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 his back surgery as being a consequence of the July 1, 2010 accident. A hearing was held on November 1, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's back surgery as being a consequence of the July 1, 2010 accident.

Decision

Responsibility should not be accepted for the worker's back surgery as being a consequence of the July 1, 2010 accident.

Background

The worker reported injuring his left lower back in an incident on July 1, 2010 when he was carrying a steel beam that slipped. The worker performed light duties for the rest of the day and returned to regular duties on July 5, 2010. He worked until July 15, 2010.

The worker's claim for a lower back injury was accepted on August 11, 2010 and wage loss and other benefits were paid. The worker also had concurrent part-time employment.

An MRI scan was conducted of the worker's lower spine on September 9, 2010. The results noted degenerative changes and a disc protrusion at L4-L5.

The worker was referred to an orthopedic surgeon who, on January 19, 2011, provided the opinion that "Review of his MRI scan once again shows an obvious disc lesion at L4-5 with central disc herniation and slight lateral bulging into the foramen…" The orthopedic surgeon recommended disc replacement surgery, which was scheduled for May 20, 2011.

On May 6, 2011, a WCB orthopedic consultant indicated he was unable to authorize WCB responsibility for the proposed surgery and requested an updated MRI.

An expedited MRI study was arranged for May 12, 2011 which indicated "At L4-L5, there is a central, right paracentral and right lateral disc protrusion which is small to moderate in size. It compresses the thecal sac and just contacts the traversing right L5 root. The lateral recesses are patent. The appearance has not changed from the previous study. No spinal stenosis is seen." The impression from the study was "Stable disc protrusion at the L4-L5 level just contacting the traversing right L5 root."

On May 17, 2011, the WCB orthopedic consultant provided an opinion that responsibility should not be accepted for the proposed surgery. The WCB orthopedic consultant notes the MRI findings were unchanged and the "L4-5 disc herniation is either stable, or may have no clinical relevance."

On May 25, 2011, the WCB orthopedic consultant provided a further memo to the worker's file recommending the diagnosis of an L4-5 disc herniation.

The worker's MRI studies were sent to a radiologist external to the WCB for an opinion. On June 14, 2011, the external radiologist provided an opinion that "there is a small central and right paracentral disc herniation first seen on the September 2010 examination which appears to have progressed very fractionally almost imperceptively in size on the May 2011 MRI scan." The external radiologist was uncertain of the clinical significance of the disc herniation.

On July 5, 2011, the WCB orthopedic consultant prepared a note to file summarizing the findings of the external radiologist and recommending physiotherapy for the worker. A referral was also made to a neurosurgeon with a spine specialty.

The worker attended an appointment with the neurosurgeon on August 17, 2011. The neurosurgeon provided:

The lumbosacral discomfort he is experiencing is probably mechanical/musculoskeletal. It is fairly contained. In fact, the patient was able to discontinue the analgesia/anti-inflammatory medication. The etiology of the initial numbness at the dorsal aspect of the left thigh and leg is unclear. There is no obvious radiological correlate for that. I have recommended that the patient continue his present conservative treatment with emphasis on physiotherapy/stabilization of the lumbosacral segment.

On January 3, 2012, the WCB orthopedic consultant provided an opinion that the worker has largely recovered from the compensable injury and it is not clear why he cannot return to work within his restrictions.

On February 13, 2012, the worker was advised by the WCB that he was no longer entitled to wage loss benefits as it had been determined he was capable of working within the restrictions noted and that the restrictions did not preclude him from returning to his full regularly scheduled hours at his concurrent employer, the earnings from which were equal to his pre-injury earnings.

The worker filed another WCB claim for an injury he experienced in July 2016 while working for a different employer. This injury was diagnosed as being non-specific low back pain and was accepted by WCB.

The initial medical reports submitted indicated low back pain was noted but there was no pain radiating into either lower limb. A medical report submitted on August 8, 2016 referred to low back pain which sometimes radiated into the left buttock and left leg. However, a physiotherapy report dated August 23, 2016 noted a gradual onset of right low back pain, occasional numbness in the right leg, with straight leg raising to 45 degrees to the right and normal on the left. A report of a WCB call-in exam on October 14, 2016 also noted low back pain and that "Sometimes the pain radiates to his right heel and occasionally to the big toe."

The WCB received a letter from the worker's orthopedic surgeon on November 29, 2017 indicating that he had seen the worker that day and opined that there was an L4-5 disc injury with mechanical pain, and that the surgeon believed that disc replacement would resolve his ongoing back problems. It was the surgeon's opinion that the worker's ongoing back problems were the long term effect of the 2010 injury.

A second WCB orthopedic consultant reviewed the worker's file on January 17, 2018 and opined:

…It is my opinion that the diagnosis of the workplace injury had resolved. This is based on clinical reports and the opinion of an external radiologist on the MRI findings. Surgery at L4-5 level would be directed at degenerative changes and would not be related to the workplace injury.

