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 not entitled to further benefits in relation to his October 25, 2011 compensable injury. A hearing was held on March 3, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to his workplace injury of October 25, 2011.

Decision

That the worker is not entitled to further benefits in relation to his workplace injury of October 25, 2011.

Decision: Unanimous

Background

On October 25, 2011, the worker pulled on a carcass with a hook to pull it to the hoist area when he felt pain in his right low back, upper buttock and leg.

On November 7, 2011, the worker was seen by his family physician who reported that the worker developed acute lower back pain radiating into the right lateral leg while trying to lift a carcass from the ground. The worker reported that he had gone to the company nurse and a doctor and been placed on light duties with minimal lifting for 10 days. A lumbar spine x-ray had been performed and showed a lumbosacral transitional vertebra. The worker had had no reported improvement of symptoms. He had sciatic-type pain, which worsened when bending forward, and a pins and needles feeling at times in the right lateral thigh. The worker was diagnosed with sciatica and to rule out a disc prolapse.

In a physiotherapy report dated November 21, 2011, it was recorded that the worker complained of constant pain, tingling and numbness in his right shin and foot. The diagnosis was an L4-5 right facet sprain.

The claim for compensation was accepted and physiotherapy treatment was authorized.

Subsequent file records showed that the worker underwent a CT scan of the lumbar spine on November 25, 2011. The findings revealed a diffuse mild disc bulge at L5-S1 which contacted both S1 nerve roots and resulted in mild narrowing of the inferior aspect of the neural foramina, and lumbosacral transitional vertebrae. A CT scan of the thoracic spine performed January 23, 2012 showed mild thoracic scoliosis and no acute fracture or subluxation.

As the worker's back pain continued, a WCB call-in examination took place on April 26, 2012. The examining WCB orthopedic consultant stated there were no objective physical findings which would indicate a specific injury. The thoracic spine x-ray did not show any signs of an injury. The reported scoliosis was mild and would be pre-existing, and would not be expected to have affected the lower back and right leg. The lumbosacral spine CT scan and x-rays showed a pre-existing transitional vertebra. This was a common abnormality which was rarely, if ever, symptomatic, and was not related to the injury. The diffuse bulge of the L5-S1 disc was very frequently reported in the general population and was of no significance.

The orthopedic consultant said he could not rule out that the worker had a back strain, and noted that such a strain would be expected to resolve within a very few weeks. On the balance of probabilities, the consultant stated that the worker's current presentation did not appear to be medically accounted for in relation to the workplace injury.

By letter dated May 25, 2012, the worker was advised that the WCB was unable to medically account for his current low back difficulties as being related to the October 25, 2011 workplace injury, and that as a result, no workplace restrictions in relation to the claim had been outlined, and responsibility for wage loss benefits and medical treatment would not be further authorized.

On December 10, 2013, the worker's union representative provided the WCB with a letter from the treating orthopedic surgeon dated April 17, 2013. The union representative stated that the treating orthopedic surgeon was of the view that since the worker had no previous injury and no history of back pain before the workplace injury, his present condition was most likely related to the October 25, 2011 compensable injury. Based on the orthopedic surgeon's letter, the union representative submitted that there was no other logical explanation for the worker's continuing medical issues, and asked that the WCB accept responsibility for those issues.

On December 19, 2013, having reviewed the information provided by the union representative, the WCB orthopedic consultant stated that he had not found any new information which would change his earlier opinion, and was unable to find any clinical medical evidence of a probable relationship between the original work-related diagnosis and the worker's ongoing back difficulties.

On February 13, 2014, the WCB case manager advised the worker that based on the WCB orthopedic consultant's opinion, she had determined that his continued low back difficulties beyond May 25, 2012 were not the direct result of the October 25, 2011 compensable injury.

On February 14, 2014, the union representative submitted lumbar spine MRI results dated January 23, 2014 which reported that the worker suffered from a small annular tear at L4-L5. The union representative stated:

There are two basic reasons for an annular tear with one being normal aging and the other being any strenuous activity or occupation involving heavy lifting or lots of bending. The symptoms resulting from an annular tear mirror those of a back strain except that they do not get resolved as easily as a back strain and only after the tear has been diagnosed as such.

