The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back difficulties were not related to his compensable injury and that he was not entitled to benefits beyond November 7, 2014. A hearing was held on October 19, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after November 7, 2014.

Decision

The worker is not entitled to benefits after November 7, 2014.

Background

On December 16, 2013, the worker slipped on ice while checking the air lines on his truck and fell with his chest against the fuel tank. The worker indicated that the slip and fall exacerbated the pre-existing condition in his low back.

On December 27, 2013, the treating physician reported that the worker had a history of low back pain from prior back injuries. The worker complained of numbness in both legs and pain in his lower back and buttocks. An MRI was suggested to rule out spinal stenosis. On April 13, 2014, the MRI findings revealed degenerative changes at L4-5 and L5-S1 and a disc herniation at L4-L5.

On June 4, 2014, a physical medicine and rehabilitation specialist (physiatrist) advised the treating physician that the worker's low back pain was likely mechanical in nature. A myofascial pain component was identified and there was no evidence of radiculopathy or myelopathy.

On June 20, 2014, a second physiatrist confirmed that the worker presented with chronic mechanical low back pain that was resistant to conservative management.

At request of the case manager, the worker's file was reviewed by a WCB medical advisor on October 22, 2014. It was the medical advisor's opinion that the initial diagnosis related to the compensable injury was non-specific low back pain that would be categorized as a strain. This occurred in an environment of extensive degenerative changes at L4-L5 with no evidence of spinal canal stenosis. The recovery norm for this condition was 6 to 8 weeks. The medical advisor opined that the worker's current presentation was consistent with low back mechanical pain with no evidence of radiculopathy or myelopathy. It was felt that the worker had recovered from the effects of the strain injury to his low back and there were no restrictions related to the compensable injury.

On October 31, 2014, the worker was advised that benefits would be paid to November 7, 2014 inclusive based on the WCB's finding that he had recovered from the effects of his compensable injury.

On July 13, 2015, the treating surgeon wrote the WCB to support that the worker's back condition was related to the compensable injury.

On January 22, 2016, the Worker Advisor Office submitted to Review Office that the worker's pre-existing lumbar condition became symptomatic following the incident in December 2013 and that it led to surgical treatment on August 14, 2015. Therefore the worker's pre-existing lumbar condition was enhanced by the December 2013 accident and that the WCB should provide coverage.

On February 22, 2016, Review Office determined that the worker was not entitled to benefits beyond November 7, 2014. Review Office concluded that the worker suffered a minor back injury in the setting of pre-existing degenerative changes. While the degenerative changes led to a longer than normal recovery, it did not find evidence to support that the worker suffered an enhancement of his pre-existing degenerative changes. The worker was able to continue working right after the accident for several days and he did not seek immediate medical attention. Review Office noted that the worker had 16 prior back claims and it did not find medical evidence to support an ongoing relationship beyond November 7, 2014. On May 26, 2016, 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 Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

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.

Worker's Position

The worker was self-represented. He advised that he has had multiple workplace injuries that have impacted his back. He believes the worst injury occurred in 2004. He advised that his back was injured, and "it showed the discs was totally gone." The panel advised the worker that his 2004 claim was not before them and that the panel was limited to dealing with the 2013 claim. The worker agreed that the panel should proceed with the appeal on the 2013 claim.

The worker described the circumstances surrounding the 2013 accident. He said:

It was in December a few years ago. I was in Regina, had to sleep there because there was an ice storm, slept at the Husky. So in the morning, checked my truck out. Go in the back, checked the air lines, make sure everything is good. And there’s coating ice everywhere, about an inch, and I slipped on the truck, came down, hit the fuel tanks with my ribs, and went on the ground on my back. That’s about a five-foot drop. And my ribs are so sore, and this and that, and I had painkillers in me because I had always taken painkillers because of my previous back troubles. And I didn’t really notice it until I got home on the 24th. Went to bed, come 25th in the morning, I couldn’t get out of bed.

The worker advised that:

…the fall I took in 2013 was not because the legs went out or the back went out. It’s from pure ice from an ice storm we had, like, in the prairies.

The worker said that his 2013 injury worsened his existing back condition. He has not been able to return to work since this injury.

He advised that he filed a claim and was ultimately paid until November 2014 when the WCB terminated his benefits. He attempted to work but was not able to.

With respect to the diagnosis, the worker said that the discs were totally gone, and the surgeon had put in a replacement disc. The worker advised that he was referred to a surgeon who operated on his back to put a replacement disc in his back. Unfortunately, after the surgery there was a complication which resulted in a disc splitting which left him with a "broken back." He said there is no treatment for this condition in Canada, but there is possible treatment in Germany.