On February 6, 2018, the WCB advised the worker that responsibility would not be accepted for the low back surgery proposed by the orthopedic surgeon.

The worker's representative submitted a copy of the operative report from the worker's surgery on December 21, 2017 and requested reconsideration of the WCB's decision to deny responsibility for the surgery by Review Office on February 27, 2018. The worker's representative noted that the operative report referred to the worker having a "very degenerative disc removed." The worker's representative provided information from medical articles noting that "a sudden injury leading to a herniated disc may also begin the degeneration process."

Review Office requested the WCB orthopedic consultant review the worker's file and on March 7, 2018, the WCB orthopedic consultant provided an opinion that the proposed surgery was in relation to the worker's degenerative disc disease and not for his compensable disc herniation.

On April 24, 2018, Review Office determined that responsibility would not be accepted for the worker's back surgery. Review Office found, on a balance of probabilities, that the worker had a pre-existing condition affecting his low back prior to the workplace accident on July 1, 2010. Review Office relied on the March 7, 2018 opinion of the WCB orthopedic consultant and the imaging results when making this determination. Review Office noted that the worker's file indicated the worker's disc herniation and clinical symptoms improved over time. Review Office accepted that the degenerative disc pathology at L4-5 prior to the December 21, 2017 surgery was caused by a natural degenerative process. As such, Review Office found that responsibility should not be accepted for the worker's back surgery in relation to the workplace injury.

The worker's representative filed an appeal with the Appeal Commission on April 26, 2018. An oral hearing was arranged.

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 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 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury states:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Worker's Position

The worker was represented at the hearing by an advocate who provided the panel with a written copy of her submission at the hearing.

On behalf of the worker, the advocate stated that it was their position that the WCB Review Office had erred in their decision to not allow WCB coverage for the worker's back surgery.

The advocate stated the worker had initially injured his back on July 1, 2010 and then had a "recurring back injury from lifting a heavy pot of soup on July 12, 2016." After July 12, 2016 the worker experienced extreme back pain with no improvement.

The worker's advocate stated that the worker attended his family physician who reported on October 3, 2016 that "[The worker] is still suffering from his old chronic back injury. Had previous history of disc herniation in the lumbar region in 2010." (The panel notes that the medical report on file states that worker is still suffering from his old chronic back "pain", not "injury".)

The worker's advocate referred to medical reports from the worker's surgeon dated November 29, 2017 which stated, in part: "There is clear indication of an L4-5 disc injury with mechanical pain which has left the patient with significant disability in daily activities…that this is a clear cut of long term effect of a claimable injury some years ago."

The worker's advocate also referred to a report from the worker's surgeon dated February 28, 2017 which stated, in part:

There is no doubt that this patient suffers from mechanical back pain which is the end result of his previous injury at L4-5. I believe it is essential this patient be helped with a stabilization procedure of the back…He has tried all he can in the past five years and I believe therefore that it is now time to proceed with something more effective and more permanent, hence the request for a disc replacement surgery.

The worker's advocate further stated that the WCB orthopedic consultant reported on November 30, 2017 that the worker's MRI identified a central and right paracentral disc herniation; that WCB accepted a compensable diagnosis of L4-5 disc herniation and that the WCB orthopedic consultant concurred that the lower back pain and left lower limb symptoms are probably related to a compensable diagnosis of lumbar disc protrusion at L4-5 level. (The panel notes that this information was provided by the WCB orthopedic consultant as a description of the worker's condition after the 2010 injury based on medical and physiotherapy reports on file from July 2010 to August 2011. This was not a diagnosis of the worker's medical condition for which the worker's treating surgeon was proposing surgery in 2017.)

The worker's advocate also referred to medical information she had accessed from the internet regarding how a sudden injury resulting in a herniated disc could also begin the degeneration process in a person's spine, but she did not provide the panel with the full report for review and consideration.

The worker's advocate requested that the worker be compensated for all lost wages from July 14, 2017 until he was able to return to work after recovery from his emergency surgery in December 2017 and that any medical expenses or other benefits that are payable to the worker or his providers be issued in accordance to the WCB Act and Policies.

Employer's Position

The employer from the 2010 claim was in attendance at the hearing. The employer confirmed that they had not had any contact with the worker since the 2010 accident.

Analysis

In order for the appeal to be accepted, the panel must find that, on a balance of probabilities, the worker's back surgery on December 21, 2017 was a consequence of his July 1, 2010 workplace injury. The panel is unable to make that finding based on the following.

The July 1, 2010 back injury was diagnosed and accepted as a disc herniation L4-5 with left-sided symptomology.

An MRI was conducted on September 9, 2010. The study notes, in addition to a right paracentral disc protrusion at L4-L5; "minimal degenerative space narrowing at L4-L5 at L3-L4 associated with minor disc desiccation at L4-L5." As a result, the panel finds that the degenerative disc changes would have commenced prior to the July 1 injury to have been evident on the MRI approximately 9 weeks later.

