REVIEW DECISION. Review Reference #: R Board Decision under Review: March 3, 2009

Transcription

1 REVIEW DECISION Re: Review Reference #: R Board Decision under Review: March 3, 2009 Date: Review Officer: Lyall Zucko The worker requests a review of the decision of WorkSafeBC (the Board) dated March 3, The employer was given notice of this review but is not participating. In support of this review, the worker s representative provided additional submissions dated April 14, 2009, June 9, 2009 and August 6, Section 96(6) of the Workers Compensation Act (the Act ) gives a Review Officer authority to conduct this review. Issue This is a review of the March 3, 2009 Board decision letter that determined that the worker s claim, which had already been accepted for a bilateral lumbar spine sprain/strain and an aggravation of his pre-existing chronic back pain condition, would also be accepted for an aggravation of his pre-existing L5-S1 disc bulge but not an L5-S1 disc herniation or a L4-L5 disc bulge. There are two issues for review: 1) The March 3, 2009 Board decision to cancel the earlier decision to accept the worker s claim for a L5-S1 disc herniation and instead accept it for an aggravation of a pre-existing L5-S1 disc bulge. 2) The March 3, 2009 Board decision not to accept the worker s claim for a L4- L5 disc bulge. Background The worker is a motor vehicle salesperson. On December 19, 2008, the worker was returning to his desk when his foot slipped on wet tiles causing his back to twist as he braced himself so as not to fall down. He experienced immediate low back pain after this workplace incident. The worker s prior February 12, 2003 lumbar spine CT scan recorded a mild eccentric disc bulging at L5-S1 but no definite focal disc herniation. The worker s prior September 5, 2003 lumbar spine MRI scan recorded a minimal left-sided paracentral disc bulge at L5-S1 that causes a slight indentation Review #R Page 1

2 on the thecal sac without evidence of S1 root compression (no definite focal disc herniation). It also recorded mild degenerative change of the lower lumbar facets particularly at L4-L5 but no significant central or foraminal stenosis. The worker s prior May 8, 2005 lumbar spine CT scan recorded a slight central and left-sided disc bulging at L5-S1. The disc abuts against the left S1 nerve root but does not displace it. A December 22, 2008 Emergency report documented that the worker advised that he has chronic back pain secondary to a mild disc bulge at L5-S1 and now also has acute back pain since a December 19, 2008 workplace slip and fall. Emergency Physician Dr. C. diagnosed both acute and chronic back pain. Attending Physician (AP) Dr. H. s December 29, 2008 report documented that the worker reported hurting his back at work when he slipped and fell on wet tiles on December 19, Dr. H. noted that the worker is complaining of very severe pain in his lumbar spine. Dr. H. questioned whether a lumbar spine CT scan is necessary. AP Dr. H. s December 30, 2008 report noted that the worker is now also complaining of pain down his left leg. Dr. H. referred the worker for an urgent lumbar spine CT scan. The worker s January 5, 2009 lumbar spine CT scan recorded a small focal disc herniation posteriorly to the left of midline at L5-S1 causing slight posterior displacement of the thecal sac. CT Physician Dr. M. s impression was a small acute left sided disc herniation at L5-S1 A January 9, 2009 Board decision letter accepted the worker s December 19, 2008 workplace lumbar spine injury claim for a bilateral lumbar strain/sprain. A January 16, 2009 Board initial claim review document indicated that the worker has a significant prior Board lumbar spine injury claim. The worker s 2003 claim was accepted for L5-S1 disc bulge and chronic pain permanent conditions and he is in receipt of a $31, lump sum 7.55% of total disability lumbar spine loss of function (LOF) permanent partial disability (PPD) award. The Board Officer then provided brief summaries of the worker s pre-december 19, 2008 lumbar spine radiological findings and his post December 19, 2008 medical records. The Board Officer stated that the worker s accepted diagnosis for the December 19, 2008 workplace injury is an aggravation of his pre-existing chronic pack pain condition. A January 22, 2009 Board decision letter accepted the worker s claim for a leftsided L5-S1 disc herniation. The worker s February 9, 2009 lumbar spine MRI scan recorded a small leftsided L5-S1 paracentral disc bulge/herniation. This disc abuts the traversing left Review #R Page 2

