The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 17, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 17, 2000.

Issue

Whether or not the claimant has recovered from the effects of the compensable injury of August 27, 1993 by February 22, 1996;

Whether or not the claimant is entitled to wage loss benefits beyond February 22, 1996; and

Whether or not a Medical Review Panel should be convened.

Decision

That the claimant has recovered from the effects of the compensable injury of August 27, 1993 by February 22, 1996;

That the claimant is not entitled to wage loss benefits beyond February 22, 1996; and

That a Medical Review Panel not be convened.

Background

The claimant sustained a compensable back injury on August 27, 1993, when he slipped on the wet surface of a trailer deck twisting and hurting his low back while lifting a 60 pound concrete form, during the course of his employment as a labourer. The claimant sought medical attention on the same day and was diagnosed with an acute back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on August 30, 1993.

Subsequent file documentation revealed that the claimant underwent physiotherapy treatments as well as being treated by a rehabilitation medicine specialist. On March 1, 1994, the claimant was involved in a motor vehicle accident (MVA), which caused an aggravation of his pre-existing symptoms with the addition of cervical pain.

On December 14, 1994, a WCB medical advisor examined the claimant and the following was concluded:

• The claimant was still suffering from low back pain, which had not changed clinically since the time of the initial injury.
• The MVA in March 1994 did aggravate the claimant's symptomatology but it did not change the clinical presentation of the low back pain.
• It was difficult to arrive at a tissue-specific diagnosis. The examination findings were suggestive of facet joint and sacroiliac joint dysfunction on the left. Otherwise, the examination was normal.
• The claimant's current condition was related both to the compensable injury and to the MVA.
• With respect to treatment, chiropractic manipulation of the left lower facet joint and sacroiliac joint was recommended and if successful in relieving the pain then a work hardening program was indicated. If chiropractic manipulation was unsuccessful, the medical advisor agreed with the rehabilitation medicine specialist's opinion that a functional capacity evaluation be performed.

Reports were received from the treating chiropractor dated January 9, 1995, and January 23, 1995. The chiropractor was of the impression that while the claimant had signs suggestive of mechanical joint dysfunction in the lumbosacral region, the duration of his pain in association with disability was consistent with the entity of chronic pain and as well chronic pain syndrome. The claimant received chiropractic treatment between January 6 and 23, 1995, consisting of spinal manipulative therapy, low-volt muscle stimulation and home exercise. The chiropractor believed, however, that the claimant had not improved with this trial of therapy and treatments were therefore discontinued. The chiropractor was of the opinion that the claimant was very pain focused and that an evaluation by a psychologist specializing in chronic pain behavior was indicated and should be implemented prior to or in association with a work hardening program.

The claimant was interviewed at the WCB's Pain Management Unit on May 5, 1995. The medical advisor commented that she was not prepared to attribute a diagnosis of chronic pain syndrome to the claimant. The claimant did demonstrate some pain behavior in that he stood at times during the interview and shifted position, but the general history and presentation was difficult to interpret with regards to a definitive diagnosis of chronic pain syndrome. The medical advisor also felt that the claimant did not suffer from a major depressive illness.

On January 11, 1996, a WCB medical advisor and a physiotherapy consultant assessed the claimant. The medical advisor indicated that there were no objective findings other than subjective pain localized in the left SI joint area. The claimant likely suffered a musculoligamentous type injury as a result of the August 1993 injury. There were no objective findings to support any ongoing cause and effect relationship between the 1993 injury to the claimant's current symptomatology. The medical advisor also concluded that there were no objective findings to warrant any further restrictions and that the claimant should be encouraged to return to work and increase his activities.

Following assessment by the WCB's physiotherapy consultant, he concluded that "biomechanically the sacroiliac joints move equally and there is no positional or mobility restriction."

On January 18, 1996, the claimant underwent a bone scan. No focal bony pathology was identified.

In a decision dated February 13, 1996, the claimant was informed that wage loss benefits would be paid to February 22, 1996, inclusive and final. It was the opinion of Claims Services that the claimant had recovered from the effects of the compensable injury. Vocational rehabilitation was also discontinued as the claimant's restrictions were lifted in February 1996.

On March 18, 1996, a neurology consultant determined that the claimant may be suffering from a disc problem at the L3-4 level. A CT scan of the spine was arranged.

