The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 23, 1998, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being May 11, 2000.

Issue

Whether the claimant is entitled to benefits (wage loss and/or medical aid) after January 13, 1998, in respect of his work related accident of February 21, 1997.

Decision

That the claimant is not entitled to benefits (wage loss and/or medical aid) after January 13, 1998, in respect of his work related accident of February 21, 1997.

Background

On February 21, 1997, the claimant slipped and fell on ice reporting injuries to his middle lower back and stomach on the left side. The initial medical report from the attending physician indicated that the claimant complained of a pulled groin, neck stiffness turning to the left, and that his back was starting to feel stiff. The diagnosis was a "back muscle strain". The claim was accepted by the Workers Compensation Board (WCB) and benefits began on February 25, 1997.

The claimant was assessed by a chiropractor on February 24, 1997. The diagnosis was an acute post traumatic compression fracture of T4 accompanied with cervical and lumbar subluxations. The treatment plan outlined were chiropractic adjustments and electrotherapy. On March 27, 1997, the chiropractor was of the opinion that the claimant was capable of light duties as of April 7, 1997, and was to avoid lifting, repetitive bending or stretching/reaching for a period of one month. Subsequent progress reports from the chiropractor indicated the following:

• April 22, 1997 - the claimant returned to his workplace but stated he still had pain in his neck and back. A second x-ray series showed good healing of his compression fracture. The claimant was capable of performing light duties as long as they were available.
  
• May 26, 1997 - the claimant continued to improve slowly due to the nature of his T4 compression fracture. He had now reached 65% to 70% pre-accident status.
  
• June 23, 1997 - claimant was at 75% to 80% pre-accident status but still experienced daily mid dorsal pain and occasional suboccipital headaches. Treatment was twice per week but the claimant attended almost daily for stretching and rehabilitative exercises.
  
• July 14, 1997 - the claimant still attended daily for in-office rehabilitation and stretching over the "back bridges" to aid in his mid dorsal flexibility. The claimant continued to improve yet was not pre-accident status.
  
• August 5, 1997 - the claimant had reached his maximum therapeutic benefit from chiropractic treatments although he was not at his pre-accident status.
  
• October 3, 1997 - the chiropractor advised a WCB adjudicator that the claimant was still being treated once a week and that he had a lump on the compression fracture. It was felt that office work was fine for the claimant but that he was unable to climb a step ladder. Ranges of motion were poor.

On November 26, 1997, a WCB chiropractic consultant examined the claimant. Based on examination findings, the chiropractic consultant was of the opinion that the claimant did have some tenderness and muscle hypertonicity in the upper thoracic region, as well as on the right side of the cervical region. He thought, however, that the claimant's reaction to this was somewhat greater than normal, probably due to a low pain threshold as well as his being very pain focused.

The chiropractic consultant further indicated that a lengthy discussion took place as it became apparent that the claimant believed his injury was in the nature of a burst fracture at T4 and that it took approximately 34 months to recover from such an injury. The chiropractic consultant felt that the concept of the nature of injury and the recovery period was skewed considerably by the claimant as his injury was only a mild compression at T4 with some soft tissue injuries surrounding it. It was concluded that the claimant was not yet able to do his regular duties but hoped that in six to eight week's time with an increased exercise program and a better knowledge of the nature of his problem, the claimant could try to return to regular duties.

Based on the above comments, Claims Services wrote to the claimant on January 18, 1997. It was considered that the claimant would be recovered from the effects of the compensable injury at the completion of his light duty program on January 13, 1998. On December 19, 1997, the claimant appealed this decision to Review Office.

On January 5, 1998, the treating chiropractor advised the WCB adjudicator that the claimant still had residual soft tissue problems and the muscles were tight. The claimant was using an upper body ergometer which stretches the muscles in the mid back. After 6 to 8 weeks of using this machine, the chiropractor hoped that the claimant could resume full duties. Following consultation with a WCB chiropractic consultant, Claims Services confirmed its earlier decision that the claimant could return to regular duties on January 13, 1998.

On April 30, 1998, a Review Officer spoke with the claimant who advised that he still had not returned to his former pre-accident duties because of his back pain. The Review Officer arranged for a field representative to visit the worksite and document the light duties that the claimant had been performing since April of 1997 and his pre-accident job duties. File documentation also noted that the attending physician referred the claimant for physiotherapy treatments.