3 S1 nerve root. It also recorded a mild right far lateral/foraminal L4-L5 disc bulge with small posterolateral osteophyte formation. Neurosurgeon (NS) Dr. S. s February 11, 2009 consultation report stated that the worker s recent February 9, 2009 lumbar spine MRI scan recorded a degenerative L5-S1 disc with a left sided L5-S1 disc protrusion that contacts and perhaps slightly deviates the left S1 nerve root posteriorly (no significant compression of the nerve root is in evidence). Dr. S further stated that the worker s right L5-S1 foraminal disc bulge and osteophyte also does not compress the existing right L4 nerve root. Dr. S. s concluded that if the worker has predominant back pain it may be related to his degenerative L5-S1 disc. Dr. S. also indicated that if the worker has leg pain it may be related to an irritation of his S1 nerve root. Neurologist Dr. W. s February 20, 2009 consultation report indicated that the worker has both an element of mechanical back pain and radicular pain. The worker s symptoms are referable to his left S1 nerve root and this is congruent with the findings of the recent CT and MRI scans which recorded posterolateral disc herniation at the L5-S1 level abutting the left S1 nerve root. Dr. W. also noted that the worker s disc herniation is small so conservative management is recommended. Board Medical Advisor (MA) Dr. M. s March 2, 2009 opinion noted that the medical evidence on the worker s claim file was reviewed. Dr. M. then stated that the working diagnosis as a result of the December 19, 2008 work injury is an aggravation of his pre-existing left L5-S1 disc bulge, which as of the February 9, 2009 MRI scan is now recorded as a bulge/herniation. This disc abuts the traversing left S1 nerve root. Dr. M. further stated that the worker s recorded L4- L5 far right lateral foraminal disc bulge with small posterolateral osteophyte formation, which was recorded on the same MRI scan, is degenerative in nature. In fact, the worker s earlier September 5, 2003 lumbar spine MRI scan recorded L4-L5 degenerative changes. Dr. M. further noted that the worker s back and leg pain symptoms are predominantly on the left side but that L4-L5 disc bulge is on the right side which supports that his current symptoms are not related to the L4- L5 disc bulge. Dr. M. then concluded that an examination of the worker s radiological evidence since 2003 clearly demonstrates the worker has had a progressive worsening of his L5-S1 disc. This disc bulge was consistently recorded as left-sided in nature and was initially mild eccentric, then progressed to abutting the left S1 nerve root without displacement, then progressed to a slight posterior displacement of the thecal sac and now the recent MRI scan simply states that the condition is a bulge/herniation abutting the traversing left S1 nerve root. Dr. M. also noted that the worker s pre-existing condition would be considered mild to moderate in severity and that the expected recovery from an aggravation of a pre-existing left sided L5-S1 bulge/herniated disc is 3-4 months. Review #R Page 3

4 A March 3, 2009 Board decision letter, which is the subject of this review, first noted that a January 16, 2009 Board decision letter accepted the worker s claim for an aggravation of his pre-existing chronic lumbar back pain and that a January 22, 2009 Board decision letter then accepted his claim for a left-sided L5-S1 herniated disc. The Board Officer further noted that the worker has requested that his claim also be accepted for an L4-L5 far right lateral foraminal disc bulge. The Board Officer then indicated that Board MA Dr. M. reviewed the worker s claim and provided an opinion that his L5-S1 disc bulge was preexisting so the working diagnosis is actually an aggravation of his pre-existing left-sided L5-S1 disc bulge not a left-sided L5-S1 disc herniation. The Board Officer stated that less than 75 days have elapsed since the January 22, 2009 Board decision to accept the worker s claim for a L5-S1 disc herniation so a reconsideration of that decision is appropriate. The Board Officer accepted Dr. M. s opinion evidence regarding the worker s L5-S1 disc and determined that the worker sustained an aggravation