As [the worker] is only in his mid-30's with no history of back pain until the incident that led to this claim we believe that, on the balance of probabilities, this annular tear did occur at the workplace and therefore the WCB should accept his claim.

After consultation with the WCB orthopedic consultant on March 20, 2014, the WCB case manager advised the worker on March 27, 2014, that:

...the CT scan of November 25, 2011 carried out shortly after your workplace incident revealed a L5-S1 diffuse disc bulge and no abnormality at L4-5. The MRI of January 23, 2014 reports a mild diffuse bulging at L4-5 and no abnormalities at L5-S1. As such, your most recent medical findings appear to be new and unrelated to your workplace injury of October 25, 2011. Therefore, there is no change to my previous decision and the WCB is unable to accept responsibility for your ongoing wage loss and medical aid benefits.

In a report to the WCB dated October 9, 2014, another family physician indicated that the worker had been his patient since February 2011, and had never had any kind of back pain until after October 25, 2011. Based on x-rays dated November 3, 2011 and the CT scan performed November 25, 2011 and the fact that the worker did not have this pain prior to the injury, the physician opined that the injury sustained by the worker in October 2011 directly impacted the disc bulge and the compression of the nerve roots, and had been the cause of his ongoing spinal pain since then.

On January 28, 2015, a second WCB orthopedic consultant reviewed the digital files of the worker's CT scan of November 25, 2011 and MRI examination of January 23, 2014 at the request of the case manager. The consultant opined as follows:

• The most probable diagnosis of the workplace injury was a sprain/strain of the lumbar spine in the environment of degenerative lumbar disc disease (DDD);

• A pre-existing condition was considered to have delayed recovery from the workplace injury;

• The extent of the lumbar DDD seen on the CT scan would be a pre-existing condition, requiring several years to develop;

• It was apparent that the worker's low back and lower limb symptoms were entirely attributable to the pre-existing DDD;

• There was no medical evidence to support aggravation or enhancement of the pre-existing pathology of the lumbar spine. There were differences in sensitivity and specificity of MRI compared to CT, but the extent of the degenerative changes was similar in the 2011 and 2014 imaging studies. A transitional vertebra caused a difference in nomenclature of the lumbar levels in the two radiology reports;

• On a balance of probabilities, the workplace injury no longer contributed to the current medical presentation;

• Loss of physical capabilities was not related to the workplace injury.

On January 29, 2015, the worker was advised that based on the January 28, 2015 medical opinion, it remained the WCB's position that he had recovered from the effects of his workplace accident of October 25, 2011 and that his ongoing low back difficulties were not attributable to his injury. On March 6, 2015, the worker appealed the decision to Review Office.

On April 28, 2015, Review Office determined that there was no further entitlement to benefits on the claim. Following its review of all the medical information on file which included diagnostic test results, reports from the treating physicians and orthopedic surgeon and WCB medical opinions, Review Office confirmed that the worker had materially recovered from the effects of his compensable injury, namely a strain injury in the environment of pre-existing degenerative disc disease. Review Office found that by May 25, 2012, the strain injury was no longer impacting the worker's functional levels nor was any further medical treatment required. On June 24, 2015, the worker appealed Review Office's decision to the Appeal Commission 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'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.

Subsection 27(1) of the Act provides that medical aid will be paid by the WCB for as long as is necessary to cure and provide relief from the 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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented at the hearing and was provided with the services of an interpreter. The worker made a submission and answered questions from the panel with the assistance of the interpreter.

The worker said that he did not accept that his ongoing back problems were the result of a pre-existing condition. He had never had any problems before when he was working. The job itself was nothing new to him. He had been doing this type of work for a long time, and was used to performing this task, but had never felt pain before when he was doing it.

The worker said that the WCB made an appointment for him to see their doctor. The WCB doctor decided to diagnose that he had a pre-existing condition, and the WCB stopped all of his benefits. He could not say whether the WCB doctor had done a proper examination. The only thing he knew was that he disagreed completely with the WCB doctor's conclusion that his current difficulties were related to a pre-existing condition only.

