The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 6, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 6, 2001 and August 22, 2001.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits and/or other services after June 27, 1997; and

Whether or not a Medical Review Panel should be convened under Section 67(4) of the Act.

Decision

That the claimant is entitled to payment of wage loss benefits and/or services after June 27, 1997 up to the date of her 1998 operation.

Background

On September 8, 1995, the claimant and another nurse's aide were assisting a resident in a wheelchair to sit up straight when the claimant felt lower back pain radiating down her right leg. When seen by a chiropractor on the same day the claimant was diagnosed with a sacroiliac subluxation syndrome and was considered totally disabled. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 9, 1995.

Subsequent medical documentation revealed that the claimant under went a CT scan on January 22, 1996. The results revealed "minor shallow right posterolateral disc prominence at L5-S1 on the right which does not result in any deformity of the adjacent thecal sac or nerve roots."

In February 1996, an orthopaedic specialist assessed the claimant. Clinically, he could find no sign of disc protrusion or sign of nerve root involvement. There were no neurological changes. The specialist felt the claimant should be treated conservatively and a physiotherapy referral was suggested.

On June 10, 1996, the claimant was interviewed by a medical advisor at the WCB's Pain Management Unit. The medical advisor noted that the claimant presented with a chronic pain syndrome.

The claimant was examined by a WCB medical advisor on January 27, 1997. The medical advisor believed that the claimant was suffering from non-specific mechanical low back pain with evidence of abnormal illness behavior. There was no evidence of any radiculopathy demonstrated. Despite all the abnormal illness behavior and widespread tenderness, the medical advisor felt there may be some problem with the sacroiliac joint. With regard to work capability, the claimant was considered mainly limited by her subjective pain complaints and believed that ongoing restrictions were related to the claimant's chronic pain syndrome. The medical advisor indicated that the claimant should be able to or encouraged to perform light duties and temporary restrictions were outlined for a 3 month duration.

Subsequent file documentation showed that the medical advisor from the WCB's Pain Management Unit reviewed the case. It was her opinion that chronic pain syndrome was a cause for the claimant's disability. She felt however that the chronic pain syndrome was not materially contributed to by the claimant's compensable injury but rather was related to other factors.

On June 20, 1997, the WCB determined that the claimant had recovered from the effects of her compensable injury and that her chronic pain syndrome was not related to the compensable injury. Based on this decision, wage loss benefits were to be paid to June 27, 1997, inclusive.

On July 17, 1997, the employer was notified that they were not entitled to cost relief as it was determined that the claimant did not have a pre-existing condition which prolonged her recovery from her compensable injury. The employer appealed this decision on September 30, 1997.

In a submission dated September 17, 1997, a union representative appealed the WCB's decision that the claimant had recovered from the effects of her compensable injury. Reference was made to a report from a rehabilitation medicine specialist (physiatrist) dated July 24, 1997 who was of the view that the claimant suffered from chronic L5-S1 radiculitis due to disc herniation at the lumbosacral level.

Prior to considering the case, Review Office requested and received the following information:

• reports from a neurologist dated October 15, 1997 and August 27, 1997;
• a functional capacity evaluation report dated September 19, 1997.

On January 16, 1998, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond June 27, 1997. Review Office agreed with the view that the compensable injury was not contributing "materially" to the claimant's presentation of disability. Review Office believed that the weight of medical evidence did not support the physiatrist's contention that the claimant had chronic radiculitis at the L5-S1 level due to disc herniation. With respect to cost relief, Review Office found that the employer was entitled to 50% cost relief on the basis that there had been a psychological rather than a physical pre-exiting component to the worker's claim of disability.

On November 9, 1999, a solicitor acting on behalf of the claimant, submitted a report from an independent orthopaedic specialist dated September 10, 1999. The solicitor noted that it was the specialist's opinion that all of the claimant's physical problems including the surgery which she underwent in Poland (i.e. discectomies of the L4-5 and L5-S1 levels in 1998), were directly related to the injury which she sustained in her work related accident and that the claimant continued to be disabled. Based on these comments, the solicitor requested retroactive benefits for the claimant and consideration in allowing her to become enrolled in a retraining program for a light office desk position.

In February 2000, a WCB medical advisor reviewed the case and commented that the evidence on file had never demonstrated radiculitis or disc herniation. He noted that the claimant had back problems 6 years before the date of the reported compensable injury and that the performed surgery was not authorized by the WCB. Based on the evidence at the time of termination of the claim there was no indication for surgery. As a result of these comments, primary adjudication determined on February 11, 2000, that no changes would be made to the previous decision.

On March 8, 2000, the solicitor requested Review Office to reconsider the case based on the following comments that were made by the independent orthopaedic specialist in his report of September 10, 1999:

"I see no evidence that her problems are due to anything except the two compensable accidents of 1989 and 1995, both work related. Her ongoing problems are directly related to those two injuries. There is permanent impairment secondary to her injury and subsequent surgery. She has been advised to avoid any manual work including any work requiring repetitive bending or heavy lifting. I think this is (sic) advice is valid and will remain in place as a permanent work restriction."

The solicitor asked that a Medical Review Panel (MRP) be convened if there was a conflicting medical opinion on file. If this were not the case, the solicitor asked that the file be reviewed in light of the September 10th report and direct that the claimant be declared eligible for retroactive WCB benefits.

Prior to considering the appeal, Review Office asked the solicitor to submit copies of the operative reports and laboratory investigation results that he received from Poland. The reports were later received and were reviewed by a WCB orthopaedic consultant at Review Office's request.

On May 12, 2000, Review Office determined that the claimant was not entitled to wage loss benefits after June 27, 1997 nor did it consider that the claimant's surgery in 1998 was related to either of her workplace injuries of 1989 or 1995. It was noted that the claimant's injury in 1989 was diagnosed as a lumbar strain with neurological examination reported as normal. It was Review Office's opinion that the claimant had made a full recovery from that injury which was compatible with a strain-type injury.

