The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury and was not entitled to further benefits. A hearing was held on November 25, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond April 26, 2013.

Decision

That the worker is not entitled to wage loss and medical aid benefits beyond April 26, 2013.

Decision: Unanimous

Background

On September 5, 2012, the worker filed a claim with the WCB for a low back injury that occurred at work on July 27, 2012. The worker reported that he was lifting boxes that piled 6 feet high. While performing this task, he felt a sharp pain in his low back which was followed by numbness in his legs. He could not move his left leg. He had no previous back problems.

On October 10, 2012, the WCB determined that there was an accident and injury on July 26, 2012 and the claim for compensation was accepted.

A WCB medical advisor reviewed the medical information on October 15, 2012. He commented that the diagnosis appeared to be left-sided radiculopathy. He said the diagnosis was consistent with the reported mechanism of injury (heavy repetitive lifting) and associated low back and left leg pain. The findings on the lumbar spine CT were also consistent with this diagnosis.

On December 20, 2012, the worker was seen at the WCB offices for a call-in assessment. The examining medical advisor's findings were as follows:

"Imaging studies revealed abnormalities at the L3-L4 and L4-L5 disc levels with nerve root impingement likely occurring at those levels as well as foraminal herniations.

Based on today's examination, a specific diagnosis is difficult to determine. Significant pain behaviors are noted on today's examination. The claimant's grimacing, posturing, excess sensitivity to light palpations as well as break away weakness make clinical findings difficult to interpret. However, the claimant appears to have a left sided radiculopathy which may be correlated to the MRI performed in December 2012.

Based on the ongoing complaints of pain and weakness, the intermittent incontinence, as well as the diagnostic difficulties, a referral to a spine and neurosurgeon...will be undertaken on an expedited basis."

On January 16, 2013, the worker was seen by a neurosurgeon who reported that the etiology of the worker's left leg numbness was unclear as it did not follow an obvious radicular pattern. He did not think there was an obvious clinical correlate for the herniations seen at L4-5 and felt that surgical intervention was not indicated.

On March 1, 2013, the worker was seen by a physical medicine specialist and underwent nerve conduction studies. The specialist reported that the studies did not reveal any neurological basis for the worker's complaints of left leg numbness.

A WCB orthopedic consultant reviewed the file on March 28, 2013. In his opinion, the diagnosis appeared to be non-specific non-radicular low back pain. He felt that the effects of the non-specific low back pain occurring eight months ago were predicted to have ended. He felt there was no need for ongoing compensable restrictions.

In a decision dated April 19, 2013, the WCB advised the worker that based on the file information including the WCB medical opinion of March 28, 2013, it was felt that he had recovered from his compensable injury and that he was not entitled to wage loss benefits beyond April 26, 2013. On April 29, 2013, the worker appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office requested and received additional medical information which included MRI reports dated May 3 and July 12, 2013 and a report from a neurologist dated July 28, 2013.

On August 1, 2013, Review Office determined that there was no entitlement to benefits beyond April 26, 2013. Review Office agreed with the WCB medical opinion outlined on March 28, 2013. It found that the worker was provided with essential treatment modalities to assist with his recovery.

Review Office compared the MRI results from July 2013 to the previous MRI of December 2012 and noted that the radiologist found minimal progression in findings had occurred at the L4-L5 disc level. Review Office was unable to account for the change in findings in relation to the compensable injury in the absence of work duties for approximately one year.

On April 30, 2014, the worker asked Review Office to reconsider its decision based on new medical information. In a letter dated May 1, 2014, Review Office advised the worker that the medical report dated July 28, 2013 and MRI of July 13, 2013 had previously been considered. Review Office indicated that it reviewed the neurologist's report of November 25, 2013 and preferred to place weight on the evidence identified in the original Review Office decision. On March 25, 2015, the worker's legal representative appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 25, 2015.

Following the oral hearing, the appeal panel met to discuss the case and requested additional medical information. The information received by the panel was forwarded to the interested parties for comment. On March 2, 2016, the panel met further to discuss the case and rendered its decision on the issue under appeal.

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 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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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 a July 2012 accident. He is seeking wage loss and medical aid benefits beyond April 26, 2013.

