The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 10, 2000, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being August 9, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond September 10, 1999.

Decision

That the claimant is not entitled to wage loss benefits beyond September 10, 1999.

Background

On August 5, 1997, the claimant attempted to move a table laden with heavy boxes when she injured the left side of her back. The attending physician diagnosed the claimant's injury as a lower back strain. The claim was accepted by the Workers Compensation Board and benefits commenced on August 6, 1997. On August 12, 1997, lumbar spine x-rays demonstrated mild right sacroiliitis.

An orthopaedic specialist assessed the claimant on September 23, 1997. The specialist stated that the claimant's symptomatology was in keeping with a soft tissue strain involving the lumbar spine or a mechanical type of low back pain. The specialist recommended that the claimant continue with gentle exercises in addition to physiotherapy.

After consulting with a WCB medical advisor on October 22, 1997, the WCB determined that the claimant had recovered from the effects of the August 5, 1997, work injury and was fit to return to full duties. The Review Office overturned this decision on December 19, 1997. At that time Review Office placed more weight on the opinion of the attending physician who felt that the claimant was still disabled from her employment. Review Office recommended that up-to-date medical reports be obtained along with an examination by a WCB medical advisor.

On January 8, 1998, a WCB medical advisor assessed the claimant. A CT evaluation was recommended to address the suspicion of right S1 nerve root irritation. On January 28, 1998, an LS CT scan was performed and the impression was as follows, "Tiny central disc protrusion at L5-S1, which does not appear to displace or distort the adjacent S1 nerve roots or thecal sac." Based on the CT scan findings along with the examination findings of January 8, 1998, the WCB medical advisor referred the claimant to a physical medicine and rehabilitation specialist for further care management.

The physical medicine and rehabilitation specialist assessed the claimant on February 26, 1998. In the specialist's opinion, the claimant had a right S1 radiculopathy. Several treatment options were discussed which included the continuation of a non-steroidal anti-inflammatory medication, a trial of an epidural corticosteroid injection and an appropriate lumbar stabilization program.

In a follow up report dated March 31, 1998, the specialist noted that the claimant decided to proceed with a caudal epidural corticosteroid injection. On April 28, 1998, the specialist referred the claimant for physiotherapy treatments.

After assessment on May 26, 1998, the specialist stated that the claimant's symptoms were unchanged and that she had not obtained any significant response from any treatment offered to date. The specialist stated that the claimant continued to have findings suggestive of a nerve root irritation and was also demonstrating pain behaviors and likely had some degree of depression.

On September 18, 1998, the claimant was interviewed at the WCB's Pain Management Unit. It was determined by the medical advisor that the claimant was suffering from chronic pain syndrome and that her workplace injury significantly contributed to its development. Recommendations were made for the claimant to attend 2 or 3 sessions with a physiotherapist and 10 sessions with a Polish speaking psychologist for education in pain management techniques and cognitive behavioral therapy.

On March 10, 1999, the WCB's psychological advisor reviewed the case. He noted that the claimant had completed a course of treatment with the independent psychologist for pain management. The specialist felt that the claimant had moderate progress but remained pain focused. It was felt that a work-conditioning program in conjunction with continued psychotherapy followed by a limited time job search might be the best direction to take.

The claimant underwent a MRI of the lumbar spine on June 10, 1999. The radiological report described mild narrowing and desiccation of the disc at L5-S1. There was no evidence of spinal stenosis, disc herniation or nerve root compression. There was no evidence of disc herniation, spinal stenosis or nerve root compression at the remaining levels. No abnormal spinal cord signal intensity was seen.

On July 17, 1999, a WCB physiotherapy consultant referred the claimant to a six-week reconditioning program.

In a letter dated August 16, 1999, the WCB informed the claimant that it was expected she would be fit to resume her pre-accident duties following completion of the 6 week reconditioning program. The date recommended by the physiotherapy clinic was anticipated as being September 13, 1999. The claimant was advised that as the MRI confirmed the absence of any physical findings, the WCB would continue to pay full wage loss benefits to September 10, 1999, inclusive and final. This decision was again confirmed to the claimant on September 24, 1999.

On October 14, 1999, Review Office considered the claimant's appeal in which the claimant contended that she had still not recovered from the effects of the compensable injury. Review Office noted that the results of the MRI exam showed that the claimant no longer suffered from the L5-S1 disc protrusion, which had been earlier detected on a CT scan. Review Office further noted that the therapist who conducted the reconditioning program had indicated that the claimant was capable of resuming her pre-accident job duties as a food packer. Based on the weight of medical evidence, Review Office was of the opinion that the worker had recovered from the effects of the compensable injury, and there were no restrictions to employment related to her injury of August 5, 1997. It was therefore confirmed that benefits were correctly discontinued on September 10, 1999. On November 3, 1999, the claimant appealed Review Office's decision and an oral hearing was held on January 10, 2000.

