The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 18, 2000, at the request of legal counsel, acting on behalf of the claimant. Legal counsel was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claimant's current and ongoing back difficulties were unrelated to either his 1976 and/or 1977 compensable accidents. The Panel discussed the appeal on several occasions, the last one being on January 23, 2002.

Issue

Whether or not the claimant's current and ongoing back difficulties are related to either his 1976 and/or 1977 compensable accidents.

Decision

That the claimant's current and ongoing back difficulties are not related to either his 1976 and/or 1977 compensable accidents.

Decision: Unanimous

Background

The claimant filed compensation claims for injuries sustained at work in 1976 and 1977 and the following is a summary of medical information and other correspondence noted on each claim:

During the course of his employment at a steel foundry plant on July 2, 1976, the claimant was emptying a dust bin and fell into the tank. The claimant reported injuries to his left hip and the small area of his back as a result of the incident. Medical information on file revealed the following:

• a Doctor's First Report dated July 2, 1976, noted that the claimant was limping and had tenderness over the lateral aspect of the left hip. The diagnosis was a left hip injury.
  
  
• x-ray report of the left hip and pelvis dated July 2, 1976 was reported as being negative.
  
  
• progress reports dated July 7, 1976 and July 14, 1976, noted local tenderness in the area of L5. On July 20, 1976 tenderness was still noted at the L5 spine region. The physician indicated that the claimant could return to light duties as of July 26, 1976.
  
  
• a Doctor's Discharge Report dated July 28, 1976 noted "tenderness and pain over L4/L5 vertebral spines and paravertebral musculature practically gone."
  
  
• a progress report dated October 22, 1976 indicated that there was no muscle atrophy since the accident. The claimant had numbness lasting 5-10 seconds over the left paravertebral musculature at the L4-5 level occurring 3-4 times per week. There was no reduction in sensation and no hyperaesthesia.
  
  
• in a letter of August 6, 1991, a rheumatologist indicated that the claimant had a history of back pain since 1986 with not much in the way of structural change on x-ray or CT of the spine. The claimant did, however, have pain and had a problem with controlling the pain. It was felt that the claimant may have some fibrositis.
  
  
• According to a hospital discharge summary report dated December 13, 1991, the claimant was hospitalized between November 27, 1991 and December 9, 1991. The discharge diagnosis was severe low back pain and Percocet addiction.
  
  
• on January 19, 1992, an orthopaedic specialist reported that the claimant was diagnosed with ankylosing spondylitis some 4 or 5 years ago, however, following his evaluation of the claimant, the specialist concluded that the diagnosis of ankylosing spondylitis was not tenable. The specialist stated that he was going to treat the claimant's back condition as mechanical low back pain but at the present time the claimant was in remission and required no treatment.
  
  
• A CT scan of the lumbosacral spine dated May 27, 1992 identified no disc protrusion or evidence of spinal stenosis.
  
  
• on July 22, 1993, a second rheumatologist noted that the claimant's symptoms were quite atypical for ankylosing spondylitis or rheumatoid arthritis. Repeated blood tests did not indicate any active arthritis or inflammation.
  
  
• in a referral letter to a rehabilitation medicine specialist dated February 23, 1994, the attending physician concluded that he/she was unsure as to whether the claimant's back pain was related to inflammatory joint disease or was mechanical in nature.
  
  
• on March 8, 1994, the rehabilitation medicine specialist stated he was not completely certain whether the claimant's condition was inflammatory or mechanical back pain. In a further report dated March 23, 1994, the specialist reported the findings of a bone scan dated March 8, 1994, that showed some mild increased uptake in the right superior aspect of the L5 vertebral body consistent with early degenerative changes. "No other abnormalities consistent with spondyloarthropathy were shown."

During the course of his employment as a railway labourer on October 4, 1977, the claimant and seven other employees were unloading railway tracks when the crane operator shook the rail car causing the claimant to fall 10 feet to the ground landing on both feet. Medical information noted on file was as follows:

• a Doctor's First Report dated October 5, 1977, noted right foot tenderness at the instep and tenderness in the heel of the left foot. The diagnosis was bilateral foot strain.
  
  
• a progress report dated October 12, 1977 noted that the claimant's left foot was improving but the left heel was still quite tender.
  
  
• on October 26, 1977, an orthopaedic specialist reported that the claimant had local tenderness with no swelling. The claimant had residual pes planus valgus feet. Mild osteoarthritic changes were noted. The specialist diagnosed the claimant with a sprain of the left ankle.
  
  
• a Doctor's Discharge Report dated December 28, 1977 indicated that the claimant was able to resume work on November 14, 1977 and that the left heel symptoms were entirely resolved.

In 1996, the claimant contacted the Workers Compensation Board indicating that his ongoing back problems were related to his 1976 and/or 1977 claims. He stated that the worsening of his back pain in 1986 was not related to any new injuries or precipitating incidents.

In a letter by Claims Services dated May 23, 1996, the claimant was advised that in the opinion of Claims Services, the medical evidence did not support a cause and effect relationship between his current problems and the 1976 or 1977 injuries. The case was then forwarded to Review Office for consideration.

