The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 5, 2001, at the request of the claimant and the employer. The Panel discussed this appeal on April 5, 2001 and again on July 24, 2001.

Issue

Claimant: Whether or not the claimant is entitled to wage loss benefits beyond June 23, 2000.

Employer: Whether or not the claimant was entitled to wage loss benefits and services for the period September 4, 1995 to June 23, 2000.

Decision

Claimant: That the claimant is not entitled to wage loss benefits beyond June 23, 2000.

Employer: That the claimant was entitled to wage loss benefits and services for the period September 4, 1995 to June 23, 2000.

Background

While employed as an elevator manager's assistant on September 1, 1995, the claimant pulled his lower back when opening railcar lids that were tightly shut. When seen for treatment on September 1, 1995 the claimant was diagnosed with a lumbosacral sprain/strain with right leg radiculopathy. On October 2, 1995, a general practitioner diagnosed the claimant with a lower back strain and a possible disc herniation. A CT scan of the lumbar spine revealed no evidence of a disc protrusion from L2-S1. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 4, 1995.

On November 27, 1995, an orthopaedic specialist noted that the claimant exhibited symptoms that would be consistent with a severe nerve root compression from a disc protrusion at the left lower lumbar region but the objective findings did not support this conclusion.

In November 1995, the claimant underwent a bone scan evaluation and no abnormalities were identified. In January 1996, nerve conduction studies indicated, in part, "The limited findings recorded would be consistent with the presence of chronic or previous L.L5 radicular irritation."

A WCB medical advisor assessed the claimant on March 20, 1996. He indicated that it was possible the claimant may have had experienced a disc protrusion of the L4-5 region compressing the left L5 nerve root. This was corroborated by diminished straight leg raising findings in earlier reports. The medical advisor indicated this may have resolved vis-a-vis the normal CT scan with slowly improving nerve conduction findings. The claimant did not display any evidence of abnormal illness behavior during the exam and was anxious to return to work. It was recommended that the claimant be referred to a back stabilization program and explore the prospect of light duties in order to get him out of the home and be productive. Subsequent file documentation showed that the claimant was involved in a back stabilization program, but was unable to continue because of increased pain.

On July 29, 1996, a CT myelogram revealed no evidence of disc herniation, nerve root compression or spinal stenosis at the L4-L5 level. At the L5-S1 level there was diffuse annular disc bulging without evidence of disc herniation, nerve root compromise or spinal stenosis.

In November 1996, the claimant was again seen by a WCB medical advisor for examination. The claimant was noted to be very pain focused. He had not shown any improvement with conservative management and a specific lesion remained elusive. An MRI examination was suggested in view of the claimant's consistent signs and symptoms of a left L5 root radiculopathy. On January 1, 1997 the MRI was performed, however, the results were found to be normal.

On January 20, 1997, a WCB medical advisor reviewed the case. He stated that there was no hard objective evidence to establish a cause and effect relationship between the claimant's ongoing difficulties and the compensable injury. He suggested the claimant was capable of light duties with restrictions.

In a report dated July 12, 1997 an orthopaedic specialist commented that the claimant had a chronic problem with his back, had chronic pain and was not a candidate for surgery.

A WCB neurologist assessed the claimant on April 30, 1997. There was no objective neurological findings of ongoing nerve root compression. The claimant was also interviewed by a WCB medical advisor of the Pain Management Unit, who felt that the claimant presented as completely disabled on the basis of pain, although there was no clear cut physical reason for this conclusion. The medical advisor thought the claimant could eventually return back to heavy work and that a reconditioning program would assist him in that regard.

On August 26, 1997, the claimant was seen in consultation by a registered psychologist and consultant. He suggested that the claimant had long standing personality problems which probably influenced the treatment efforts.

