The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")to deny responsibility for back surgery that was recommended by his treatingorthopedic surgeon.  A hearing washeld on November 12, 2015 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for theproposed back surgery.

Decision

That responsibility should not be accepted for the proposedback surgery.

Decision: Unanimous

Background

On January 27, 2014, the worker filed a claim with the WCB for a lower back injury that occurred at work on December 17, 2013. The worker reported "I was pulling out some big cages out (of) the trailer with a hand jack and they were double stacked and they were too heavy and I felt sharp shooting pains in the left middle lower back. I continued to work until Friday January 24^th. I went to [Hospital] on Jan 26^th because I was having lots and lots of pain. They gave me a prescription for T3's and told me to see my family doctor…."

On January 28, 2014, a WCB representative documented information he obtained from the worker regarding his work environment and the onset and progression of his lower back difficulties. The worker advised that he had a CT scan about two years previously and was told that he had a disc bulging in the lumbar spine at L4-L5. The worker stated that he could not recall whether a specific incident or trauma happened which caused the disc bulging, but believed that constant lifting was contributing to his condition.

File records showed that the worker has prior claims with the WCB related to lower back injuries.

Initial medical reports on file with respect to the worker's attendance at the hospital facility on January 26, 2014, record that he had longstanding back/disc problems at the L4-L5 level and had seen an orthopedic surgeon a few years ago. It is also recorded that he "coughed this am and felt immediate lower back pain."

Imaging reports on file showed that the worker underwent a CT scan of the lumbar spine on February 7, 2011. The recorded impression reads:

At L4-L5 there is diffuse concentric disc bulging but in addition there is also focal central and right paracentral posterior disc protrusion. May impinge…on the traversing and exiting right L5 nerve root….

On March 7, 2014, the worker underwent an MRI related to the lumbar spine. The recorded impression reads:

Large central L4-5 disc extrusion affecting both L5 roots.

On May 24, 2014, a WCB medical advisor stated:

• the initial diagnosis based on the reported mechanism of injury and current diagnosis appeared to be back strain and right-sided radiculopathy occurring in the environment of pre-existing lumbar disc disease;
• the natural history of this diagnosis is that gradual improvements to baseline function are predicted to occur over 3 to 4 months;
• the recently obtained MRI appeared to demonstrate a worsening of the disc protrusion at the L4-5 level with ongoing potential for bilateral L5 nerve root compression.

In a consultation report dated June 18, 2014, an orthopedic surgeon recommended that the worker undergo an L4-5 discectomy, fusion and fixation including a PLIF cage at L4-5. The orthopedic surgeon further suggested that this be protected with a non-fusion technique with Cosmic screws, due to early disc disease at L3-4.

On July 10, 2014, after reviewing the documentation on file, the mechanism of injury and the imaging reports from 2011 and 2014, a WCB orthopedic consultant opined that the proposed surgery did not arise out of the compensable injury of this claim, and recommended that the WCB not accept financial responsibility for the surgery.

By letter dated July 15, 2014, the worker was advised that the WCB was unable to accept financial responsibility for the proposed L4-5 discectomy and PLIF fusion and non-fusion stabilization at L3-4.

On July 25, 2014, the worker submitted an appeal to Review Office.

In a letter dated July 31, 2014, the worker's treating physician wrote:

It is my understanding that [the worker's] WCB claim in regard to his lower back pain has been denied. This is on the basis that this is a pre-existing condition. However, the pre-existing condition was a work related injury that occurred in 2008. He attended our Clinic on May 30/2008 for a work related lower back injury. At this time he had injured himself lifting heavy weights (magazines) and driving a truck. An X-ray done at this time was entirely normal and it is enclosed. A repeat lumbar X-ray done Nov 29/2013 shows disc space narrowing at L4-L5. This provides evidence that injury has occurred and caused structural changes, since the injury of 2008. I also find no mention of back pain prior to his WCB related work injury of 2008. For this reason I feel that [the worker] is justified in appealing the recent WCB decision.

On September 10, 2014, the worker contacted Review Office and stated he:

...feels his prior WCB back injuries and his heavy work demands have contributed in his need for surgery. The worker said he delivers magazines and also takes returns. Some stores [names], he is able to back up his truck to a loading dock and use their pallet jack. Other times the worker uses a wheeler that he brings with him. Boxes can be over 40kg.

On September 25, 2014, Review Office determined that no responsibility was accepted for the proposed back surgery. Based on the evidence on file, Review Office concluded that the proposed surgery was not necessary because of an injury resulting from the December 17, 2013 accident. Review Office also determined that it was unable to find that the accident on December 17, 2013 caused an enhancement of the worker's pre-existing condition.

On May 8, 2015, the worker, through an advocate, appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 WCB's 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.

Under subsection 27(1) of the Act, the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the effect of pre-existing conditions on the administration of benefits. The Policy states that:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The term "pre-existing condition" is defined in the Policy as "a medical condition that existed prior to the compensable injury."

Worker's Position

The worker was represented at the hearing by a worker advocate, who made a presentation on his behalf.

The advocate submitted that the decision should be overturned based on WCB Policy 44.10.20.10 which, he said, relates to pre-existing conditions and provides that where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable accident, or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident.