of his pre-existing left L5-S1 disc bulge in the workplace incident not a L5-S1 disc herniation as the radiological evidence demonstrates a pre-existing L5-S1 disc bulge that progressively worsened over the 2003 to 2009 time period. The Board Officer also accepted Dr. M. s opinion evidence regarding his L4-L5 disc and determined that his L4-L5 far right lateral foraminal disc bulge is strictly degenerative in nature and as a result is not compensable under the worker s workplace injury claim. For example, the worker s prior September 5, 2003 lumbar spine MRI scan recorded degenerative changes at the L4-L5 level. Furthermore, the worker s the worker s February 9, 2009 MRI scan recorded that he has a L4-L5 far right lateral foraminal disc bulge with small posterolateral osteophyte formation so any symptoms stemming from this disc bulge would be expected to be right-sided not left-sided. Finally, Neurosurgeon Dr. S. s February 11, 2009 consultation report stated that the worker s back pain is related to his L5-S1 degeneration only. The worker s March 6, 2009 Request for Review asked for a review of the March 3, 2009 Board decision letter on the grounds that this decision is wrong because it fails to properly interpret the worker s medical evidence and apply the law and Board policy. The worker wants his claim accepted for both a L4-L5 right-sided lateral femoral disc bulge and a L5-S1 herniated disc. The worker representative s April 14, 2009 submission noted that the worker had a significant previous 2003 workplace lumbar spine injury claim. Therefore, also at issue under this review is whether the Board failed to properly assess if his earlier claim should be reopened for further Board compensation benefits. NS Dr. S. s May 26, 2009 consultation report noted that the worker has a prior history of back problems with left sided sciatica but was pretty much pain free for the two years prior to the December 19, 2008 workplace incident. Dr. S. further noted that the worker advised that his lumbar spine symptoms are worsening rather than improving. He now has increasing pain in his right leg involving his anterior thigh. Dr. S. noted on examination that the worker s pinprick sensation was decreased diffusely in his left leg and left lateral calf with no obvious Review #R Page 4

5 dermatomal pattern. Dr. S. stated that a review of the worker s February 9, 2009 lumbar spine MRI scan demonstrated a small left sided L5-S1 disc protrusion/herniation which contacts and slightly deviates the left S1 nerve root and a small foraminal disc bulge at L4-L5 which does not seem to be causing any compression of the adjacent nerve root. Dr. S. stated that the severity of the worker s pain is out of keeping with the size of the L5-S1 disc herniation and recommended conservative measures. The worker s June 1, 2009 lumbar spine MRI scan recorded a L4-L5 mild facet arthropathy with no focal disc protrusion or spinal stenosis and a large left-sided paracentral disc herniation measuring 8 mm in diameter and impinging on the dural sac and displacing the S1 nerve root posteriorly at L5-S1. MRI Physician Dr. C. stated that a dramatic increase in the size of the worker s L5-S1 disc herniation has occurred since the earlier February 9, 2009 MRI scan. The worker representative s June 9, 2009 submission advised that the worker has been scheduled for imminent lumbar spine surgery due to the dramatic change in the size of his L5-S1 disc protrusion. The worker s representative stated that this surgery will allow the surgeon to visualize the L4-L5 level and make a conclusion regarding the precise nature of his disability. NS Dr. S. s June 9, 2009 medical letter noted that the worker was examined for his escalating left sciatica and that his recent June 1, 2009 lumbar spine MRI scan recorded a significant increase in the size of his L5-S1 disc herniation. Dr. S. requested approval for an expedited left-sided L5-S1 microdiscectomy. NS, Dr. S. s June 30, 2009 operative report noted that the worker s postoperation diagnosis was a left L5-S1 disc herniation and that he underwent a left L5-S1 microdiscectomy. Dr. S. stated that this disc herniation was incised and removed (it was a moderate focal piece). The worker representative s August 6, 2009 submission noted that the worker wants his Board claim to also be accepted for the recorded L4-L5 disc bulge. The worker s