Worker's Position

The worker was represented by legal counsel who made a submission on behalf of the worker.

The worker's counsel reviewed the accident and the early claim history. She noted that the claim was accepted as there was an event that happened at work. She noted that the worker was at work, stacking some boxes, and he felt some sudden severe pain and found that all of a sudden he had pain in his back and his leg was numb and weak.

She said that the issue appears to be that after some months of working and being on benefits, the worker's condition did not improve. She noted that his doctor had put the worker on pain killers and put him into various types of treatment and physiotherapy, but he was still experiencing the symptoms and felt unable to return to work. She said that it then appeared that the WCB felt that there was an undetermined cause of this injury and that it may be caused or aggravated by daily living, and there is no entitlement to wage loss, because it’s not the work that is the cause of the continuing discomfort.

She noted that the worker has seen the same family physician since 2005 and had a prior history of back pain, but that this had resolved. She referred to a letter from his physician, dated November 18, 2015, in which he states that the reason for the back pain was his workplace injury. She noted that there is no limit for benefits if there’s a workplace injury and that since the WCB accepted that the workplace injury was the cause, it is obligated to continue with the benefits until the injury is resolved. She noted that the worker has been diligent in seeking treatment, including an appointment on November 26, 2015. She advised that he was injured while working in a mechanized environment with heavy machinery, and it would not be appropriate for him to be working in that environment given that his physician has placed him on high doses of medication.

The worker's counsel advised that the worker has had difficulty finding employment for several reasons including his injury, language issues, and education.

In answer to questions, the worker provided details regarding his background and education, job duties at the time of the accident, his injury, treatments, current living conditions and activities of daily living.

The worker advised that his symptoms include numbness in his leg and butt and that the symptoms have not changed since he was first injured.

The worker's counsel called a representative of the worker's union to give evidence. The union representative advised that he also works at the same facility as the worker but was not familiar with the worker's case. He described the facility as highly automated. He described the work as "very high paced…depending on your position, but if you’re into an entry level position, and that’s generally within your first three years of employment, it is a very extremely high-paced atmosphere." He provided information on the volume of product that a machine operator must deal with.

The worker's counsel noted that although there was a neurologist opinion on July 28, 2013 that supported the worker’s claim as this being a workplace injury, the WCB chose to give greater weight to the neurosurgeon’s evidence.

In answer to a question from the panel regarding his appointments with a neurologist, the worker said:

…she told me that I have to be off at work. Not do a heavy job, not to lift anything, not to bend down until the time that you would require the needle for pain, that can help me from pain. That is what she told me and she said I have to be off from work. Not to do any heavy job or at home.

The worker said that he had an appointment for treatment the day following the hearing. He advised that the neurologist told him he had a nerve problem. He also saw a neurosurgeon who did not recommend surgery.

In answer to a question regarding the nature of the worker's injury, the worker's counsel commented that:

But what would make the most sense to me, just as a layperson in medicine, would be a herniated disc, because just from my lay understand (sic) of what those could do. I think they cause those kind of shooting pains and those types of issues. I would think that there’s also a possibility that there is some kind of nerve issue because of the numbness, so I guess it would be between those two, or both, would make the most sense to me.

She said that she did not think the worker's injury was musculoskeletal.

Regarding the cause of the worker's condition the worker's counsel commented that:

So it may just be that there is something that can’t be picked up yet, so perhaps the tests aren’t sensitive enough to see that there’s some minor thing in the leg, and it may be a very minute part of the body that’s affected but it's causing symptoms.

In closing argument, the worker's counsel said, in part:

Because what we’re seeing from those doctors is that they can’t explain the numbness, they can’t attribute a cause. They suggest this, they suggest that, they do more testing, they say that the reported symptoms don’t match what they can see, but they don’t doubt that the symptoms are real. So essentially, they can’t explain it either, so we really don’t have any kind of medical opinion or consensus. We have some doctors that think it might be one cause, and some that think it’s another cause, but none of them really has anything objective or concrete that we can hang our hats on. So it works both ways. We can’t also dispute that it’s a workplace injury, and we know it arose at work. And as to the continuing reason for the pain, we don’t have those answers…

Employer's Position

The employer was represented by an employer advocate. The employer representative said that the employer acknowledges that the worker suffered a workplace injury which was accepted by the board. The employer does not disagree with the acceptance of the claim and feels that the board concluded the claim appropriately. While the worker is still having pain, the representative submitted there is nothing objective to support that the pain is from the work injury and specifically there is no medical to substantiate that the pain is from the work-related injury.

