The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the WorkersCompensation Board ("WCB") that his current back complaints are notrelated to his November 5, 2009 compensable injury.  A hearing was held on November 25, 2015 toconsider the worker's appeal.  

Issue

Whether or not the worker is entitled to further benefits inrelation to the November 5, 2009 compensable accident.

Decision

That the worker is not entitled to further benefits inrelation to the November 5, 2009 compensable accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred during the course of his employment as a truck driver on November 5, 2009. The worker reported that he was delivering freight when he fell off the back of the truck and landed on a cement curb. The worker estimated that he fell about five feet. The claim for compensation was accepted based on the diagnosis of a transverse process fracture of L1 to L4.

Following the accident, the worker attended physiotherapy sessions and was treated by an orthopedic surgeon. By June 1, 2010, the worker returned to his regular work duties and was discharged from medical treatment.

On May 25, 2012, the worker contacted the WCB to advise he was having ongoing difficulties that he related to his workplace injury of November 5, 2009. The worker stated that whenever he is working he has pain. He said his leg has given out on him at least 12 times resulting in a fall. There was no new injury or incident at work or at home. His back has never been the same since his return to work following the injury. The worker requested the WCB cover the costs of physiotherapy treatment.

On August 1, 2012 a WCB medical advisor reviewed the recent medical reports on file and provided a medical opinion that the worker's symptoms of "non-specific, non-radicular low back pain" and intermittent reduced range of motion in the lumbar-sacral spine were "not accounted for in relationship to the initial workplace incident" of November 5, 2009.

In a decision dated August 2, 2012, the WCB advised the worker that his request for further benefits was not approved. The decision was based on the WCB medical advisor's August 1, 2012 opinion that the worker's one year delay in seeking treatment did not support any ongoing relationship between his current symptoms and the original compensable injury. As well, the current medical findings noted a symptom complex different from the original complaints.

On May 17, 2013, the worker advised a WCB case manager that he could not perform physical work like he used to. The worker provided additional information regarding his ongoing back complaints and the job duties he performed after returning to work.

In June 2013, an advocate for the worker contended that there was a relationship between the worker's 2009 compensable injury and his chronic back pain. The advocate noted that this finding was also supported by the worker’s treating orthopedic surgeon.

Prior to considering the worker's appeal, Review Office asked a WCB orthopedic consultant to review the 2013 medical information on file and to provide a medical opinion regarding the worker's current diagnosis and whether or not the findings were medically accounted for in relation to the November 5, 2009 workplace injury. The WCB orthopedic consultant provided an opinion in a report dated November 20, 2013 that set out, in part:

The workplace injury of November 5, 2009 caused fractures of the left transverse processes of L1, L2 and possibly L3, on my review of those x-rays. Based on the physiotherapist's discharge report the worker's recovery was typical after transverse process fractures.

The current low back pain and right leg symptoms are caused by the L5-S1 disc protrusion, supported by clinical findings in 2013 and the results of the MRI. There was no diagnosis offered in 2009/2010 of a disc protrusion in relation to the workplace injury. The current medical findings are not related to the November 2009 workplace injury.

On December 12, 2013, Review Office determined that the worker's compensable injury had resolved by May 2010 and that the worker's current back difficulties were not related to the November 5, 2009 workplace injury, placing weight on the WCB orthopedic consultant's opinion.

On June 26, 2015, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

In considering this appeal, the panel is 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.

Worker’s Position

The worker was represented by a worker advisor in the hearing. The worker's position, as outlined by his advocate, is that the worker is entitled to further benefits in relation to the November 5, 2009 compensable accident on the basis that the worker's current complaints are the result of a recurrence of the original compensable injury. Alternatively, the advocate argued the initial compensable diagnosis should have included, in addition to the accepted compensable diagnosis of a transverse process fracture of L1 to L4, the later diagnosis of disc protrusion at L5-S1 with right side bulging into the foramen.

In the course of the hearing, the worker advisor acknowledged to the panel that there could not be a recurrence of a healed transverse process fracture of L1 to L4 and withdrew that argument, but confirmed the worker’s position that the initial compensable diagnosis should have included the current complaints.

Employer's Position

The employer, represented by an agent, acknowledged that the worker continues to experience serious health issues related to his back, but took the position that there is no link between the worker's current diagnosis and the compensable accident of November 5, 2009. The employer's position was that the worker is therefore not entitled to further benefits in relation to the November 5, 2009 compensable accident.

Analysis and Decision

The sole issue for the panel to determine is whether or not the worker is entitled to further benefits in relation to the November 5, 2009 compensable accident. In order to find that the worker is entitled to further benefits, the panel must find, on a balance of probabilities, that the worker continues to suffer personal injury as a result of the compensable injury. The panel was unable to make this finding.

