The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") thathis ongoing back difficulties were not related to his compensableaccident.  A hearing was held on September 14, 2015 to consider theworker's appeal.

Issue

Whether or not the worker's ongoing back difficulties arerelated to the March 21, 2006 workplace accident.

Decision

That the worker's ongoing back difficulties are not relatedto the March 21, 2006 workplace accident.

Decision: Unanimous

Background

In June 2006, the worker filed a claim with the WCB for a back injury that occurred at work on March 21, 2006. The worker stated he was replacing truck engine parts when he suffered back pain. He had been under the hood of the truck all day long.

The Employer's Accident Report stated that the worker injured his whole back on March 21, 2006 while working on a truck that required many days of extended reaching and leaning.

Medical reports showed that the worker was diagnosed on March 25, 2006 with a low back strain. A lumbar spine x-ray taken June 14, 2006 showed mild disc narrowing at L5-S1. On July 12, 2006, a CT of the lumbar spine revealed a disc herniation at L5-S1 with posterior displacement of the left S1 nerve root.

File records showed that the worker continued to experience back complaints in 2007 and that he attended a physician, a physiotherapist and a chiropractor for treatment.

On January 23, 2008, the worker was seen at a call-in examination by a WCB chiropractic consultant. After the assessment, the consultant opined that the worker was likely recovering from an L5-S1 disc herniation with left S1 radiculopathy and further chiropractic treatment was accepted as a WCB responsibility.

In March 2009, the worker advised the WCB that he was seeing a new chiropractor as his previous chiropractor had retired.

In a report dated March 11, 2009, the new chiropractor diagnosed the worker with an L5 disc herniation on the left with subluxation of L5 and pelvis. Chiropractic treatment was recommended once per week. He noted that the worker was capable of alternate or modified duties but should avoid lifting in flexed, rotated positions.

On March 11, 2009, a WCB chiropractic consultant opined that the worker had reached maximum therapeutic benefit from chiropractic treatment and that further chiropractic treatment would be considered elective rather than medically required.

By letter dated March 16, 2009, the worker was advised that the WCB would not accept responsibility for further chiropractic treatment and the decision was confirmed by Review Office on June 24, 2009.

On July 30, 2009, the worker advised the WCB that his back was good at the moment and that some days were better than others. The worker indicated that he was laid off from a job he took in February 2009 teaching mechanics at a local school. He said he was still attending chiropractic treatment for his back.

In a report dated September 2, 2009, the treating physician noted that the worker still complained of low back pain. The examination showed normal flexion of ninety degrees, extension of thirty degrees, lateral flexion of the thoraco-lumbar spine was normal.

Ongoing progress reports were received from the treating physician between December 2009 through to June 2010.

When speaking with his case manager in July 2010, the worker provided details regarding his ongoing back complaints and was of the view that he was incapable of returning to work as a mechanic.

On July 23, 2010, the worker underwent a CT scan of his cervical and lumbar spines.

On November 10, 2010, a WCB medical advisor stated there was no evidence to support the worker's current complaints as being related to the compensable injury. The CT scan confirmed substantial degenerative changes in the lumbar spine at L4-5 and L5-S1. The previous injury to the nerve roots at S1 showed little or no change based on the current imaging studies. Therefore the worker's complaints were related to degenerative changes of the lumbar spine.

In a decision dated January 14, 2011, the worker was advised that the WCB was unable to establish that his current low back difficulties were the result of the March 2006 compensable injury. The case manager stated that upon reviewing the claim, the treating physician authorized the worker's return to his regular duties as a mechanic in 2007. The file had also been reviewed on a number of occasions since then and there was no medical findings to support the worker's inability to work as a mechanic. The case manager's decision was also based on the WCB healthcare opinion that the CT scan findings showed substantial degenerative changes in the worker's lumbar spine.

