The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 20, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 20, 2000.

Issue

Whether or not the claimant remained disabled from returning to work beyond March 17, 2000; and

Whether or not the claimant is entitled to the payment of benefits beyond March 17, 2000.

Decision

That the claimant remained disabled from returning to work beyond March 17, 2000; and

That the claimant is entitled to the payment of benefits beyond March 17, 2000.

Background

During the course of his employment as a mechanic on March 1, 1999, the claimant felt a warm and sharp pain down the right side of his leg when his right leg slipped on ice while pushing a car into the shop. After taking a break and feeling better, the claimant states he continued working but the pain became stronger when he bent down to pick up a tire.

A Chiropractor's First Report dated March 7, 1999, showed that the claimant first sought treatment on March 2, 1999. The diagnosis rendered by the chiropractor was a lumbosacral disc herniation causing right posterior thigh pain. Chiropractic treatment consisted of spinal manipulation, electrotherapy, rehabilitation exercises, behavioral advice and soft tissue manipulation for 3 to 5 times per week.

On May 5, 1999, a Workers Compensation Board (WCB) chiropractic consultant reviewed the chiropractic reports and stated that the mechanism of injury was consistent with the diagnosis of lumbosacral disc herniation. On May 10, 1999, Rehabilitation and Compensation Services advised the claimant that responsibility for chiropractic treatments would be accepted from the date of accident to June 8, 1999 inclusive, a period of 14 weeks.

In a progress report dated June 10, 1999, the treating chiropractor noted that the objective findings were presently at a minimum with global ranges of motion being full and pain free. The claimant was discharged from treatment as of June 8, 1999.

On August 12, 1999, the claimant advised a WCB adjudicator that he had not worked since June 8, 1999 as he felt he could not as the pain was too great. Subsequent medical information revealed that the claimant was assessed by a physician on June 30, 1999 and later underwent a CT scan on July 15, 1999. The results of the CT scan revealed a small central and slightly right paracentral disc herniation at the L5-S1 level with no evidence of spinal stenosis or nerve root compression. The claimant's benefits were reinstated effective June 8, 1999.

A WCB medical advisor assessed the claimant on August 18, 1999. The physical examination revealed evidence of right sacroiliac joint dysfunction with soft to moderate signs of a disc on the right side at S1. There were no signs of augmentation and non-organic signs were 1/5. The medical advisor commented that the CT scan showed no clear evidence of disc involvement with radiculopathy although the clinical indications are that the claimant did in fact have an S1 disc besides the right sacroiliac joint dysfunction.

Subsequent file records showed that the claimant was referred for physiotherapy treatments and then underwent a six week lumbosacral stabilization program at the Wellness Institute which ended on March 17, 2000. The claimant was also interviewed by a WCB psychological advisor on March 9, 2000, and it was noted that the claimant was significantly pain focused and was experiencing an adjustment disorder with depressed mood. In a later memo dated April 17, 2000, it was noted that the claimant did not have any psychological barriers that would prevent him from returning to work.

On March 13, 2000, the claimant was informed by the WCB that full wage loss benefits would be paid up to and including March 17, 2000, at which time it was expected that he would be fit to perform his pre-accident duties. On March 17, 2000, legal counsel for the claimant appealed this decision stating there was no medical opinion to support the position that the claimant was fit for his pre-accident duties.

In a decision dated April 28, 2000, Review Office stated there was no evidence to indicate that the claimant's subjective complaints of pain were related to the injuries he sustained. There was no concrete evidence submitted by any physician that the claimant remained disabled by reason of his March 1, 1999 compensable injury. Review Office noted that the claimant was given full benefit of a stabilization program over a six week period ending March 17, 2000 and that the chiropractor and the therapist had indicated they had nothing further to offer the claimant. Review Office noted that the claimant did not have a job to return to and that this was not the WCB's responsibility. Review Office confirmed the decision that there was no evidence to indicate that the claimant remained disabled beyond March 17, 2000 as a result of injuries he sustained on March 1, 1999 and that he was not entitled to payment of benefits after March 17, 2000.

On May 8, 2000, legal counsel for the claimant appealed Review Office's decision and an oral hearing was arranged. On September 13, 2000, legal counsel submitted two reports for the Panel's consideration, i.e. a physiotherapy report dated May 10, 2000 and a medical report dated August 31, 2000. On November 20, 2000, an oral hearing took place at the Appeal Commission.

