The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 26, 2001, at the request of a union representative acting on behalf of the claimant. The Panel discussed this appeal on April 26, 2001.

Issue

Whether or not the worker had recovered from the effects of the compensable injury of December 28, 1999 by June 9, 2000.

Decision

That the worker had recovered from the effects of the compensable injury of December 28, 1999 by June 9, 2000.

Background

While performing the duties of a nursing assistant on December 28, 1999, the claimant experienced low back discomfort from lifting patients and bending activities. The claimant also has three work-related compensable back injuries dating back to September 1998.

X-rays of the thoracic spine dated December 30, 1999 were considered to be normal. X-rays of the lumbosacral spine revealed minimal upper lumbar scoliosis convex to right. No other abnormality was seen.

A Doctor's First Report dated January 4, 2000, diagnosed the claimant with a muscular back strain. The physician indicated that the claimant was 101 pounds and that she was now having frequent exacerbations of back pain associated with day to day activities in her job. The physician indicated that the claimant frequently had to work moving patients without a partner due to staff shortages. It was felt that the claimant should be transferred to a position with less strenuous type of work.

The claimant was assessed by a chiropractor on February 21, 2000. His diagnosis was "chronic lumbar ligament strain with associated muscle hypertonicity." Spinal manipulations and home stretches were the recommended forms of treatment.

On March 13, 2000, a Workers Compensation Board (WCB) medical advisor assessed the claimant. The claimant had mechanical thoracic and lumbar back pain, which appeared to be related to her workplace activities. He recommended that she gradually wean off of chiropractic treatment as her pain complaints improved. He was also of the opinion that the claimant should progress through the strengthening program outlined by her chiropractor and physiotherapist. The medical advisor commented that the claimant should limit repetitive heavy lifting and repetitive bending and twisting of the lumbosacral spine for the next four weeks while her treatment progressed. "Based on the claimant's slight body habitus, it is probable that in the future repetitive heavy lifting and repetitive bending and twisting of the lumbosacral spine will produce further pain complaints resulting in time loss from work."

In a letter dated June 2, 2000, a WCB adjudicator advised the claimant that she would be considered capable of returning to her pre-accident job duties following completion of her strengthening program. Benefits would be paid to June 9, 2000, inclusive and final. The adjudicator stipulated that the file would be forwarded to the Preventive Rehabilitation Committee to determine whether or not she qualified for preventive rehabilitation benefits and services.

On June 9, 2000, the claimant wrote to Review Office appealing the decision of June 2, 2000. The claimant's position was that she should have permanent work restrictions imposed as she could no longer perform her pre-accident duties. Prior to considering the appeal, Review Office wrote to the claimant's physiotherapist and physician for additional information.

On September 15, 2000, Review Office determined that there was no further entitlement to compensation benefits (i.e. wage loss, vocational rehabilitation assistance, medical treatment) after June 9, 2000. Following a review of file documentation, Review Office concluded in view of the absence of any significant clinical findings that the claimant had essentially recovered from the effects of her compensable injury by June 9, 2000.

In early November 2000, the Preventive Vocational Rehabilitation Committee determined that the claimant was eligible for preventive rehabilitation benefits and services.

On April 26, 2001, the claimant's union representative appealed Review Office's decision of September 15, 2001, and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant sustained a compensable injury on December 28th, 1999 to her lower, upper left and mid back while performing her regular workplace activities. The preponderance of medical evidence confirms that this workplace incident was in all likelihood a musculoligamentous type of injury. After having considered all of the evidence, we find that the claimant's compensable injury had, on a balance of probabilities, resolved by the time her benefits were terminated. In this regard, it should be noted that the claimant was discharged from further physiotherapy on May 26th, 2000 and that the treating chiropractor felt the claimant "had recovered from the effects of her compensable injury as of June 9, 2000." As well, the attending physician, who examined the claimant on June 2, 2000, recorded "a full range of movement with minimal pain on extreme of anterior flexion."

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 31st day of May, 2001