The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 2, 2000, at the request of the claimant. The Panel discussed this appeal on May 2, 2000.

Issue

Whether or not the claimant is entitled to the payment of full wage loss benefits for the periods April 26, 27 and May 7, 1999;

Whether or not the claimant is entitled to the payment of wage loss benefits beyond May 9, 1999; and

Whether or not responsibility should be accepted for the claimant's treatment beyond June 7, 1999.

Decision

That the claimant is entitled to the payment of full wage loss benefits for the periods April 26, 27 and May 7, 1999;

That the claimant is entitled to the payment of wage loss benefits beyond May 9, 1999 to January 18, 2000, inclusive and final; and

That responsibility should be accepted for the claimant's treatment from June 7, 1999 to January 18, 2000, inclusive and final.

Background

During his occupation as a welder on October 15, 1998, the claimant injured his back region when he twisted while standing on a ladder. The diagnosis reported by the attending physician was a back strain. The Workers Compensation Board (WCB) accepted the claim and the claimant was prescribed medication and rest.

In a progress report dated October 21, 1998, the attending physician indicated that the claimant returned to work on October 20, 1998 and was doing well until he felt a sudden pain while turning. The claimant was described as being deconditioned and overweight. Arrangements were made for physiotherapy treatments and the claimant continued working at light duties.

On October 21, 1998, x-rays of the lumbosacral spine were performed. The radiological report indicated minor degenerative end plate spurring at L3-4 and L4-5. No other abnormality was identified.

On November 13, 1998, the attending physician stated that the claimant's pain was much improved and that he could return to regular duties on November 16, 1998. On November 18, 1998, the physician indicated that the claimant's back pain returned and that he was to resume physiotherapy. On November 27, 1998, the physician indicated that the claimant was now demonstrating signs of a right SI joint instability in addition to the lumbosacral strain and was to continue with physiotherapy. On December 10, 1998, the physician suggested the claimant return to work on December 14 at 4 hours per day for a two-week period.

On December 16, 1998, a WCB medical advisor examined the claimant. The medical advisor determined that the claimant sustained a mechanical strain, which was localized to the right piriformis/hip girdle. It was felt that a part time return (four hours) to the workplace was appropriate. The claimant worked 4 hours per day between December 14 and 17 when he stopped due to right leg pain.

On January 13, 1999, a physician specializing in pain and stress management diagnosed the claimant with sleep disturbance and myofascial pain of the buttock and quadrates lumborum.

On April 20, 1999, the above specialist noted that the claimant was working five hours per day at full duties. He still had some back and leg pain. Examination revealed full range of motion of the lumbar spine. Lateral flexion to either side was painful. There were myofascial trigger points in the gluteus minimus and quadratus lumborum. It was suggested that five more treatments were indicated. These were approved by the WCB.

On April 28, 1999, the employer contacted the WCB indicating that the claimant missed work on April 26 and 27, 1999. When speaking to a WCB adjudicator on April 29, 1999, the claimant indicated that he missed work on those dates due to back pain. The claimant stated that on Saturday afternoon he took his dog for a walk when his back started to hurt. By Monday he could not get out of bed, as his back was extremely sore. He did not seek medical attention as he was in too much pain. By Wednesday he was feeling much better and was able to return to his scheduled shift. The adjudicator advised the claimant that the WCB would not pay his wage loss on those dates, as there was no medical information to support that he could not work.

File records show that the claimant missed work on May 7 and May 10, 1999, due to back pain and pain down his left leg.

On May 13, 1999, primary adjudication advised the claimant that WCB would not accept responsibility for his time loss on April 26, April 27 or May 7, 1999. The decision was made on the basis that the claimant did not attend a doctor on those dates and there were no objective findings that would support his inability to work on those dates. It was indicated to the claimant that his graduated return to work program was scheduled to conclude on May 10, 1999 and as such, WCB benefits would be paid to May 9 inclusive and final. Time loss beyond May 9, 1999 would only be considered upon receipt of clinical, objective evidence of disability.

On May 31, 1999, the claimant appealed the decision to Review Office indicating that he couldn't bend over to do his job and that the company physician, on May 11, 1999, told him to take a few weeks off work. He was also still seeing the pain and stress management specialist and a chiropractor.

