The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 13, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 29, 2001.

Issue

Whether or not there is basis to extend further wage loss benefits beyond February 13, 1997; and

Whether or not there is basis to extend further medical aid benefits beyond July 10, 1997.

Decision

That there is no basis to extend further wage loss benefits beyond February 13, 1997; and

That there is no basis to extend further medical aid benefits beyond July 10, 1997.

Background

While employed as a produce clerk in August 1991, the claimant was picking up a case of bananas weighing approximately 40 pounds off the floor and placing them onto a 3 foot high dolly when he felt a tightness in his lower back. The claimant continued working but the pain became progressively worse. On August 29, 1991, the attending physician diagnosed the claimant with an acute lumbosacral strain.

The claim was accepted as Workers Compensation Board (WCB) responsibility and wage loss benefits were paid to November 28, 1994, when the claimant returned to work. In a report dated May 15, 1995, a rehabilitation medicine specialist summarized that the claimant had a work related acute muscle strain on August 28, 1991 and that his diagnosis was myofascial pain syndrome that developed secondary to the acute muscle strain.

On January 13, 1997, the claimant was lifting a box of mandarin oranges when he felt a sharp pain in his back. The attending physician, on January 13, 1997, diagnosed the claimant with a thoracolumbar strain. The claim was accepted by the WCB and benefits commenced on January 14, 1997. On January 20, 1997, the claimant returned to modified duties.

Subsequent reports showed that the claimant was receiving physiotherapy and was attending his physician regularly for treatment while performing modified duties.

On January 27, 1997, x-rays of the thoracic spine revealed anterior and right lateral osteophytes at several mid and lower thoracic discs. No specific abnormality was seen in the x-rays of the lumbosacral spine.

In a report dated February 14, 1997, the attending physician noted that obesity, left knee pain/osteoarthritis was affecting the claimant's progress. In a progress report of February 28, 1997, the physician outlined restrictions, i.e. no lifting, bending, carrying, walking more than 10 minutes/hr. and no stairs.

On March 11, 1997, a WCB medical advisor reviewed the medical reports on file and outlined restrictions of no heavy lifting over 25 pounds for a 3 to 4 week duration. The medical advisor's recommendations were conveyed to both the employer and claimant in letters dated March 20, 1997 and March 21, 1997, respectively.

In reports dated March 19, 1997, March 25, 1997 and April 2, 1997, the attending physician noted that the claimant was to continue his sedentary duties until April 19, 1997. In the report of March 25, 1997, the attending physician wrote, "If he does any heavier duties he will exacerbate his condition, and will not be able to work at all."

In a written memo dated April 4, 1997, a WCB adjudicator documented that she spoke with the claimant. The claimant indicated that he saw his attending physician on April 2, 1997, and was given a note to provide to his employer regarding "sedentary work only." The claimant stated that his supervisors would not let him sit as long as he felt he had to; and that his employer did not provide light duties as per his doctor's instructions and therefore he stopped work on April 4, 1997.

A WCB medical advisor assessed the claimant on April 23, 1997. Under "Impression and Discussion" of the report, the medical advisor indicated the following:

• The examination was consistent with mechanical low back pain/aggravation of osteoarthritis.
• There was an abnormal pain focus. The claimant believed he was discriminated against by his employer due to his weight;
• The claimant had a pre-existing condition of morbid obesity and it was significantly prolonging his claim;
• Specific findings to support a diagnosis of myofascial pain was not present at this examination.
• The claimant suffered from a significant sleep disturbance.
• A complete recovery would be anticipated in this kind of injury and a return to full pre-accident function was expected.

On May 12, 1997, a WCB medical advisor noted that a description of the claimant's job duties in early April 1997, included stocking shelves, lifting less than 25 pounds and minimal bending, mainly waist to shoulder level. The medical advisor stated that these duties seemed appropriate based on the history of injury, the physical findings and the diagnosis made by the attending physician, and her examination of the claimant on April 23, 1997.

