Public Decisions | The Appeal Commission

Decision #82/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 5, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 5, 2000 and August 3, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond July 16, 1999.

Decision

The claimant is entitled to wage loss benefits beyond July 16, 1999.

Background

On September 2, 1998, the claimant sustained a compensable lower back injury during the course of his employment as a "PW - dresser". The claim was accepted by the Workers Compensation Board (WCB) and the claimant received wage loss benefits to March 11, 1999 when it was determined that he had recovered from the effects of the compensable injury and was fit to return to work. On May 21, 1999, Review Office reversed this decision and directed Claims Services to reinstate benefits to the claimant and to facilitate arrangements for an aggressive reconditioning program for a six week duration.

Between June 2, 1999 and July 15, 1999, the claimant participated in a reconditioning program. On May 31, 1999, the claimant was notified by the WCB that benefits would be paid up to July 16, 1999. This date corresponded with the conclusion of the reconditioning program. After July 16th, the claimant was considered fit to return to his full pre-accident regular duties.

On September 27, 1999, a union representative wrote to Review Office appealing the decision to terminate the claimant's benefits. The union representative stated that the final reconditioning report of July 7, 1999 did not indicate that the claimant had fully recovered from his work related lower back injury of September 2, 1998. The union representative contended that the claimant was not totally disabled but rather, he had restrictions, which prevented him from returning to his pre-accident employment.

On December 17, 1999, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond July 16, 1999. Review Office noted the following in its decision:

the worker injured his lower back on September 2, 1998, while bending over to take skins out of a track;
the initial diagnosis was a lower back strain. This diagnosis was reaffirmed by an orthopaedic consultant in October 1998. X-rays were reported as normal and there were no neurological findings;
the claimant had become deconditioned in spite of being provided with extensive physiotherapy. When assessed by a WCB medical advisor in November 1998, the claimant failed all five veracity tests;
according to evaluations performed by the WCB's Pain Management Unit, the claimant was considered to be pain focused but was not suffering from chronic pain syndrome or a psychological or psychiatric disorder;
a March 1, 1999 bone scan revealed no bony abnormality. A CT scan dated April 16, 1999, failed to demonstrate any indication of disc herniation, only revealing mild osteoarthritic changes in the lumbosacral spine;
the medical evidence is unequivocal in stating that the worker's injury was a muscular strain of the lower back. There is a clear lack of objective medical findings, and indications that the worker's symptomatology far exceeded the corresponding clinical findings upon examination.

Review Office believed that the claimant had been more than adequately compensated for the effects of the back strain sustained at work on September 2, 1998, and he was therefore not entitled to wage loss benefits beyond July 16, 1999. On April 19, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

On July 5, 2000, an Appeal Panel hearing was held at the Appeal Commission. Following the hearing and after a brief discussion, the Appeal Panel requested that additional information be obtained prior to rendering a final decision with respect to the issue under appeal. Specifically, the Panel requested that a report be obtained from the specialist who the claimant saw on June 15, 2000. The specialist's report dated July 13, 2000 was distributed to the interested parties for comment. On August 3, 2000, the Panel met to render its final decision.

Reasons

Chairperson MacNeil and Commissioner Malazdrewich:

The general medical consensus would appear to be that the claimant suffered a musculoligamentous strain of his lumbar spine at the time of his compensable injury. The evidence further confirmed that although the claimant is not totally disabled, he nevertheless has not fully recovered from the full effects of his accident. In this regard, we attached considerable weight to the recent examination findings and opinion provided by the claimant's treating physical medicine and rehabilitation specialist, who examined the claimant on June 15th, 2000.

In his report to the attending physician, the specialist recorded the following clinical observations together with his overall impression:

His symptoms and signs are characteristic of myofascial pain syndrome with trigger points in muscles, as described in my physical exam. He does not have clinical symptoms or signs of disc herniation with nerve root compression or irritation.

Although disc central degeneration as well as facet joint degeneration can cause low back and buttock pain, I doubt they are contributing much to his current symptoms. He has definite myofascial trigger points that can account for his symptoms of complaint as well as restricted range of motion of the lumbar spine.

He has not had effective treatment for his myofascial pain syndrome up to the present time and it is my opinion that his chronic pain symptoms objectively correlate precisely with the myofascial trigger points found on physical examination."

We are satisfied that there is on a balance of probabilities a cause and effect relationship between the claimant's compensable injury and his ongoing myofascial pain syndrome. Accordingly, we find based on the weight of evidence that the claimant is therefore entitled to wage loss benefits beyond July 16th, 1999. It should also be noted that the claimant is currently receiving treatment for his myofascial pain syndrome and that his treating physical medicine and rehabilitation specialist expects "progressive improvement to occur." However, given the claimant's barriers to recovery as determined by the WCB's psychological assessment of February 2nd, 1999 together with his language and education barriers to potential re-employment, we recommend that the WCB consider the possibility of implementing rehabilitation benefits and services.

Panel Members

R. W. MacNeil, Presiding Officer B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of August, 2000

Commissioner's Dissent

Commissioner Middlestead’s Dissent:

My dissent to this decision is both straightforward and brief.

On page 4 of the transcript, the claimant’s advocate agreed that “he suffered no neurological abnormalities and his spinal x-rays are considered to be as normal. The claimant continues though to suffer objective symptoms from his injury, such as decreased range of motion of the lower spine, some flattening of the lumbar lordosis, as you know which is somewhat suggestive of ongoing muscle pain, and increased pain with both coughing and sneezing.” In my opinion, symptoms which are “somewhat suggestive” are not objective ones but are subjective in nature.

On page 8 of the transcript, the claimant’s representative agrees that, “all medical information supports a diagnosis of a soft tissue musculoligamentous injury.” Accordingly, on pages 9 and 10 of the transcript, the claimant’s representative goes on to say that “the Board’s medical advisor, in February of 1999, concluded that the claimant required no physical restrictions and could return to work following his aggressive reconditioning program.” She goes on to say “based solely on the medical advisor’s prospective………….without any kind of a physical assessment.” However, there was a complete physical assessment done on November 17, 1998.

In the medical summary, the Board’s medical officer states that “there was very little in the way of physical findings other than the lack of range of motion……..x-rays were normal. The claimant has ongoing lower back pain with very little in the way of reported physical findings.”

In the examination notes dated November 17, 1998, the medical officer’s summary states” he had signs of pain enhancement with 5/5 Waddell’s signs. I also note that the examination today was not complete but was limited by complaints of pain.”

In summary, my dissent to this decision is based on the claimant’s lack of credibility.

H. Middlestead, Commissioner

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