The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 24, 2001, at the request of the worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 24, 2001.

Issue

Whether or not the worker is entitled to payment of wage loss benefits and medical treatment beyond September 28, 1998.

Decision

That the worker is not entitled to payment of wage loss benefits and medical treatment beyond September 28, 1998.

Background

While employed as a long haul truck driver on July 17, 1998, the claimant struck a large pot hole that threw him into the roof of his truck and then back down into his seat. The claimant reported that he experienced a sore neck when turning, lower back pains, pain behind his left eye, headache and blurred vision as a result of the incident.

On July 19, 1998, the claimant attended a hospital emergency room for treatment. The claimant exhibited tenderness in his right trapezius, range of motion was restricted secondary to pain, there was no lumbosacral tenderness and neurological examination was normal. The diagnosis rendered was a muscular strain.

The claimant attended his family physician for treatment on July 21, 1998. The claimant was diagnosed with a muscle strain to the neck along with right sacroilitis.

On July 31, 1998, the claimant attended a second physician for treatment. His diagnosis of the claimant's condition was a sprain to the cervical and lumbar spine. Recommendations were made for the claimant to stay off work for two weeks due to headaches and that it was unsafe for him to drive. A referral was also made for the claimant to attend physiotherapy treatments.

On August 25, 1998, a Workers Compensation Board (WCB) medical advisor examined the claimant to assess his present status as it was felt that the diagnosis was unclear. The medical advisor indicated that the claimant had a minor and likely insignificant arrythmia abberation. He further stated that if the claimant did sustain blunt trauma to his head the sequela had completely resolved. Any neck strain that the claimant may have had was not apparent. The medical advisor commented that the claimant likely had sustained some very vague right paralumbar muscle spinal strain at the time of his injury and that this had all but resolved. There were very vague signs of possible mild right sacroiliac pain but this would be considered a pre-existing condition. The medical advisor was of the view that the alleged accident may have produced a very mild aggravation of the claimant's pre-existing right sacroilitis. He recommended in part that the claimant return to work immediately and that the claimant continue with physiotherapy treatment for two more weeks.

In a progress report of August 28, 1998, the attending physician noted that the claimant could only drive 2 hours before he felt numbness in his right buttock and could only lift 40 pounds. The physician indicated that the claimant should remain off work for 2 weeks unless he was able to return to work with the restrictions of lifting less than 50 lbs. and the ability to take breaks every 2 hours during driving.

In a letter dated September 4, 1998, another physician advised that the claimant took a trip to Russell, Manitoba and during the drive he complained of numbness in the right leg down into the foot region. It appeared that he had sciatica. Examination revealed that straight leg raising was normal and reflexes of the knee and ankle joints were equal on both sides and reactive. In view of parathesias and numbness of the right leg the claimant was referred to a neurologist.

On September 21, 1998, the WCB advised the claimant that based on the weight of evidence it determined he had essentially recovered from his work place injury and that wage loss benefits would end on September 28, 1998 or a return to work if earlier.

In a letter dated September 23, 1998, the claimant indicated that his return to work date was set for September 11th and on September 3rd he told his therapist that he was going to Russell, MB for the long weekend to visit relatives. The therapist told him that this was a good idea as he would be able to see what his limits were with regards to long distance driving. The claimant stated that after 2 hours of driving his SI joint became painful and that pain started down into his right buttock's area and into his right leg. After 10 to 15 minutes, he lost all feeling in his right leg. The claimant said that he pulled over and stretched for 20 to 30 minutes. Upon resuming his drive he was only able to drive for an hour before the pain began again.

Subsequent file documentation contained a CT scan of the lumbosacral spine dated October 19, 1998. The report revealed a small central disc herniation at the L5-S1 level without definite evidence of spinal stenosis or focal nerve root compression.

A report dated October 28, 1998 was received from the neurologist who had examined the claimant on October 5, 1998. The report contained details of the July 1998 accident and the problems that the claimant experienced on his way to Russell, Manitoba. Following examination, the neurologist commented, in part,

"Though clinically I could not find any neurological defect, evidence of disability or disorder due to nerve root lesion, I stated that it was possible that by sitting in the truck for a long time, he may be developing a mild compressive neuropathy - so called sciatic notch or piriformis syndrome."