In March 2011, the worker appealed the above decision to Review Office. The worker noted that he has had to work every day in pain since the March 2006 accident and that the CT scan findings supported his position. The worker stated this was not a new injury but was the result of his initial back injury from March 2006.

On March 24, 2011, Review Office determined that the worker's ongoing low back difficulties were not related to the compensable injury of March 2006. Review Office noted that the accepted diagnosis of the March 2006 injury was an L5-S1 posterior disc herniation. The injury was treated conservatively and the worker returned to his full time work in early 2007. While reports from the treating physician confirm that the worker continued to have low back pain, by 2009 it was observed that there had not been any radicular symptoms suggestive of a disc injury in some time.

Given the nature of the worker's symptoms, the CT findings and the expressed medical opinion that the worker's ongoing complaints were solely related to pre-existing degenerative changes of the lumbosacral spine, the worker's appeal must be denied.

Subsequent to Review Office's March 24, 2011 decision, the following medical reports were placed on the worker's claim file:

• reports from the treating physician dated August 14, 2012 and June 18, 2013;
• a report from a consultant psychiatrist dated April 10, 2013;
• a chiropractic report dated June 11, 2013;
• a physical and rehabilitation medicine specialist report dated January 22, 2014; and
• July 27, 2012 CT scan results.

On March 28, 2014, the worker's legal representative submitted to Review Office that the worker was seeking compensation that would allow him to work a six hour work day in his current, less strenuous position, with compensation for the loss of wages from his chosen profession, due to his initial injury occurring in the workplace.

In a June 4, 2014 decision, Review Office determined that the worker's ongoing low back difficulties were not related to the March 21, 2006 compensable injury. Review Office considered all the new medical reports including the July 27, 2012 CT scan findings and the November 2010 WCB medical opinion. Review Office found that the worker's back condition had functionally recovered from the effects of the compensable injury and that the progressive multilevel changes seen in the CT scan of the lumbar spine was not caused or enhanced by the compensable injury. On June 4, 2015, the worker's legal representative 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.

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.

Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

This appeal deals with the provision of further benefits on an accepted claim. The worker is appealing the WCB decision that his ongoing back difficulties are not related to his March 21, 2006 workplace accident.

Worker's Position

The worker attended with a representative who advised that she is representing the worker as a friend. The representative provided a summary of the worker's claim, dealings with the WCB, medical treatments and impact of the injury upon his life.

The representative noted that the worker:

· saw his family physician 82 times between 2006 and 2013

· was on 19 different medications since his claim commenced, some for pain, some for depression

· saw his chiropractor 55 times between 2009 and 2014

She noted that the chiropractor advised the worker that his injury is permanent and chronic. He stated that the worker would benefit from a reduced workday to maintain quality of life and that a future as a mechanic is not an option.

The representative also advised that the pain specialist said he cannot work as a mechanic.

With respect to the worker's current diagnosis and relationship to his workplace accident the representative stated that:

"[Worker] has been in pain for almost 10 years. The surgeon and chiropractor say it’s his spine. The pain specialist believes it’s the muscles. I say it really doesn’t matter. What matters is where it started, and it all started with that injury in 2006."

The representative submitted there is a relationship between the worker's workplace accident and his current condition. She said:

"And I personally don’t see how anyone, doctor, legal assistant, businessman, mechanic, or WCB employee, can argue that there isn’t. None of his doctors are arguing it, and they know his condition best. I don’t know how WCB doctors can disagree when they have not assessed him since 2008.

To suppose that even though he’s never had a pain-free day since that injury, and even though he had no history of back problems before the injury, and that his CT shows, and continues to show a herniated disc right where the pain extends from, that it’s not related, is beyond implausible. WCB admitted to a compensable injury in 2006, and now says his condition, which hasn’t changed, isn’t related. And it doesn’t make sense."

The worker answered questions posed by the panel. The worker confirmed that he worked as a automotive mechanic and not as a heavy duty mechanic. He also worked as a teacher and now works at a recycling facility.