In reply to a question, the employer's representative advised that she was not familiar with the lay-out of the plant but commented that the work is "Very physical and it’s very automated."

Analysis

The worker injured his back at work in 2012. His claim was accepted by the WCB and he was provided benefits until April 2013. He is now appealing the WCB decision that he is not entitled to benefits after April 26, 2013. For the worker's appeal to be approved, the panel must find that he continued to have a loss of earning capacity and require medical assistance as a result of his work injury, after April 26, 2013. The panel was not able to make this finding.

In making its decision, the panel considered the medical and other information on the worker's claim file, the evidence and argument provided at the oral hearing and the information obtained by the Appeal Commission after the hearing. The panel finds, on a balance of probabilities, that the worker is not entitled to benefits beyond April 26, 2013. The panel was not able to find that the worker's symptoms after April 2013 are related to the workplace injury.

The worker complains of left sided low back pain including numbness of the left leg and buttock area. He says it has been present since the accident. The panel notes that the worker has undergone several MRI scans that demonstrate abnormalities in the worker's spine, primarily at the L4-5 level. The worker has also undergone several examinations by physicians, including neurologists, a neurosurgeon, a physical medicine and rehabilitation specialist with training in electrophysiology, and a WCB medical advisor. The physicians have not found a relationship between the worker's symptoms and the MRI findings, and have concluded that the worker's symptoms are not caused by the MRI findings.

The panel relies upon the following in arriving at this decision:

• Report of neurosurgeon dated January 16, 2013 which indicates that:

"The lumbosacral and upper gluteal discomfort that he is experiencing is very probably musculoskeletal. The etiology of the numbness of the left leg is unclear. It does not follow an obvious radicular pattern. In other words, I do not think there is an obvious clinical correlate for the herniations seen at L4-5. Therefore, I do not think that surgical intervention is indicated at this point in time. I understand that the patient is in the process of undergoing a neurological evaluation. I would recommend an additional neurophysiological one. "

• Report of neurologist dated February 12, 2013:

"His physical findings are not in keeping with the MRI findings."

• Report of Physical and Rehabilitation Medicine physician dated March 1, 2013:

"Electrodiagnostic studies today demonstrated:

1. No evidence of a generalized polyneuropathy

2. No evidence of a left L3, L4, L5, S1 radiculopathy based on needle EMG studies.

3. No evidence of lumbosacral plexopathy."

• Opinion of WCB medical advisor dated March 28, 2013:

"1. The diagnosis appears to be non-specific non-radicular low back pain…

2. There are no specific treatment recommendations. The effects of the non-specific low back pain occurring some 8 months ago is predicted to have ended."

The panel notes that in a letter dated November 18, 2015, the worker's family physician supported the worker's ongoing entitlement on the basis the worker "was able to work prior to the work related accident. This implies that the work related accident had caused or contributed to his back pain…Regardless of etiology, the July 2012 accident would likely have contributed to the back pain which to this day prevents him for returning to work."

The panel is not able to accept this position. The panel finds, based on the medical reports on file, that the worker's ongoing symptoms cannot be explained on a medical basis and that on a balance of probabilities, finds that the symptoms are not related to the worker's workplace injury.

With respect to the opinion of a second neurologist, dated July 28, 2013, the panel attaches greater weight to the opinions that were received closer to the accident date and specifically notes that the earlier reports and tests did not find radicular leg pain present on that date. The panel finds that any ongoing neurological issues are not related to the worker's workplace injury.

The panel finds that the likely diagnosis of the worker's workplace injury, as found by the WCB medical advisor, was non-specific non-radicular low back pain. The panel finds that the worker has recovered from this injury by April 26, 2013.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of April, 2016