The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 8, 2000, at the request of a union representative, acting on behalf of the claimant. The hearing was adjourned as new and additional information was submitted which was not made available to all parties. Following discussion of the evidence that was provided at the hearing, the Panel requested additional information from a physiotherapy facility and for the hearing to reconvene. A reconvened hearing was later held on June 19, 2000. Afterwards, the Panel met to discuss the case and render a decision.

Issue

Whether or not the recurrence of symptoms experienced on November 5, 1998 is related to the compensable injury sustained on December 20, 1993.

Decision

That the claimant's appeal is allowed limited to the time loss incurred from November 5, 1998 to December 8, 1998 as a result of an acute flare-up of his pre-existing condition arising out of physiotherapy treatment initiated by the WCB.

Background

During his occupation as a heavy duty mechanic on December 20, 1993, the claimant injured his neck and back region while twisting under the dash of a vehicle under repair.

The claimant was subsequently treated by his family physician, an orthopaedic specialist, a physical medicine and rehabilitation specialist and was examined on a number of occasions by Workers Compensation Board (WCB) healthcare personnel. In the interim, the claimant returned to work with the accident employer performing light duties with restrictions while under active treatment for his neck and back.

On September 28, 1998, a physical medicine and rehabilitation specialist noted that the claimant demonstrated normal range of motion, normal neurological function and a normal soft tissue examination. There was some evidence of muscular tightness, deconditioning and decreased fitness. There was no neuromusculoskeletal indication that there was anything wrong with the claimant from a spinal or soft tissue point of view. The specialist was of the impression that the claimant could resume his previous occupation once he participated in a general reconditioning exercise program and a home stretching program to allow self maintenance and self treatment from myofascial and soft tissue symptomatology.

Arrangements were made for the claimant to undergo a reconditioning program at a physiotherapy clinic. On November 2, 1998, the initial assessment was carried out and on November 4, 1998, the claimant was asked to do weight lifting and stair climbing. On November 5, 1998, the claimant claimed that he re-injured his back while participating in the reconditioning program.

At the request of an adjudicator from Claims Services, a WCB medical advisor was asked to review the case on November 24, 1998 and to provide responses to several questions that were outlined. On December 15, 1998, Claims Services advised the claimant that in the opinion of the medical advisor, there was no clear change in his condition following the recurrence nor was there evidence of a new injury. The medical advisor was of the opinion that there was no cause-effect relationship between the recurrence of symptoms and the initial work place accident. It was felt that the recurrence of symptoms would not preclude the claimant from continuing with the reconditioning program as arranged.

Claims Services was further of the view that the recurrence of symptoms experienced by the claimant on November 5, 1998, was not related to the workplace injury of December 20, 1993. "This is on the basis that it is our opinion you have essentially recovered from the effects of the workplace injury, and are capable of resuming your pre-accident duties. The exercise program is being afforded to you in order to improve your strength so you are able to successfully carry out the duties of a heavy duty mechanic. Also, Section 22 of the WCB act, requires you to mitigate the effects of your injury, specifically, you must undertake whatever treatment is required in order to reduce the effects of your injury so you may return to your pre-accident status."

On September 3, 1999, a union representative appealed the above decision to Review Office. A July 21, 1999, report from a treating orthopedic specialist was submitted for consideration. The union representative was of the opinion that more weight should be placed on the orthopaedic specialist's report than that of the physical medicine and rehabilitation specialist, given the former's specialty.

The union representative contended that the claimant was not fit to undertake the pre-accident duties of a heavy equipment mechanic due to the fact that he suffered from degenerative disc disease related to the L5-S1 disc herniation that he suffered in the December 20, 1993, injury. He noted that the claimant did not have findings of DDD in the lumbar discs above L5-S1 which further leads to the conclusion that the DDD found at L5-S1 was traumatically induced by the workplace injury. The union representative stated that the claimant's inability to complete the reconditioning program was related to the symptoms of DDD which again are relateable to the compensable injury and have been identified by both the treating orthopaedic surgeon as well as a WCB medical advisor.

On October 29, 1999, the employer's representative prepared a submission for Review Office's consideration. Ultimately, the employer's representative presented argument that the adjudicative decision of December 15, 1998 should not be changed or amended.