In a May 22, 1998 decision, Review Office determined that the claimant was not entitled to benefits (wage loss and/or medical aid) after January 13, 1998, in respect to his work related accident on February 21, 1997. Review Office considered the predominant healthcare evidence and objective clinical findings supported the following conclusions:

• that the claimant had sufficiently recovered from the effects of his work related accident to resume regular workplace activities by January 13, 1998 without unreasonable risks of further injury or damage to the spine; and
• that healthcare services after January 13, 1998, were not likely to serve any real benefit in terms of curing or relieving the effects of this work-related injury.

On June 24, 1998, the claimant appealed Review Office's decision and submitted additional medical information consisting of the following:

• an x-ray report of the thoracic spine dated January 12, 1998;
• a report from the Pain Clinic dated June 19, 1998;
• a June 22, 1998 report from the attending chiropractor;
• a June 16, 1998, report from the treating physiotherapist; and
• a June 10, 1998, report from the attending physician.

The above reports were considered by Review Office on July 8, 1998. The Review Officer was of the opinion that the reports did not alter his earlier decision of May 22, 1998.

On September 23, 1998, an oral hearing was held at the Appeal Commission. Following the hearing and discussion of the case, the Appeal Panel requested an up-to-date report from the Pain Clinic and for the claimant to be examined by an orthopaedic specialist.

On December 1, 1998, all parties were provided with a report from the Pain Clinic dated October 29, 1998, and an examination report by the orthopaedic specialist dated October 28, 1998. On December 16, 1998, the claimant telephoned the Appeal Commission indicating that he had upcoming appointments with a neurologist and with an orthopedic specialist. On December 17, 1998, the Panel decided that it would await the result of the upcoming appointment with the orthopaedic specialist before rendering its final decision.

Subsequently, the claimant telephoned to indicate that his appointment with the independent orthopedic specialist was scheduled for August 23, 1999. On August 27, 1999, the claimant advised that the orthopaedic specialist was arranging for a bone scan and that he was to see the specialist again to review the results. On September 20, 1999, the claimant advised that the orthopaedic specialist was arranging for him to undergo blood work and a MRI in view of the normal findings noted on his recent bone scan. Once the orthopaedic specialist provided his final report to the treating physician the claimant advised he would send a copy of the report to the Appeal Commission.

On September 22, 1999, a letter was written to the claimant's orthopaedic specialist for an up-to-date report. Following several letters and telephone calls, a response was received from the orthopaedic specialist dated April 4, 2000 and was forwarded to the interested parties for comment. A response was received from the claimant dated April 20, 2000. The claimant also submitted additional medical information that included a December 30, 1999 report from an independent specialist which the employer had arranged. On May 10 and May 11, 2000, the Panel met to render its final decision.

Reasons

Chairperson Vivian and Commissioner Finkel:

The issue in this appeal is whether or not the claimant is entitled to benefits (wage loss and/or medical aid) after January 13, 1998, in respect of his work related accident on February 21, 1997.

The relevant subsections of the Workers Compensation Act (the Act) are subsections 27(1) which provides for medical aid benefits and 39(2) which provides for the duration of wage loss benefits.

We reviewed all the evidence on file and that given and received during the hearing and decision process and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is not entitled to benefits (wage loss or medical aid) after January 30, 1998 in respect of his work related accident on February 21, 1997.

The evidence reveals that the claimant sustained an injury at work on February 21, 1997 when he slipped on some steps. Initial medical reveals that the claimant presented with neck and back stiffness and was diagnosed as a strain.

X-rays taken following the accident revealed that the claimant had pre-existing osteoarthritic and degenerative disc disease of the cervical spine with the report indicating "multiple discopathies with very minor osteoarthritic changes." Subsequent x-rays of the thoracic spine revealed that the claimant had "a minor compression of the body of T4."

On July 24, 1997 a WCB chiropractic consultant indicated that x-rays showed a mild superior end plate fracture of the T4 vertebra and indicated, at that time, that the fracture should be healed.

In a report dated August 5, 1997 the claimant's attending chiropractor indicated that while the claimant had not yet regained pre-accident status as he was still suffering from neck pain and mid back discomfort, the claimant had reached maximum therapeutic benefit from chiropractic care. The claimant was discharged from chiropractic care to continue with home exercises.