Employer's Position

The employer was represented by an advocate who did not attend the hearing but provided a written submission dated February 25, 2016. The employer took the position that based on the extensive medical evidence on file, any ongoing difficulties were due solely to pre-existing degeneration noted on diagnostic testing conducted closely following the injury.

The employer's advocate referred to the opinions of the two WCB orthopedic consultants, and asked that significant weight be given to those opinions. It was submitted that the worker has recovered from the effects of the workplace lumbar strain injury, that any continuing difficulties were degenerative in nature and unrelated to his workplace activities, and that the worker was not entitled to further benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to his workplace injury of October 25, 2011. For the worker's appeal to be successful, the panel must find that the worker has continued to suffer from the effects of his October 25, 2011 injury. The panel is not able to make that finding.

The worker has argued that he did not have a pre-existing condition in his back, as he had not previously had problems or experienced pain when he was working. Based on the evidence, the panel is unable to accept that argument.

The panel notes, in this regard, that the CT scan of November 25, 2011 revealed that there was "mild diffuse disc bulge at L5-S1…" It is the panel's understanding that a diffuse disc bulge is typically a degenerative condition which would develop over a lengthy period of time. The CT scan was performed one month after the date of the accident. In the panel's view, the evidence would therefore suggest that this condition would have been present well before the date of accident, although it may have been asymptomatic.

In the panel's view, the existence and nature of such a condition was also confirmed by the January 23, 2014 MRI, which similarly revealed mild diffuse disc bulging.

On this point, the panel attaches significant weight to the opinion of the second WCB orthopedic consultant dated January 28, 2015. The panel notes that the orthopedic consultant specifically reviewed the actual films of the 2011 CT scan and 2014 MRI, as well as the worker's entire WCB file, and opined that the extent of the lumbar degenerative disc disease on the CT scan indicated a pre-existing condition, requiring several years to develop, and that the extent of the degenerative changes was similar in the 2011 and 2014 imaging studies.

The panel also attaches significant weight to the opinion of the orthopedic consultant who reviewed the worker's file and examined the worker on April 26, 2012. The orthopedic consultant stated that he could not rule out that the worker had a back strain. He went on to state that such a strain would be expected to resolve within a few weeks, and concluded that the worker's current presentation did not appear to be medically accounted for in relation to the work injury.

In the course of its deliberations, the panel reviewed the report from the worker's orthopedic surgeon dated April 17, 2013, which had been submitted to Review Office by the worker's union representative in support of their position that his ongoing condition was related to his workplace injury. Having considered that report, the panel finds that it is unable to accord it much weight, for several reasons.

In this regard, the panel notes that the orthopedic surgeon's report appears to have been written in response to a question or questions which were not themselves included with the report. The report was based on an earlier examination and report dated November 16, 2012, in which the orthopedic surgeon had indicated that the worker's radiculopathy had gotten better with physiotherapy. This would seem to suggest that the worker's injury had actually resolved, although there is no indication as to when this would have occurred.

The panel also notes that the worker's orthopedic surgeon stated in his report that he had no evidence "to suggest that there was a pre-existing condition that got worse at that incident but it could be the case…" and concluded "from the patient's history, since there was no previous injury, and no history of back pain before the injury, I think the MRI findings are more likely related to his injury that happened on October 25, 2011." The report was subsequently reviewed by the WCB orthopedic consultant, who concluded that he could not find any new information or medical evidence of a probable relationship between the original work-related diagnosis and the worker's ongoing back difficulties. As noted earlier in our analysis, the panel finds that the totality of the medical evidence, including the diagnostic imaging, and its proximity to the date of the injury, all support our finding that the worker did have a pre-existing condition that was not affected by the workplace injury of October 25, 2011.

In conclusion, the panel finds, based on the evidence and on a balance of probabilities, that the worker suffered a strain/sprain injury of the lumbar spine in the environment of degenerative disc disease, that his injury would have resolved by May 2012, and that the worker's continuing difficulties are not related to his compensable injury.

As a result, the panel finds that the worker is not entitled to further benefits in relation to his workplace injury of October 25, 2011.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 29th day of April, 2016