The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the L4-L5 disc protrusion as being a consequence of the compensable accident and that the established post-accident earnings capacity remains accurate. A hearing was held on January 8, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the L4-L5 disc protrusion as being a consequence of the compensable accident; and

Whether or not the established post-accident earnings capacity remains accurate.

Decision

Responsibility should not be accepted for the L4-L5 disc protrusion as being a consequence of the compensable accident; and

The established post-accident earnings capacity remains accurate.

Background

The worker has an accepted claim with the WCB for a middle/low back injury that occurred in the workplace on October 23, 2002. His claim was accepted, involving the L5-S1 area, and various benefits and services were paid. He was deemed capable of earning minimum wage on a full time basis, which decision was upheld by the Appeal Commission under Decision 102/08.

On March 13, 2017, the WCB received a report from the worker's doctor noting, in part:

Severe pain left leg x 1 week 

Had a slip and re injured lower back 

unable to walk 

needs to increase morphine 

book MRI lumbar spine and cervical spine on urgent basis

A prescription for a walker was submitted by the worker on April 18, 2017 indicating that the walker was for a "…severe degenerative disc disease lumbar spine." As well, a May 15, 2017 doctor's report was submitted indicating:

New disc herniation L4-L5 

Radiculopathy right leg 

new finding

see CT scan 

Patient in severe pain 

Needs physio

An MRI, conducted on May 2, 2017, was submitted to the WCB. Some of the findings of the MRI included "L4-L5: There is now moderately large left lateral disc protrusion compressing the left L5 nerve root. This is a new finding." and "L5-S1: Disc space narrowing is present. There has been a left laminectomy. No recurrent disc is noted."

The worker submitted correspondence on May 18, 2017 requesting consideration for additional medical benefits. He relied on a prior Appeal Commission decision that stated if he had new evidence, the decision regarding his deemed earning capacity could be reviewed. This referred to the Appeal Commission Decision 102/08 that stated the worker was "currently deemed to be capable of earning minimum wage on a full time basis"; however, "If a change to the deemed earning capacity is warranted in the future, it will be based on additional evidence". The decision further stated "This evidence would depend on participation by the worker in the vocational rehabilitation plan and a demonstrated ability (or inability) to work full time." It was the worker's position his current symptoms and recently submitted medical documentation supported the criteria as outlined in the decision for a review of his deemed earning capacity and entitlement to benefits in relation to his increase in symptoms.

The WCB medical advisor reviewed the material submitted, including the May 2, 2017 MRI, and opined on May 29, 2017 "The L4-5 central disc bulge did not happen as a result of the CI [compensable injury] of 2002." The worker was advised by the WCB on June 6, 2017 that this new finding was not related to his compensable injury and accordingly, there would be no additional medical benefits provided. As well, the worker was advised that there were no changes to his restrictions on the file or to his deemed earning capacity. On June 14, 2017, the worker requested reconsideration of the WCB's June 6, 2017 decision by the Review Office.

Review Office advised the worker on August 10, 2017 that no responsibility would be accepted for the L4-L5 disc protrusion and that the established earning capacity was correct. In making this determination, Review Office confirmed the medical evidence submitted did not show that the L4-5 disc protrusion was "…predominately caused or structurally altered as a result of the compensable injury." In addition, it was noted in Decision 102/08 that the worker's deemed earning capacity "…would depend on participation by the worker in the vocational rehabilitation plan and a demonstrated ability (or inability) to work full time." Review Office found no evidence to support that the worker participated in the WCB's vocational rehabilitation plan or of an inability to "…competitively find, compete for, obtain and keep employment in any occupation" related to the compensable injury.

The worker filed an appeal with the Appeal Commission on August 21, 2017. An oral hearing was held January 8, 2018.

Reasons

Applicable Legislation and Policy

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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act 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. He attended the hearing with his spouse who also provided comments about the worker's position.

1. Whether or not responsibility should be accepted for the L4-L5 disc protrusion as being a consequence of the compensable accident.

The worker submitted that the L4-L5 disc protrusion was a consequence of his workplace accident. He stated there is evidence of this disc injury going back to the original accident. He disagrees with the 2008 Appeal Commission decision which found that his L4-L5 condition was not related to his workplace accident.

In reply to questions from the panel, the worker provided information about an incident in 2016 which affected his back:

I was walking out of my house with a little garbage bag from the bathroom. And … I slipped and I felt the pinch in my back, like it burned.

He explained that his left foot slipped. He confirmed that he saw his family physician about the accident and that an MRI was performed.

In response to a question about the role of this incident in causing problems with his legs, the worker denied that it caused problems in both legs, and said that he has had problems with both legs since 2002.

He also stated that:

If you look through my file, I brought in a letter stating that there's a CT in 2003 done, and a CT in 2004 done, and a letter from my doctor that also says that while I was working modified duties, the modified duties led to the progression of my condition

Regarding treatment for his back, he advised that this family physician is trying to find a surgeon to assess his back.

The worker's spouse indicated that he did not have a pre-existing condition prior to the workplace incident.

In his written request to appeal the Review Office decision the worker submitted, in part, that:

• he has been struggling with a severe radiculopathy since 2002.

• while the WCB says the new MRI identifies an L4-L5 disc bulge, the bulge has been reported at this level since the 2003 CT scan.

• the WCB says there is severe degenerative disc disease, but it has been 15 years since the injury.

• since he started work with the accident employer in 1998, he has not been the same.

• there may have been "minor spurring" but it did not affect him after his 2002 accident at the employer's and was described as minor.

• he disputes the WCB decision to deduct 50% from his impairment award.

• he cannot stand for more than an hour without being in extreme pain, walking causes more cramping and pain.

