The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 28, 1999, at the request of the claimant. The Panel discussed this case on September 28, 1999, and January 31, 2000.

Issue

Whether or not the claimant is entitled to vocational rehabilitation assistance subsequent to April 20, 1998.

Decision

That the claimant is entitled to vocational rehabilitation assistance subsequent to April 20, 1998.

Background

On September 30, 1993, the claimant injured his lower back and right groin area when he slipped on a running board of his truck. The claimant did not fall but pulled his back and groin while trying to stop the fall by grabbing onto a handrail. The claim was accepted as a Workers Compensation Board (WCB) responsibility and the claimant received wage loss and vocational rehabilitation benefits. An x-ray, dated December 8, 1993 revealed early degenerative disc disease at L5-S1.

The claimant was assessed at the WCB on September 15, 1997, to determine his present status, current work capability and the need of any restriction, as related to the September 1993, compensable injury. Under "Discuss and Opinion", the medical advisor believed that the claimant was suffering from low back pain likely related to his pre-existing degenerative disc disease. The location of pain was across the lower back in the lumbosacral region, which according to a previous radiologic examination demonstrated degenerative disc disease at L5-S1. The claimant's low back pain was gradually getting worse because of deconditioning and obesity. According to the claimant he had gained 60 pounds since the occurrence of his compensable injury.

The medical advisor commented that the claimant was suffering from some chronic muscle strain of his adductor muscle bilaterally, more so on the right side. No muscle weakness was identified and there was only muscle tenderness on palpation on both adductor muscles. Right hip range of motion was found to be normal. The suprapubic area was non-tender. The sacroiliac joint was also non-tender on the right side and the left side was only slightly tender. He believed that the claimant's adductor strain was improving compared to a previous examination.

With respect to current work capabilities, the medical advisor suggested that the claimant should be encouraged to do more physical activity. He did not feel the claimant was totally disabled, but rather that he would be able to do modified duties if the claimant avoided heavy lifting of more than 50 pounds, prolonged sitting, standing and walking. These restrictions were considered in part, if not entirely, due to the claimant's pre-existing degenerative disc disease. It was recommended that the claimant be referred for physiotherapy for his adductor muscle strain and to teach him proper home stretching exercises. With proper exercise, the medical advisor anticipated that the claimant could return to work without any restrictions in two to three months. "Any further limitation was likely due to his pre-existing degenerative disc disease and not related to his adductor muscle strain. From the low back pain and disability questionnaire, the claimant's rating is 68% which equates to being 'crippled'. The claimant's pain on a scale from 0-10 is 8. I believe the claimant's subjective disability and his pain level is out of proportion to the objective findings of the present call in examination."

File documentation showed that the claimant received physiotherapy treatment and was discharged in November 1997.

On January 28, 1998, following consultation with a WCB medical advisor, Claims Services advised the claimant that in its opinion he no longer required restrictions as a result of the compensable injury. It was, therefore, determined that benefits would be extended for 12 weeks to April 21, 1998, as the claimant was involved in a job search with the assistance of an employment specialist.

On February 3, 1998, the attending physician disagreed with the WCB's decision that the claimant could return to his former employment as a long haul truck driver. The physician advised that the claimant had ongoing right hip adductor pain and that any lifting or heavy work exacerbated his right leg and hip pain. The physician commented on the findings of the treating physiatrist who felt that the claimant might get back to short haul driving but this could not be guaranteed. An occupational therapy assessment indicated that the claimant could not perform heavy lifting. The physician felt that the claimant's restrictions were permanent.

The attending physician's letter of February 3, 1998, was reviewed on March 11, 1998, by a WCB medical advisor. He believed that the claimant's current complaints were not related to the compensable injury as there was no objective evidence to suggest that he couldn't return to regular duties.

A worker advisor, on February 24, 1998, requested reconsideration of the above decision. In view of reports from the attending physician and from previous WCB examinations, the worker advisor requested that the case be referred to the WCB's Pain Management Unit to determine if chronic pain syndrome was present and if further treatment was necessary.

The claimant was examined at the WCB's Pain Management Unit on May 5, 1998. Based on his examination findings, the medical advisor indicated that the claimant continued to have chronic pain but did not suffer from chronic pain syndrome. On a balance, it appeared that the claimant's ongoing pain was the result of the workplace incident. Recommendations were then made for a referral to a psychologist to instruct pain management techniques and a dietician for instruction in weight loss.

On June 12, 1998, the claimant was advised that the WCB was willing to offer 4 to 6 sessions with a psychologist and two sessions with a dietician. With respect to vocational rehabilitation benefits, the claimant was advised that he was no longer entitled to these benefits and that physical restrictions due to the compensable injury were no longer required.

In a report, dated June 8, 1998, the treating physiatrist stated, in part, "There continues to be localized acute tenderness in a transverse band across the right adductor longus muscle where his original muscle injury took place. There is no evidence of myofascial pain in the lower limb muscles. Further investigation is not justified and further treatment would not be effective. I have encouraged [claimant's name] to get ahead and find a job with the restrictions of no heavy or repetitive lifting and carrying, no climbing and no continued work on uneven ground."

