The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 6, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this case on October 6, 1999, November 18, 1999 and January 28, 2000.

Issue

Whether or not the claimant has recovered from the effects of the compensable injury; and

Whether or not the claimant is entitled to the payment of benefits beyond July 28, 1998.

Decision

That the claimant has not recovered from the effects of the compensable injury; and

That the claimant is entitled to the payment of benefits beyond July 28, 1998.

Background

While employed as a nursing assistant II on July 29, 1996, the claimant slipped in a puddle on the floor and in the process twisted her back. The diagnosis reported by the attending physician was a musculo-ligamentous strain of the lumbosacral and paraspinals. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. It was also noted that the claimant had a compensable back injury approximately 11 years prior. Subsequent medical information revealed the following:

• on September 11, 1996, a CT scan of the spine revealed no disc protrusion. Moderate facet arthropathy was present throughout the lower lumbar spine and was especially pronounced on the right at the L3-L4 level.
  
• on October 9, 1996, a WCB medical advisor commented that the CT scan showed significant pre-existing facet arthropathy but no disc herniation. He stated that the compensable injury likely aggravated the pre-existing condition thus prolonging recovery.
• a neurologist, on December 5, 1996, thought that the claimant had "mechanical low back pain, perhaps with a fibromyalgia component."
• on January 8, 1997, the claimant was examined by a WCB medical advisor. His opinion was that the claimant suffered from a pre-existing, fairly severe facet arthropathy, extending from L2 to L5. It was also indicated that the claimant appeared to be "pain-focused."
• on January 26, 1997, a physical medicine specialist recorded the following impression: "My clinical assessment on January 24th, 1997 revealed that Mrs. [the claimant] has low back pain with central and right L3-L4 disc herniation." To confirm this, the specialist recommended an MRI examination.
• an MRI assessment was carried out on March 18, 1997. The impression, was, "Facet arthropathy from the L3 to S1 level bilaterally.
• on May 3, 1997, the physical medicine specialist provided a report, following his examination of the claimant and review of the MRI results "Clinically and on neuroradiological investigations Mrs. [the claimant] has facet joint arthritis with mechanical low back pain syndrome. She has low pain threshold with significantly reduced functional capabilities and reduced endurance."
• on May 16, 1997, the physical medicine specialist indicated that the claimant continued to experience chronic mechanical and possibly neurogenic pain. According to the specialist, the claimant did not respond well to the prescribed treatment.
• on July 6, 1997, the above specialist noted the following, "Clinically and on lateral myelographic studies, she has right S1 radiculopathy."
• on October 13, 1997, the physical medicine specialist noted that the claimant had been attending PARS (Preventive Assessment and Rehabilitation Services) since July 28, 1997. The impression following assessment was, "Clinically, Mrs. [the claimant] has made good improvement in her right S1 radiculitis/radiculopathy. She still has mechanical spinal pain syndrome with low endurance for any medium to heavy activities."
• on January 15, 1998, the claimant was assessed by a WCB physical medicine and rehabilitation consultant. The consultant noted that the initial diagnosis on file was musculoligamentous strain of the lumbosacral paraspinal muscles. This likely included aggravation of some pre-existing mechanical low back pain. There was evidence of significant pre-existing multilevel disc degenerative changes and multilevel facet osteoarthritis evidenced on both the CT and MRI investigations. The claimant was considered to be back at a base-line level of symptomatology related to the pre-existing degenerative changes present. The claimant was referred for a trial of bilateral facet blocks, which included the L3-4, L4-5 and L5-S1 levels.
• on March 6, 1998, PAR services reported that the claimant was discharged from a conditioning program and physiotherapy sessions. It was noted that until the claimant's pain or pain symptom was brought under control the conditioning program would be unsuccessful. The claimant was instructed in a home program to assist in recovery.
• on April 6, 1998, a WCB medical advisor reviewed the case. It was his opinion that the aggravation should have resolved by now however the claimant continued to have problems and by virtue of her anatomy would have potential for these problems. There were minimal findings of abnormal illness behaviour, physiotherapy has not been very effective and because of her physical makeup she would continue to have back problems/pain.
• on May 1, 1998, a neurologist reported his examination findings with respect to the claimant. He summarized that there were no objective evidence of a root lesion found on clinical examination. There was no clinical evidence of a peripheral polyneuropathy, as was apparently suggested by one of her previous nerve conduction studies. The claimant does have, however, significant chronic back pain related to this spasm and aggravated by the chronic muscle tension. Further tests were recommended to clarify the issue of whether there was any underlying peripheral neuropathy or whether there was a nerve root irritation.
• nerve conduction studies were carried out on March 16, 1998. The report indicated that the test was essentially normal with one questionable abnormality on right S1 EMG, but no convincing evidence of S1 lesion either side.
• on July 8, 1998, a WCB medical advisor reviewed the case. Briefly, the medical advisor's opinion was that the claimant's current diagnosis was chronic mechanical low back pain as opposed to a strain injury to the lower back (the initial diagnosis). She felt that the claimant had recovered and was no longer disabled as a result of the compensable injury. There would be no restrictions with respect to the compensable injury. The medical advisor felt that degenerative disc disease and facet osteoarthritis were prolonging the claimant's recovery from the compensable injury.