In March and April 1999, a worker advisor acting on behalf of the claimant, submitted additional medical reports for the WCB to consider in connection with its decision to terminate the claimant's benefits. The reports were dated February 25, 1999, March 15, 1999, and April 8, 1999.

In a letter dated April 27, 1999, a WCB adjudicator informed the worker advisor that no change would be made to the decision of September 21, 1998. The adjudicator based her decision, in part, on the comments that were made by a WCB medical advisor, who advised there were no objective findings to support the claimant's inability to work as a truck driver beyond September 28, 1998, as well as the following comments that were made by a rehabilitation and medicine specialist in his report of April 8, 1999:

"On a balance of probabilities, it appears that the claimant's disc herniation occurred around the time of the onset of his symptoms in September of 1998. The absence of a mechanism of injury does not negate this conclusion as often time disc herniations can occur spontaneously or with minimal provocation. While it is possible that the disc herniation occurred on July 17, 1998, it is improbable as the mechanism is unusual in the onset of buttock, thigh and leg symptoms occurred remote from this incident."

On July 20, 2000, the worker advisor disagreed with the decision reached on April 27, 1999 and the case was referred to Review Office. Prior to considering the appeal, Review Office obtained the opinion of a WCB orthopaedic consultant on August 10, 1999.

In an August 11, 1999 decision, Review Office determined that the claimant was not entitled to payment of wage loss benefits or coverage for medical treatment after September 28, 1998. Review Office was of the view, based on lack of objective findings and repeated normal neurological examinations, that there was no clinical evidence to support the claimant's continuing disability after September 28, 1998 was in any way related to the effects of the workplace accident of July 17, 1998. In the opinion of Review Office, the claimant was capable of performing his pre-accident duties as a long haul driver. On March 22, 2001, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant sustained a compensable injury to both his back and neck, which was initially diagnosed as muscular strain. A second treating physician subsequently changed this diagnosis to a sprain to the cervical and lumbar spine. A WCB medical advisor considered the diagnosis was unclear and so he arranged for a call-in examination of the claimant. Prior to this examination, the WCB received a communication from the claimant's physiotherapist wherein he stated, in part, as follows: "Dear Dr. [the second treating physician], your patient's cervical sprain is near resolution. He is still having some problems with the lumbar spine although is continually improving."

The claimant was examined at the WCB on August 25th, 1998. In his examination notes, the medical advisor noted: "Any neck strain that he might have had was also not apparent" and "The claimant likely had sustained some very vague right paralumbar muscle spinal strain at the time of his injury but this had all but resolved at the time of examination." All indications were suggestive of the claimant's returning to work in the early part of September. However, while driving to visit with relatives, the claimant developed numbness in his right leg down into the foot region. The claimant contends that his increase of symptoms as well as his increased impairment following this driving incident was directly related to the July 17th, 1998 workplace accident. A CT scan of the lumbosacral spine taken on October 16th, 1998 further revealed "a small central disc herniation without definite evidence of spinal stenosis or focal nerve root compression."

In support for his entitlement to further benefits, the claimant relies on WCB policy 44.10.80.40. The general information section states: "This policy applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury." According to the policy portion, "a further injury occurring subsequent to a compensable injury is compensable: where the cause of the further injury is predominantly attributable to the compensable injury."

After thoroughly reviewing the evidence, we find that there is absolutely no connection between the September 1998 driving incident and the original compensable injury of June 1998. The events are just too remote. We further find that the original injury did not, on a balance of probabilities, result in the claimant's disc herniation. In arriving at these conclusions, we attached considerable weight to the opinion expressed by the physical medicine and rehabilitation specialist in his medical report of April 8th, 1999 to the claimant's worker advisor. In that report, he states as follows:

"On a balance of probabilities, it appears that the claimant's disc herniation occurred around the time of the onset of his symptoms in September of 1998. The absence of a mechanism of injury does not negate this conclusion as often time disc herniations can occur spontaneously or with minimal provocation. While it is possible that the disc herniation occurred on July 17th, 1998, it is improbable as the mechanism is unusual in the onset of buttock, thigh and leg symptoms occurred remote from this incident."

In conclusion, the worker is not entitled to payment of wage loss benefits and medical treatment beyond September 28th, 1998. Accordingly, the claimant's appeal is hereby dismissed.

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 30th day of August, 2001