The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 20, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 20, 2001.

Issue

Whether or not the worker's ongoing back problems are related to his compensable injuries of April 22 and May 13, 2000.

Decision

That the worker's ongoing back problems are related to his compensable injuries of April 22 and May 13, 2000.

Background

While employed as a drift miner on April 22, 2000, the claimant reported that he was working with a jackleg and when he reached to pull it back from the wall he felt pain in his lower back. Medical information noted that the claimant attended a hospital emergency facility for treatment as well as his attending physician. The diagnosis rendered was a lower back and SI (sacroiliac) joint sprain. The Workers Compensation Board (WCB) accepted the claim as a no time loss injury.

On May 13, 2000, the claimant was bending over to pick up a can of paint when he felt pain in his lower back "on the same side as last time". The claimant was of the view that his back pain was a recurrence of his April 22, 2000 injury.

When assessed on May 14, 2000, the attending physician noted that the claimant presented a normal neurological examination with decreased leg raising on both sides and tenderness of the left SI joint. The diagnosis rendered was a lumbosacral strain. Arrangements were made for the claimant to return to work at light duties and also to undergo a CT scan.

On September 23, 2000, the CT scan showed bilateral apophyseal joint osteoarthritis at the L4-5 level only. The L3-4 and L5-S1 levels were normal. The impression was minor degenerative changes of the lumbosacral spine.

A WCB medical advisor assessed the claimant on November 30, 2000, with regard to his ongoing lower back pain. Based on this assessment, it was felt that the claimant was suffering from a left sacroiliac joint strain or disruption that was settling. The claimant was encouraged to do pelvic stabilization exercises and was given the book entitled "Back to Basics" from the WCB. The medical advisor stated there would be little need for physiotherapy and that a sacroiliac corset would benefit the claimant's returning back to full duties on a gradual basis. On December 6, 2000, a WCB adjudicator spoke with the claimant regarding the medical advisor's assessment and the claimant agreed with the return to work plan.

In February 2001, the claimant notified the WCB that he was having further back pain. On February 19, 2001, the employer called the WCB to state that the claimant had voluntarily placed himself on modified duties as he was having pain and felt he couldn't continue to work underground. The claimant later advised a WCB adjudicator that his problems were a continuation of his old claim. He was adamant that no new injury had taken place.

A report was received from an orthopedic surgeon dated February 20, 2001. The specialist outlined his examination findings and noted that the claimant's x-rays were normal and that a CT scan did not show any disc herniation requiring surgery. The specialist diagnosed the claimant with a left sacroiliac joint injury, which he believed was keeping the claimant from doing his regular heavy work. Recommendations were for the claimant to attend physiotherapy and to attend a pain clinic for a possible sacroiliac joint injection.

On March 8, 2001, the claimant was informed that the WCB would not accept responsibility for his current lower back and SI joint problems. Reference was made to the WCB's examination of November 30, 2000 and the report prepared by the orthopaedic specialist dated February 21, 2001. The weight of evidence did not support a cause and effect relationship between the claimant's ongoing difficulties and the compensable accident of May 30, 2000 (sic).

A submission was received from a worker advisor dated March 15, 2001. The worker advisor asked Review Office to consider the relationship of the worker's ongoing time loss after February 20, 2001 to his compensable injuries of April 22 and May 13, 2000. The worker advisor was of the view that the claimant was eligible for vocational rehabilitation wage loss benefits and assistance beyond February 20, 2001. Review Office in turn referred the case back to primary adjudication as it was noted that the case manager's decision of March 8, 2001 related to the May 13, 2000 injury and did not refer to the compensable injury of April 2000. In a letter dated April 17, 2001, the case manager determined that there was no reason to change his previous decision as there was no new information to consider in either case.