representative stated that the March 3, 2009 Board decision letter used a Board MA opinion to reverse an earlier Board decision to accept the worker s claim for a L4-L5 right lateral disc bulge. Board MA Dr. M. indicated that the worker s L4-L5 far right lateral foraminal disc bulge with small posterolateral ostephyte formation was degenerative. However, Dr. M. did not provide any reasoning to support that characterization of the worker s L4-L5 disc bulge as being degenerative in nature. In fact, a review of the diagnostic imaging confirms that prior to the February 9, 2009 lumbar spine MRI scan there was no history of the worker having a L4-L5 bulging disc. The worker s representative further argued that prior to December 19, 2008 the worker had no history of lumbar spine symptoms that could relate to a L4-L5 disc bulge. For example, the medical evidence does not demonstrate that the worker had any symptoms going down his right leg until after the December 19, 2008 workplace injury. Furthermore, after December 19, 2008 there is medical evidence to support that Review #R Page 5

6 he experiences pain symptoms down his right leg. In fact, OS Dr. S. s May 26, 2009 consultation report noted that the worker is now experiencing pain in his right leg along with the radicular pain down his left leg. The worker s representative also indicated that there is no evidence of any intervening event that could have caused the worker s right-sided L4-L5 disc bulge. Therefore, the evidence supports that the worker s claim should also be accepted for a L4-L5 disc bulge. A September 14, 2009 Board telephone memo documented a conversation between the worker and a Board Officer. The worker advised that he has recently been prescribed anti-inflammatory medication and that he has not noticed any difference while using this medication. The worker advised he is experiencing numbness and pain down his right leg and that his physiotherapist indicated that this could also be due to referred pain from his documented disc bulge. Reasons and Decision As a preliminary matter, I note that the April 14, 2009 worker representative s submission indicated that the worker had a significant workplace lumbar spine injury accepted in The worker s representative then went on to argue that this review should include consideration of the Board s failure to properly assess if the worker s earlier 2003 claim should be reopened for further Board compensation benefits. However, my jurisdiction is limited to reviewing any decision made in the March 3, 2009 Board decision letter that is the subject of this review. The March 3, 2009 Board decision letter did not provide any decision, express or implied, with respect to a reopening of the worker s prior 2003 lumbar spine injury claim. I have also looked at the worker s 2003 lumbar spine injury claim file and note that there is no decision on file allowing or denying a reopening of that claim. Therefore, the worker is entitled, if he so desires, to request that the Board provide a decision of first instance with respect to a reopening of his 2003 lumbar spine injury claim for further Board compensation benefits. Any such request should be made in writing and addressed to the Board Officer that has conduct of that 2003 claim file. Issue #1 - The March 3, 2009 Board decision to cancel the earlier decision to accept the worker s claim for a L5-S1 disc herniation and instead accept it for an aggravation of a pre-existing L5-S1 disc bulge. As a preliminary matter on this issue, I note that subsection 96(4) of the Act states that the Board may not reconsider a decision if more than 75 days have elapsed since that decision was made, a review has been requested in respect of that decision or an appeal has been filed in respect of that decision. Policy item #C , Changing Previous Decision Reconsiderations, of the Rehabilitation Services and Claims Manual Volume II (RSCM) then provides that the Board may reconsider a decision on its own initiative where there is new Review #R Page 6

