The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss and medical aid benefits after March 26, 2013 in connection with her compensable injury. An oral hearing was held on March 21, 2016 to consider the worker's appeal.

Issue

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

Decision

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

Decision: Unanimous

Background

On February 2, 2012, the worker felt a pop in her low back region when she lifted and turned to place a rack of product into a rotisserie oven at eye level.

Initial medical reports showed that the worker attended a hospital emergency facility for treatment on February 3, 2012 and a physiotherapist on February 9, 2012. The claim for compensation was accepted based on the diagnosis of an L5-S1 radiculopathy and an L5-S1 facet joint sprain. File evidence also indicated that the worker had a previous history of chronic back pain and had undergone an L5-S1 fusion surgery in 2009 for spondylolisthesis.

On March 5, 2012, the worker experienced a second injury to her back during a physiotherapy treatment. The treating physician noted that the worker felt something move in her low back and felt immediate pain radiating from the right buttock, posterior aspect to the right foot in an S1-S2 dermatomal distribution. The pain got worse to the point where the worker needed to go to the hospital (rated at 8/10). The physician diagnosed the worker with mechanical back pain following a twisting injury at work with previous fusion/fixation at L5/S1 and no new clinical and subjective S1/S2 radicular symptoms.

On April 6, 2012, the worker underwent an MRI assessment of her lumbar spine which was read as follows:

IMPRESSION: Post surgical changes related to the previous interpedicular fixation at L5-S1 and prosthetic disc limit evaluation of the lumbosacral junction. Mild foraminal encroachment is suspected at L5-S1 as a result of the relative anterolisthesis. Shallow disc protrusions are seen at L4-L5 without significant nerve root compression or foraminal encroachment.

On May 9, 2012, the worker was admitted to hospital and was discharged on May 14, 2012. The hospital discharge report indicated mechanical lumbar back pain with possible right leg root compression signs.

On June 14, 2012, the worker was seen by a WCB orthopedic consultant at a call-in examination. The consultant commented that the most likely diagnosis was perhaps degenerative changes of the lower lumbar spine with facet arthropathy at L3-4 and L4-L5. The only imaging report was the MRI on April 6, 2012, which showed advanced degenerative disc disease at L5-S1 and mild degenerative changes at L3-4 and L4-5 with facet arthropathy. The consultant concluded that symptomatically, the worker did not appear to be recovering and on physical examination there were no findings to account for the failure to improve.

The worker's treating orthopedic surgeon reported to the family physician on July 17, 2012 that the worker's complaints of symptoms far outweighed the clinical findings and the MRI scan. The surgeon concluded that the worker was not a surgical candidate and that a return to modified duty work would alleviate any long term lingering pain syndrome type features.

In early August 2012, the WCB case manager arranged for the worker to attend a pain management specialist for 4 structured pain management psychoeducation sessions to assist the worker in coping with a future return to work program.

On August 27, 2012, a WCB medical advisor outlined specific work restrictions for the worker's graduated return to work program starting at 2 to 4 hours per day. In early September 2012, the worker commenced a graduated return to work program.

A WCB orthopedic consultant commented on December 7, 2012 that the MRI of April 6, 2012 showed degenerative changes between L3 to S1 and that the worker's current symptoms may be due to some extent to the pre-existing lumbosacral conditions.

In a progress report dated December 28, 2012, the physician noted that the worker stated she was fine for the first 5 to 6 hours of her shift but then she began to feel increased pain to the whole low back.

On February 15, 2013, an MRI of the lumbar spine was read as follows:

IMPRESSION: Disc protrusion at L4-L5 contacting the traversing L5 roots bilaterally.

In doctor progress reports for examinations on February 22, 2013 and March 5, 2013, the physician noted that the worker had ongoing mechanical back pain without objective root compressions signs but + central and paracentral disc at L4-L5 and bilateral L5 root irritation. He noted that the worker was showing no improvement with the current prescription program and had ongoing dysfunction due to pain.

On March 18, 2013, a WCB medical advisor opined that the reported MOI (mechanism of injury) was consistent with a relatively minor strain injury.