Based on the above commentary, the claimant and worker advisor advanced the argument that the findings and the restrictions noted by the physiatrist should be accepted, on a balance of probabilities. As a result, the claimant was seeking reinstatement of vocational rehabilitation benefits and services retroactively from April 22, 1998.

On December 29, 1998, an advocate, acting on behalf of the employer, requested that the Review Office uphold the WCB's decision to terminate benefits effective April 21, 1998. In support of this position the advocate commented as follows:

• the claimant's restrictions to avoid heavy and repetitive lifting/carrying and working on uneven ground did not arise from the compensable injury but are due to his documented pre-existing condition;
• there was no medical evidence to support that the compensable injury did more than result in an aggravation of the pre-existing degenerative disc disease and that there had been no confirmed enhancement, or evidence of myofascial pain or chronic pain syndrome.
• since the compensable injury the WCB has served the claimant well. He had the benefit of formal education towards a business administration certificate, physiotherapy, chiropractic services, pain management and nutrition counselling.
• there were also comments on file that the claimant was not mitigating the effects of the compensable injury as he had gained 60 pounds and was deliberately not participating in an exercise program, both of which would assist his medical status and perceived disability.

On January 22, 1999, Review Office determined that the claimant had recovered from his compensable back injury. It was further determined that the claimant had recovered from the effects of his compensable groin injury to the point, where if he exercised appropriately, he would be capable of returning to his pre-accident work. As the claimant was considered to have recovered, Review Office felt that he was no longer entitled to vocational rehabilitation assistance beyond April 20, 1998.

Review Office noted that the claimant's back complaints were periodic with minimal findings upon examination. This was consistent with the claimant's accident only temporarily aggravating his pre-existing non-compensable degenerative disc disease. Once this aggravation resolved, Review Office was of the view that his ongoing back complaints would be related to factors such as the natural progression of the disc disease, his sedentary lifestyle, his advancing age, and his weight.

Although the claimant voiced complaints about his groin injury, Review Office said that the findings upon examination were not substantial. It was also noted that several doctors recommended that the claimant required specific treatment and ongoing care to alleviate his complaints, however, the claimant did not fully avail himself of this help. Review Office's opinion was that, at the very least, the claimant would be capable of his pre-accident employment if he took appropriate care by performing the exercises and stretches he has been taught. It was recognized that these activities may cause the claimant some discomfort. However, this was not a reason in itself to place restrictions on the claimant's activities. It followed that the claimant was capable of returning to his pre-accident employer.

On May 17, 1999, the claimant appealed Review Office's decision and requested an oral hearing. On September 28, 1999, an oral hearing was convened.

Prior to rendering a decision, the Appeal Panel requested that the claimant be examined by an independent sports medicine specialist, which later took place on November 1, 1999. On January 13, 2000, all parties were provided with the consultation report, dated January 5, 2000, and were asked to submit comment. On January 31, 2000, the Panel met to render its final decision.

Reasons

The claimant was examined by his treating Physical Medicine and Rehabilitation specialist on June 4th, 1998. At that time, he reported to the attending physician:

"Straight leg is unremarkable. There is no neurological deficit. There is full passive mobility in the hips with little discomfort.
There is no myofascial pain in the right quadratus lumborum muscle as there was previously but the muscle simply feels tight to palpation.
There continues to be localized acute tenderness in a transverse band across the right adductor longus muscle where his original muscle injury took place. There is no evidence of myofascial pain in the lower limb muscles.
I have encouraged [the claimant] to get ahead and find a job with the restrictions of no heavy or repetitive lifting and carrying, no climbing and no continued work on uneven ground."

Following the hearing, we requested that an independent physician specializing in Sports Medicine examine the claimant. This assessment took place on November 1st, 1999. We attached considerable weight to the following comments expressed by this specialist:

"I do not feel that Mr. [the claimant] is capable of returning to long haul driving as this job involves activities that aggravate his pain such as prolonged sitting and lifting, which he must do when unloading cargo. Generally speaking, long haul driving is a very physically demanding job involving loading and unloading of cargo, squatting, climbing up to the cabs, and hours of sitting. Mr. [the claimant] is no longer physically capable of performing these strenuous activities.

In reviewing all documentation submitted by W.C.B. it appears that little has changed since 1993. His symptoms and physical restrictions were well documented from 1993 to 1998. In my opinion his physical restrictions remain unchanged and are a result of the compensable injury he sustained to the adductor musculature."

While the preponderance of evidence is clear that the claimant is not totally disabled, it nevertheless infers, however, that the claimant had not fully recovered from the effects of his compensable injury and that he had not returned to his pre-accident state at the time his benefits were terminated. We find, therefore, that the claimant is entitled, in accordance with section 27(20) of the Act, to vocational rehabilitation assistance subsequent to April 20, 1998.

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 4th day of February, 2000