Reasons

The issues in this appeal are whether or not the claimant remained disabled from returning to work beyond March 17, 2000 and whether or not the claimant is entitled to benefits beyond March 17, 2000.

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. Subsection 39(2) 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 reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant remained disabled beyond March 17, 2000 and that the claimant is entitled to benefits beyond March 17, 2000.

The claimant is a mechanic and was injured at work on March 1, 1999 when he pushed a vehicle during the course of his employment. The claimant was first seen by a chiropractor on March 2, 1999 who diagnosed a lumbosacral disc herniation causing right posterior thigh pain and considered the claimant totally disabled from work at that time. The claimant initially continued with chiropractic care.

Subsequently the claimant went to an attending physician who wrote to the WCB on July 28, 1999 summarizing his findings. At that time the attending physician suggested a lumbosacral CT scan be performed. This CT scan was performed on July 12, 1999 and showed no evidence of disc herniation, spinal stenosis or nerve root compression at L3-4 and L4-5, but a small central and slightly right paracentral disc herniation at L5-S1 with no evidence of spinal stenosis or nerve root compression. The attending physician gave his opinion that the claimant was not yet fit enough to return to manual labour.

A WCB medical advisor examined the claimant on August 18, 1999 and December 21, 1999. In his report of August 18, 1999, the WCB medical advisor reported:

"The physical examination shows a claimant who has definite evidence of right sacroiliac joint dysfunction with soft to moderate signs of a disc on the right side at S1. The claimant is considered to have a considerable amount of pain with his low back complaints. There was no sign of augmentation and non-organic signs are considered to be 1/5. The imaging studies including CT scan were reviewed. On the CT scan there is no clear evidence at this time of disc involvement with radiculopathy although the clinical signs are that the claimant does in fact have an S1 disc besides the right sacroiliac joint dysfunction."

The WCB medical advisor suggested an examination by a rehabilitation specialist to review the claimant's clinical status and to suggest further therapeutic measures to advance the claimant's recovery. He further outlined restrictions of no repeated bending, stooping, crouching, no weights greater than 10 lbs., and no prolonged sitting or standing.

Subsequently the claimant was re-examined by the WCB medical advisor on December 21, 1999 who found non-organic signs and that the examination " continues to show evidence of dysfunction of the right sacroiliac joint with some associated muscular discomfort."

The WCB medical advisor referred the claimant to a rehabilitation facility for further chiropractic treatment and consideration of a work hardening program to ensure a return to work for the claimant. We note in the referral to the chiropractor the WCB medical advisor states:

"Recently, I have had the opportunity to examine this claimant again. The claimant has made very little or no advance since the previous examination earlier this year."

In a report to the WCB dated January 14, 2000 a chiropractor recommended a 4-6 week lumbar stabilization program with a graduated return to work at some point in the program. The lumbar stabilization program commenced on February 4, 2000 and was completed March 17, 2000.

In a memorandum to file dated February 1, 2000 we note a WCB adjudicator had suggested a call-in examination by a WCB medical advisor be scheduled near the end of the lumbar stabilization program to assess the claimant's fitness to return to work. We note that this examination did not take place. On March 3, 2000 the WCB medical advisor, after speaking with a physiotherapist with respect to the lumbar stabilization program, indicated that the claimant was fit to return to work.

The claimant continued to be seen by his attending physician and was subsequently referred to a second physiotherapy and sports injury clinic. A physiotherapist assessed the claimant on April 26, 2000. We reviewed this report and note that the findings outlined by the physiotherapist are consistent with those outlined by the WCB medical advisor in his report of August 18, 1999 and to some extent with his report of December 21, 1999.

Based on the evidence, on a balance of probabilities, we find that the claimant was not fully recovered from his compensable accident at the end of the initial lumbar stabilization program and that the claimant continued to exhibit similar symptomatology which led to a referral for further treatment to a second physiotherapy and sports injury clinic. We note that in her report of May 10, 2000 the physiotherapist indicates her opinion that a 6-8 week reconditioning program would be crucial to the claimant's recovery but the claimant could be rehabilitated to return to his pre-accident job.

In summary we find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant remained disabled beyond March 17, 2000 and is therefore entitled to benefits beyond March 17, 2000. The claimant's appeal on both issues is allowed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of December, 2000