Following consultation with the WCB's healthcare services, the claimant was informed on September 15, 1997, that he was considered to have recovered from the effects of his compensable injury and expected to participate in a graduated return to work program and that benefits would end on October 17, 1997. On January 13, 1998, the claimant's union representative disagreed with the decision and reports were submitted reports from an occupational health physician dated December 24, 1997 and a chiropractor dated January 23, 1998. A report was also obtained from a physical medicine and rehabilitation specialist dated May 15, 1998, who indicated that the claimant's signs and symptoms were characteristic of multiple muscle myofascial pain syndrome. He suggested that the claimant undergo trigger point needling.

On June 12, 1998, Review Office determined that the claimant was entitled to benefits beyond October 17, 1997. Review Office accepted the medical opinion that the claimant's symptoms may be from a piriformis syndrome and a complication related to a chronic myofascial pain syndrome. Review Office decided that a further treatment regime with the assistance of the treating physiatrist would be instituted over the next 4 weeks and that this process should be re-assessed on a regular biweekly basis. If after 4 to 6 weeks there has been no improvement, then Review Office suggested that the claimant be called in to the WCB for another examination.

Subsequent medical correspondence showed that the claimant was treated by his physiatrist for trigger point needling commencing July 8, 1998 and was referred to PAR services for a physiotherapy program. On November 30, 1998, the physiatrist indicated that the claimant required further trigger point treatment in the lumbosacral region along with a more intensive physiotherapy program for the next 6 weeks. The physiatrist felt that it was possible that the claimant would be capable of a graduated return to work within the next 6-8 weeks provided that continued improvement occurred.

In a progress report dated December 15, 1998, the physiatrist indicted that he could no longer treat the claimant without the assistance of a PAR program which had been refused by the WCB. He referred the claimant to the Pain Clinic for a diagnostic left sacroiliac joint injection.

On February 18, 1999, primary adjudication requested that a WCB medical advisor review the file as the employer was questioning whether the claimant really had a pre-existing condition which was prolonging his recovery from the compensable injury. The medical advisor responded, "I cannot state there is a pre-x prolonging this by way of prior injury".

In a memo dated March 17, 1999, a WCB adjudicator documented that she had spoken with the treating physiatrist to advise that the WCB would support further physiotherapy treatments for another 6 weeks. A case conference would then be arranged with regard to a graduated return to work plan.

In a memo dated May 4, 1999, a WCB adjudicator noted that the claimant had made some improvement in his lower limb but not in his lower back according to the physiatrist. The physiatrist also felt that the claimant's problem was not 100% myofascial pain and that he may have an underlying facet or SI problem. In a progress report of May 4, 1999, the physiatrist indicated that the claimant exhibited chronic back and left lower limb pain and that he was not responding to current treatment.

A physical medicine and rehabilitation specialist reviewed the case on September 29, 1999. The specialist was of the view that the file suggested likely some mechanical back pain as a component of the claimant's present symptomatology. The history of the current claim suggested possible initial lower lumbosacral nerve root involvement. The recent CT, MRI, myelogram and nerve conduction, however, suggested resolution of any prior nerve root compromise and resolution of the prior disc injury. The specialist indicated that some residual nerve root irritation related to the past injury could not be ruled out, but that it should not result in any significant functional impairment. The specialist stated there did not appear to be any contraindication based on his file review to progress through a graduated return to work program and then to regular duties.

In January 2000, the case was reviewed by the Preventive Vocational Rehabilitation Committee. It determined that the claimant did not qualify for PVR assistance as there was no clear/definitive medical diagnosis that explained the reported pain symptomology/behavior.

A report was received from an occupational health physician dated February 9, 2000. The physician felt that the claimant continued to have incapacitating low back , buttock and left leg pain that was readily aggravated with weight bearing, walking, sitting and movements in the low mid back. The protracted course of trigger point injections had not resulted in any clinical improvement. The claimant was considered totally disabled from his former manual work as a grain elevator operator as well as sedentary work.

On February 29, 2000, the claimant was referred to a physiotherapist to instruct the claimant with a structured fitness/physical rehabilitation program, which would ease the transition back into the workplace.