It was submitted that Review Office had determined that the worker had pre-existing conditions involving his lower back, and acknowledged that he had had a number of back-related injuries over the years, as noted with his previous claims. The advocate submitted that the worker works in a very physical job, where he is continually bending, lifting, pulling and pushing heavy cages of magazines, and that his occupation and work environment have placed extreme wear and tear on his back. On December 17, 2013, he was attempting to move big cages of books and catalogues when he felt a sharp pain in the left middle lower back. This enhanced his previous back injuries and was the "straw that literally broke the camel's back."

It was submitted that the worker continued to work after his injury on December 17, 2013 as he had with his previous back claims, but went to emergency at the hospital on January 24, 2014 as he could no longer tolerate the pain. He was given T3s, then on January 26, 2014, he saw his family doctor, who ordered X-rays and requested an MRI. The worker was only able to continue to work at that time with the aid of the pain medication he was on. He worked through the pain until it reached the point where he could no longer function, and eventually had the proposed back surgery on November 24, 2014.

With regard to the July 10, 2014 WCB medical advisor opinion, it was based strictly on the file, that there was no single injury and evidence of a significant lengthy pre-existing history of lower back problems. It was submitted that this actually substantiates that every time an injury occurred, it enhanced the previous and/or pre-existing condition which was from previously reported injuries. It was submitted that the pre-existing condition was enhanced by the December 17 injury to the point that the worker required back surgery.

In response to questions from the panel with respect to his use of the word "enhancement", the advocate stated that he was looking at the worker having had previous back injuries; that these had accumulated and built up over the years, and the December 17 injury had finally brought the worker to the point where he required surgery. In other words, it was a cumulative process.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue for the panel to determine is whether responsibility should be accepted for the worker's proposed back surgery. For the worker's appeal to be successful, the panel must find that the proposed surgery is related to the worker's compensable injury. The panel is unable to make that finding.

In the course of the hearing, it was noted that information on file indicated that the worker had requested a review of all of his claims and a decision as to whether they contributed, on a cumulative basis, to his current need for back surgery. By letter dated November 12, 2014, Compensation Services advised the worker that they had reviewed his previous claims and were not accepting responsibility for the proposed surgery. As that decision had not been considered by Review Office to date, the panel had no jurisdiction to make a ruling with respect to the contribution of the worker's prior claims to the proposed surgery. The only issue which is before this panel is whether the proposed surgery was related to the December 2013 compensable injury claim.

The panel notes that the evidence, including the Worker Incident Report filed January 27, 2014, indicate that the worker continued to work following the December 17, 2013 incident, up until January 24, 2014. The event which led to the worker's need for treatment occurred on January 26, 2014, when the worker experienced severe pain after an episode of coughing at home. At the hearing, the worker indicated that he had seen his family doctor at some time prior to January 26, 2014, but there is no reference to any such attendance or doctor's report on the file.

Before the January 26, 2014 incident at home, the worker had been able to continue doing his regular duties for a period of about 6 weeks, with no apparent limitations or restrictions. In his telephone conversation with the WCB representative on January 28, 2014, the worker indicated that he always worked with some level of low back pain and that he opted not to miss work because his pain symptoms were "manageable" and he could not afford to miss work for financial reasons.

The panel notes that the worker's symptoms on the date of the accident were significantly different from his symptoms on January 26, 2014. In his description of the December 17, 2013 incident in his Worker Incident Report (filed January 27, 2014), the worker reported that he "felt sharp shooting pains in the left middle lower back." The hospital emergency report for January 26, 2014, refers to the worker having experienced "sudden severe back pain…radiating to legs" after he coughed. The hospital report also refers to straight leg raise testing having been done. At the hearing, the worked recalled that testing being done on the right side and "screaming…because it was bad".

As noted previously, a WCB Medical Advisor reviewed the worker's file in May 2014, which was after the worker had undergone an MRI of his lumbar spine, and opined that the initial diagnosis based on the reported mechanism of injury and the current diagnosis appeared to be the same, namely "back strain and right-sided radiculopathy occurring in the environment of pre-existing lumbar disc disease." The panel does not accept this opinion. In the panel's view, the evidence does not support the presence of the right-sided radiculopathy in December 2013 or at any time prior to January 26, 2014, based on the worker's ability to continue work and his description of a traumatic change in symptoms on January 26, 2014. The panel finds that the worker suffered only a sprain/strain to the left middle lower back on December 17, 2013.

The panel's finding is further supported by a July 10, 2014 WCB orthopedic consultant opinion that the proposed surgery did not arise out of the compensable injury and diagnosis, stating as follows:

There was no single injury reported, and evidence of a significant lengthy pre-existing history of lower back problems. The imaging study of 2011 identified early evidence of L4-5 disc degeneration and protrusion. The imaging study of March 7, 2014, roughly three months after the date of injury identified significant progression or L4-5 disc degeneration protrusion and extrusion. Also, according to some reports, the onset of right lower limb symptoms occurred after an episode of coughing.

This clinical presentation therefore relates to the known remission/relapse pattern of lumbar disc degeneration with or without radiculopathy, and with no evidence of direct relationship to the workplace.

The panel also notes that the proposed surgery was performed on November 24, 2014, and that the operative report of that surgery, which is on file, suggests that all findings are consistent with degenerative conditions and spinal stenosis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence does not establish that the proposed surgery arose out of, or was related to, the worker's compensable injury in this claim, and that responsibility should therefore not be accepted for that surgery.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 8th day of January, 2016