The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 20, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this case on January 20, 2000.

Issue

Whether or not the claimant has recovered from the effects of the September 25, 1998, injury; and

Whether or not further responsibility should be accepted for ongoing medical or chiropractic treatment.

Decision

The claimant has not recovered from the effects of the September 25, 1998, injury; and

Further responsibility should be accepted for ongoing medical or chiropractic treatment.

Background

While performing the duties of a natural gas servicesman on November 25, 1998, the claimant sustained lower back pain after carrying a tool box weighing approximately 40 pounds in a bent over position down a flight of stairs. The diagnosis reported by the attending physician was that of an acute low back strain. The claim was accepted by the Workers Compensation Board (WCB) and the claimant commenced physiotherapy treatments as of September 29, 1998. It was also noted that the claimant had prior back claims with the WCB.

On October 2, 1998, the claimant was assessed by a chiropractor. The chiropractic diagnosis was an acute lumbar facet strain and acute right sacroiliac subluxation. Chiropractic adjustments were the recommended form of treatment.

The attending physician, on November 9, 1998, reported that straight leg raising was at 80 degrees and the hip was normal. The physician felt that modified duties were appropriate.

On the November 16, 1998 progress report, the chiropractor noted that the claimant had aggravated his lower back and left leg (quad muscle) during active rehab. Objectively, the claimant had full range of motion in his lumbar spine. On November 27, 1998, the chiropractor commented that the claimant had possible nerve compression in the lumbar spine resulting in left quadriceps muscle pain/weakness. The chiropractor indicated that the claimant required additional chiropractic treatment.

On November 30, 1998, the claimant commenced working modified duties four hours per day. By December 22, 1998, the claimant was working 12 hours per day on modified duties performing office work.

In a letter, dated December 10, 1998, primary adjudication advised the claimant that it had been determined that he had a spinal injury with decreased range of motion accompanied by a complicating factor. He was also notified that WCB's responsibility for chiropractic treatment would not be accepted beyond December 11, 1998. On December 15, 1998, a WCB chiropractic consultant, following review of the case, authorized additional chiropractic treatment up to January 8, 1999.

On March 31, 1999, following consultation with a WCB medical advisor, primary adjudication informed the claimant that there was no causal relationship between ongoing treatment and the original compensable injury of September 25, 1998. It therefore concluded that the claimant had essentially recovered from the effects of the September 25, 1998, work place injury.

On April 3, 1999, the claimant wrote to the WCB indicating that he still experienced pain in his back, left leg and thigh when going up and down stairs, kneeling, squatting or performing his regular duties. Included with the letter was correspondence from the company's physician, dated March 16, 1999. The claimant requested payment of costs associated with further chiropractic and physiotherapy treatments.

In a letter, dated March 16, 1999, the company physician stated that the claimant had difficulties with his left leg since November of 1998 and that this was likely related to the claimant's lower back injury. The claimant reported that his low back injury was feeling better, however, his left leg "gives way" intermittently. The physician was of the view that a prolapsed disc may be causing the claimant's lower back and left leg weakness. A CT scan of the lumbosacral spine was arranged. In the meantime, the physician felt that the claimant could continue with modified duties until the CT scan was carried out.

At the request of Review Office, arrangements were made for the claimant to be assessed by a WCB medical advisor on April 30, 1999. Under "Summary and Conclusions", the medical advisor indicated that the claimant gave a history consistent with lumbosacral strain which at present was almost completely settled. A radiculopathy was noted suggesting a high lumbar disc and the claimant did have absence of a knee jerk on the left side. There was no paraesthesias.

The medical advisor further commented on the results of the claimant's April 23, 1999, CT scan. The medical advisor noted that the CT scan did not show the upper spinal levels but at L3-4 and L4-5 significant degenerative changes were noted with a degree of spinal stenosis.

The medical advisor believed that the claimant had suffered an aggravation of his significant pre-existing degenerative back disease but this had now settled. The claimant had a back at significant risk. Preventative restrictions were recommended which involved no lifting greater than 50 pounds and the ability to change positions often.

In a decision, dated May 7, 1999, Review Office considered that the worker had recovered from the effects of his compensable injury and that no further responsibility should be accepted for medical or chiropractic treatment.

Review Office indicated that the claimant sustained a low back strain injury in the accident of September 25, 1998, and the injury was superimposed on significant degenerative disc disease in the lumbar spine. Review Office accepted the WCB medical advisor's opinion that the aggravation caused by the accident had now settled and that the worker had been left with a back at risk because of his lumbar degenerative disc disease. Any restrictions related to employment had been placed as a preventative measure to respect the worker's underlying back condition and not because of the accident.

On January 20, 2000, an Appeal Panel hearing was held based on an appeal from the claimant, who appealed Review Office's decision dated May 7, 1999.

Reasons

The claimant suffered an acute low back strain as a result of his compensable injury. Part of his recommended treatment included, amongst other things, an active rehabilitation program of physiotherapy and exercise. The WCB approved a 4-6 week course of physiotherapy for the claimant. In a progress report dated November 16th, 1998, the treating chiropractor advised that the claimant had aggravated his left leg psoas muscle during active rehabilitation and that this complication would impede the claimant's recovery.

The medical evidence received on file since the above chiropractic report continued to record ongoing symptomatology with the claimant's left leg. A WCB medical advisor examined the claimant on April 30th, 1999, and the following comments were recorded in his examination notes:

"Mr. [the claimant] has undergone a course of chiropractic manipulation and exercises which he felt reduced the pain quite significantly and also underwent a course of physiotherapy which consisted of heat, TENS, stretching exercises and strengthening exercises which he has continued in a home program to this time. Mr. [the claimant] notes that he has continued with his home program. He goes to the YMCA almost daily and uses the steam room, swims and does aerobic exercising as well as his strengthening and stretching exercises. Mr. [the claimant] notes with this regime the pain in his back has almost completely disappeared. He has been left with a constant, dull, steady ache into his left anterior thigh."

On May 4th, 1999, the employer's medical consultant wrote a letter to the claimant's treating physician to inform him of his examination of the claimant on March 9, 1999. In his report he advised in part:

"I was specifically asked to review Mr. [the claimant] with regards to his need for ongoing modified duties. Mr. [the claimant], at that point in time, was complaining of chronic ongoing lower back pain with radiation to the left leg. He also noted that his left leg was occasionally giving way.

I could not detect any specific neurologic abnormality on physical exam but felt that the leg symptomatology that he was suffering with was suspicious for nerve root irritation.

In the meantime I have advised [the employer] to leave Mr. [the claimant] on a course of modified duties until either his symptomatology settles with conservative treatment or until further more aggressive therapy is carried out at your discretion."

The claimant testified at the hearing that his left leg difficulties were still continuing. According to the treating physician, who has provided medical care to the claimant since 1995, "[he] did not have any medical complaints to his left leg prior to the accident on September 25, 1998."

We find, on a balance of probabilities, that the claimant developed the left leg difficulties during the course of his physiotherapy rehabilitation program, which was authorized by the WCB and that these difficulties have continued to the present day. Accordingly, we further find that responsibility should be accepted for ongoing medical or chiropractic treatment for the claimant's left leg difficulties.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2000