With respect to the September 1995 accident, Review Office found no evidence to indicate that the claimant had a lumbar disc protrusion and/or nerve root compression arising out of the accident. Review Office found no relationship between the injury sustained on the 1989 claim and her subsequent presentation of September 8, 1995. The independent orthopaedic assessment provided by the solicitor failed to provide the WCB and Review Office with evidence to relate the claimant's 1998 surgery to either of her workplace injuries of 1989 or 1998 to her lower back.

On July 24, 2000, the solicitor appealed Review Office's decision and requested that an oral hearing be convened. As one of the issues brought forward by the solicitor was a request to convene a Medical Review Panel, the Appeal Commission referred the case back to the WCB to address this issue.

On September 8, 2000, primary adjudication denied the request for a MRP stating that the specialist's November 1999 report did not provide a full statement of the facts and reasons supporting his medical conclusion. This decision was confirmed by Review Office on October 20, 2000.

On April 6, 2001, an oral hearing was held at the Appeal Commission to determine whether the claimant was entitled to the payment of wage loss benefits and/or services after June 27, 1997, and to determine whether to convene a MRP under section 67(4) of the Act. Following the hearing and discussion of the case, the Appeal Panel requested that a MRP be convened under section 67(3) of the Act. A MRP later took place on June 22, 2001 and reports were requested and received from a neurologist dated June 11, 2001 and of a nerve conduction study report of June 7, 2001. The reports were forwarded to the interested parties for comment. On August 22, 2001, the Panel met to consider the case which included a submission from the claimant's solicitor dated August 10, 2001.

Reasons

This is the case of a worker who injured her back in the course of her employment as a Nurse's Aide in a personal care home. Her claim was accepted as a compensable injury and wage loss benefits were paid accordingly.

Benefits were terminated as of June 27, 1997, as it was determined by the board that her ongoing medical problems were not causally related to the workplace accident. This decision was upheld by the Review Office, on the grounds that her medical problems were due to chronic pain syndrome, which was held not to be related to her compensable injury.

Subsequent to this decision, the claimant presented a new medical report from an orthopaedic specialist who contended that her condition was a result of the workplace injury. This contention was not supported by the adjudication branch of the board. Again, the Review Office upheld the adjudicator's ruling.

A third review was conducted by Review Office, on the issue of whether or not there was the basis for a Medical Review Panel (MRP) to examine the claimant. This request was also denied.

It is from these decisions that the claimant appeals to this Commission.

Two issues were before us: whether or not she is entitled to benefits beyond June 27, 1997 and whether or not a Medical Review Panel should be convened, under section 67(4) of the Act.

For the first issue to succeed, the panel must determine that the claimant's medical problems, after June 27, 1997, were causally related to her workplace accident. Ultimately, we did find this to be the case, up to a point.

For the second issue to succeed, the panel must determine that there were conflicting medical opinions between board doctors and the claimant's attending physician, as required and defined in section 67(4) of the Act. This became a moot issue, as the panel found it necessary to refer this matter to a MRP, under section 67(3).

In coming to these conclusions, the panel had the benefit of an oral hearing, at which we heard testimony from the claimant and from an orthopaedic specialist who had examined her, as well as argument from her legal counsel.

Subsequent to the hearing, we were unable to come to an immediate decision. From the "Background", noted above, and from a review of the file, it is very obvious that there are many complicated and sometimes conflicting matters at play in this claimant's medical history, as it relates to this claim. Since her accident in 1995, she has seen many different medical practitioners, in many different medical disciplines.

Diagnoses have ranged from mechanical back strain to disc herniation to chronic pain syndrome, among others. We note that the claimant has not always co-operated with recommended treatment, in particular refusing to participate in a pain management program.

This case is further complicated by the fact that the claimant returned to her home country, Poland, where she underwent a discectomy. This surgery had not been authorized by the board, and was felt to be unnecessary by the Canadian doctors she had seen prior to going to Poland. She reported significant improvements as a result of this surgery. However, the board held that this surgery was not made necessary by her 1995 compensable injury.

To assist us in sifting through all of the medical evidence on file, we referred the case to a Medical Review Panel. We have relied considerably on the report of the MRP in coming to our decision.

After reviewing the file and interviewing and examining the claimant, the MRP concluded that the claimant had not fully recovered from the effects of her 1995 compensable injury by June 27, 1997 and that she was not capable of returning to her job at that time.

In considering the Polish surgery, the MRP noted that thorough investigations in Canada found that she would not have benefited from surgery. They conclude that there is "no evidence that the surgery performed in Poland was related to the injury in September 1995."

The MRP further concluded on the basis of the evidence and their examination that "it is unreasonable to believe that the accident of 1995 continues to be the cause of the present complaints." Finally, the MRP found that the claimant is likely unable to return to her former job, due to the fact that her laminectomy (the back surgery) precludes her doing any work which requires heavy lifting.

We place considerable weight on these findings of the MRP, and we have concluded that the claimant is entitled to benefits beyond June 27, 1997. However, we also conclude that these benefits should terminate as of the date of the operation.

The reports from Poland do not specify the date of the operation. They do state that she was in hospital from May 27, 1998 to June 16, 1998. Assuming that the operation would occur early in the hospital stay, we would suggest that the date of the operation was May 31, 1998 and that benefits end on that date.

In support of our decision to terminate benefits after the operation, we note the MRP findings that the operation was not a result of the compensable injury; that her current problems are not causally related to the accident; and that, at least in part as a result of the operation, she cannot return to her previous job.

Accordingly, the appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of August, 2001