The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was fit to return to his regular work duties by November 2011. A hearing was held on December 16, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss benefits.

Decision

That the worker is not entitled to further wage loss benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on October 30, 2010 while lifting some metal that weighed about 20 to 30 kg onto a hoist. The worker noted that he continued working for two weeks with a painful back. After two weeks, the pain got worse to the point where he could not move, so he saw a doctor for treatment. A doctor's first report dated November 4, 2010 diagnosed the worker with a low back strain.

The claim for compensation was accepted by the WCB and in December 2010, the worker commenced physiotherapy treatment based on the diagnosis of a lumbar sprain/strain. On December 10, 2010, the worker started a graduated return to work program while attending physiotherapy treatments.

On February 28, 2011, the worker was seen by an orthopedic specialist regarding his low back complaints. The specialist reported that the worker's clinical symptoms seemed to be due to mechanical type low back pain and that a CT scan was being arranged.

On March 24, 2011, the worker underwent a CT scan of the lumbosacral spine. In a report dated April 4, 2011, the treating orthopedic specialist stated that the CT scan was suggestive of disc bulges at the lower three disc spaces of the lumbar spine at L3-4, L4-5, and L5-S1. This did not seem to be significant, in the absence of any radiating pain down to the lower limbs, when he last saw the worker in February 2011.

On July 19, 2011, the worker advised the WCB that his back condition was not getting better and felt that his condition was becoming chronic.

In September 2011, the WCB arranged for the worker to attend a reconditioning program three times per week. In a letter dated September 8, 2011, the WCB advised the worker that the WCB viewed this program and his alternate work duties as part of his overall recovery program.

On October 13, 2011, the WCB wrote the worker to advise that based on the final assessment of his reconditioning program, he was capable of performing job duties that met a functional strength demand of medium to heavy. The worker was advised that a graduated return to his regular work duties had been arranged with his workplace and that partial wage loss benefits would be issued to November 4, 2011. On November 7, 2011, the worker advised the WCB that he was laid off from employment for reasons that were unrelated to his work injury.

On May 22, 2015, the worker's legal representative appealed the WCB's decision of October 13, 2011 to Review Office. The worker's position was that the objective medical evidence was either ignored or misapprehended by the WCB. The representative noted that the worker was participating in modified duties as well as his regular duties. He was working in pain and this affected his mobility. It was contended that the worker did not have the capability to meet the demands of a job that required lifting from 20 to 74 pounds on a daily basis. The job required lifting, twisting, turning and bending for 8 to 10 hours a day that would never be possible again. Permanent restrictions should have been implemented and the worker should not have had his wage loss benefits terminated. The representative stated that the worker continued to have a loss of earning capacity and was eligible to receive wage loss benefits under the Act.

In a decision dated June 15, 2015, Review Office determined that there was no further entitlement to wage loss benefits. Review Office accepted that the compensable injury was mechanical/non-specific back pain and that recovery would be of short duration with or without treatment. Review Office referred to the medical findings following the worker's discharge from the reconditioning program.

Review Office noted that the worker received partial loss benefits to October 14, 2011 as after this date, he was working full time hours at his regular rate of pay. Therefore Review Office found no further entitlement to partial wage loss benefits and felt that the medical evidence supported that the worker was fit to resume his pre-accident duties and hours by November 7, 2011. On June 19, 2015, the worker's representative appealed Review Office's decision to the Appeal Commission and an oral hearing was held on December 16, 2015.

At the hearing held on December 16, 2015, the worker advised the appeal panel that he recently underwent an MRI examination of his low back region. Prior to deciding the issue under appeal, the appeal panel decided to request a copy of the corresponding MRI report.

On December 29, 2015, the worker's representative provided the Appeal Commission with CT scan results dated February 4, 2015 for consideration. He stated the CT scan results were compared to the March 24, 2011 CT scan results. The worker's position was that the neural foraminal narrowing at the L4 nerve root was formed as a direct result of his workplace spinal injury.