On November 19, 1999, Review Office upheld the previous decisions that the recurrence of symptoms experienced by the claimant on November 5, 1998 was unrelated to the compensable injury of December 20, 1993. It also determined that the claimant was not entitled to payment of wage loss benefits from November 5, 1998 onward.

Review Office made reference to the union representative's argument that the claimant's degenerative disc disease was the result of the disc protrusion that resulted from the accident that occurred on the job on December 20, 1993. Review Office was of the view however, that a disc protrusion would only occur if the claimant already had pre-existing degenerative changes at that level. Review Office did not believe that the claimant was totally and completely disabled as a result of the initial physiotherapy assessment. If the claimant had attended the reconditioning sessions as instructed, he would have been capable of returning to his pre-accident employment with respect to the compensable injuries. Review Office agreed that the claimant may require physical restrictions because of his underlying pre-existing degenerative disc disease and the osteoarthritis in his spine. These conditions, however, were not related to the worker's employment or to the December 20, 1993 accident. The orthopaedic specialist's report did not provide support for the claimant's condition apart from a temporal relationship between the worker's ongoing problems and the accident.

On November 30, 1999, the union representative appealed Review Office's decision and a hearing was held on March 8, 2000. The hearing was adjourned as new and additional information was submitted at the hearing which was not made available to all interested parties. On March 9, 2000, the Panel requested additional information from the physiotherapy facility where the claimant attended for treatment in 1998. A reconvened hearing was then held on June 19, 2000.

Reasons

The issue in this appeal is whether or not the recurrence of symptoms experienced on November 5, 1998 is related to the compensable injury sustained on December 20, 1993.

The relevant subsection of The Workers Compensation Act (the Act) in this appeal is subsection 39(2) which provides for the duration of wage loss benefits. Relevant WCB policies are Section 44.10.20.10; Pre-Existing Conditions; Section 44.10.20.50; Recurrences and Section 44.10.80.40.01; Compensable Consequences of Work Injuries.

The claimant sustained an injury to his low back at work on December 20, 1993. Following this injury the claimant sustained intermittent time loss accepted by the WCB as related to the compensable event of December 20, 1993. The evidence reveals the claimant has filed a number of claims for recurrence of symptoms which he has related to the compensable event. The claimant has claimed that he suffered a recurrence of symptoms on November 5, 1998.

With respect to the most recent recurrence of November 5, 1998 we note that the claimant was seen by an independent physical and rehabilitation specialist who indicated that the claimant could resume his pre-accident duties. However he indicated that the demands of the claimant's pre-accident duties in his current state of deconditioning might lead to increased symptomatology and that a general reconditioning program would be prudent.

Based on the recommendation of the independent rehabilitation and physical medicine consultant, the WCB arranged for the claimant to undergo a reconditioning program at a physiotherapy clinic. The claimant attended the physiotherapy clinic on November 2 and 4, 1998.

In the covering report from the physiotherapy clinic dated April 12, 2000 it was reported that the reconditioning therapy was discontinued on the therapist's initiative on the second visit as the claimant appeared to be in discomfort. The claimant sought the advice of his attending practitioner and subsequently did not proceed with the reconditioning program.

We note that the claimant's attending physician examined the claimant on November 5, 1998 and indicated that the claimant should stay off work as there may have been an aggravation of his lumbar disc problem. The claimant's attending physician subsequently indicated that the claimant could return to work as of December 8, 1998.

We find that, as the recommendation for the reconditioning program was accepted and subsequently initiated by the WCB, and as the apparent exacerbation of the claimant's symptoms occurred immediately following commencement of the physiotherapy program, that responsibility should be accepted for the acute period of the exacerbation as an aggravation of a pre-existing condition.

We therefore find that the claimant has an entitlement to wage loss benefits limited to the period November 5, 1998 to the December 8, 1998 return to work date.

We note that at the hearing both the representative for the claimant and the employer presented argument and evidence with respect to whether there was an ongoing causal relationship between the claimant's compensable accident of December 20, 1993 and the claimant's current diagnosis and continuing symptoms and as to whether or not the claimant has recovered from the effects of his compensable injury.