On March 20, 2000, the claimant was advised that the WCB had considered him fit to return to employment. It arranged for the claimant to begin an 8 week return to work program May 1, 2000. Effective June 23, 2000, his benefits would end.

On April 30, 2000, an MRI of the pelvis was performed. The impression was "Asymmetric piriformis muscles with the left moderately smaller compared to the right. No muscle tear or perisciatic inflammation is seen."

In June 2000, a WCB physical medical and rehabilitation consultant was asked to review the case and comment on whether an asymmetric piriformis was disabling in any way and whether was it related to the compensable injury. The consultant responded by saying that the piriformis was either an incidental finding or related to disuse or deconditioning.

On June 9, 2000, an advocate acting on behalf of the employer, requested reconsideration of the WCB's decision to continue payment of wage loss benefits and services. A further appeal submission was submitted dated September 8, 2000 in this regard. On July 5, 2000, the claimant's union representative requested reconsideration of the WCB's decision that the claimant was capable of performing his pre-accident duties as of June 26, 2000. A further submission was later received dated October 2, 2000. The case was sent to Review Office to consider both appeals.

On October 13, 2000, Review Office determined that the claimant was not entitled to wage loss benefits beyond June 23, 2000. Given the history of accident, the exhaustive medical investigations undertaken, and the lack of an established diagnosis to link the claimant's ongoing complaints with the September 1, 1995 at work injury, Review Office believed that the evidence did not support the provision of further benefits and services.

Review Office further determined that the decision made to pay wage loss benefits to the worker from September 4, 1995 to June 23, 2000 was justified. Review Office noted that while the case management of the claim did not proceed as expeditiously as would have been preferred, it appreciated that the investigation and treatment of numerous possible diagnoses contributed substantially to the duration of the claim. Review Office concluded that the decision to terminate benefits on June 23, 2000 on the basis that the claimant had recovered from the effects of the compensable injury was reasonable given the medical evidence on file.

In November 2000, the employer's advocate and the claimant's union representative both appealed Review Office's decision of October 13, 2000 and an oral hearing was scheduled for April 5, 2001.

Following the April 5th hearing, the Panel met to discuss the case and it decided to convene a Medical Review Panel (MRP) under section 67(3) of the Workers Compensation Act (the Act). An MRP later took place on June 11, 2001 and the MRP report was distributed to the interested parties for comment. On July 24, 2001, the Panel met to discuss the case and took into consideration a final submission from the employer's advocate dated July 18, 2001.

Reasons

The WCB conducted a very thorough examination and investigation of the claimant's entitlement to ongoing benefits from September 4, 1995 to June 23, 2000 when it concluded that the claimant had recovered from the effects of his compensable injury. We find based on the weight of evidence that the claimant has indeed fully recovered from the effects of his compensable injury. In arriving at this conclusion, we attached considerable weight to several of the findings and conclusions reached by the Medical Review Panel of June 11th, 2001. In particular:

• "The Panelists agree that the most probable diagnosis of Mr. [the claimant's] injury sustained in September 1995 was a back strain.
• The Panelists can find no physical abnormality that would cause the worker's current condition.
• The Panelists were unable to establish any physical disability that would prevent his regular work on a full time basis.
• The Panelists are unable to discover evidence of an organic lesion which would have prevented Mr. [the claimant] from returning to his regular duties in June 2000.
• The Panelists agree that it is probable that the plan suggested by a Medical Advisor on March 20, 1996, was a reasonable and proper approach to the rehabilitation of this deconditioned man."

With respect to the claimant's issue, we further find that he is not entitled to wage loss benefits beyond June 23rd, 2000. And as to the employer's issue, we support and agree with the decision of the Review Office. "Review Office finds that it is not appropriate to deny responsibility for any period of wage loss benefits already paid. While the case management of the claim did not proceed as expeditiously as would have been preferred, Review Office appreciates that the investigation and treatment of numerous possible diagnoses contributed substantially to the duration of the claim." Accordingly, we are not predisposed to make any change to this decision.

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 23rd day of August, 2001