The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 1, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 1, 2001.

Issue

Whether or not the claimant is entitled to full wage loss benefits in relation to his current back complaints; and

Whether or not the claimant's vocational rehabilitation plan was appropriate.

Decision

That the claimant is not entitled to full wage loss benefits in relation to his current back complaints; and

That the claimant's vocational rehabilitation plan was appropriate.

Background

The claimant injured his back, arm and shoulder in a work related accident on September 8, 1994. The claimant described the accident as follows: "I was standing on my machine counting product when I slipped off falling 2 to 3 feet landing on my back with my right arm behind my head. As I fell my back hit the corner of my stacker ." Initial medical reports diagnosed the claimant with a low back strain and bicipital tendonitis. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits commenced shortly thereafter.

On February 1, 1995, a WCB medical advisor assessed the claimant's lumbosacral spine and right shoulder condition. With respect to the lumbosacral spine, the medical advisor indicated that the back injury had not completely settled down yet and was probably due to a musculoligamentous strain which was only disabling to a very minor degree.

Subsequent medical reports showed that the claimant was treated mainly for his right shoulder condition. When assessed by a WCB orthopaedic consultant on October 19, 1995, the consultant commented that the lower back injury, which probably consisted of a local contusion and/or strain, did not appear to be of any significance in preventing the claimant from returning to work activity.

In a report dated December 8, 1995, the family physician noted that the claimant had a recurrence of symptoms with his low back after lifting 35 pound boxes during a trial of employment. Examination revealed restricted movement in the back and the physician suggested that the trial of employment be discontinued.

Between February 12, 1996 and March 22, 1996, the claimant underwent a work hardening program through Par Health Services. In the discharge summary report of March 25, 1996, it was noted that the claimant reported no significant back pain.

On September 10, 1998, the claimant told a WCB impairment awards medical advisor during the interview portion of his examination that he continued to have problems with his lower back and that he was unable to bend over to tie up his shoes.

In a memo to a WCB employment specialist dated February 24, 1999, a Vocational Rehabilitation Consultant (VRC) noted that the claimant had permanent restrictions to avoid overhead work and heavy lifting. Aptitude skills and interest testing established that the claimant was very weak from an academic standpoint with a low I.Q. He was not considered a candidate for institutional retraining nor had he any desire to pursue this option. The VRC noted that the claimant had no transferable skills and was limited in his ability to learn. "We tried getting him some basic computer skills but in the end he did not do well." Subsequent file documentation showed that the claimant seemed interested in the area of security (memo dated April 9, 1999) and was placed into a security position by the WCB.

In January 2000, the claimant told a WCB adjudicator that his back had been bothering him on and off since the injury of 1994 and that his back was getting worse over the last few weeks. The claimant indicated that there had been no new accidents at home or work to account for his present back problems. The adjudicator advised the claimant that additional medical information would be requested. It was the WCB's position there was no evidence of continuity and that the initial diagnosis was simply a strain which had long since resolved.

In a letter dated January 27, 2000, the attending physician indicated that the claimant had been seen at the clinic 15 times since September 1998. The physician further stated, "It was on January 11, 2000 when he first reported a back problem which he attributed to his work related injury in 1994. He reported that he had already missed work because of pain and was having difficulty sleeping as well. He was given samples for NSAID and was advised to follow up in two weeks which he did on January 24, 2000 and reported no improvement in back pain and was sent for physiotherapy. As you are probably aware, there is no literature indicating that rest benefits low back pain and he was advised against missing work accordingly. His absence from the period January 7 to January 11, 2000 was not approved by me especially in view of the fact that his current job is a sedentary one."

On February 15, 2000, Rehabilitation and Compensation Services advised the claimant that the WCB was unable to establish any medical continuity between his current back complaints and the initial compensable injury. No responsibility would therefore be accepted for any time loss from work associated with his current back complaints.

On June 7, 2000, the claimant's union representative requested the Review Office to consider a number of issues concerning this case. Specifically, the union representative raised the following issues:

• Whether the claimant was entitled to benefits and services related to his current back complaints;
• Whether the claimant's vocational rehabilitation placement contributed to his time loss;
• Whether the sedentary work was appropriate while the claimant was suffering from back pain; and
• Whether the claimant's back pain was related to other medical conditions arising from the compensable injury.

In a decision dated September 22, 2000, Review Office determined that the claimant's back complaints were in no way related to his employment and that he was not entitled to full wage loss benefits. Review Office based its decision on the findings and comments expressed by various WCB medical consultants who had seen the claimant in 1995 and 1998, by the 1996 work hardening program report and by the attending physician on January 27, 2000.

Review Office further determined that the claimant's vocational rehabilitation plan was appropriate. Review Office made reference to the results of vocational interest and aptitude testing that the claimant had undergone in 1995. Review Office indicated there was nothing on file to suggest that the claimant was ever proactive in the vocational rehabilitation progress. "Even now, while it is being contended that the vocational rehabilitation progress happened to him, not with him, the claimant has no suggestions as to what he would consider a suitable occupation for himself...". Review Office was of the opinion that the WCB treated the claimant as a 'whole person' and that he was provided with work that was within his compensable physical limitations. On October 17, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

On September 8th, 1994, the claimant sustained a compensable injury to his lower back and right shoulder. The injury to the back was diagnosed as a low back strain and the injury to the shoulder was one of adhesive capsulitis. Eventually, the shoulder injury resulted in the WCB's imposing the following permanent restrictions on the claimant: no work to be done above shoulder level and no work involving 90 flexion / 30 abduction.

A WCB orthopaedic consultant examined the claimant on October 19th, 1995. His clinical observations and findings were as follows:

"On examination of the lower back, with forward flexion, the fingertips came to the proximal third of the tibia. He came erect with no appreciable difficulty. Lateral flexion and rotation movements of the lumbar spine to the right and left side were within normal limits. There was no appreciable spasm of the paravertebral muscles. He had normal straight leg raising while sitting. There was no difficulty experienced with dressing and undressing.

His lower back injury, which consisted probably of local contusion and/or strain, did not appear to be of any significance in preventing his returning to work activity."

During the course of his rehabilitation, the claimant underwent a work hardening program. Throughout the initial part of this program, the claimant reported experiencing back pain on a regular basis. However, at the time of completion of the program, the work hardening summary dated March 25th, 1996 chronicled the claimant's "having no significant back pain."

The claimant's attending physician corresponded with the WCB on January 27th, 2000, at which time he advised:

"I have been attending Mr. [the claimant] at [Name] Medical Centre since September 1998. He had since attended the clinic 15 times. It was on January 11, 2000 when he first reported a back problem, which he attributed to his work related injury in 1994.

As you are probably aware, there is no literature indicating that rest benefits low back pain and he was advised against missing work accordingly. His absence from the period January 7 to January 11, 2000 was not approved by me especially in view of the fact that his current job is a sedentary one."

We find the weight of evidence does not support the claimant's contention that his current back difficulties are related to his compensable injury of September 8th, 1994. In addition, we further find that the claimant's low back strain has, on a balance of probabilities, long since resolved.

With respect to the second issue, we find, after carefully reviewing the evidence that the claimant's vocational rehabilitation plan was more than suitable in that it was well within his restrictions and was certainly compatible with his level of education and limited transferable skills.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of March, 2001