The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 15, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on February 15, and April 27, 2000.

Issue

Whether or not the worker is entitled to the payment of wage loss benefits beyond September 8, 1995.

Decision

That the worker is not entitled to the payment of wage loss benefits beyond September 8, 1995.

Background

While performing the duties of a Store Attendant II on September 14, 1994, the claimant felt a sharp pain in his lower back. On September 15, 1994, the diagnosis of the claimant's condition was recorded as an acute muscle strain of the lower back. It was also noted that the claimant had previous low back problems dating back to 1990. The claimant was placed on light duties and continued working up to October 31, 1994, when light duties were no longer available. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on October 31, 1994.

Subsequent correspondence showed that the claimant attended physiotherapy treatments and was assessed by an orthopaedic specialist. On January 11, 1995, a CT scan of the lumbosacral spine demonstrated a shallow central and right posterolateral disc protrusion at L5-S1, which approached the right S1 nerve root prior to its lateral recess.

On January 23, 1995, the orthopedic specialist stated that he was not sure that the disc protrusion was necessarily consistent with the claimant's history and physical examination but one could not ignore it. He felt that the claimant remained symptomatic but not at risk provided that he exercised sensible low back precautions. The specialist commented that restrictions would be counterproductive and might serve to prevent the claimant from getting back into a regular job.

Ongoing reports were received from the treating physician indicating that the claimant continued to experience low back pain radiating into his right leg. The claimant was called to the WCB offices for an examination by a medical advisor on June 26, 1995, regarding his current medical condition.

Following examination, the medical advisor was of the opinion that the claimant suffered from a strain of his right sacroiliac joint. It was felt that the claimant was in need of an active and aggressive back program which addressed the sacroiliac joint injury, his facet problems and a general program which addressed the stabilization of his lumbar area.

On July 24, 1995, the claimant was assessed at the Canadian Back Institute. Recommendations were made for the claimant to be brought in for treatment regarding a physical reconditioning program for a maximum of six weeks after which the claimant should be able to return to some form of employment.

In a letter dated August 15, 1995, Claims Services informed the claimant that the WCB had authorized a six week reconditioning program commencing July 31, 1995 to September 8, 1995. Upon completion of the program, WCB benefits would end as it was felt that the claimant would have achieved a level of physical fitness to allow him to return to his position as a job store's attendant II. A discharge report from the Canadian Back Institute dated September 14, 1995, stated that it was recommended the claimant return to work within his current level of function.

On March 6, 1996, a solicitor appealed the decision to discontinue benefits as of September 8, 1995. The solicitor was of the view that the decision was unreasonable, that it was inconsistent with the Workers Compensation Act (the Act) and that the adjudicator erred in determining the claimant's back was at a level which would allow him to return to his position as a job store's attendant.

In a March 29, 1996, decision, Review Office noted the following:

• the attending physician initially diagnosed the worker's condition as a muscle strain;
• the orthopaedic surgeon confirmed the above diagnosis and also indicated that the claimant was moderately overweight and in poor physical condition when he examined him;
• a review of the discharge report from the Canadian Back Institute indicated that the worker was reconditioned to the point where he was capable of returning to his pre-accident employment. Review Office noted, however, that the pre-accident job no longer existed with the employer.

Based on the above commentary, Review Office upheld the previous decision that the claimant was not entitled to payment of wage loss benefits beyond September 8, 1995.

On May 24, 1996, the solicitor appealed Review Office's decision and requested an oral hearing. On July 31, 1996, the solicitor asked that the hearing be postponed indefinitely as he was in the process of obtaining additional medical information.

On February 15, 2000, a hearing was held at the Appeal Commission at the request of the solicitor. Prior to the hearing, the solicitor submitted additional medical information for the Panel's perusal. This included four medical reports dated March 15, 1998, April 28, 1998, June 5, 1998 and January 21, 1999.

Following the February 15th hearing, the Panel requested that additional medical information be obtained from the employer's physician with respect to past examinations of the claimant. On March 28, 2000, all parties were provided with a copy of the company's physician's report dated March 23, 2000, along with a disability sheet dated March 22, 2000 and a Civil Aviation Medical Examination Report dated June 28, 1995. On April 27, 2000, the Panel met to render its final decision.

Reasons

The claimant sustained a compensable injury on September 14th, 1994, which was diagnosed as a strain of his right sacroiliac joint. A WCB medical advisor examined him on June 26th, 1995. In the opinion of the medical advisor:

"This claimant is in need of an active and aggressive back problem (sic) which addresses his sacroiliac joint injury, his facet problems and a general program which addresses the stabilization of his lumbar spine. This claimant would be best served by a program, which addresses these concerns and also addresses, any reconditioning of this claimant. With a satisfactory program as laid out above this claimant should probably be able to return to work in approximately two months."

The claimant underwent a civil aviation medical exam on June 28th, 1995. The examining physician reported: "Good full ROM [range of motion] of back. Able to stand sit climb. I see no physical impediment to flying."

As part of his treatment program, the claimant was referred to the Canadian Back Institute in late July 1995 for a course of physical conditioning designed to increase his lifting capacity which would allow him to return to work in early September. The Canadian Back Institute's physiotherapist and exercise therapist forwarded their discharge report to the treating physician on September 14th, 1995. Their recommendations were as follows:

"The treatment team at the Canadian Back Institute would recommend that Mr. [the claimant] return to work within his current level of function. Mr. [the claimant] should continue to maintain/improve his current level of functioning if he maintains his home exercise program. Mr. [the claimant's] present physical abilities do not meet all of the job demands associated with the position of a storage department position. Specifically, Mr. [the claimant] reports the maximal lifting demands are 55 pounds. At this time, he had demonstrated a lift of 40 pounds. There does not appear to be a physical reason why Mr. [the claimant] would not be able to maintain a maximal physical lift of 55 pounds. Therefore, his current lift of 40 pounds is not a lifting restriction. It is simply his current level of function."

We find based on the weight of evidence that the claimant had, on a balance of probabilities, recovered from the effects of his compensable by the time his WCB benefits were terminated. Accordingly, the claimant would not be entitled to the payment of wage loss benefits beyond September 8th, 1995. 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 8th day of May, 2000