By letter dated March 25, 2013, the worker was informed of the WCB's decision that she had recovered from the effects of her compensable injury and that any ongoing symptoms that she may be experiencing were unrelated to her compensable injury. Wage loss benefits and medical treatment would not be authorized beyond March 26, 2013.

On July 23, 2013, an advocate for the worker submitted a medical report from the family physician dated June 17, 2013 for consideration by the WCB. The family physician outlined his opinion that the worker had not recovered from her back pain and was still suffering from chronic back pain with possible nerve root compression signs in the right leg and to the left leg.

By letter dated July 25, 2013, the worker was advised that no change could be made to the previous decision to end benefits on March 25, 2013 as the medical report did not contain any new information that was not previously contained in the claim file. On July 30, 2013, the worker's advocate appealed the decision to Review Office.

On October 29, 2013, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after March 26, 2013.

Review Office stated that it accepted the expressed opinions of the WCB orthopedic consultant and WCB medical advisor over that of the family physician. Review Office referred to the treating orthopedic surgeon's comments that the worker was not a surgical candidate and that only continued rehabilitation was necessary. On February 22, 2013, the treating physician said there were no objective root compression signs (this was after the second MRI). Review Office commented that the MRI findings of 2012 and 2013 do not correlate with the injury of February 2012 or March 2012. The disc protrusion reported on the 2013 MRI was not reported or seen on the MRI of 2012. There were no loss of earnings as the worker continued to work after March 26, 2013 without any loss in wages.

On October 13, 2015, the worker's representative appealed Review Office's decision 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 WCB Board of Directors.

Under subsection 4(1) of 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 it considers is necessary to cure and provide relief from an 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 a workplace injury that occurred on February 2, 2012. The worker is appealing the WCB decision that she is not entitled to wage loss and medical aid benefits after March 26, 2013.

Worker's Position

The worker was represented by a worker advocate who provided a written copy of his submission. The worker answered questions from the panel.

The worker's representative submitted that Review Office did not accept or place appropriate weighting on the diagnosis by the worker’s family physician who had been managing her care for a number of years.

He noted the physician's opinion that the worker had not recovered from her back pain and was still suffering chronic back pain with possible nerve root compression signs in the right leg and to the left leg.

The worker's representative stated that the orthopedic surgeon, who performed the original pre-accident surgery in 2009 of L5-S1 decompression and fusion, misdiagnosed that "the cage he installed in the worker's back had not shifted or became loose." Later evidence shows that it did become loose. He noted that the orthopedic surgeon refused to provide further treatment.

The worker's representative referred to the MRI of February 5, 2013 which showed disc protrusion at L4-L5 contacting the traversing L5 roots bilaterally. He advised that the worker saw a second orthopedic surgeon who opined, in a letter dated December 10, 2013, that the surgery would require revision, decompression and instrumental fusion to improve the worker's condition of internal fixation and disc prosthesis of L5-S1. This surgeon diagnosed the worker with pseudoarthrosis, L5-S1 with bilateral radicular and claudicate pain.

The second orthopedic surgeon performed surgery on September 29, 2014, which facilitated a laminectomy and posterolateral decompression, extruded cage on the right side that was thoroughly grown into the end plate of S1, but was mobile at L5, which was tenting the existing L5 nerve root as well as a traversing S1 nerve root.

The worker's representative submitted that:

The compensable injury of February 2, 2012 is directly related to the structural changes that occurred, resulting in additional surgery to repair the damage that was done.

Following the surgery the worker attended physiotherapy starting in January 16, 2015, where she had nine follow-up appointments. She did not progress, and plateaued. The therapist does not believe that the worker can return to her regular duties, but can return to light or modified duties of some sort following a functional capacity evaluation.

The worker's representative submitted that WCB Policy 44.10.20.10, Pre-existing Conditions is applicable to the worker's case.

The worker described the accident which occurred when she was placing skewers loaded with product in an oven. She believes she felt the pain when placing the second or third skewer in the oven. She said she had a pop kind of feeling in her lower back.

The worker denied that she had left-sided problems from the injury. She said her symptoms were always right-sided.