Following an examination on November 6, 1997 a WCB chiropractic consultant indicated that:

" In my opinion, based on this examination, the claimant does have some tenderness and muscle hypertonicity in the upper thoracic region, as well as in the right side of the cervical region. I think, however, that his reaction to this is somewhat greater than normal, probably due to a low pain threshold as well as him being very pain focused.

After the examination, a lengthy discussion ensued in which it became apparent that the claimant had been doing considerable research on his own and believed that his injury was in the nature of a burst fracture at T4. Someone had done a literature search in which an article stated that people with this type of injury took approximately 34 months to recover. Hence his concept of the nature of the injury and the recovery period was skewed considerably, as his injury really was only a mild compression at T4 with some soft tissue injury surrounding it .

I indicated that it was essential that he become more active and do more exercises for the shoulder girdle and the upper thoracic region I also discussed with him the need to reduce the frequency of treatment and the need to change positions frequently while at work. I do not think this claimant is treatment-dependent, but I do feel he has an inaccurate concept of his injuries which has contributed, along with his low pain threshold, to an extended recovery time.

At this time, I do not think that he will be able to do his regular duties, but it is my hope that in six to eight weeks with an increased exercise program and a better knowledge of the nature of his problems, he can try to return to regular duties."

In a report dated June 10, 1998 an attending physician who first saw the claimant on April 30, 1998 indicated that the claimant had an essentially normal examination neurologically with no gross muscle wasting or limitation of movement in any direction and although he felt that the claimant had an element of chronic pain he noted; " his demeanour is not that of a person in any degree of severe chronic pain."

Following the hearing the panel requested that the claimant be assessed by an independent orthopaedic consultant. Following his examination of the claimant on October 28, 1998 and in a narrative report the specialist indicated in part:

"Mr. [the claimant] apparently sustained injury to his back due to the fall on his back. This could give flexion forces to the spine and in all possibilities, could have caused the compression fracture fracture of T4. However, the compression fracture he has is quite minor as noted earlier, and has long since healed. I am not certain that this is the cause of his present symptomatology.

This gentleman has problems in his cervical spine, namely cervical degenerative disc disease. This is probably the cause of his pain radiating into the interscapular area, rather than the local pathology of fracture of T4.

The present symptomatology also is somewhat varied and the interscapular pain and also the left shoulder pain he describes is more suggestive of pain radiating from the cervical spine.

I also do not think that he has any musculogenic reason for his pain. He seems to have had enough treatment for his symptomatology. He certainly does not have any neurologic deficit to require further investigations .

Finally the cervical spondylosis is a pre-existing condition though he says now that he never had any problems with his neck or the upper back prior to the work related accident."

We note a bone scan performed on September 1, 1999 revealed that: " In particular, the region around T4 appears normal."

The claimant was also seen on August 24, September 20 and November 24, 1999 by a second attending orthopaedic consultant as he wanted a second orthopaedic opinion. In the specialist's report dated April 4, 2000 we note the following comments:

" This gentleman may have had a muscular or soft tissue injury to the upper thoracic and neck region associated possibly with a superior end plate T4 fracture. This gentleman still has pain in the surrounding soft tissues which probably relates to the injury given its location.

I however would be cautious in stating that a soft tissue injury should only last six months, possibly a year at most . the MRI is completely normal and his bone scan actually does not show any activity especially around the T4 area. One would expect that the long term prognosis would be good for this gentleman.

In terms of medical contraindications to regular duties, there are none. Any modification to duties would be specifically related to his disability caused by pain but from a mechanical or physical point of view, there is no contraindications to limiting his activity. The results, as previously stated, is normal blood tests, bone scan which was normal as well as MRI which was normal."

The claimant was referred by his employer and seen for a further independent medical assessment on December 30, 1999 and we note from this report in part that the medical specialist indicates "although return to demanding physical labour may not be possible, return to most activities is possible and it is unclear why the claimant has failed to reach an improved functional status by this time."

The examiner further indicated:

" The claimant's clinical examination findings revealed global restrictions in range of motion involving the neck and spine diffusely. The global nature of his restricted movement is not in keeping with the relatively localized nature of his fracture. Given the extensive physiotherapy and chiropractic treatment that the claimant has undergone, it is difficult to explain these findings structurally. Almost all requests to perform specific movements was done in a very guarded fashion. The pain response appeared to be conditioned, movements were very stilted even when they did not involve joints in close proximity to the thoracic region."

