2014 opinion of the WCB medical advisor that the worker sustained a lumbar strain and that the treatments proposed by the neurosurgeon are not related to the workplace injury. The WCB medical consultant opined that the treatments were related to the worker's degenerative changes as noted in the MRI.

The panel notes the April 30, 2015 report of the pain clinic physician who found no neurological deficit in the lower extremities and provided a diagnosis of discogenic mechanical and osteogenic low back pain. The physician also noted that the worker is overweight with a BMI of 29.5.

In conclusion, the panel finds, on a balance of probabilities that the worker's loss of earning capacity and need for medical assistance after July 29, 2014 are not related to his October 23, 2013 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 20th day of July, 2015