The worker advised that as of the date of the hearing, she is not able to return to work.

Employer's Position

The employer was represented by an employer advocate and the employer's abilities specialist.

The employer representative noted that the WCB did not approve the second surgery. She also noted that the worker had a significant pre-existing condition, had previous spinal surgery and had ongoing problems.

With respect to medical information, she noted that the first operating orthopedic surgeon did not find a problem which could be surgically treated. She also noted that a WCB orthopedic consultant reviewed all of the WCB file and concluded that he would not expect the mechanism of injury to result in any severe injury. He suggested that if there was a strain, it would have healed long ago.

The employer representative said that the mechanism of injury does not support the extensive trauma and pathology in the spine that required the surgery in 2015.

She said that although the worker had pre-existing degenerative disc disease, there was not a relationship between the 2012 injury and the worker's pre-existing condition. She asked that the appeal be denied.

Analysis

The worker is appealing the WCB decision that she is not entitled to wage loss and medical aid benefits after March 26, 2013. For the worker's appeal to be approved, the panel must find that, as a result of the workplace injury, the worker sustained a loss of earning capacity and required medical aid beyond March 26, 2013. The panel was not able to make these findings.

The worker's position was that the work incident caused the metal cage which had been installed in 2009 to shift, resulting in a nerve injury and the need for further surgery.

The panel was not able to find that the 2012 workplace accident caused the metal cage to shift resulting in the back injury and subsequent surgery.

The panel notes that the February 2012 x-ray did not show any movement of the cage. The worker's former surgeon reviewed the x-ray and noted that it showed the fixation of L5-S1 including a Trabecular Metal cage at L5-S1. The panel also notes that the April 6, 2012 MRI noted post-surgical changes related to the previous interpendicular fixation at L5-S1, degenerative changes and no significant nerve root encroachment. As well, the panel could find no reference to a loose or broken screw in the operative report.

The panel attaches significant weight to the opinion of the worker's first orthopedic surgeon who performed the 2009 back surgery. The file evidence indicates that the surgeon examined the worker on July 17, 2012 and reviewed the February 2012 x-ray and the April 6, 2012 MRI of the worker's lumbar spine. The surgeon's conclusion was that:

This patient's complaints of symptoms far outweigh the objective findings and the MRI scan. She is certainly not a surgical candidate. She should continue with weight reduction and intensive core strengthening exercises. The sooner this patient gets back to work the better it will be. Modified duties will obviously be employed initially but this patient should return to work in my opinion to alleviate any long term lingering pain syndrome type features.

The panel also attached weight to the June 14, 2012 opinion of the WCB orthopedic consultant who reviewed the file and examined the worker. The WCB orthopedic consultant opined:

The most likely current diagnosis is, perhaps, the degenerative changes of the lower lumbar spine with facet arthropathy at L3-4 and L4-5. The only imaging we have are of the MRI on April 6, 2012, which shows advanced degenerative disc disease at L5-S1 and mild degenerative changes at L3-4 and L4-5 with facet arthropathy…The MRI does not show any signs of an injury consistent with the mechanism of injury.

The panel also accepts the March 18, 2013 opinion of a WCB medical advisor. In answer to a question on whether there is a relationship between the worker's symptoms and the workplace injury, the WCB medical advisor commented that:

"On balance no. The reported MOI was consistent with a relatively minor strain injury. While noting the significant pre-ex back condition (2009 lumbar laminectomy/discectomy/fusion), imaging in April 2012 (two months post injury) did not demonstrate a significant new structural abnormality to account for the reported symptoms. On balance current low back symptoms are accounted for more likely by effects of the pre-existing chronic low back condition and its surgical treatment than by any continued effects of the ci (compensable injury) of over one year ago."

With respect to the MRI conducted on February 15, 2013, which noted a disc protrusion and nerve root contact, the panel was unable to relate these findings to the compensable injury. The panel notes that prior examinations and the April 2012 MRI do not identify nerve root contact.

In conclusion, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity and did not require medical aid beyond March 26, 2013 as a result of her 2012 workplace accident.

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 26th day of April, 2016