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 benefits after July 28, 2009 in relation to his compensation claim. A hearing was held on April 5, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 28, 2009.

Decision

That the worker is not entitled to benefits after July 28, 2009.

Background

The worker has an accepted claim with the WCB for pain in his low back that he related to lifting activities that he performed at work on July 4, 26 and August 8, 2006.

On March 17, 2008, the worker was advised that wage loss and medical aid benefits would conclude on March 24, 2008 as the WCB was unable to establish an ongoing relationship between his workplace injury and his current low back symptoms. The worker disagreed with the decision and an appeal was filed with Review Office. On April 3, 2008, Review Office overturned the case manager's decision and the worker's benefits were reinstated. Review Office stated:

…the worker…has not achieved his pre-injury function allowing for a full return to his pre-accident duties. It should be noted that the family physician's report of January 18, 2008, regarding the worker's patient history from 1995, does not suggest that the worker's pre-existing "epidural fibrosis" was resulting in any significant impairment or time loss from the workplace, prior to the work incident of July 4, 2006.

On July 9, 2008, a WCB orthopedic consultant opined that any of the described mechanisms of injury could have caused mechanical low back pain and there was evidence of pre-existing conditions, namely solid fusion at L4-L5-S1, facet arthrosis at L3-L4, mechanical instability at L3-L4 and epidural fibrosis of uncertain extent or significance. The consultant stated: "The cause of current symptoms is not clearly determined. Further investigation by discogram of L3-L4 may help in coming to a diagnosis. Failure of facetal injections to alleviate pain mitigates against the facetal joints as a cause of symptoms. Proposed epidural injection may be a useful, if temporary, measure for pain relief but is not a diagnostic test because most causes of spinal pain may be helped to some extent by epidural injection."

On September 8, 2008, the worker underwent a sacral epidural block. In e-mail correspondence dated September 11, 2008, the worker advised that the pain in his back had lessened since the injection.

On October 22, 2008, a WCB medical advisor noted that the worker had been symptom free for over 1 month and his attending physician felt he was capable of returning to work at his regular duties. A graduated return to work was recommended given the time period that the worker was away from his regular duties.

File records showed that the worker returned to work in September 2008 and was back at full duties in October 2008.

On February 4, 2009, the treating neurosurgeon reported that the worker would like to undergo an additional facet block as he was re-experiencing recurrent tightening sensations of the lumbosacral junction. The WCB accepted financial responsibility for the procedure which was carried out on May 6, 2009.

On June 16, 2009, the treating neurosurgeon reported that the worker's treatment in May was beneficial as the worker was able to work without any restriction, "he is working an average of 13 hours/day." The specialist said the worker would like to undergo an additional facet block in the fall.

On July 15, 2009, a WCB medical advisor stated:

It is noted that the worker was performing full-time regular job duties at least since the time of his injection in October/08 until his injection in June /09. It is also noted that the benefits of the injections are limited to diminished pain for 1-2 months following injection and that his job duties are performed irrespective of the pain experienced. Based on the above, is (sic) concluded that, despite symptoms of pain, a functional recovery from the 2006 workplace injury has occurred, on a balance of probabilities.

Chronic facet joint injections are not recommended due to potential complications and the opinion that improving core musculature conditioning would likely be of equal or greater benefit.

On July 28, 2009, Rehabilitation and Compensation Services advised the worker that based on a review of the file information, he had functionally recovered from his workplace accident and the WCB was not able to approve additional medical treatment or time loss. On August 10, 2009, the worker appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office sought medical advice from the WCB's orthopedic consultant as to the whether the injection procedures carried out by the neurosurgeon identified any specific anatomical pain generators. A response from the WCB consultant is on file dated October 7, 2009. He stated, in part, that "the non-specific low back pain has not been diagnosed with respect to an anatomical pain generator, so the exact cause of the low back pain is not known."

On October 8, 2009, Review Office determined that the worker was not entitled to benefits after July 28, 2009.

Review Office was of the opinion that the worker sustained a back strain and a symptomatic aggravation of his pre-existing low back conditions as a result of two work accidents occurring in July 2006. It did not find the evidence to support any enhancement of the worker's pre-existing conditions occurred as a result of the accidents. Review Office accepted the WCB orthopedic consultant's opinion that the injection treatments into the worker's back was not diagnostic and therefore the exact cause of the worker's ongoing back pain was unknown. The treating physician, on October 6, 2008, indicated that the worker could perform his regular duties and the facts of the file confirm that this had occurred.

Subsequent to the decision made by Review Office, up-dated medical information was placed on the worker's file dated December 2009 through to October 2016. On October 20, 2016, the worker appealed Review Office's decision dated October 8, 2009 to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

As the worker was employed by a federal government agency or department at the time of his accident, his claim is adjudicated under the Government Employees Compensation Act (GECA) which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to subsection 4(2)(a) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the "Act") of Manitoba.

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 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 WCB Board of Directors enacted WCB Policy No. 44.20.10, Pre-Existing Conditions (the "Policy") which deals with aggravations and enhancements of pre-existing conditions.

The worker has an accepted claim for a workplace injury in 2006 and he is appealing the WCB decision that he is not entitled to benefits after July 28, 2009.

Worker's Position

The worker was self-represented.