On September 7, 2001, Review Office considered the worker advisor's appeal. Additional medical information on file included a report received from the treating orthopaedic surgeon dated June 1, 2001, a report from a physical medicine and rehabilitation specialist dated August 7, 2001 and the opinion expressed by a WCB orthopaedic consultant on September 5, 2001. A CT scan report was also on file with respect to the claimant's sacroiliac joints bilaterally. Review Office ultimately determined that the claimant's ongoing problems were not related to his compensable injuries of April and May 2000, but were primarily due to his pre-existing condition. In October 2001, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The claimant's work related injury was initially diagnosed as a left lumbosacral strain as well as a sacroiliac joint strain. A WCB medical advisor following an examination of the claimant on November 28th, 2000 also later confirmed this diagnosis. The medical advisor recorded several comments in his examination notes, which were of particular significance as well:

"On the basis of today's examination, Mr. [the claimant] is suffering from a left sacroiliac joint strain or disruption which is settling. Mr. [the claimant] would likely benefit from the use of a sacroiliac corset on his attempt to return to full duties. Mr. [the claimant] was likely fit enough with the corset to attempt a graduated return to full duties, if possible, starting at 4 hours per day for 2 weeks and then adding 2 hours per day per week until he is back at full duties." (Emphasis ours)

On the basis of this examination, it would appear that the claimant is still recovering and not yet back to the point where his pre-accident status has been restored. We note that the claimant did return to his regular work duties on December 23rd, 2000 through to January 5th, 2001. However, medical information received on file subsequent to this period confirms that the claimant's condition had not improved, but rather, that it had possibly become worse or had even become aggravated further. The claimant testified that when he returned to work in December he wore a corset as had been recommended by the WCB medical advisor.

Shortly after his attempting a return to work, the claimant's treating physician referred him to an orthopaedic specialist for an examination. The specialist assessed the claimant on February 20th, 2001 and reported as follows:

"This man had a left sacroiliac joint injury. He continues to be having pain from this. This is keeping him from doing his regular work. He has not tried physiotherapy yet. I am therefore sending him to [name], physiotherapist, in Thompson to try some exercises from physio. He will be sent to the Health Sciences Centre to consider a sacroiliac joint injection from the Pain Clinic. I would consider this claimant restricted from work beyond February 20, 2001 as an underground miner as a result of a back injury that he had on April 21, or May 13, 2000. This is the dominant cause of his present loss of time from work. Present diagnosis is sacroiliac joint injury, and this condition, on the balance of probability, is work related, based on his history."

In addition, a physical medicine and rehabilitation specialist also examined the claimant. He advised the claimant's worker advisor on August 31st, 2001:

"From the history and examination, it was my impression that Mr. [the claimant] had a combination of problems which were contributing to his pain problem. I felt there was some evidence of irritation of the left sacroiliac joint but I also felt the left quadratus lumborum and piriformis muscles were involved as well. I also felt that he had sprained the posterior spinal ligaments at L2-3 andL5-S1. The latter findings most probably accounted for the positive paper clip scratch test."

Also of significance was the claimant's testimony with respect to the area of his back (sacroiliac), which was treated by his physiotherapist.

Q. Was he manipulating your spine? Was he pushing it around?

A. Not my spine, my - in here.

Q. So kind of on your butt, kind of closer to your hip?

A. Yes, that's basically where your hip attaches to your spine. The joint is about this area right here. And with that, he did acupuncture and the other one he used was ultrasound. Basically, what it come down to is he said do - he give me four exercises to do and I did find it alleviated the numbing, stinging sensations that I was getting.

Q. Now what did he describe to you? Like, do you remember him saying to you what kind of problem you had?

A. Yes. He told me I have - I got damage to the sacroiliac joint, not damage but you got a joint injury. And he described the way the muscles work and this and that.

We find in accordance with the weight of evidence that the claimant's ongoing back problems are, on a balance of probabilities, related to his compensable injuries of April 22 and May 13, 2000. Therefore the worker's appeal is hereby allowed.

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 13th day of December, 2001