On May 8, 1996, a case management supervisor wrote to the claimant indicating, "When we spoke on May 2, you questioned what affect (sic), if any, the recently signed agreement between MPI and WCB may have on the adjudicative decision made in your case. As I indicated, the agreement itself has no bearing when the decision made by the WCB is that the worker has recovered from the work injury." It was also confirmed to the claimant that Claims Services was of the opinion that there was no evidence to support any ongoing disability related to the August 1993 work injury and that the March 1994 MVA had only a temporary effect on recovery from his compensable injuries.

In a follow up report dated July 19, 1996, the neurology consultant noted that the claimant had another motor vehicle accident on April 23, 1996. Since then, the claimant's back pain had become worse and his neck also bothered him. On examination, the claimant demonstrated decrease in the left ankle jerk which was almost the same as the right. Straight leg raising (SLR) was negative at 90 degrees although the claimant did complain of back pain at 90 degrees on the left. There was no weakness or sensory loss. The CT scan suggested stenosis of the canal at L3-4 and L4-5 as well as a small disc on the left at L4-5. This would be related to his decreased ankle jerk.

Following a discussion of the case with a WCB medical advisor, claims services wrote to the claimant on July 31, 1996. The claimant was advised of the WCB medical advisor's opinion that there was insufficient objective findings to support an ongoing cause and effect relationship between the August 1993 injury and his continuing back difficulties. It was noted that straight leg raising was normal as was strength and sensation. It was still the opinion of Claims Services that the claimant had recovered from the effects of the August 27, 1993, compensable injury and that there would be no change in the decision to discontinue benefits on February 22, 1996.

On October 24, 1997, a worker advisor wrote to the WCB on behalf of the claimant. The worker advisor appealed the WCB's decision to terminate benefits and the following issues were identified: Whether the claimant had recovered from his compensable injury as of February 22, 1996, and whether a Medical Review Panel should be convened. On November 28, 1997, the claimant provided the Review Office with a submission outlining his concerns with regard to how his case had been handled by the WCB's vocational rehabilitation branch and an external consulting agency.

On February 5, 1998, Review Office made the following decisions after reviewing the case together with medical reports located on the claimant's MPIC claims:

• that the claimant had recovered from the effects of the compensable injury of August 27, 1993, by February 22, 1996;
• that the claimant was not entitled to payment of any wage loss benefit beyond February 22, 1996; and
• that a Medical Review Panel should not be convened.

Based on the medical documentation received from various treating specialists and WCB medical advisors, Review Office stated that each indicated the same findings, i.e. that the claimant sustained a musculoligamentous strain at the time of the August 1993 accident and had recovered from the effects of the compensable accident. Diagnostic tests proved little in supporting the claimant's contention that he remained disabled.

Review Office referred to the following comments made by a medical practitioner who had reviewed the claimant's MPIC claim files with respect to the MVA's of March 1, 1994 and April 23, 1996 and the WCB's claim files. "There is no objective information on the WCB file or either MPI files pertaining to the March 1, 1994 or April 23, 1996 motor vehicles accidents, to allow one to conclude that this claimant is unfit for his previous occupation. Furthermore, there is no indication that this claimant's work fitness has declined in any measurable way as a result of either of his MVA's. Although this claimant's symptoms may be exacerbated by activity, this is insufficient to allow one to conclude that he is not capable of performing certain activities."

Review Office indicated the above opinion confirmed the opinions previously noted by the WCB that the claimant was no longer totally disabled by reason of the compensable injuries sustained in 1993. The claimant was fit to return to gainful employment by February 1996.

Review Office noted that there was an obligation on the worker to mitigate his personal circumstances with regard to returning to work. Review Office referred to the comments made by an external vocational rehabilitation consultant who stated in a previous report that the claimant had received a work hardening program and WCB compliance with a request for retraining but that the claimant remained "pain focused and possessed a dubious attitude. This has resulted in him unsuccessfully being offered employment...".

With respect to the convening of an MRP, Review Office indicated that an MRP would not be convened as the case did not meet the requirements of section 67(1) and 67(4) of The Workers Compensation Act (the Act).