On July 21, 1998, Claims Services wrote to the claimant indicating that her workers compensation benefits would be paid only to July 28, 1998, as it was determined she had recovered from the effects of the July 29, 1996, compensable injury. On September 2, 1998, a union representative, acting on behalf of the claimant, appealed this decision and the case was subsequently referred to Review Office.

In a decision, dated January 15, 1999, Review Office confirmed that the claimant had recovered from the effects of the compensable injury and that no benefits were payable beyond July 28, 1998. Review Office further confirmed that the claimant had a pre-existing condition, which was evident on x-rays taken in August 1985 at the time of her 1985 compensable injury. Any difficulties experienced by the claimant were a result of her pre-existing condition and not related to the 1996 accident.

Review Office, in its decision, noted the following WCB policy dealing with pre-existing conditions. ".where the time loss from work is as a result of a combination of both the work related accident and a pre-existing condition, then the board would accept responsibility for the full injurious result of the injury. However, where a claimant has recovered from the effects of the compensable injury and, is no longer disabled by reason of that accident, and her disability is due solely to the pre-existing condition, then all further responsibility for payment of benefits as a result of the non-compensable pre-existing condition would end."

Review Office was satisfied that there was no compelling evidence to show that the claimant continued to remain disabled as a result of her compensable injury.

On October 6, 1999, an oral hearing was held at the request of the union representative who appealed Review Office's decision. Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the treating physician with respect to an upcoming muscle biopsy. On November 30, 1999, the muscle biopsy results, dated October 12, 1999, were forwarded to the WCB's Healthcare Management Services branch for an opinion. A response dated January 5, 2000, was received, then forwarded to the interested parties for comment. On January 31, 2000, the Panel met to render its final decision.

Reasons

At the time of her compensable injury, the claimant suffered what was diagnosed as a musculoligamentous strain of the lumbosacral region. On May 18, 1999, the treating physician provided a report to the claimant's union representative with respect to the claimant's current condition:

"Although Ms. [the claimant] had a previous back injury prior to the compensable injury of 1996, she was functioning both in the workplace, at home and with activities of daily living. Clearly and dating to the injury she had not recovered. The diagnosis remains that of a mechanical low back symptom complex with contributing factors as extensively documented. While recognizing that pre-existing conditions did exist, function prior to the event was as noted. I would disagree with the review office that 'no compelling evidence' because on the contrary significant evidence of lack of function and immobility is noted from all physicians who have examined Ms. [the claimant]. I would therefore offer the opinion and impression that Ms. [the claimant] remains disabled from the workplace relating to her compensable injury."

The treating physician further underscored his opinion by pointing out that not one of the various medical doctors, who had either examined or reviewed her case, ever stated directly that the claimant had regained full range of movement or function activity.

Based on the weight of evidence, we find that the claimant has not, on a balance of probabilities, fully recovered from the effects of her compensable injury. It would appear that the claimant had developed a non-compensable condition, which has been delaying her recovery. In this regard, we note in particular certain comments expressed by the treating physician in a letter, dated November 18, 1999. "Mrs. [the claimant] has been advised of the diagnosis of 'suspicion of polymyocitis underlying at least some of her symptoms'. I reviewed with her as documented by Dr. [a neurologist] that the workplace injury did not cause nor initiate the 'diffuse inflammatory myopathy', however the underlying process would delay her ability to recover from the muscle injury."

Inasmuch as we have determined that the claimant has not fully recovered, she would, therefore, be entitled to the payment of benefits beyond July 28, 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 11th day of February, 2000