Having reviewed the medical reports from the worker's orthopedic surgeon, involved shortly after the injury in November 2009, we note that neither a disc bulge nor any other neurological concerns were identified by the treating professionals at that time. The orthopedic surgeon’s report of November 5, 2009 sets out that the x-rays confirm multiple fractures of the transverse processes of L1 through L4. Subsequent reports from the same physician on November 9 and 23, 2009 reference only the transverse processes fracture of these same vertebrae.

Similarly, the physiotherapy reports from 2010 do not identify any neurological concerns. The initial physiotherapy assessment dated February 19, 2010 notes some lumbar stiffness/weakness as the primary concern. Subsequent physiotherapy reports dated March 30 and May 28, 2010 suggest that the worker continued to progress, to a point that on May 28, 2010 the physiotherapist notes that the worker’s “…[l]ow back is feeling good with all work duties, no complaints” and that the worker’s range of motion is normal and lumbar/core strength is normal.

It wasn't until July 2011 that any neurological issues were identified in the medical reports on file. At that time, the worker's reported complaints included numbness and shooting pain in the right leg, beginning in the previous month. In August 2011, the worker’s physician noted that the worker was no longer reporting paresthesia.

In late November 2011 another physician noted that the worker was experiencing shooting pain to his right leg. A December 2011 CT scan revealed multilevel minimal to mild diffuse disc bulging, but no root compression was noted.

The worker did not contact the WCB again until May 2012 when he advised the WCB of his ongoing lower back complaints that he related to the November 2009 workplace injury.

In August 2012, a WCB medical advisor reviewed the file and noted that the CT scan did not reveal any significant pathology. The medical advisor concluded that "...there were no structural changes reported that would be related to the initial workplace event."

We note that the same orthopedic surgeon involved at the outset when the worker was injured in 2009 assessed the worker again in March 2013. At that time, he reported "This patient has chronic back pain following a previous transverse process fracture. He does complain of the right leg giving out but no corrlating [sic] neurological symptoms could be found during the examination."

A subsequent MRI, on March 26, 2013, found a disc protrusion at L5-S1 on the right with possible irritation of the right S1 root.

The orthopedic surgeon, having reviewed the MRI report, concluded in his May 2013 report, that "The patient clearly has a problem with a chronic L5-S1 disc injury. This is related to his fall from his truck in 2009...the MRI scan confirms significant disc disease at L5-S1 with the central to right disc herniation."

This conclusion was challenged by a second WCB medical advisor, in a report dated November 20, 2013. While the WCB Medical Advisor agreed that the worker's current low back pain and right leg symptoms were caused by the L5-S1 disc protrusion, the medical advisor could not relate those findings to the workplace injury of 2009. The medical advisor distinctly opined:

Current medical findings are not related to the workplace injury. The workplace injury of 5-Nov-09 caused factures of the left transverse processes of L1, L2 and possibly L3, on my review of those x-rays. The same attending [orthopedic surgeon] in 2009/2010 did not offer a diagnosis of disc protrusion at that time. Symptoms of [lower back pain] and positive left sided straight leg raising led to CT being done on 22-Dec-2011. The CT demonstrated mild multilevel disc bulging with no nerve root compression seen. Between 2011 and 2013 there was a change of symptoms...There is no evidence that there was a right sided disc protrusion at L5-S1 prior to 2012."

The worker, through his advocate, took the position that the diagnosis of disc protrusion at L5-S1 relates directly to and should have formed part of the diagnosis arising from the accepted compensable injury of November 5, 2009.

Having carefully reviewed all of the medical reports, we are unable to make that determination. The medical findings do not support any connection between the current diagnosis of disc protrusion and the injury arising out of the compensable accident of November 5, 2009. In this regard, we are persuaded by the November 2013 report of the WCB medical advisor that notes a change of symptoms between 2011 and 2013 and the lack of evidence of a right sided disc protrusion at L5-S1 prior to 2012.

The worker, in answering the questions of the panel, did reference a change in job duties that took place in early 2012. The issue of whether new job duties may have played any role in the worker's developing diagnosis is not before the panel for consideration and we are not therefore making any determination of that issue.

The panel is unable to find, in the evidence before us, support for either a recurrence of the original compensable injury or, for a link between the current diagnosis and the November 5, 2009 compensable accident that would justify adding to the compensable diagnosis as the worker, through his advocate, has suggested.

We acknowledge that the worker has experienced ongoing back discomfort, but the evidence does not lead us to conclude that these complaints are linked to the fall from the truck in 2009 and therefore does not lead to the conclusion that the worker’s ongoing lower back discomfort is the result of an accident that arose out of and in the course of his employment.

Based upon the evidence before us, we find on a balance of probabilities that the worker’s current lower back complaints are not linked to the workplace accident of November 5, 2009 and therefore, the worker is not entitled to further benefits in relation to the November 5, 2009 compensable accident.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 13th day of January, 2016