On June 11, 1997, EMG studies revealed the following: "There is electrophysiologic evidence of a prior right L5 nerve root injury (no ongoing denervation). S1 nerve root is not involved." The EMG results were reviewed by a WCB neurologist on July 3, 1997. The neurologist was of the view that there was no clinical correlation between any of the claimant's ongoing complaints and the compensable injury.

A report dated June 17, 1997, was received from the rehabilitation medicine specialist who had treated the claimant in 1995. This report contained details of the specialist's examination findings of the claimant on February 13, 1997, March 18, 1997, May 9, 1997 and May 29, 1997. The specialist did not feel that any form of trigger point injections were indicated or likely to be of benefit in the thoracic or lumbar regions.

On July 10, 1997, Claims Services at the WCB wrote the claimant to advise him of the following decisions:

• that the modified duties that were provided by his employer were appropriate and were within his compensable back restrictions;
• that the weight of medical evidence, on a balance of probabilities, no longer supported a causal relationship between his ongoing complaints and the compensable injury; and
• that responsibility for wage loss benefits would not be paid beyond February 13, 1997.

On September 2, 1997, the claimant's union representative appealed the above decision to Review Office.

On October 17, 1997, Review Office determined that there was no basis to extend further compensation, i.e. wage loss benefits beyond February 13, 1997 or medical aid benefits beyond July 10, 1997. Review Office found that the duties offered to the claimant in March 1997 were physically suitable for the claimant and that the claimant had effectively recovered from the effects of his injury by July 10, 1997.

In February 1998, the union representative requested Review Office to reconsider its decision of October 17, 1997, based on medical reports dated January 28, 1997, and January 19, 1998. In a response dated February 18, 1998, Review Office indicated that the file and the additional medical reports were reviewed, however there would be no change made to its earlier decision with respect to wage loss or medical aid benefits to the claimant.

On August 6, 1998, the union representative requested that an oral hearing be convened as he disagreed with the Review Office's October 17, 1997, and February 18, 1998, decisions. An oral hearing was later arranged for December 16, 1998, but the hearing was cancelled as the union representative was in process of obtaining additional medical information on behalf of the claimant.

On October 6, 2000, a second union representative requested that an oral hearing be convened to consider the case. Additional medical information was submitted dated May 21, 1999, March 19, 1999, March 15, 1999, December 21, 1998, August 5, 1998, January 27, 1998 and June 17, 1997, for the panel's consideration.

On March 13, 2001, an oral hearing took place at the Appeal Commission. At this time, the union representative submitted additional medical information dated January 29, 1998 and October 23, 1998, from two of the claimant's treating physicians. It was agreed to by all parties at the hearing that the employer's representative would be given the opportunity to comment on this medical information and that a copy of his final submission would be forwarded to the union representative for her final comments. Responses were later received from the employer's representative dated March 19, 2001 and from the union representative dated March 21, 2001. On March 29, 2001, the Panel met to render its final decision on the issues under appeal.

Reasons

This is the case of a grocery store worker who injured his back while lifting a box of fruit, weighing about 40 - 50 pounds, onto a dolly. As he was lifting, he felt a sharp pain in his back. This occurred in mid-January 1997.

His injury was described as a thoracolumbar strain and was accepted as compensable. He remained off work for a week, after which he returned to modified duties. He continued working at these duties for a number of weeks. Wage loss benefits were paid until February 13th.

In late March 1997, the board determined that only one restriction be placed upon his ability to perform his duties, that being that he not lift anything greater than 25 pounds in weight.

On April 4, 1997, the claimant booked off work, and remained off for a number of months.

The claimant has appealed two issues in this case: he is of the opinion that he should receive wage loss benefits beyond February 13, 1997 and that he should receive medical aid benefits beyond July 10, 1997.

Under the provisions of The Workers' Compensation Act, wage loss benefits are paid to a worker who is unable to work due to an injury which arose out of and in the course of employment. For this appeal to succeed, the Appeal Panel must determine that any time lost after February 13 and, more particularly, the reasons the claimant booked off work on April 4th were related to his compensable injury of January 13, 1997.