7 evidence indicating that a prior decision was made in error, there has been a mistake of evidence (material evidence was initially overlooked) and/or facts were mistakenly taken as established which were not supported by any evidence. In this case, only 40 days had elapsed since the January 22, 2009 Board decision to accept the worker s claim for a L5-S1 disc herniation and there was new medical evidence, including Board MA Dr. M. s March 2, 2009 opinion evidence, to support that the worker sustained an aggravation of a pre-existing L5-S1 disc bulge rather than a L5-S1 disc herniation in the December 19, 2008 workplace incident. Therefore, I accept that the Board Officer had jurisdiction to cancel the earlier decision to accept the worker s claim for a L5-S1 disc herniation and instead accept the worker s claim for an aggravation of his preexisting L5-S1 disc bulge. As a result, I will review the Board s decision to accept the worker s claim for an aggravation of his pre-existing L5-S1 disc bulge. The worker s March 6, 2009 Request for Review specifically asked for a review of the Board s decision to accept his claim for an aggravation of a pre-existing L5-S1 disc bulge. The worker wants his claim accepted for a L5-S1 disc herniation on the grounds that the Board Officer failed to properly interpret the medical evidence. However, the worker representative s April 14, 2009, June 9, 2009 and August 6, 2009 submissions did not provide any information, evidence or argument to support this position. Therefore, I have conducted my review of this issue based on a detailed inspection of the documents already on the worker s Board claim file. Section 5(1) of the Act and policy item #14.00, Arising Out Of And In The Course Of Employment, of the RSCM operate together to explain the requirements for a compensable Board claim. There are several factors that must be satisfied: there must be a personal injury; the personal injury must have occurred while at work and the personal injury must have been caused by work. There is no disputing the fact that the worker sustained a personal injury and that it occurred while at work. It is further clear from a review of the worker s pre-december 19, 2008 radiological documents that he had a deteriorating L5-S1 objective medical condition that pre-dated the December 19, 2008 workplace incident. The worker s September 5, 2003 lumbar spine MRI scan recorded a minimal leftsided paracentral disc bulge at L5-S1 that causes a slight indentation on the thecal sac without evidence of S1 root compression. The worker s prior May 8, 2005 lumbar spine CT scan then recorded a slight central and left-sided disc bulging at L5-S1 and that the disc abuts against the left S1 nerve root but does not displace that nerve. I accept that this radiological evidence clearly demonstrates that the worker did not have a L5-S1 disc herniation as of May It is also clear from the worker s post-december 19, 2008 radiological documents that there has been further deterioration to his L5-S1 disc. The worker s Review #R Page 7

8 February 9, 2009 lumbar spine MRI scan recorded a small left-sided L5-S1 paracentral disc bulge/herniation. The worker s subsequent June 1, 2009 lumbar spine MRI scan recorded a large left-sided paracentral disc herniation measuring 8 mm in diameter and impinging on the dural sac and displacing the S1 nerve root posteriorly at L5-S1. I accept that this radiological evidence clearly demonstrates that by February 9, 2009 the worker had a L5-S1 disc herniation. Board Medical Advisor (MA) Dr. M. s March 2, 2009 opinion concluded that the worker s working diagnosis for the December 19, 2008 workplace injury is an aggravation of his pre-existing left-sided L5-S1 disc bulge. This was the medical opinion evidence used by the Board Officer to change the acceptance under the worker s claim from a L5-S1 disc herniation to an aggravation of a pre-existing L5-S1 disc bulge. Dr. M. did not address the fact that the radiological evidence now recorded a L5-S1 disc herniation. However, Neurologist Dr. W. s February 20, 2009 consultation report stated that the worker s lumbar spine symptoms are referable to his left S1 nerve root and this is congruent with the findings of the recent CT and MRI scans which recorded a posterolateral disc herniation at the L5-S1 level abutting the left S1 nerve root. Furthermore, NS Dr. S. s May 26, 2009 consultation report stated that a review of the worker s February 9, 2009 lumbar spine MRI scan recorded a small left-sided L5-S1 disc protrusion/herniation which contacts and slightly deviates the left S1 nerve root. Finally, Dr. S. s June 30, 2009 operative report confirmed that the post-operation diagnosis was a left-sided L5-S1 disc herniation. In