Following the hearing, the Appeal Panel discussed the case on several occasions (January 10, 2000, March 21, 2000, April 19, 2000) and requested additional medical information from the claimant's treating physicians and for the claimant to be assessed by a WCB orthopaedic specialist. Once received, the medical reports were forwarded to the interested parties for comment. On August 9, 2000, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether or not the claimant is entitled to wage loss benefits beyond September 10, 1999. The relevant subsection of The Workers Compensation Act (the Act) in this appeal is subsection 39(2) that provides for the duration of wage loss benefits.

The subsection states:

Duration of wage loss benefits

39(2)   Subject to subsection (3), wage loss benefits are payable until

a)  the loss of earning capacity ends, as determined by the board; or

b)  the worker attains the age of 65 years.

In this appeal we considered all the evidence on file as well as that given and received during the hearing process. We find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant has recovered from the effects of her compensable injury and as such is not entitled to benefits beyond September 10, 1999.

In reaching this conclusion we noted the following evidence.  The claimant suffered a low back injury at work on August 5, 1997. The initial diagnosis was a low back sprain. The claim was accepted by the WCB. Subsequently benefits were discontinued September 10, 1999 following a reconditioning program.

We note that an MRI of the lumbosacral spine performed June 5, 1999 revealed mild narrowing and dessication of the L5-S1 disc with no evidence of spinal stenosis, disc herniation or nerve root compression. Following the MRI report the claimant’s attending physician agreed with a reconditioning program for the claimant with support from a psychologist.

In a memorandum to file dated August 17, 1999 a WCB adjudicator discussed the claimant’s progress in the reconditioning program with the physiotherapy assistant involved in the claimant’s care. He indicated to the adjudicator that the program was on track with respect to the return to work date.  In a further memorandum to file dated September 17, 1999 a WCB adjudicator recorded that the physiotherapy assistant indicated, following the reconditioning program, that the claimant had been provided with a home exercise program and was capable of returning to her regular duties.

The claimant’s attending physician subsequently referred her to an orthopaedic consultant for examination and assessment.   The specialist recorded in clinic notes of March 10, 2000:

“ Appears to be purely mechanical lumbar back pain, despite leg symptomatology. There is no measurable nerve root entrapment. Certainly radiographically there is no measurable nerve root entrapment.

Diagnosis mechanical lumbar back pain. There is no indication for any invasive treatment other than stretching, exercising and conditioning. No other treatment is recommended… .”

X-rays of the lumbosacral spine performed March 10, 2000 revealed:

“ Vertical height and alignment are normal. Extension is limited. There is good range of motion in flexion without evidence of instability. Minor facet OA [osteoarthritis] is suspected at the lumbosacral junction and there is OA in the right SI joint. No other significant bone or joint change is shown. Disc spaces are of normal width. ”

Following review of the above X-ray results the orthopaedic consultant indicated in part on March 24, 2000.

“ There is certainly nothing on the x-ray that would suggest Orthopedic invasive treatment would make her more functional than she is. It is important that she continue with stretching, conditioning exercises.”

Following the hearing we referred the claimant to a WCB orthopaedic medical advisor for further assessment. On May 26, 2000 the claimant was examined by a WCB orthopaedic medical advisor. We note following the call-in examination, the medical

advisor concluded:

“ As far as the diagnosis is concerned, I feel the only diagnosis we can identify very mild degenerative change. I feel these radiological appearances are consistent with the age of the claimant. From the concerns that the claimant voiced during the examination, as well as some of the comments on her file, I feel she is quite pain focused. She is quite afraid of aggravating her discomfort. She also gave the impression that she felt her exercises might increase her blood pressure.

As far as her treatment is concerned, I feel she should increase her activity. She has had a considerable amount of physiotherapy in the past and appears to be quite resistant to this line of treatment. I do not really feel there is any other form of treatment such as prolonged rest or medication which will be of any value. There are no hard physical or radiological findings which would justify the need for any restrictions, especially restrictions that would be related with her injury of August 5, 1997.” 

In reviewing the evidence we note that the claimant has been identified by various WCB and treating practitioners as being pain focused. We place weight on the opinion of the WCB orthopaedic medical advisor as we find it to be consistent with other information as outlined. We conclude that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant has recovered from her compensable injury of August 5, 1997, that any current symptoms are not related to the compensable event, and that the claimant is not entitled to benefits beyond September 10, 1999. Therefore the claimant’s appeal is 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 7th day of September, 2000