We have concluded that the claimant had recovered from the effects of his injury, to the point he was able to return to work at modified duties, by February 13, 1997. In coming to this conclusion, we have carefully reviewed the evidence contained in the claimant's file; we have had the benefit of an oral hearing which included the claimant, his representative and an employer representative; and we have received further written submissions from both representatives.

The claimant's attending physician, at the time of the first visit, diagnosed the injury as a thoracolumbar strain. He was of the opinion that the claimant could return to modified duties one week after the accident, which he did. An x-ray, taken two weeks after the accident, showed some osteophytes on the thoracic spine and "no significant abnormality of the lumbosacral spine."

For the next number of visits, the attending physician reports no change in diagnosis or in his opinion of the claimant's ability to work at modified duties. The physician regularly notes that the claimant has other factors - non-compensable - which are delaying his full recovery, namely knees, obesity and osteoarthritis.

Although it was testified to us that the claimant's physician instructed him, on April 4, 1997, to refrain from further work, we can find no specific evidence in the file to corroborate that assertion. We do note that on March 19, the attending physician wrote that sedentary duties were to continue for one month. This was repeated in handwritten notes from the doctor, dated March 25, April 2 and April 17, 1997.

On March 17, 1997, the board had advised the claimant that the only restriction on his ability to work would be a prohibition against lifting anything over 25 pounds for 3 to 4 weeks. The employer was advised of this in a March 20 letter. The claimant was caught between conflicting opinions. On one hand, his own doctor was telling him that anything beyond sedentary work posed a risk to him of re-injury. On the other, the employer, based upon a board decision, was expecting him to work up to the restrictions. In our view, it was the claimant's own decision to leave the job on April 4th.

Based upon the medical evidence contained in the claim file, we have concluded that the claimant's doctor placed the limitation on sedentary work for reasons far beyond the January 1997 compensable injury. It is clear to us that these restrictions were based on the constellation of medical problems suffered by the claimant, at that time. These included non-compensable problems with one knee, for which he was then awaiting surgery; the aftereffects of surgery on the other knee; his obesity; and his osteoarthritis.

It was also argued before us that the claimant was suffering from myofascial pain, as a result of his compensable injury. We noted that the claimant had suffered a similar work-related injury to his back in 1991, which did result in myofascial pain and for which he was compensated by the WCB.

While we do recognize that the claimant was ultimately diagnosed as suffering from myofascial pain, for which he was treated, we note that, in the months following his January 1997 injury, no myofascial pain was found. The claimant was examined by a board medical advisor on April 23, 1997, who noted: "Specific findings to support a diagnosis of myofascial pain were not present on today's exam."

Subsequent to his 1991 injury, the claimant was seen by a specialist in Rehabilitation Medicine, who diagnosed the myofascial pain associated with that injury. In February 1997, the claimant was again referred to this specialist and saw him on four occasions to May 29, 1997. The specialist makes no specific reference to finding evidence of myofascial pain. In a written report dated June 17, 1997, he wrote: "At this time I do not feel that any form of trigger point injections are indicated or likely to be of benefit in the thoracic or lumbar regions."

Seventeen months later, in October 1998, the claimant was again referred to this specialist, who, at that time, found evidence of regional myofascial pain syndrome. However, the specialist does not link this to the claimant's compensable injury. In fact, he wrote: "If he has underlying facet joint degenerative changes this could be the underlying cause for perpetuating quadratus lumborum myofascial trigger points."

We note that, beyond this, on a balance of probabilities, the medical evidence does not link this myofascial pain problem with the compensable injury. The preponderance of evidence in this regard has led us to conclude that the myofascial pain identified in October 1998 was not linked to his compensable injury of January 1997.

We are of the view that, on a balance of probabilities, the claimant had recovered from the effects of the January 13, 1997 injury by February 13, 1997 and, thus, is not entitled to wage loss benefits beyond that point. We are of the further view that any time lost after April 4, 1997 was not attributable to the January 1997 compensable injury. Finally, given these conclusions, we conclude that the claimant is not entitled to medical aid benefits beyond July 10, 1997.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of April, 2001