With regards to his pain while he was a teacher, he advised that:

"It reduced significantly while I was a teacher, but it was definitely still there, like, it was still bad. I was still having sleepless nights and, because it’s still a demanding job, and I was doing a lot of work because it was my first year. And I was at the school all the time, ..."

He advised that he worked five months as a teacher, did both in-shop and classroom instruction, worked 8:30 to 4:00 each day, and missed only one day. He saw his chiropractor regularly during this time.

The worker advised that he is now employed at a recycling facility. His duties are administrative but he does help on the production floor.

The worker also advised that he has seen a surgeon and was scheduled to see him again the day following the hearing. He said the surgeon told him he could fuse 2 discs together.

When asked whether the treatments he receives from his chiropractor and pain specialist are curative or maintenance, he responded that "...its maintenance more than anything. Its not a cure, for sure."

In closing the worker asked that:

"Just that you take close consideration as to what I’ve been through and what I’m still going through, and that you deal with me fairly."

Employer's Position

The worker's employer did not participate in the appeal.

Analysis

The worker is appealing the WCB determination that his ongoing back difficulties are not related to his March 21, 2006 injury.

For the worker's claim to be approved, the panel must find, on a balance of probabilities, that the worker's ongoing back difficulties are related to his March 2006 workplace injury. After considering all the evidence, including the evidence provided at the hearing, the panel is not able to make this finding.

The panel finds, on a balance of probabilities, that over the course of time the worker's workplace injury has resolved. The panel places significant weight upon the following evidence in making this decision:

• the accepted diagnosis arising from the worker's 2006 workplace accident is an L5-S1 injury to the worker's spine.

· the opinion and findings of the WCB chiropractic consultant at a call-in examination on January 23, 2008. The consultant noted that "Examination of today's date identifies a probable diagnosis of resolving L5-S1 disc herniation with left S1 radiculopathy. This clinical examination of today's date is confirmatory of CT findings." The consultant also noted that while prognosis for full recovery is guarded, "Given the improvement to date, it is probable that [worker] will recover to non-intrusive symptoms and full function.

• the memo by a WCB medical advisor, dated September 2, 2009, regarding a conversation with the worker's physician, where the worker's physician noted that the worker's back condition has not significantly changed and that there has been no ominous or radicular features for a long time. The memo also notes that the worker has been performing unrestricted work for many months. These findings supports the position that the worker's condition was resolving at that time.

• the opinion of a WCB medical advisor, dated November 10, 2010, who compared the 2006 CT and 2010 CT scans and concluded that:

"...there is no evidence to support the worker's current complaints are related to the compensable injury. The CT scan confirms substantial degenerative changes in the lumbar spine at the L4-5 and L5-S1. The previous injury to the nerve roots at S1 shows little or no change based on the current imaging studies."

The panel notes that a third CT of the worker's lumbar scan was performed on July 27, 2012. This CT identifies significant changes since the earlier CT scans. The panel is not able to relate the findings on this CT scan to the workplace injury which occurred more than 6 years prior to the scan. The panel finds that the diagnostic evidence does not support a finding that the ongoing back difficulties are related to the 2006 workplace accident.

The panel acknowledges the worker's representative's position that the 2006 workplace accident began the degenerative process in the worker's back and therefore that the subsequent changes on the CT are due to the workplace accident. In support of her position she noted that " ...a sudden or acute injury leading to a herniated disc might begin disc degeneration process." The panel notes that the worker's accident did not involve significant trauma and that the worker was able to continue working after the accident for more than a month without seeking medical assistance. The panel also notes that the L5-S1 area injured in 2006 had little change as noted in a comparison of the 2006 and 2010 CT scans. The panel is unable to find that the significant changes noted in 2010 and 2012 are due to the 2006 injury.

With respect to the evidence of current symptoms, treatments and diagnoses, the panel is not able to relate this evidence to the 2006 workplace injury and related 2006 CT scan.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of October, 2015