The worker told the panel that he injured his back in 2006 and that it never resolved. He said it recurred many times and each time the WCB opened a new file, even though he believes it is the same injury. He told the panel that:

So it's the same back problem that keeps creeping up. And what the doctors and the specialists have told me to do, and which I do, is I go for spinal injections, which they do, it basically deadens all the nerves in the back there that hurts, and I’m able to go back to work.

He advised that initially the shots lasted for 6 months but that they seem to wear off so he now gets the shots about 4 months apart. He advised that a neurosurgeon administers the injections.

The worker described the time consuming process for getting the injections. He said that he uses 3 days of holiday time for each injection because of the administrative arrangements.

With respect to the injections, the worker advised that:

So I believe, what I was led to believe was that the area they put those injections in, it kills all the nerves and everything is good. Kind of like a, well, I think there is cortisone in it, but cortisone works, it gets into your joint, it kills everything for a while and relieves the pain. Nothing changes inside. It just deadens the nerve.

The panel noted there was no reference to ongoing injections in the file. The worker advised that the WCB closed his file in 2009 and that since then the provincial healthcare program has paid for the injections. He said his last injection was on March 17, 2017.

The worker said that he also did core strengthening and physiotherapy.

The worker advised that he is looking for coverage for the injections, the related time loss and travel expenses.

The worker said that he does not believe his current problems are due to the spinal fusion he had when he was 13. He attributes his current medical issue to his 2006 workplace injury.

With respect to the accidents that he has had since 2006 the worker advised that:

Now, my whole thing is, I look at 2006 as that's when my whole world stopped. I couldn't do anything. I was, I was stuck at home, you know, and taking medication and doing this and doing that. I couldn't go to work. It was a terrible year. That's when I, in my mind, something happened to my back. And I went through all the doctors and they said yes, we are going to give you these, and that's when he started doing the injections.

He said:

So I am saying that these injuries are all relatable, because the same part of my body that hurts after these injuries is the same spot they are giving me injections for.

The worker advised that he used to work at two jobs but has recently resigned from one of his positions. In reply to a question about whether his reduced workload has made a difference in terms of his physical wellbeing:

So, yes, I would think my life has been better that way, physically, without the [position]. That strain is definitely not on there anymore.

The worker acknowledged that his treating physician told him that he was working too hard and should reduce his workload.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker was injured in 2006. The issue at the hearing was whether the worker is entitled to benefits after July 28, 2009. The worker clarified that he is only seeking payment for medical aid benefits including pay of medical services for the injections that he receives for his back condition, and related time loss and travel expenses.

For the worker's appeal to be approved, the panel must find that the injections and related expenses are a consequence of his 2006 workplace injury. The panel was not able to make this finding.

The worker's evidence was that after his 2006 workplace injury, he has had to attend regularly at his neurosurgeon's and receive an injection for the pain in his back. He said that the injections initially provided relief for about 6 months but the effect is wearing off and that he now needs to receive injections about every 4 months.

In addressing this issue, the panel has considered the relationship between the injections and the worker's 2006 workplace accident.

On July 20, 2007, the worker's neurosurgeon wrote to the WCB:

The clinical presentation is presently mainly suggestive of musculoskeletal pain, whereas some of the discomfort may be related to the extensive epidural fibrosis as well. The initial transient pain extending into the right lower extremity and the short-lived numbness were very probably a mild radiculopathy. Given the clinical evolution and the extensive epidural fibrosis, I do not think that surgical interventions is indicated. On the contrary, I have offered [worker] an infiltration of the facets and allow him to taper and eventually discontinue the analgesics. I will wait for the WCB approval before scheduling the procedure.

On October 24, 2007, a WCB medical advisor commented in answer to questions about the relationship between the worker's injury and his pre-existing condition, in part:

Based on the information on file, the most likely Dx [diagnosis] is low back pain secondary to epidural fibrosis; however, the CI [compensable injury] of Jul. 4, 2006 may have contributed to the present symptoms by way of a facet joint sprain…

This was discussed with [neurosurgeon]. He indicated that the MOI [mechanism of injury] of the CI would not likely aggravate the epidural fibrosis. [Neurosurgeon] felt that if the present pain is the result of the CI, the pain would likely be secondary to a facet sprain. The evidence does not support an aggravation or an enhancement of a pre-X condition.

…If a facet joint sprain is contributing to the present pain [worker] will likely respond to a facet injection and this should be performed. [Neurosurgeon] agreed that if there was an inadequate response to the facet injections, it would suggest that the low back pain is more likely than not the result of the epidural fibrosis as opposed to the CI…

On February 27, 2008, the neurosurgeon wrote the WCB to advise that the facet blocks which he gave to the worker a month earlier were "at most, marginally beneficial."

The above information and opinions, support a finding that the pain generator in the worker's case is his pre-existing condition. Given this evidence, the panel finds, on a balance of probabilities, that the worker's ongoing injections are not related to his 2006 injury and accordingly he is not entitled to benefits after July 28, 2009. The panel also finds that the worker's pre-existing back injury was not enhanced by his workplace accident.

The panel found the worker to be honest and his evidence credible; however, the panel has found that the medical evidence does not support his appeal. The panel was not able to find that the worker's ongoing medical treatment is 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
(on behalf of the panel)

Signed at Winnipeg this 18th day of May, 2017