The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 12, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel met on several occasions to discuss the case, the last one being February 21, 2000.

Issue

Whether the claimant is entitled to further benefits beyond May 1, 1995 in respect of her compensable injury of September 27, 1994.

Decision

That the claimant is not entitled to further benefits beyond May 1, 1995 in respect of her compensable injury of September 27, 1994.

Background

On September 27, 1994, the claimant was helping to restrain a combative patient when she experienced lower back pain. The claimant continued working after the incident but the pain became progressively worse. On October 6, 1994, the attending physician diagnosed her condition as a chronic back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced. It was noted that the claimant had previous compensable back claims dating back to 1987 and that she had been involved in a motor vehicle accident (MVA) on June 22, 1989.

With respect to medical treatment, the claimant received physiotherapy and she was also assessed by a physiatrist. In October 1994, the physiatrist reported that the claimant had some facet dysfunction because of the tenderness in her facet joints together with overlying myofascial pain.

In November 1994, the claimant commenced a graduated return to work program but was unable to return to her regular duties due to an exacerbation of back pain. On January 19, 1995, the attending physician indicated that the claimant was not capable of more than a few hours of work and suggested a work hardening program as well as an examination by a WCB doctor.

On February 1, 1995, a WCB medical advisor reviewed the case and made the following comments:

• the claimant had degenerative narrowing at the L4-5 level, questionable myofascial and radicular signs,
• the claimant was capable of continuing in light duties with temporary restrictions,
• the claimant required abdominal strengthening and a back care program.

In February 1995, the treating physiatrist considered the claimant's symptoms were coming from a facet joint rather than from myofascial pain. The claimant was advised that she was not totally disabled and to continue with her exercises and to find an appropriate job that she could manage.

On March 7, 1995, the claimant was interviewed and examined by a WCB medical advisor. The medical advisor expressed the following opinion:

• the claimant had a history of chronic low back pain since 1986 which appeared to be of a mild mechanical type of back pain primarily related to the lower lumbosacral facet joints.
• there was evidence of some mild pre-existing degenerative changes related to the lumbosacral spine.
• the recent exacerbation of low back pain had essentially resolved with the mechanical pain complaints at the baseline level related to the pre-existing degenerative changes.
• the present symptomatology appeared to be related to a developing mild fibromyalgia syndrome. There appeared to be some latent myofascial activity in the trunk and the neck which likely pre-existed the most recent injury. The onset likely occurred from the MVA and some of the previous injuries. The neck pain complaints were not related to the most recent work injury.

On April 24, 1995, Claims Services determined that temporary total disability compensation would be paid to May 1, 1995, and that the claim would be reviewed for preventative vocational rehabilitation. In the opinion of Claims Services, the claimant had recovered from the compensable accident and her present difficulties were due to her pre-existing condition.

Further documentation revealed that the claimant while lifting a toy at home in April 1995 experienced acute low back pain with radiation down her right leg. A CT scan later demonstrated a central and slightly right sided L5-S1 disc herniation. Following a review of the medical information, a WCB medical advisor expressed the view that the disc herniation did not impinge on any nerve root. Therefore the diagnosis in relation to the September 7, 1994, work injury would still remain as a strain. On January 18, 1996, Claims Services confirmed that the claimant had recovered from the effects of the compensable injury and that any ongoing problems were due to her pre-existing condition.

The case was considered by Review Office on May 16, 1997, at the request of the claimant's union representative who raised several issues in connection with the claim. One of the issues was whether the claimant should have been entitled to further benefits after May 1, 1995, in regard to the effects of her work related accident in September 1994. The other issue pertained to whether or not the claimant qualified for preventive vocational rehabilitation services. The Review Office rendered the following decisions in this regard:

• that the claimant was not entitled to further benefits beyond May 1, 1995 in respect of her work-related accident of September 1994; and
• that the opinion of a WCB medical advisor should be obtained in regard to the estimated frequency and duration of projected future compensable injuries for this claimant, if she were to remain in her pre-accident occupation; and
• that the cost benefit analysis, used to determined eligibility for preventive rehabilitation services, should be recalculated based on this medical opinion; and
• that the claimant's eligibility for preventive services, effective from the date of this cost-benefit analysis, should be re-adjudicated in accordance with the revised calculation.