On February 18, 2016, the worker's representative called the Appeal Commission to enquire whether a decision had been made on the worker's appeal. The representative was advised that the appeal panel were still awaiting the MRI results pertaining to the worker's low back that was taken "approximately three months ago." The representative stated that to his knowledge, the only imaging results that are available were the CT scan results of February 4, 2015 and that there was no recent MRI. If the worker indicated that an MRI was done at the hearing, he was mistaken. The representative was asked whether he wished to make further written comments regarding the CT scan results that he submitted on December 29, 2015. The representative stated that he would not be making a further submission to the panel other than what was outlined in his letter to the Appeal Commission dated December 29, 2015.

On March 4, 2016, the Appeal Commission received confirmation from the hospital facility that they did not have record of an MRI report related to the worker. On March 16, 2016, the panel met further to discuss the case and rendered its decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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 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 30, 2010 accident. He is seeking further wage loss benefits.

Worker's Position

The worker was represented by legal counsel who outlined the worker's position on this appeal. The worker answered questions from his counsel and from the panel.

The worker's counsel advised that the worker was injured at work on October 30, 2010. He advised that this injury resulted in a serious injury that was confirmed by CT scans. He referred to the March 24, 2011 CT of the worker's lumbosacral spine. He noted that the CT found:

At L2-L3, there is no disc herniation, spinal stenosis or nerve root compression. At L3-L4, there is slight disc bulging but no herniation, spinal stenosis or nerve root compression. At L4-L5, there is mild bulging with a far shallow left lateral disc protrusion just contacting the exiting left L4 nerve root. At L5-S1, there is minimal disc bulging but no herniation, spinal stenosis or nerve root compression.

After the hearing, the worker's counsel provided a second CT report, dated February 4, 2015, which noted broad-based posterior disc bulging at the L3-L4 and L4-L5 levels. The Impression of the radiologist was that "The appearances are improved from the previous study. No new abnormalities are identified."

The worker's counsel indicated that the nerve issue identified in the CT is preventing the worker from returning to work. He asked that the panel accept the CT findings which he described as the "gold standard" and accept the worker's appeal for further benefits.

Regarding the various reports on file from the treating physician, orthopedic specialist, physiotherapist, rehabilitation clinic physician and WCB medical advisor that the worker does not have a neurological injury, the worker's counsel said that these reports were wrong given the CT findings of nerve involvement.

In answer to a question from the panel about the relationship between the left L4-L5 nerve root findings on the CTs to the worker's right leg pain, the worker's counsel commented:

What we have here is we have a CT scan that clearly indicates that there’s existing left L4 nerve root involvement. Now whether it’s heading down the left leg or the right leg, [the worker] consistently reported to me that he has pain going down his right leg, that’s for a doctor to answer, not a lawyer, or not [the worker], and respectfully speaking, not the panel itself.

Regarding the various clinical tests that the physician administered on the worker to find or confirm nerve injuries, the worker's counsel commented that:

Those tests, from my point of view, are more subjective than objective. When you’re comparing to actually imaging from a CT scan or an MRI. That should be the gold standard. And the gold standard … the March 24, 2011 at the L4, L5 shows a far left lateral disc protrusion just contacting the left L4 nerve root.

In answer to questions, the worker advised that he has not been able to work as a result of this workplace injury. He advised that he has constant pain. He identified the pain to be in the general area of his back near the beltline more on the right side. He said that it goes up and also down on the right side to knee. He has the pain all the time. He said that doctors have told him he will have to learn to live with pain.

The worker said that he has constant pain but that some activities can increase the pain. He provided examples of when his pain increased. He also advised that he uses a back brace or corset which limits his pain. He said that his condition has not changed since he was first injured.

In terms of fitness, the worker advised that he rides a bike in the summer and continues to do the exercises that were recommended by the physician at the reconditioning program in 2011.

