The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on November 21, 2001 at the request of the claimant's advocate. The Panel discussed this appeal on November 21 and November 26, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 13, 2001.

Decision

The Panel determined that the worker was entitled to wage loss benefits beyond June 13, 2001.

Background

In April 2001, the claimant filed a Worker's Report of Injury or Occupational Disease form for compensation benefits. He reported left side back pain which he attributed to his work as a truck driver. In his words:

"I have to drive 5 ton standard truck with a clutch and also am required to lift some cartons up to 75 lbs. When I use clutch I get a sharp pain in my back and down my leg. After lifting cartons I have a hard time straightening my back."

The Employer's Report of Injury dated April 30, 2001, suggested that no injury took place at work and that the claimant was laid off because of a corporate reorganization. The employer took the position that the claimant's back problems were not work related.

Through its discussions with the claimant and the employer, the Workers Compensation Board (WCB) gathered additional information concerning the claimant's specific work activities and prior back difficulties. The following medical reports were also obtained from the claimant's treating physicians:

• an x-ray report of the lumbosacral spine dated March 16, 2001 which revealed "small intervertebral osteophytes in the mid and lower lumbar spine compatible with early degenerative disc changes."
• A Doctor's First Report dated April 20, 2001 (date of exam was April 18, 2001) noting the worker's description of accident as "no specific injury, LBP (low back pain) x 8 months." The diagnosis rendered was possible disc herniation. A CT scan was ordered.
• the results of a CT scan dated May 24, 2001 which revealed mild diffuse disc bulging and some hypertrophy of the ligamentum flava related to degenerative facet changes at the L3-4 level. In the view of the radiologist, the findings combined to result in mild central canal stenosis. At the L4-5 level there was mild diffuse disc bulge. A small superimposed subtle central posterior disc protrusion was also suspected. There was hypertrophy of the ligamentum flava bilaterally related to degenerative facet changes. The findings combined to result in mid to moderate central canal stenosis. At the L5-S1 level there was a small central posterior disc prominence but no definite herniation or central canal or neural foraminal stenosis. There were also minor degenerative facet changes.
• a Doctor's First Report dated May 30, 2001. The physician noted the worker's description of accident as "pain since early Feb/01. No specific injury. Drives 8 - 10 hours/day x 10 years. Bouncing in seat." The diagnosis rendered was L/S osteoarthritis and degenerative disc disease and lumbosacral strain and L5 sciatica.
• a progress report from an examination on June 13, 2001 indicated that the claimant felt better and had no leg pain or sciatica except when driving. The claimant did experience occasional tingling to the dorsal aspect of the left foot. Objective findings showed "waist - ROM's full - non-tender. SLR (straight leg raising): L 45 degrees, right 60 degrees." The new diagnosis was mild to moderate spinal stenosis. The physician noted that the claimant was capable of modified work and should avoid prolonged driving.
• a progress report for an examination on July 23, 2001 noted ongoing pain to the claimant's left low back and no further sciatica. The physician indicated that range of motion was full but that there was tenderness in the left paralumbars and left flank. SLR was 60 degrees bilaterally. In a note dated July 23, 2001, the physician expressed the view that the patient would be incapacitated as a result of his injury until late August, 2001.

On July 26, 2001, the claimant was advised by the WCB that his claim was accepted following a determination that a pre-existing condition had been aggravated. The WCB ruled that the claimant was entitled to wage loss benefits from March 16, 2001 to March 23, 2001 and from April 7, 2001 to June 13, 2001 inclusive.

The initial decision by the WCB placed heavy emphasis on the treating physician's report of June 13, 2001 which presented the diagnosis of mild/moderate spinal stenosis and suggested that the claimant exhibited no leg pain or sciatica. The conclusion of the WCB was that the claimant had recovered from the effects of his compensable injury by June 13, 2001.

Shortly after the WCB decision, a further progress report was received from the attending physician from an examination on August 7, 2001. The physician observed that the claimant demonstrated no further pain or sciatica symptoms. The claimant had full range of motion; he was non tender with no spasms and SLR was 80 degrees bilaterally.