On June 24, 1996, Review Office requested that a WCB orthopaedic specialist review the 1976 and 1977 files and provide an opinion as to whether the claimant's current and ongoing back difficulties would be a consequence of either claim. In response to the request, the WCB orthopaedic specialist stated there was a lack of continuity of symptoms between the compensable injuries of 1976/1977 and the present.

In a decision dated June 28, 1996, Review Office indicated that the claimant completely recovered from the 1976 back injury and cited the comments noted in a discharge report which stated that tenderness in the back and over the paravertebral musculature was practically gone. Review Office indicated that no further reports were received until 1989 and that all of these reports indicate that the worker's back problems started again in a spontaneous fashion with no history of injury in 1986 and became progressively worse after this time. Review Office ultimately determined there was no compelling medical evidence to support the claimant's contention that his current and ongoing back difficulties were related to either claim, particularly noting that the 1977 accident involved the worker's feet and not his back.

On September 30, 1998, the claimant provided Review Office with medical reports dated October 15, 1997, January 19, 1998 and August 5, 1998. On October 9, 1998, Review Office advised the claimant that the new medical information did not alter its previous decision of July 8, 1996.

On May 16, 2000, the claimant's solicitor appealed Review Office's decision of June 1996 and an oral hearing was convened. Additional medical reports were submitted by the claimant ranging from December 21, 1987 through to August 5, 1998.

Following an oral hearing held on September 18, 2000, the Appeal Panel requested that additional information be obtained from three of the claimant's treating physicians. On December 20, 2000, all parties were provided with copies of the reports that were submitted by the three treating physicians and were asked to submit rebuttal arguments with respect to the new information.

On January 10, 2001, the Panel met again to discuss the case. It was unanimously agreed by the Panel that a Medical Review Panel (MRP) be convened under Section 67(3) of the Workers Compensation Act (the Act).

In preparations for the MRP it came to light that the claimant had incurred back injuries while employed in the Province of Ontario. On March 7, 2001, the Panel requested that copies of claim files be obtained from the Workplace Safety & Insurance Board in Ontario and then the Panel would once again meet to discuss the case.

On June 20, 2001, the Panel met further to discuss the case which now included two claims which were obtained from the Workplace Safety & Insurance Board regarding injuries that the claimant sustained on September 3, 1987 and August 28, 1990. After discussion, the Panel confirmed that arrangements for the MRP should proceed as previously indicated.

A MRP was held on October 25, 2001 and the MRP's report was forwarded to the interested parties for comment on November 27, 2001.

On December 6, 2001 legal counsel representing the claimant contacted the Appeal Commission to request additional time to prepare his final submission to the Panel. The Appeal Panel granted the request. On January 23, 2002 the Panel met further to discuss the case which included a final submission from the claimant's legal counsel dated January 11, 2002.

Reasons

After a great deal of further investigation and review of the claimant's file, the Appeal Panel has unanimously concluded that the claimant's current and ongoing back difficulties are not related to either his 1976 and/or his 1977 compensable accidents.

The difficulty with this case was that the claimant's initial injuries occurred approximately twenty-five years ago. Although medical information with respect to the two accidents is lacking, it is clear that the claimant remained off work with regard to the 1976 accident for about three weeks and was medically considered fit to return to work after that point. The claimant returned to see his doctor on October 22, 1976, almost three months after returning to work and no objective findings were noted. No further medical treatment was sought for this injury specifically.

With respect to the 1977 injury, which occurred on October 4, 1977, all medical treatment had ceased by December 28, 1977 at which time the claimant's treating physician specifically noted that his "heel symptoms" had entirely resolved. No mention was made of any other difficulties.

No further medical treatment was sought or complaints made by the claimant until approximately ten years later when on December 21, 1987 a physician noted that the claimant suffered from ankylosing spondylitis. At the hearing of this matter, the claimant reported to the Appeal Panel that the onset of severe back pain occurred earlier in December of 1986 and that it had occurred spontaneously and had developed gradually over the preceding couple of months. Medical reports dated October 8, 1987 and January 21, 1988 suggest that the back pain had been precipitated by heavy lifting in September of 1986 when the claimant was involved in moving equipment for a musical group with which he was then travelling. At the MRP interview, the claimant confirmed that he was working for a travelling band at that time and moving equipment. However, he denied that the equipment was in anyway heavy and stated that the equipment was on wheels when he moved it and that he had the assistance from other workers in moving it.

The MRP thoroughly reviewed all of the existing medical evidence on the claimant's file. They were of the unanimous opinion that the claimant was suffering from chronic mechanical low back pains and that his partial disablement was due to his perception of pain. These complaints of pain, in their opinion, might be masking an underlying depression. It was the confirmed opinion of the MRP that the claimant's current low back pain was not as a result of the accident which occurred in July 1976 or the accident which occurred in October 1977.

The Appeal Panel is in agreement with the findings of the MRP, particularly considering the medical evidence at the time of the accidents which clearly found the claimant fit to return to work and noted that he was completely recovered. We also note the claimant's own evidence that his back complaints started spontaneously in 1986 with no intervening problems between 1977 and 1986. No medical treatment was sought during this time. Finally, we also note that the nature of the employment that the claimant was engaged in at the time that his back began to hurt in 1986 was indeed heavy and physical and could have contributed to his back problems. Accordingly, we can find no compelling evidence that would support the claimant's contention that his current back difficulties are related to his 1976 and 1977 accidents.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of February, 2002