It is the panel's understanding that degenerative disc disease is a result of the natural aging process and can affect different individuals to different degrees regardless of whether the individual has experienced a significant back injury.

The 2010 claim was closed in 2012 as WCB had not been able to contact the worker after several attempts. The worker stated at the hearing (as well as various times within the file notes) that his left-sided symptoms were fully resolved by 2014 and that he remained symptom-free until approximately 5-6 weeks prior to his 2016 back injury.

The July 16, 2016 injury was diagnosed as radiculopathic low back pain with right-sided symptoms. The panel notes that while both injuries were to the worker's back, the accepted diagnosis and symptoms from the 2016 injury are different than the accepted diagnosis and symptoms from the 2010 injury.

The worker was seen by the treating orthopedic surgeon on December 19, 2016 who provided an opinion that the worker "had an exacerbation of chronic L4-5 disc disease."

The worker's surgeon at that time recommended continued rehabilitation and medication with a follow-up in two months.

An external neuroradiologist who examined the MRI scans of the worker's back from 2010, 2011 and November 2016 stated, in part, the following in his report dated November 18, 2016.

At the L4-5 level, the previously identified central and right paracentral disc protrusion has virtually completely resolved. There is some mild residual posterior disc bulging without spinal stenosis or focal nerve root compression.

At the follow-up appointment with the worker's treating surgeon on February 29, 2017 the surgeon noted that the worker was experiencing significant back pain and noted that the pain is reported as being mechanical in nature and not neurogenic. The treating surgeon also identified the significant disc disease at L4-5 with a "…black disc and significant progression of the collapse of the disc height." The treating surgeon concluded that the worker suffers from mechanical back pain which is the end result of his previous injury at L4-5. However, the surgeon provides no rationale as to how the worker's present symptoms are related to his 2010 disc protrusion for which the worker stated he was symptom-free for several years prior to 2016 and that had been determined to have resolved based on the (non WCB) neuroradiologist's examination of the 2010, 2011 and 2016 MRI reports.

The panel noted that the worker's treating surgeon also does not identify in his February 29, 2017 report an L4-5 disc protrusion which was the accepted diagnosis in his 2010 claim. This is consistent with the neuroradiologist's findings already noted in this decision.

The worker's treating surgeon submitted another report dated November 29, 2017 in which he stated that he had seen the worker on that date with "more significant back pain…" and that, as a result, the surgeon was going to "bump him up in surgery for the planned disc replacement at L4-5." The worker's treating surgeon also stated in the same report: "There is clear indication of an L4-5 disc injury with mechanical back pain which has left the patient with significant disability in daily activities."

The worker and his advocate stated that, based on the information, it was their position that the worker's degenerative disc disease was caused by his 2010 injury. They stated this was explained to the worker by his treating surgeon. While the panel acknowledges that the worker's treating surgeon identifies the worker's degenerative disc condition as being a result of his previous injury, there is no rationale or explanation provided as to how the 2010 workplace injury enhanced the pre-existing degenerative disc disease.

The panel finds that the worker's diagnosis for the compensable injury in 2010 was a disc herniation that had materially resolved by 2012. The panel prefers the opinion of the WCB orthopedic consultant dated March 7, 2018 which stated, in part:

1. …The natural history of disc degeneration, even in the absence of disc herniation, is clinical progression of intermittent pain and stiffness of the spine, with imaging evidence of progressive disc narrowing and progressive osteoarthritis (OA) of the facet joints and narrowing of the intervertebral foramina. The rate of progress of disc degeneration would be temporarily adversely affected following herniation of a disc nucleus, but after many years the deterioration would be similar to the natural history of this degenerative process, even in the absence of a prior disc herniation.

2. It is probable that the workplace injury of 1-July-2010 caused L4-5 disc herniation. The natural history of this pathology is shrinking of the herniated nucleus material. It is probable that there was pre-existing degeneration of this disc as evidenced by MRI appearance of disc narrowing and desiccation, as described in the report of the external radiology consultant dated 14-June-2011. The [location] radiology report also mentioned L4-5 disc desiccation and anterior spondylitic lipping. Such degeneration of a disc occurs over years and may or may not be symptomatic. It is considered that the symptoms caused by the disc herniation in this case had essentially resolved, with shrinkage of the disc herniation over time on imaging, and no medical reports for some years concerning back difficulties.

3. It is my view that the surgery of 21-December-2017 for a total disc replacement was directed at the degenerative disc pathology at L4-5 level, rather than specifically for L4-5 disc herniation…

For the foregoing reasons, the panel finds, on a balance of probabilities, the worker's back surgery on December 21, 2017 was not a consequence of or causally attributable to his July 1, 2010 workplace injury. The panel therefore finds that responsibility should not be accepted for the worker's back surgery as being a consequence of the July 1, 2010 accident.

The worker's appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M.L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of November, 2018