2. Whether or not the established post-accident earning capacity remains accurate?

The worker stated that he had accepted the WCB decision deeming him capable of earning minimum wage. He added that as time went on, his condition worsened and he sought assistance from the WCB but it was denied.

The worker advised that he later attempted to return to work. He told the panel that with the encouragement and assistance from an acquaintance and the support of another agency, he obtained his Class 1 driver's license. The acquaintance helped him find a job as a truck driver, but the worker was not able to perform the duties. He said that he could not apply the clutch with his left leg.

The worker advised that he also tried driving a plow truck, which is a half-ton pick-up truck with the plow on it. He was not able to continue doing this. He described his symptoms as including back ache, leg pain and pain in his ribs.

He advised that he also tried performing tasks at home but after working an hour he had to go to bed. He also advised that:

So basically what's -- it's always been there, it's just -- and there's time where I can go out and cut my grass I feel not bad. And then the next day I'll go and cut my grass and I can't walk for a week.

The worker acknowledged that the pain would get worse and slowly get better, back down to a baseline pain level.

With respect to the Functional Capacity Evaluation (FCE) that was arranged by the WCB, the worker acknowledged that he did not participate in the evaluation. He said was concerned about the waiver and the FCE. He said that the WCB then sent him a letter indicating that he failed to mitigate.

Employer Position

The accident employer no longer exists.

Analysis:

1. Whether or not responsibility should be accepted for the L4-L5 disc protrusion as being a consequence of the compensable accident.

The worker has been diagnosed with an L4-L5 disc protrusion which he believes is a consequence of his employment and specifically his 2002 workplace accident. For the worker's appeal to be approved, the panel must find that the worker's 2002 workplace injury caused, aggravated or enhanced his current L4-L5 disc protrusion. The panel was not able to make this finding.

The panel has considered the information on file and the evidence provided by the worker at hearing. It notes:

• a December 1999 x-ray demonstrated the existence of degenerative disc disease. It noted that the L5-S1 disc is narrowed with minor spurring posteriorly.

• in October 2002 , the worker sustained a compensable injury to his lower back when he bent over to pickup a 150 lb. roll of paper and developed a pinch and shock like pain in his back.

• a November 12, 2002 x-ray of the lumbosacral spine demonstrated "severe degenerative narrowing of the L5-S1 discs." This was within a month of the worker's injury.

• a February 2003 CT scan noted minor diffused posterior disc bulging at the L4-L5 and moderate central and left paracentral disc protrusion at L5-S1.

• a November 2004 CT scan revealed moderate disc protrusions at the L4-L5 and L5-S1.

• in December 2004 the worker underwent a left sided microscopic lumbar laminectomy of the L5-S1 with intra-operative fluoroscopic localization of the L5 segment, discectomy, S1 foraminotomy.

• a July 2005 MRI showed a small central disc protrusion with minimal spinal stenosis at the L5-S1 interspace.

• in July 2007, the worker was examined for a PPI on his 2002 claim due to the lumbar laminectomy of the L5-S1. The PPI award was reduced by 50% due to his pre-existing condition.

• Appeal Commission Decision (102/08) dated August 8, 2006 found that the degenerative disc disease first noted in 1999 was not caused by the worker's employment.

The panel finds that the above information confirms that the worker's accepted back injury relates to the L5-S1 level. The evidence does not establish an injury to his L4-L5 area in the 2002 workplace accident. The early references to the L4-L5, were considered asymptomatic based upon medical imaging at the time. Furthermore, this panel is bound by the previous Appeal Commission panel decision that the worker's degenerative condition was not related to the worker's employment.

The panel notes that a radiologist compared the May 2, 2017 MRI to the 2012 MRI and opined that at the L4-L5 level there is now a moderately large left lateral disc protrusion compressing the left nerve roots. The radiologist reported this as a new finding.

The panel finds the radiologist's comments to be consistent with other medical information on file indicating that the injury noted in the 2017 MRI is new.

The panel finds, on a balance of probabilities, that the worker's current L4-L5 injury is not related to his 2002 workplace accident and is not compensable.

The worker' appeal of this issue is dismissed.

2. Whether or not the established post-accident earning capacity remains accurate?

The Panel notes that Appeal Commission 102/08 found:

With respect to the second part of the issue, the panel is of the opinion that an appropriate deemed earning capacity can only be determined after the completion of a vocational rehabilitation plan. The worker is currently deemed to be capable of earning minimum wage on a full time basis. Again, while we do not necessarily find that the worker should be permanently deemed to have this earning capacity, the lack of a track record leaves the panel without sufficient evidence to support a change to the earning capacity of $320. If a change to the deemed earning capacity is warranted in the future, it will be based on additional evidence. This evidence would depend on participation by the worker in the vocational rehabilitation plan and a demonstrated ability (or inability) to work full time. Amendments to the restrictions may be warranted along the way if it is shown that the existing restrictions are inadequate.

At the hearing, the worker advised that he did not pursue employment and elected to remain out of the workforce. In recent years, the worker obtained his Class One driver's license and attempted driving several different vehicles. He concluded that he was not able to drive.

The panel notes that the neurosurgeon who operated on the worker in 2004 and examined the worker in 2012 opined that the worker's presentation was suggestive of mechanical low back pain. He suggested that the worker avoid more strenuous physical activity involving repetitive bending and heavy lifting. He also suggest the worker undergo an FCE.

The panel notes that the worker was asked to participate in a Functional Capacity Evaluation. The file indicates, however, that the worker refused to participate in the FCE and was considered to have failed to mitigate the consequences of his injury. The panel finds that the current evidence does not support a change in restrictions in respect of the worker's compensable injury from those that were confirmed in Appeal Commission decision 102/08. The panel finds that the worker's post-accident earning capacity, as it relates to the compensable injury, remains unchanged.

The worker's appeal of this issue is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of February, 2018