The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on October 5, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this case on October 5, 1999 and on February 28, 2000.

Issue

DATE OF ACCIDENT: August 23, 1985:

Whether or not the claimant's back complaints are a sequela of her August 23, 1985 compensable knee injury;

Whether or not the restrictions placed upon the claimant with respect to her compensable knee injury are appropriate; and

Whether or not the claimant is employable.

DATE OF ACCIDENT: January 1, 1997:

Whether or not the claim is acceptable; and

Whether or not a Medical Review Panel should be convened in accordance with Section 67(4) of the Act.

Decision

DATE OF ACCIDENT: August 23, 1985:

That the claimant's back complaints are not a sequela of her August 23, 1985 compensable knee injury;

That the restrictions placed upon the claimant with respect to her compensable knee injury are appropriate; and

That the claimant is employable.

DATE OF ACCIDENT: January 1, 1997:

That the claim is not acceptable; and

That a Medical Review Panel not be convened in accordance with Section 67(4) of the Act.

Background

While employed as a dietary aide on August 23, 1985, the claimant twisted her right knee when she tried to prevent stacked glasses from falling off of a food cart. As a result of the compensable injury the claimant underwent several operations to the right knee, which were accepted as a Workers Compensation Board (WCB) responsibility. In November 1993, the claimant returned to a dietary aide position with the accident employer performing modified duties.

In July 1997, the claimant submitted another claim to the WCB regarding a back injury, which occurred while performing modified duties in relation to her 1985 compensable knee injury. In a sworn statement dated July 31, 1997, the claimant indicated the following:

• while washing pots in the kitchen she began to notice lower back pain. According to the claimant, she had to sit with her legs turned to the side in order to wash the pots in the sink. As there was no provision for a place to put her legs under the sink so she could slide in closer, she had to work at the sink with her upper body rotated to the left and her lower body turned to the left.
• the back pain began to increase in frequency and severity as time went on and she tried washing dishes by alternating between standing and sitting. This decreased the discomfort in her back. Standing, however, aggravated her right knee. The claimant said she then started to experience pain in her lower back that now radiated out to the right and left across her lower back. The radiation began to occur in early May 1997. There was neither increase in workload nor change in duties and there was no specific accident or incident.
• the claimant indicated that she told her supervisor that she was having back trouble shortly after returning to work. She did not see a doctor for her back between 1994 to May 15, 1997 as she was already taking painkillers for her knee so she did not think a visit to the doctor was necessary. The claimant indicated that she sought medical treatment on May 15, 1997, when the pain in her left hip intensified.

Information was obtained from the claimant's supervisor on September 2, 1997. The supervisor said that the claimant had been doing the same job with no variations for the last few years. The job was created to accommodate the restrictions imposed because of her knee. The claimant had been in a .45 job and worked 4 hours per day. She was scheduled to wash pots and pans for one hour per day, however, she only did it for one half-hour to 45 minutes at a time. When she returned to work, the claimant was standing at the sink doing pots and pans and complained that this bothered her knee. When the claimant reported this in May her supervisor was surprised. The supervisor could not recall any complaints of any back problems.

On May 9, 1995, a report received from the attending physician indicated that the claimant's right knee was cleared of significant debris from chondromalacia at her last surgery, which altered some mechanics of the knee joint. As a result she always had a limp on that side. A brace did help somewhat but she was still having pain in the knee at work and at home. "I believe the faulty mechanics in the knee, besides causing her pain in the knee, was also causing her pain in the low back, and some changes in her foot at subtalur (sic) joint."

On May 15, 1997, the attending physician diagnosed the claimant with backache together with possibly nerve root irritation on the left side.

A Chiropractor's First Report dated July 8, 1997, diagnosed the claimant with an acute subluxation of L5 with enlarged L5/S1 disc, L2 and C2, associated with myospasm, sciatica aggravated by all excessive motion or inactivity.

On August 1, 1997, an orthopaedic specialist reported normal range of motion, normal palpation, and tenderness at L5-S1. Straight leg raising, Lasegue's test, bowstring test and Faber's test were negative. Examination of the hips was negative. Neurological examination revealed decrease of sensation at the left L5, no left ankle jerk identified even with distraction techniques. Toes were downgoing bilaterally. Motor strength was equal bilaterally. X-rays showed no osteoarthritis and slight scoliosis. The claimant was assessed with mechanical low back pain.

In a decision dated September 9, 1997, the claimant was notified that her claim was not acceptable, as an accident at work could not be established. In October 1997, the claimant appealed the decision to Review Office. On October 16, 1997, Review Office denied the appeal as it was determined there was insufficient evidence to establish that the claimant's lower back and left hip complaints were due to a work related accident or hazard.

On February 6, 1998, a worker advisor presented additional medical information to Review Office, which he felt, confirmed that the claimant's time loss from work was in fact a result of her work activities and that she was restricted from employment. If Review Office disagreed with this position, the worker advisor requested a Medical Review Panel (MRP) due to the difference of medical opinion.