We note in this regard that in the reasons for their decision of November 19, 1999 that the Review Office also addressed these issues. We have therefore considered the evidence and argument presented with respect to these issues.

After reviewing all the medical evidence on file and as presented at the hearing we accept the medical evidence as summarized and articulated by the claimant's treating orthopaedic surgeon. In a report dated July 21, 1999 prepared at the request of the claimant's representative the attending orthopaedic consultant indicates that he first saw the claimant at the request of the attending physician on August 5, 1994. With respect to the history of lower back problems we note the specialist indicates:

" DIAGNOSIS

Throughout this period there has been evidence of chronic L5-S1 disc degeneration and protrusion. There is no direct cause and effect relationship between the injuries of November and December 1993 and the diagnosis of L5-S1 disc degeneration, especially in a long term cigarette smoker. (emphasis added)

Whether the work-related injuries were responsible for the disc protrusion at L5-S1 is open to discussion. However the repeated examinations I carried out did not suggest that Mr. [the claimant] was suffering from lumbar nerve root compression arising out of this disc protrusion, and on that basis surgical treatment was not recommended.

It is clear from the history that Mr. [the claimant] sustained a series of sprain/strain incidents to the lower back with possible aggravation of the underlying lumbar disc degeneration and protrusion, but through the years the disc protrusion appears to have stabilized and shrunk."

We note that the treating orthopaedic specialist goes on to indicate that the claimant is restricted from his regular duties as " he is not capable of this work by reason of lumbar disc degeneration and early posterior articulation degenerative changes at L5-S1."

He further indicates his opinion that " it is difficult to establish a clear cause/effect relationship between this condition and the workplace injury of 1993." The treating orthopaedic consultant further notes a temporal relationship but indicates:

"Against a relationship is the fact that CT scans have shown no increase in the size of the disc protrusion, in fact a gradual decrease, and I have not identified evidence of lumbar nerve root compression on any examination." (emphasis added)

We also note the following evidence with respect to both the original diagnosis and the existence of degenerative disc disease:

• the attending physician initially diagnosed a strained back (T6 to L5)
• x-rays of the thoracic spine dated March 18, 1994 showed minor degenerative changes;
• in a report dated August 8, 1994 the treating orthopaedic consultant indicates that he reviewed the x-rays of March 18, 1994 and states:

  " The films are reported as normal, but I think there is evidence of early anterior spur formation on the upper aspect of L-5 to 4 at the second lowest disc space."

• x-rays of the cervical spine of August 3, 1995 reveals "small hypertrophic spurs are seen anteriorly the C5-C6 disc level. There is mild narrowing anteriorly of the C5-C6 disc level."

We also note the opinion of the WCB orthopaedic medical consultant who indicated that that " disc protrusions occur in pre-existing degenerative discs and not in "normal discs"; that "nerve root compromise was not an issue"; and that any restrictions would be of a preventative nature because of degenerative disc disease and osteoarthritis of the lumbar spine. We find this evidence to be essentially consistent with that given by the claimant's treating orthopaedic consultant in his report of July 21, 1999.

We note from the evidence the claimant has variously had symptoms in his cervical, thoracic and lumbar spine during the course of this claim. The claimant also described a variability of symptoms at the hearing. In light of this we concur with the argument of the employer's representative that the periods of remission and exacerbation as revealed by the evidence are consistent with a pattern of degenerative disc disease.

We further note that the claimant was seen by an independent rehabilitation and physical medicine consultant who indicated that the claimant had mechanical back pain and myofascial pain syndrome. However in a report dated September 28, 1998 the consultant indicated that these conditions were both resolved and that it would be prudent for the claimant to undergo a reconditioning program before a return to his pre-accident occupation.

In summary the we find that the evidence supports a finding, on a balance of probabilities that the claimant has recovered from the effects of his compensable accident of December 20, 1993 and that any residual effects of his injury are resolved. We further find that any restrictions to work are preventative in nature as a result of the claimant's non-compensable degenerative back condition and are not as a result of employment or the effects of the compensable injury.

Therefore the claimant's appeal is allowed limited to the time loss incurred from November 5, 1998 to December 8, 1998 as a result of an acute flare-up of his pre-existing condition arising out of physiotherapy treatment initiated by the WCB.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of June, 2000