On a balance of probabilities, the Review Office considered that the effects of any actual injury resulting from the claimant's work-related accident in September 1994, had not contributed materially to the loss of earning capacity after May 1, 1995. Healthcare treatment after this date was predominantly associated with an L5-S1 disc injury, which had not been due to the accident arising out of and in the course of the employment. The Review Office stated that any pre-existing conditions prior to September 1994 had neither been enhanced by the work related soft tissue injuries, nor significantly contribute to the claimant's loss of earning capacity after May 1, 1995. On February 8, 1999, the union representative appealed the decision concerning benefits beyond May 1, 1995 and the case was referred to the Appeal Commission.

On April 12, 1999, an Appeal Panel hearing was held. Following the hearing the Panel requested additional information from two treating physicians as well as medical information from a solicitor with regard to the June 22, 1989 MVA. Once the information was received, the claimant would then be examined by an independent specialist.

On May 16, 1999, the Panel met briefly and decided that it would contact MPIC directly to obtain the medical reports pertaining to the 1989 MVA as well as additional medical information from two treating physicians. On July 13, 1999, all interested parties were provided with the new information and were asked to provide comment. On August 26, 1999, the Panel decided that the claimant should be examined by an independent orthopaedic specialist as suggested initially in order to determine her present medical status.

In December 1999, the claimant was assessed by an independent orthopaedic specialist and his report dated January 25, 2000, was forwarded to the interested parties for comment. On February 21, 2000, the Panel met to render its final decision.

Reasons

We find and accept that the claimant had a significant pre-existing chronic pain syndrome (CPS) prior to her compensable injury in 1994 and that the condition still exists to this date. In addition, we find, based on the weight of evidence that the claimant sustained a soft tissue or musculoligamentous strain of her lower back. This injury resulted in an aggravation to her pre-existing CPS.

The claimant's continuing disability, since her benefits were discontinued in 1995, relates to her CPS and not to the physical consequences of her 1994 compensable injury to her lower back. In coming to this conclusion, we attached considerable weight to the opinion expressed by the external independent orthopaedic surgeon, which is contained in his examination report of January 25th, 2000.

"Her ultimate, however, continuing disability since January of 1994, if not even previous to this, most relates to her chronic pain syndrome.

With regard to a pre-existing condition, I think this lady's chronic pain syndrome pattern has existed ever since her car accident in 1989. I suspect that this patient's injury in 1994 only further aggravated her chronic pain syndrome.

I do believe that this patient is disabled and therefore restricted with respect to employment. Her restriction comes secondary to pain she experiences in her cervical and lumbar spine which is the result of her chronic pain syndrome. Her chronic pain pattern seems to have started shortly after her 1989 motor vehicle accident."

We acknowledge that the claimant has a low back at risk, however, the aggravation caused to her pre-existing condition as a result of the compensable accident is on a balance of probabilities, no longer contributing to her ongoing disability. On March 7th, 1995, a WCB medical consultant examined the claimant. We note that the clinical findings with respect to her lower back were minimal:

"She was noted to have full power and normal tone and symmetric reflexes in her lower extremities. Straight-leg raising was to 90 with no root irritation signs present and no discomfort. Seated straight-leg raising was also to 90 with no discomfort produced.

Functional testing of the lower limits was within normal limits.

There was some minimal lower lumbosacral spine tenderness at the lowest area of the lumbosacral spine. There was also some lower lumbosacral paraspinal tenderness, but this was minimal. On range of motion of the lumbosacral spine, extension was voluntarily restricted due to complaints of discomfort. Extension plus rotation to the right produced discomfort in the low back. Extension plus rotation to the left was asymtomatic. Lateral bending to the left produced some discomfort in her right trunk, and lateral bending to thee right didn't produce any discomfort. Both lateral bending maneuvers were within normal limits. Forward flexion was voluntarily limited to the level where the fingertips were at mid-tibia due to complaints of low back pain. Fabere testing and sacroiliac joint stress maneuvers were negative, and there was no sacroiliac-joint or ligament-complex tenderness on the present examination. Femoral stretch testing was negative. The hips had full range of internal and external range of motion."

These minimal findings were also later confirmed by subsequent examinations of the claimant carried out in both 1998 and 1999. After taking into consideration all of the evidence, we find that the claimant is not entitled to further benefits beyond May 1, 1995 in respect of her September 27th, 1994 compensable injury. Accordingly the claimant's appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of March, 2000