On June 28, 1999, Review Office wrote to the claimant concerning the claimant's correspondence of May 14, 1999. The claimant had requested that subsequent to a decision of the Automobile Injury Compensation Appeal Commission, dated April 29, 1999, his case should be re-examined with respect to the injuries sustained in the August 27, 1993 accident and that benefits be reinstated as of February 22, 1996. Review Office considered all of the information submitted including the report/decision of the Automobile Injury Compensation Appeal Commission. As a result, it determined that no change would be made to its February 6, 1998 decision. Review Office also pointed out that the decision of the Automobile Injury Compensation Appeal Commission was a separate commission from the WCB and its decisions were not binding on the WCB.

On November 25, 1999, a solicitor appealed Review Office's decision dated February 26, 1998 and an oral hearing was arranged.

Reasons

At the time of his compensable accident, the claimant sustained what was diagnosed as an acute low back strain. The claimant presented to his attending physician with a sore left sacro-iliac joint and radiation of pain down the left leg. X-rays taken of the lumbosacral spine on March 2nd, 1994 revealed minor degenerative changes at the L4-L5 disc space with an anterior and posterior osteophyte formation.

In the opinion of Claims Services, the claimant's ongoing time loss and treatment to November 1995 far exceeded the recovery norms for his diagnosed injury. The decision was then made to call the claimant in for an examination by a WCB medical consultant. An examination took place on January 11th, 1996 and the following comments were recorded:

"From the present call-in examination, there was no clinical finding to support any SI joint dysfunction because there was normal movement on both sides and there was only minimal pain with SI joint stressing tests. There was 2/5 Waddell's signs on examination. Therefore, in my opinion, the claimant is likely suffering from mechanical type of low back pain rather than post-traumatic sacroiliitis. I believe from the current examination there are no objective findings other than subjective pain localized in the left SI joint area. The claimant has therefore likely suffered a musculoligamentous type injury as a result of the injury in August 1993. There should be enough time for such an injury to resolve. There is no objective findings (sic) to support any ongoing cause and effect relationship between the injury of 1993 to the claimant's current symptomatology. Regarding claimant's current work capability, I believe there is also no objective findings to warrant any further restrictions. The claimant should be encouraged to return to work and increase his activities."

At the time of the above examination, the WCB's physiotherapy consultant conducted a sacroiliac mobility assessment of the claimant. He concluded, "In my opinion, biomechanically the sacroiliac joints move equally and there is no positional or mobility restriction."

We note that several diagnostic tests were later carried out:
January 18th, 1996 - Bone Scan - Normal regional bone scan. No focal bony pathology identified.
May or June 1996 - C.T. Lumbar Spine - There is mild to moderate stenosis at the L3-4 level. At the L4-5, the canal is of borderline size and there is a possibility here of left sided disc herniation.
October 21st, 1997 - Lumbar Spine MRI - Mild central spinal stenosis at L3-4 with no significant thecal sac or nerve root compression.

Approximately two and a half years after the compensable accident, a neurologist was consulted to examine the claimant. He observed a few neurological signs, which in his opinion would indicate some degree of damage. After reviewing the neurologist's reports together with the CT scan, a WCB medical advisor commented as follows in a memo dated July 29th, 1996: "The CT scan findings of L3L4 level & L4L5 level, in my opinion does (sic) not correlate with Dr. (the neurologist's) physical examination re) negative SLR testing & normal strength & sensation left lower limb. Mild decreased left ankle reflex is the only positive finding. The CT scan suggests 'possibility' of disc herniation. This diagnosis has therefore not been established. As per WCB call-in exam, cause & effect relationship had ended."

The findings made by the neurologist were minimal and also of short duration. We note that similar findings were not apparent on the September 10th, 1996 examination of the claimant by a neurosurgeon. In addition, the neurologist's findings were not noted until almost three years after the compensable accident. He testified at the hearing and stated in part as follows: "The last issue is the relationship to the accident. I know I went on to say that this is work-related and the reason that I said that is because, to my knowledge, he has never had any difficulties prior to that accident, full stop."

We find based on the weight of evidence that the claimant had, on a balance of probabilities, recovered from the effects of his compensable injury by February 22nd, 1996. Accordingly, the claimant is not entitled to wage loss benefits beyond the above date. In our view, there is no difference of medical opinion as required by section 67(4) of the Act and as such a Medical Review Panel should not be convened.

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