In closing the worker's counsel commented:

That it’s completely irrational to say that in [the worker's] condition he would be able to return to his workplace duties as he did for the past 20 years prior, without any back ailments at work…

And [the worker's] constant subjective complaints throughout this file over the last four years have been absolutely corroborative with regards to the CT scan, meaning, his subjective complaints do support, or I’ll rephrase that, the CT scan does support his subjective complaints with regards to the nerve involvement, and there is a pain generator…

Employer's Position

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

Analysis

The worker has an accepted claim for a low back injury arising from a 2010 workplace accident. The worker's wage loss benefits were terminated in November 2011. He is seeking further wage loss benefits. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity due to the 2010 workplace accident. The panel was not able to make this finding. The panel finds, on a

balance of probabilities, the worker did not sustain a loss of earning capacity, beyond November 2011, as a result of the accident.

The panel considered the counsel's assertion that the CT scans confirm the nerve damage which is preventing the worker from returning to work. The panel acknowledges that the CTs show disc bulging and a protrusion touching the L4 nerve which can be a pain generator. However, the panel notes that the worker has not identified or complained of any symptoms consistent with the CT findings. The worker's complaints are of right-sided low back pain. The CT findings do not show a right sided neurological injury. The worker has not complained of pain associated with the left side L4 nerve.

The panel reviewed the medical reports on file and found that the treating physicians and physiotherapist checked for neurological symptoms but that the tests which were conducted were negative. The panel relies on the following medical reports in making this decision:

• November 4, 2010 - family physician diagnoses lower back strain. No neural complaints are noted.

• December 12, 2010 - physiotherapist diagnoses lumbar sprain/strain.

• February 28, 2011 - orthopedic surgeon - notes "no radiation of pain down to the lower limbs", "no pain in his thighs", on examination "he could toe walk and heel walk without difficulty. There were no signs of muscle weakness in his lower limbs. Sensation of the limbs were normal. All his deep reflexes were present and equal bilaterally. He had downgoing toes on both sides….Clinically his symptoms seem to be due to mechanical type low back pain."

• April 4, 2011 - orthopedic surgeon - "…the CT scan report that is suggestive of disc bulge at the lower three disc spaces of the lumbar spine at L3-4 , L4-5 and L5-S1 that do not seem to be significant in the absence of any radiating pain down to the lower limbs…".

• May 16, 2011 - orthopedic surgeon - "On examination, he was noted to have slight discomfort on extension of his lumbar spine at the upper lumbar spine area. Straight leg raising test was negative. He had full range of motion in both hip joints. Sensation, muscle power and reflexes were noted to be normal."

• July 5, 2011 - WCB medical advisor - "The disc bulge and L4-5 region disc protrusion are not felt to be active pain generators, especially given no reported radiculopathic symptoms and unlikely factoring in to the worker's current low back signs/symptoms."

• September 16, 2011 - physical medicine and rehabilitation specialist - examination found no evidence of dural irritation or nerve root tension signs.

The worker's counsel expressed the opinion that the test conducted by the medical practitioners were subjective and that the only reliable objective evidence on file was from the CT scans. The panel finds this argument to be flawed. The panel disagrees and finds that the tests performed are objective and that in the absence of clinical correlation, the CT scans do not establish a neurological injury that would explain the worker's right leg symptoms.

The panel finds, on a balance of probabilities, that the worker sustained a sprain/strain injury which had resolved by November 7, 2011. This finding is supported by the rehabilitation and physical medicine specialist's report of October 5, 2011 regarding the worker's status in the last week of his reconditioning program. The panel further finds that his ongoing complaints are not related to the compensable injury and any loss of earning capacity after this date is not related to the compensable injury.

Finally, the panel notes that benefits were paid until November 4, 2011 at which time the worker was considered fit to return to his regular duties. Unfortunately, the worker was dismissed from his employment effective November 7, 2011 for reasons not related to his workplace injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of April, 2016