The examiner's opinion is that the claimant suffers from chronic pain syndrome, however, with respect to causation we note the following from the report:

"There appears to be a temporal relationship between the claimant's onset of pain symptoms and diminished function; and the traumatic fall that he experienced on February 21, 1997. The claimant's current reduced function and prevalence of chronic pain are unlikely associated with the injuries sustained on that date. Rather his current status has evolved from factors which are unclear to this reviewer." (emphasis added)

We find based on the weight of the evidence, on a balance of probabilities, that the claimant had fully recovered from the effects of the compensable injury of February 21, 1997 and that any ongoing or continuing complaints beyond January 13, 1998 are not related to the compensable event. The claimant has also contended, as a result of the compensable injury, that he is restricted from performing regular duties. In this regard we find that the need for any suggested restrictions would be for reasons not related to the compensable event. The claimant's appeal for benefits (wage loss and medical aid) beyond January 13, 1998 is therefore denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of June, 2000

Commissioner's Dissent

The claimant then requested that his Doctor refer him to a different Specialist. His Doctor did this and also referred the claimant to a Neurologist for further investigation.

Information was received from an Anesthetist on October 29,1998 which indicated that the claimant had been seen at the pain clinic and treated for seven trigger points in his right and left trapezius and periscapulal muscles on September 16, 1998.

The report from the independent specialist dated October 28, 1998 concluded that the concerns the claimant had were related to cervical disc degeneration. This despite the claimant’s complaints of pain radiating from the upper back up into the cervical spine producing headaches.

The claimant also provided the Appeal panel with a letter from his family Doctor, which out lines the current status and prognosis. This letter read in part; There is spasm of the trapezius muscle especially on the right. There is pain in the right paraspinal area and also along the medial border of the right scapula. Mr. {claimant} continues to be physically {and psychologically} affected by his injury sustained in 1997. Recovery and response to treatment has been less from ideal and is a disappointing outcome now that we are 2 ½ years post injury. He remains unable to perform any duties that involve, lifting, carrying weights, climbing ladders, or activities that are in any way physically demanding. The doctor then closes the letter by stating “ I feel this man should be regarded as permanently unfit to do his former duties.”

On April 4, 2000 the second orthopedic specialist provided a report to the Appeal panel. The specialist had seen the claimant on three occasions in August, September, and November 1999. In September he had reported to the family doctor that ; “ Obviously at this time he cannot do any heavy lifting or climbing or work on ladders because this is unsafe which is one of the requirements of his work to return to work. However in the correspondence directed to the Appeal commission he reported “ This gentleman still has pain in the surrounding soft tissues which probably relates to the injury given its location.” And “ In terms of medical contradictions to regular duties, there are none.

Finally the claimant provided the results of an examination done by a doctor for the employer in December 1999. This doctor determined that the claimant was suffering from chronic pain syndrome, which he defined as, “Chronic pain syndrome is an abnormal condition in which pain is no longer a symptom of tissue injury, but in which pain and pain behaviour become the primary disease process.”

As a consequence of this examination the employer wrote to the claimant in April 2000. In part this letter reads; In December 1999 you attended an assessment with an independent medical consultant. As you are aware, as a result of said assessment it was determined that you were capable of performing only sedentary duties at the time, and it was recommended that you not be returned to your regular position. Further the independent consultant recommended another avenue of treatment of which your family physician was advised, and whom would be responsible for making the necessary referral.”

In conclusion there is no evidence that the claimant had recovered from the compensable injury when benefits were terminated. The review office in the decision of May 1998 does not infer the claimant had recovered but that further medical treatment would likely be of no benefit. The claimant continued to suffer the effects of the compensable injury and continued to seek treatment to recover from this accident. It is notable that the claimant has incurred minimal time loss over the period of the claim. {30 days} The issue that the claimant appealed initially was for ongoing medical aid benefits. Given the fact that no one has declared that he has/had recovered the minority would award benefits beyond January 13, 1998. This would cover the expenses the claimant has incurred pursuing resolution of the effects of the compensable injury.

R. Frisken, Appeal Commissioner