fact, Dr. S. stated that this disc herniation was incised and removed (it was a moderate focal piece). Therefore, Dr. S. has provided objective medical evidence to support that the worker actually had a L5-S1 disc herniation. Finally, NS Dr. S. s consultation reports support that the mechanism of injury of the worker s December 19, 2008 workplace incident was consistent with a L5-S1 disc herniation. I also note that Board MA Dr. M. did not provide any opinion evidence that would indicate that the worker s December 19, 2008 mechanism of injury would not be consistent with a L5-S1 disc herniation. I prefer Dr. S. s opinion evidence as he clearly has a highly specialized expertise in this area and he also had access to all of the medical evidence up to and including the June 30, 2009 operative report. I find, under section 5 of the Act and pursuant to policy item #14.00 of the RSCM, that the totality of the evidence demonstrates that the worker likely sustained a L5-S1 disc herniation as a result of the December 19, 2008 workplace incident. This personal injury clearly arose out of and in the course of his employment. Therefore, I accept the worker s claim for a L5-S1 disc herniation which was superimposed on his pre-existing L5- S1 degenerative condition. However, I do not make any findings with respect to the appropriate Board compensation benefits, if any, that may arise out of this change in the acceptance of the worker s claim from an aggravation of his preexisting L5-S1 disc bulge to a L5-S1 disc herniation. In fact, I note that the Review #R Page 8

9 worker and his representative have not argued that any further Board compensation benefits should result from acceptance of his claim for a L5-S1 disc herniation. As a result, I allow the worker s request for review on this issue. Issue #2 - The March 3, 2009 Board decision not to accept the worker s claim for a L4-L5 disc bulge. As a preliminary matter, I note that the August 6, 2009 worker s representative submission indicated that the Board reversed its earlier decision to accept the worker s claim for a L4-L5 disc bulge. However, a detailed review of the worker s claim file demonstrates that this was not the case. The Board has never accepted the worker s claim for a L4-L5 disc bulge. In fact, the March 3, 2009 Board decision to deny acceptance of the worker s claim for a L4-L5 disc bulge was the first determination on this matter. The worker representative s August 6, 2009 submission noted that the worker wants his Board claim to also be accepted for the recorded L4-L5 disc bulge. The worker s representative acknowledged Board MA Dr. M. s opinion evidence but stated that Dr. M. did not provide any reasoning to support this characterization of the worker s L4-L5 disc bulge as degenerative in nature. Therefore, Dr. M. s opinion evidence should be given little weight. The worker s representative then stated that the radiological imaging from prior to the February 9, 2009 lumbar spine MRI scan demonstrated that the worker had no history of a L4-L5 bulging disc. Furthermore, he stated that the worker had no history of lumbar spine symptoms that could be related to a L4-L5 disc bulge prior to the December 19, 2008 workplace incident. For example, the medical evidence does not demonstrate that the worker had any symptoms going down his right leg until after the December 19, 2008 workplace injury but does support that he has experienced pain symptoms down his right leg since that workplace injury. In fact, Neurosurgeon Dr. S. s May 26, 2009 consultation report noted that the worker is now experiencing pain in his right leg. Finally, he also indicated that there is no evidence of any intervening event that could have caused the worker s right-sided L4-L5 disc bulge. Therefore, the evidence as a whole supports that the worker s claim should be accepted for a L4-L5 formal disc bulge. Section 5(1) of the Act and policy item #14.00, Arising Out Of And In The Course Of Employment, of the RSCM operate together to explain the requirements for a compensable Board claim. There are several factors that must be satisfied: there must be a personal injury; the personal injury must have occurred while at work and the personal injury must have been caused by work. In this case, the only medical evidence supportive of the worker/worker s representative position is contained in the February 9, 2009 lumbar spine MRI scan which recorded a mild right-sided far lateral/foraminal L4-L5 disc bulge with Review #R Page 9