In answer to questions, the worker explained that he had the surgery and that it was about 60 percent successful. He said his motion improved. His back was not hurting and he could bend a little bit. He said he was up to about 75 percent normal bending, but he could not lift. The worker said that the surgeon advised him not to work for one year.

In response to a question about the condition of his back prior to the accident, the worker responded, in part, that:

Work was, get in the truck, and I was lucky I was with a company that was, like, touch-free loads. All you do is open the doors, close the doors, seal it up, hook up the trailer, and go. The other end, drop the trailer and get a new one….

But I was, you know, not doing too bad, and we did a lot of things. Like, I was still able, before this accident, I did a lot of sports, like, skydiving, this and that. And I was teaching my daughter, and she got two dives in.

Analysis

The issue before the panel is whether the worker is entitled to benefits after November 7, 2014. For the worker's appeal to be approved the panel must find that the worker sustained a loss of earning capacity and required medical aid benefits after November 7, 2014, as a result of this accident. In other words, the panel must find that the worker's inability to work after November 7, 2014 and need for medical treatment is due to the 2013 workplace injury. The panel is not able to make this finding.

In making this decision, the panel considered the medical information on the claim and the worker's evidence at the hearing.

The panel notes that the worker has a long history of back issues. The panel reviewed, in particular, the 2005 MRI report and the 2014 MRI report:

2005 MRI: 

Evidence of desiccation and narrowing involving the L4-5 and L5-S1 discs.

L4-5: Disc protrusion at the L4-5 approaching the thecal sac as well as the L5 nerve root on the left with possible displacement. Mild bilateral foraminal narrowing. Central canal is mildly narrowed on a congenital basis at L4-5 with no signal stenosis.

L5-S1: Shallow central disc protrusion and mild bilateral foraminal narrowing. No thecal sac or nerve root involvement is noted.

Impression:

Degenerative changes are present at L4-5 and, to a lesser degree, at L5-S1

2014 MRI:

L4-L5 shows moderate broad based central/left paracentral disc herniation. Degenerative disc narrowing is present and there is minor facet arthropathy. The spinal canal is adequate. There is mild degree of left foraminal narrowing produced by disc and facet osteophytes. The right foramen is patent.

L5-S1 demonstrates bilateral facet arthropathy. Degenerative disc narrowing and diffuse disc bulging is present. The spinal canal is adequate. Mild bilateral foraminal narrowing is produced by facet osteophytes.

Impression:

Degenerative changes are present as described. No evidence of central canal stenosis. There is only some minimal foraminal narrowing as described.

In the panel's opinion, these MRIs confirm ongoing degenerative changes in the worker's back. The panel cannot relate these changes to the worker's 2013 workplace accident.

The worker was treated by a physiotherapist in April 2014. The physiotherapist noted that the worker has good days and bad days. In the panel's view, this is consistent with a degenerative condition, where symptoms are known to wax and wane.

In the environment of his pre-existing degenerative condition the panel notes that the worker was examined by a WCB medical advisor on March 19, 2014, who reviewed the initial medical history and concluded that the worker's initial diagnosis was a non-specific low back pain. The medical advisor concluded that the worker was presenting with worsening pain including numbness to both legs and a positive straight leg raise. The medical advisor noted that an upcoming MRI would help determine whether there had been material change to the pre-exiting conditions. Otherwise, the strain should resolve with treatment, and with the remaining problems being related to the pre-existing alone.

The panel notes that the MRI did not demonstrate any material changes.

The panel then reviewed a report provided by a physiatrist on June 20, 2014. The physiatrist opined that the worker suffers from chronic mechanical back pain with normal power, and no significant tenderness and only some limitation with range of motion. The panel also notes the absence of any neurological symptoms. The panel finds that the examination findings suggest that the worker was suffering only from the effects of the pre-existing conditions at this point in time.

The panel attaches weight to the October 22, 2014 opinion of the WCB Medical Advisor who reviewed the worker's file and opined that:

• the initial diagnosis related to the 2013 injury is non-specific low back pain and can be categorized as a strain which occurred in the environment of extensive degenerative changes at the L5-S1, but no evidence of spinal canal stenosis.
• the current presentation is low back mechanical pain with no evidence of radiculopathy or myelopathy.

The panel finds, on a balance of probabilities, the worker's condition after November 7, 2014 is not related to the worker's 2013 workplace injury.

The panel notes that the worker discussed a potential claim for an injury arising from his many accidents; however, the panel treated the 2013 claim as a standalone claim and not part of a cumulative process.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2016