Public Decisions | The Appeal Commission

Decision #43/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 18, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on March 18, 2002.

Issue

Whether or not the claimant's low back problems are related to the compensable injury of March 16, 1985; and

Whether or not the claimant is entitled to benefits.

Decision

That the claimant's low back problems are not related to the compensable injury of March 16, 1985; and

That the claimant is not entitled to benefits.

Decision: Unanimous

Background

While employed as a chambermaid on March 16, 1985, the claimant was in the process of making beds when she pushed a bed and could not straighten up. The diagnosis rendered by the attending physician was an acute disc syndrome. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits commenced on March 17, 1985. Subsequent medical information and correspondence on file revealed the following:

on March 16, 1985, x-rays of the lumbar spine revealed "Multiple metallic densities are projected in the pelvis bilateral. The bones are mildly osteoporotic but no compression deformities are seen. There is no narrowing of the lumbar discs."
on April 15, 1985, a WCB medical officer reviewed the case and offered the opinion that the compensable injury as described could result in an acute lumbar disc syndrome.
an examination conducted by a WCB medical officer on May 14, 1985, indicated that the claimant suffered a right lumbosacral strain. Annular weakening could not be ruled out. Recommendations were made for the claimant to attend physiotherapy treatment and if her condition did not improve, an orthopaedic referral was suggested.
on August 20, 1985, an orthopaedic specialist provided the opinion that the claimant had obvious discogenic pain which now gave her some mechanical disorder. He believed that further treatment wasn't necessary and that the claimant would live with a certain degree of discomfort. In a subsequent progress report dated September 26, 1985, the specialist noted that the claimant was still having back discomfort and that this was mainly mechanical back pain.
following assessment of the claimant on November 12, 1985, a WCB orthopaedic consultant commented that the most likely diagnosis was a posterior bulge or protrusion at L5-S1 and that the claimant was disabled from any activity which would aggravate her present condition. An appointment was made for a neurosurgical consultation.
in a report dated January 17, 1986, the treating neurosurgeon stated that he agreed with the WCB's orthopedic consultant that the claimant's symptoms were possibly best explained by L5-S1 disc protrusion, however, subsequent to the accident, they had improved considerably. The specialist saw no reason why the claimant could not return to work.
on January 29, 1986, a WCB orthopaedic consultant outlined temporary restrictions for a 3 month period.
on February 21, 1986, the claimant was advised by WCB's Claims Services that in its opinion, she was not totally disabled as a result of her accident and that as of March 5, 1986, she would no longer be entitled to total disability benefits. The case would then be referred to the Rehabilitation Department for further handling and to continue payment of benefits.
in February 1986, a WCB Vocational Rehabilitation Consultant (VRC) interviewed the claimant. The VRC opined that the primary problem from a rehabilitation standpoint would be the claimant's almost total lack of transferable skills and that retraining would not be a viable option, particularly since her present restrictions were temporary. The VRC then referred the case to a re-employment specialist to facilitate a return to work within the claimant's present restrictions.
in a memo dated April 28, 1986, the VRC documented that the claimant had professed inability to carry out physically the requirements of her job search program. Her doctor, to some degree, supported the claimant in this regard. The VRC recommended extension of benefits pending receipt of a report from the attending physician.
between March 10, 1986 to May 1, 1986 the claimant failed to meet the basic minimum requirements of a job search program. In a letter dated May 7, 1986, the claimant was advised that rehabilitation benefits be extended to May 21, 1986 inclusive and final.
on July 24, 1996, the claimant wrote to the WCB stating that she had tried to work in the last few years, however, her back problem made it impossible for her to do so. The claimant related her worsening back condition to her compensable accident and requested WCB assistance.
on August 21, 1996, a sworn statement was obtained from the claimant in which she described her work activities since 1986 and the medical treatment that she received.
a report from a chiropractor dated August 23, 1996 indicated that the claimant initially attended for treatment on October 11, 1991 complaining that in March of 1985 she bent forward while working on a bed at work and experienced immediate pain across her lower back region and difficulty standing erect. The chiropractor commented that the ongoing present diagnosis was advanced degenerative disc disease with associated facet arthrosis and significant vertebral subluxation at the L4-L5 vertebral level. The chiropractor noted that the claimant's condition was progressing and the likelihood of central stenosis would ultimately have to be entertained.
in an August 26, 1996 report, a general practitioner indicated that the claimant was first seen for backache on July 9, 1993 at which time she had acute lower back pain with radiation down both buttocks to as far as both thighs. The diagnosis was lumbar disc disease. The physician indicated that he had treated the claimant almost on a monthly basis during 1995 and 6 times prior to 1996.
at the request of primary adjudication, a WCB medical advisor reviewed the case on September 24, 1996. The medical advisor indicated that the diagnosis associated with the compensable injury was LS disc herniation and that with this diagnosis, symptom resolution would be expected. With respect to a pre-existing condition, the medical advisor indicated there was no pre-existing condition initially but later was indicated in the chiropractor's letter. The medical advisor believed that the claimant was suffering from degenerative disc disease and not from the effects of the compensable injury.
on October 1, 1996, primary adjudication determined that the claimant's current disability was the result of an underlying or pre-existing condition, the progression of which had not been enhanced or accelerated by the accident at work. As a result, the claimant was advised that no further responsibility could be accepted for her ongoing difficulties.

On December 6, 1996, the case was considered by Review Office following receipt of an appeal from the claimant. Review Office determined that the claimant's more recent low back problems were not a direct result of the work related accident in March 1985 and that she was not therefore entitled to benefits in this regard.

Review Office was of the opinion that the file information did not confirm that the claimant suffered any significant disc or bone injury to the lower back as a result of the 1985 compensable accident. While there was speculation about a possible disc protrusion at L5-S1, this diagnosis had not been substantiated by either investigative procedures or predominant clinical findings. Recent medical evidence indicated that the claimant's chronic low back problems were more likely than not associated with a more advanced state of pre-existing degenerative disc disease. There was insufficient evidence to establish, on a balance of probabilities, that the advanced or severe degenerative disc disease had been a direct result of the claimant's March 1985 accident or that it had been significantly enhanced by reason of the earlier accident.

On January 10, 2002, legal counsel acting on behalf of the claimant, appealed Review Office's December 10, 1996 decision and an oral hearing was arranged.

Reasons

On March 16th, 1985, the claimant, who worked as a chambermaid, sustained a compensable injury when she bent over to make up a hotel bed and found that she could not straighten up. The injury was diagnosed as acute lumbar disc syndrome. The WCB continued to pay benefits to the claimant until May of 1986 when it was determined that her entitlement to discretionary rehabilitation benefits ceased. Approximately ten years later, the claimant appealed this decision.

The evidence reveals that the claimant was regularly employed from 1986 to 1994. During this period, she would work for approximately 6 months in each year and then collect unemployment insurance benefits.

X-rays of the claimant's lumbosacral spine were taken on March 16th, 1985. The results disclosed the following: "The bones are mildly osteoporotic but no compression deformities are seen. There is no narrowing of the lumbar discs." These findings are in sharp contrast to certain remarks that were recorded by the attending chiropractor in his letter to the WCB dated August 23rd, 1996. The chiropractor stated in part as follows:

After considering all of the evidence, we are satisfied that the claimant's low back difficulties diagnosed as advanced degenerative disc disease and facet arthrosis are not, on a balance of probabilities, causally related to her compensable injury. 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 16th day of April, 2002

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