In a letter dated February 24, 1998, Review Office indicated the following:

• it did not find that there was additional evidence to warrant a change in its former decision or to establish that the claimant's low back problem reasonably resulted from an accident arising out of and in the course of employment; and
• Review Office's previous decision did not rely on the opinion of a WCB medical advisor when it adjudicated the issue of whether or not the claimant's low back problem had been caused by an accident at work. The opinion expressed by the attending doctor had been based entirely on speculation of what may have caused the claimant's low back pain rather than any clinical findings and/or medical reasons. Review Office did not consider that a difference of medical opinion, or a full statement of factors and reasons, was sufficient to warrant a referral to a MRP.

On June 11, 1999, Review Office considered the case again in light of new medical information received from an orthopaedic specialist dated February 24, 1999. The specialist noted that a recent MRI showed a small posterolateral disc herniation approaching the S1 nerve root but without definite nerve root compression. There was some disc degeneration noted in the L2-3, L3-4, and L5-S1 levels without significant disc space narrowing. The specialist stated, "My impression is that she has mechanical back pain secondary to the disc degeneration more than from the disc herniation noted. As far as I am concerned, she will not benefit from surgical decompression at this stage. Her management should be continued conservative measures. No definite further follow up is planned by myself."

Review Office stated that it agreed with the orthopaedic surgeon that the claimant's underlying back problems are "mechanical back pain secondary to the disc degeneration". The disc degeneration was the result of the natural aging process and had not been in any way permanently affected by the compensable knee injury. Review Office was of the view that the claimant's back complaints were not a sequela of her August 23, 1985 compensable knee injury. It was also determined that the claimant's compensable knee restrictions were appropriate and that she was employable in so far as the effects of her knee injury were concerned.

At the request of the claimant and her worker advisor, arrangements were made for a non-oral file review on October 5, 1999. Following discussion of the case, the Appeal Panel requested that the claimant be referred to an independent orthopaedic specialist for further assessment. An orthopaedic specialist examined the claimant on January 14, 2000 and a copy of his report was forwarded to the interested parties for comment. On February 28, 2000, the Panel met to render its final decision.

Reasons

The claimant sustained a compensable injury on August 23rd, 1985, when she twisted her right knee. The extent of this accident ultimately precluded the claimant from returning to her pre-accident work duties. Eventually, however, the claimant was able to return to work performing modified duties. In July of 1997, the claimant filed a report of injury form with the WCB indicating subjective complaints of pain in her lower back and left gluteal region. The claimant attributed her lower back difficulties to the fact that she had been compensating for her injured knee and this put stress on her back which in turn caused back pain. The attending physician questioned the possibility of left-sided nerve root irritation.

The attending physician arranged for the claimant to be examined by an orthopaedic surgeon in the spring of 1998. The orthopaedic surgeon recorded the following findings in his May 11th, 1998 report:

"Clinical evaluation of her back shows full range of motion with pain on flexion. Flexion also is quite slow towards the end of movement. Extension is well tolerated. Lateral flexion to the left and right doesn't cause any radicular symptoms but does cause pain to the left gluteal area. Straight leg raise test on the left side is 80 degrees with a positive Siccard test. On the right side, it is 90 degrees with not so much nerve root irritation. Tenderness is noted over the L5-S1 area and left SI joint area. The Faber test doesn't indicate any significant SI joint involvement. The Milgram test also does not indicate specific mechanical back pain. Heel walking, toe walking and the Trendelenberg test was tolerated well. Neurological evaluation showed sensation on the left SI region to be markedly diminished as compared to the right. The overall impression is that this patient might yet have a nerve root element causing her discomfort and I have decided to arrange an MRI study to evaluate her for possible far lateral disc herniation. At the same time, one will get an impression if there is any significant degeneration of the discs which can sometimes also be cause for the pain. Once this is available, I will re-assess her."

The MRI study later revealed a small posterolateral disc herniation approaching the S1 nerve root but without definite nerve root compression. In addition, some disc degeneration in the L2-3, L3-4 and L5-S1 levels was also noted. In the opinion of the treating orthopaedic surgeon, the claimant "has mechanical back pain secondary to the disc degeneration more than from the disc herniation noted."

We find, based on the weight of evidence that the claimant's back complaints are not a sequela of her August 23, 1985 compensable knee injury. In addition, we find that the claimant's mechanical back pain is, on a balance of probabilities, related to her non-compensable disc degeneration. For this same reason, we do not consider the claimant incurred an accident within the meaning of the Act in 1997. Therefore, the 1997 claim is not acceptable.

The restrictions imposed as a result of the claimant's compensable 1985 knee injury are still in effect and are therefore appropriate. As to whether any or all of these restrictions have changed to any significant degree, we note the suggestion by the external independent orthopaedic surgeon that such a determination "might be better assessed by a functional capacity evaluation."

With respect to the claimant's employability, again we prefer to accept the external independent orthopaedic surgeon's opinion. "Because of her knee problems, it would also appear that she is unable to lift more than 5 or 6 lbs. I think this would be (sic) put her in a category of light or sedentary work. I would say therefore that she certainly is capable of sedentary work and possibly doing light work as well."

We are not inclined to order a Medical Review Panel pursuant to section 67(4) of the Act as there has been no demonstration of a difference of opinion in respect of a medical matter as is required by this section.

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 29th day of March, 2000