10 small posterolateral osteophyte formation. However, this radiological evidence on its own does not support that the worker s December 19, 2008 workplace incident caused this L4-L5 disc bulge. In this case, there is not a strong temporal connection between the worker s December 19, 2008 workplace incident and his report of any lumbar spine symptoms that could be associated with a right-sided far lateral/foraminal L4-L5 disc bulge. For example, the first documentation of the worker s complaints of right leg pain involving his anterior thigh was contained in NS Dr. S. s May 26, 2009 consultation report. This is more than five months after the December 19, 2008 workplace incident. This significant delay in the reporting of symptoms that could be associated with a right-sided far lateral/foraminal L4-L5 disc bulge calls into question whether there is a connection between that disc bulge and the workplace incident. Further, there is no medical opinion evidence to support that the worker sustained a right-sided far lateral/foraminal L4-L5 disc bulge in the December 19, 2008 workplace incident. In fact, NS Dr. S. noted the existence of that L4-L5 disc bulge but has not provided any medical opinion evidence linking it to the December 19, 2008 workplace incident. Neurologist Dr. W. and AP Dr. H. were also silent on this matter. Further, Board MA Dr. M. has provided the only opinion evidence with respect to whether the worker sustained a L4-L5 disc bulge in the December 19, 2008 workplace incident. Dr. M. s March 2, 2009 opinion was based on a detailed examination of the worker s claim file. Dr. M. concluded that the worker s L4-L5 disc bulge was degenerative in nature as demonstrated by the prior September 5, 2003 lumbar spine MRI scan which recorded L4-L5 degenerative changes. Dr. M. also noted that the worker s back and leg pain symptoms are predominantly on the left side but that his L4-L5 disc bulge is on the right side thereby supporting that his current symptoms are not related to that disc bulge. I acknowledge the worker representative s argument that Dr. M. has not explained why the worker s L4-L5 disc bulge is degenerative in nature but respectfully disagree with that characterization. Dr. M. s opinion used the worker s prior September 5, 2003 lumbar spine MRI scan findings and the fact that he did not complain of any right-sided symptoms in the two months after the workplace incident to support the conclusion that the L4-L5 disc bulge is not related to that workplace incident. As a result, I give weight to Dr. M. s uncontradicted expert opinion evidence. Finally, the worker s most recent June 1, 2009 lumbar spine MRI scan did not record a L4-L5 disc bulge. In fact, it recorded a L4-L5 mild facet arthropathy with no focal disc protrusion or spinal stenosis. This most recent MRI scan finding is virtually identical to the worker s prior September 5, 2003 lumbar spine MRI scan that recorded mild degenerative changes of the lower lumbar facets particularly at L4-L5 but no significant central or foraminal stenosis. Therefore, there is now radiological evidence demonstrating that the worker does not have a L4-L5 disc Review #R Page 10

11 bulge and that the degeneration at the L4-L5 level is virtually identical to the degeneration recorded a number of years before the December 19, 2008 workplace injury. Therefore, the most recent radiological evidence also does not support a compensable L4-L5 disc bulge injury. I find, under section 5 of the Act and pursuant to policy item #14.00 of the RSCM, that the totality of the evidence demonstrates that the worker likely did not sustain a right-sided far lateral/foraminal L4-L5 disc bulge as a result of the December 19, 2008 workplace incident. Both the radiological evidence and the medical opinion evidence support that the worker s December 19, 2008 workplace incident was not causative of that L4-L5 disc bulge. Therefore, I find that the Board Officer s decision to deny acceptance of the worker s injury claim for a right-sided far lateral/foraminal L4-L5 disc bulge was appropriate As a result, I deny the worker s request for review on this issue. Conclusion As a result of this review, I vary the Board s decision of March 3, Lyall Zucko Review Officer Review Division Review #R Page 11