The claimant was also in receipt of physio-therapy treatments between April 12 and August 2, 2001. The Therapists' Case Summaries for the months of April through July suggest ongoing issues related to movement and pain. The claimant was discharged from these treatments in early August 2001. By that time, the Therapists' Case Summary indicated that the issues related to movement and to pain had been resolved.

An appeal submission dated August 14, 2001 was received from the claimant's advocate. The advocate referred to the various medical reports on file and referenced the medical certificate from the treating physician dated July 23, 2001 .The advocate noted the attending physician's comments that the claimant would be unable to return to work before late August of 2001 and that the claimant could have performed some light duties beginning in mid June. The advocate took the view that there were no such positions available to the claimant, who was a long distance truck driver. The advocate requested that the decision to end benefits be reversed and that the claimant receive full benefits retroactive to June 14, 2001.

Prior to considering the appeal, the Review Office sought the medical opinion of a WCB orthopaedic specialist. In response to questions posed by Review Office, the orthopaedic specialist stated the following:

• the claimant's symptoms were consistent with a simple low back strain or temporary aggravation of a pre-existing condition.
• the pre-existing condition was degenerative disc disease at multilevels as well as posterior facet arthritis at mutilevels.
• the pre-existing condition was aggravated by the worker's job duties and was not enhanced.
• ongoing symptomatology would be attributed to the pre-existing disc disease and osteoarthritis.
• the claimant was recovered from the compensable condition by June 13, 2001. The consultant noted that the claimant was advised by his attending physician at that time to return to work activity but avoid prolonged driving. In the consultants' view, this was not contraindicated.

In a decision of August 24, 2001, the Review Office held that the claimant was not entitled to wage loss benefits beyond June 13, 2001. The Review Office took into account the WCB policy on pre-existing conditions (44.10.20.10) when making its decision.

The Review Office was of the opinion that the claimant was capable of performing his duties as a truck driver after June 13, 2001. The decision was based on the opinion of the WCB orthopaedic consultant that:

1. the claimant had recovered from the effects of the compensable injury;
2. ongoing complaints were related to the claimants' pre-existing condition; and,
3. the advice to avoid prolonged driving, was not contraindicated.

In addition, the Review Office noted the advice of the attending physician on June 13, 2001, that the claimant could perform any work but should avoid prolonged driving. From the perspective of the Review Office, the information on file did not indicate that the claimant's duties involved prolonged driving.

On October 1, 2001, the claimant's advocate appealed the Review Office's decision of August 24th and requested an oral hearing.

The hearing took place on November 21, 2001 with the claimant appearing in person along with his advocate. The employer's representative did not attend although he had indicated an intention to do so. The representative was contacted prior to the hearing's start and consented to it proceeding in his absence.

Reasons

In making our decision, the Panel made reference to subsection 4(1) and 39(2) of The Workers Compensation Act and to the Board's policy regarding pre-existing conditions (44.10.20.10). The Panel's decision was based upon a review of all material and submissions. However, particular emphasis was placed upon the medical reports of the attending physician dated June 13, 2001, July 23, 2001, and August 7, 2001, the opinion of the WCB orthopaedic specialist dated August 23, 2001, and the Therapists' Case Summary covering the period between June 15, 2001 and August 2, 2001.

Following a review of the evidence, the Panel concluded that the claimant was still not fully recovered from the compensable injuries relating to the aggravation of his pre-existing condition by June 13th, 2001. In particular, the attending physician's report dated July 23, 2001 coupled with the Therapists' Case Summary for July suggest a SLR (straight leg raising) of 60 degrees bilaterally as well as ongoing issues in terms of tenderness, pain, and movement which were related to the claimant's workplace injuries.

Based upon our review of the attending physician's report dated August 7, 2001 as well as the Therapists' Case Summary, the Panel is satisfied that the aggravation of the pre-existing condition was not contributing in any material degree to a loss of earning capacity by August 7, 2001. By that time, straight leg raising was 80 degrees bilaterally and issues related to movement and pain were resolved.

While the workplace injury was still materially contributing to the claimant's loss of earning capacity as of June 13, 2001, the Panel notes the attending physician suggested the claimant was capable of performing modified duties as of this date. The Panel also notes that according to the claimant's evidence he was looking for full time non-driving job opportunities during the June - August 2001 period.

The worker's appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of December, 2001