A report from the pain and stress management specialist dated June 11, 1999, indicated that the claimant was assessed on May 27, 1999 and that he had been off work with his low back, right hip and leg pain. The specialist outlined his examination findings and was of the view that the claimant was capable of continuing to work and that the claimant had been referred to a chiropractor for manipulative therapy. On June 21, 1999, the chiropractor outlined his examination findings of May 14, 1999 and stated that he treated the claimant five times based on findings of an acute lumbar facet syndrome and right sacroiliac syndrome. On June 4, 1999, the claimant's lumbar range of motion was improved to normal limits but he still felt pain in flexion and right lateral bending. L3 and L5 spinouses were still tender to palpation. He still complained of his right hip being quite sore.

In a August 13, 1999, decision, Review Office determined there was no medical evidence to support any change in the claimant's physical status that would support his inability to work on April 26, 27 and May 7, 1999. Review Office believed that the medical evidence and workplace assessment supported that the worker was capable of performing the lighter welder duties on a graduated basis through to May 10, 1999. With respect to wage loss benefits beyond May 9, 1999, Review Office believed the medical evidence supported the worker was capable of performing full hours in his lighter duties while undergoing treatments. The worker had made a full recovery from his compensable injury by May 10, 1999, as indicated by the adjudicator. As the worker continued to have signs and symptoms compatible with the effects of his workplace injury, Review Office determined that treatment and medical costs should be accepted to June 7, 1999.

On March 10, 2000, the claimant appealed Review Office's decision and submitted additional medical information from an orthopaedic specialist and a physical medicine and rehabilitation specialist. On May 2, 2000, an oral hearing was held at the Appeal Commission.

Reasons

The Review Office in its decision of August 13th, 1999 concluded: "In our view, the worker had not yet made a full recovery from his compensable injury by May 10, 1999 as indicated by the adjudicator. The worker continued to have signs and symptoms compatible with the effects of his workplace injury, and therefore treatment and medical costs should be accepted to June 7, 1999." This decision was largely based on the treating chiropractor's opinion that is contained in a letter to review Office dated June 21st, 1999. The chiropractor noted on examination paraspinal muscle hypertonicity and tenderness in the lumbar area. In addition, the spinous processes of L1-5 and the right sacroiliac joint were very tender to palpation and joint challenge.

Subsequent to the chiropractor's examination, a physician specializing in pain and stress management treated the claimant. Range of motion of the claimant's lumbar spine was about 75% and there was some myofascial activity in the right piraformus and the lumbar paraspinals detected. According to the attending physician's chart notes, the pain and stress management physician recommended sedentary duty for the claimant on September 28th, 1999. Also, a consultation with a physical medicine and rehabilitation specialist was arranged.

Following his examination, the physical medicine and rehabilitation consultant reported on November 16th, 1999 certain findings and recommendations:

"There is soft tissue tenderness in the lumbar paraspinal regions. This was more prominent on the right. Less tenderness was noted directly over the lumbar and lumbosacral spine.

Mr. [the claimant's] symptoms are suggestive of a radicular process. There are also physical findings that suggest active nerve root irritation. No definite neurologic deficits were present. The CT scan also does not confirm a structural lesion.

He asked about work restrictions. I advised him that his limitations will by (sic) mainly symptomatic as I cannot confirm any definite structural abnormality. I would suspect that he will have increased symptoms with lifting and bending. However, he could try a graduated return to work with symptoms."

In early December 1999, his attending physician referred the claimant to an orthopaedic surgeon for an examination. The findings were minimal and plain x-rays were ordered. A review of the x-rays and the CT scan was scheduled for a later date. On January 17th, 2000 the surgeon remarked that the claimant was about to "make an attempt at return to work, regular job, regular hours."

The claimant testified that since May 1999 he had several appointments with the company's doctor. The company doctor would not give final clearance for the claimant to return to work until January 2000.

"he tried me on gradual re-entry, and so I went back to Dr. [name], the company doctor, and he says, 'No, we wanted a doctor saying - that you have to have a note from a doctor saying you're 100 percent fit.' And he kept on keeping me off of work until I could get that note from somebody. And I went through so many doctors and they wouldn't give it to me."

We note that the claimant did successfully return to work to full pre-accident duties on January 19th, 2000.

We find based on the weight of evidence that the claimant is entitled to the following: a) payment of full wage loss benefits for the periods April 26, 27 and May 7, 1999; b) payment of wage loss benefits beyond May 9, 1999 up to and including January 18th, 2000 when he achieved full recovery and returned unrestricted to his work duties; c) responsibility should be accepted for the claimant's treatment from June 7, 1999 up to and including January 18, 2000, inclusive and final.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 23rd day of May, 2000