The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 3, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to benefits beyond May 18, 2000; and

Whether or not a Medical Review Panel should be convened under subsection 67 (4) of the Workers Compensation Act.

Decision

That the worker is not entitled to benefits beyond May 18, 2000; and

That a Medical Review Panel should not be convened under subsection 67 (4) of the Workers Compensation Act.

Decision: Unanimous

Background

On February 24, 1999, the claimant reported lower back pain with radiation into the left leg when she tried to move an OR (operating room) bed on February 24, 1999, while employed as a nursing assistant. The diagnosis rendered by the attending chiropractor was a lumbosacral sprain/strain complicated by lumbar scoliosis. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly. On March 19, 1999, the chiropractor reported that the claimant's condition was progressing well and that no further action would be undertaken.

Subsequent file records showed that the claimant sought medical attention from a general practitioner due to ongoing back difficulties and a referral was made for physiotherapy treatment. On April 1, 1999, the general practitioner reported that the claimant was nearly pain free and was better with physiotherapy. On April 6, 1999, the physician diagnosed the claimant with a musculoligamentous strain of the lumbosacral paraspinals and a graduated return to work program was suggested.

A hospital emergency report showed that the claimant was assessed on April 17, 1999 with a history of sciatica over the previous few days with an increase in pain after a shift at work. There was no specific injury. The diagnosis was mechanical low back pain. The claimant was instructed to continue with physiotherapy and medication and to work light duties between April 17, 1999 and April 25, 1999.

On June 2, 1999, primary adjudication advised the claimant that her return to work program would run a period of six weeks and would end on July 3, 1999. WCB benefits would therefore be paid to July 3, 1999 inclusive and final.

Up-dated progress reports were received from the attending physician and treating physiotherapist. On June 22, 1999, the attending physician indicated that the claimant was doing generally well and felt "wonderful". The claimant had no problem working and displayed a normal range of motion and function. The claimant was instructed to continue with her graduated return to work program and to return to regular duties by July 5, 1999.

On March 28, 2000, the claimant contacted the WCB stating that she completed the back to work program in July 1999 but still had back pain and left leg discomfort. The claimant advised that the pain was tolerable and that she continued to do her exercises and perform her pre-accident job duties. The claimant indicated there were no new accidents, just a gradual increase in pain. The claimant did not lose time from work but was requesting WCB assistance associated with physiotherapy costs.

A WCB medical advisor reviewed the case on April 12, 2000. The medical advisor was of the opinion that a cause and effect relationship existed between the claimant's ongoing symptoms and the compensable injury and that therapy was appropriate.

In December 2000, the claimant again contacted the WCB. The claimant indicated that she moved to Ontario and was seeing a doctor who advised her to look into a different line of work as she was unable to lift anything heavier than a book. The claimant asked whether or not the WCB would pay for retraining. The claimant was off work as a home care attendant.

On January 7, 2001, a WCB medical advisor reviewed the case which included an x-ray report of the lumbosacral spine dated November 15, 2000. In response to questions posed by primary adjudication, the medical advisor commented as follows:

• the November 15th x-rays showed multi-level disc disease. The February 1999 compensable injury was a mechanical injury. The claimant's current symptoms were likely related to an aggravation of the underlying condition as opposed to the February 1999 compensable injury.

On January 8, 2001, the claimant was advised by primary adjudication that after consulting with the WCB's healthcare advisors, it was the WCB's opinion that she had recovered from the effects of her February 24, 1999 work injury and that her ongoing difficulties were related to the degenerative findings noted on the x-ray reports.

On February 23, 2001, a worker advisor appealed the above decision and made reference to a medical report dated December 22, 2000. The worker advisor contended that this report confirmed that the claimant had not recovered from the effects of her work related injury and that she was entitled to full benefits effective November 14, 2000. In the event that no change would be made to the WCB's decision, the worker advisor requested the convening of a Medical Review Panel (MRP) based on a difference in medical opinion.

In a March 15, 2001 response to the worker advisor's request, primary adjudication noted that following review of the submitted medical information with a WCB medical advisor, no change would be made to the decision of January 8, 2001.

With respect to the convening of a Medical Review Panel, a WCB manager wrote to the worker advisor on May 8, 2001. The manager indicated that she reviewed two medical reports from the attending physician dated December 22, 2000 and March 15, 2001. In the December report, "Dr. [name] presents that the claimant has 'mechanical low back pain as a result of repetitive microtrauma following the injuryand mild multi-level degenerative disc disease.is now suffering from accelerated wear and tearof her lumbar spine.' The balance of his report provides an outline of symptoms from his functional exam of the claimant. In Dr. [name] March 15, 2001 report, he again presents that the claimant suffers from the 'effects of severe repetitive micro-trauma/overuse injuries.' Our Health Care consultant provided the same opinion."

The manager noted that the case manager decided that almost 2 years post injury, the claimant's work related aggravation of the pre-existing disc disease and microtrauma would have resolved. The claimant's current symptoms, were likely all related to these pre-existing conditions. The manager concluded that there was no basis to reconsider the previous decision of January 8, 2001 and no differing medical opinion to base the convening of a MRP.

On May 11, 2001, the case was considered by Review Office and the following determinations were made:

That there was no entitlement to further compensation benefits beyond May 18, 2000.

Review Office noted that the claimant had been examined on many occasions by different physicians and a second course of physiotherapy concluded on May 18, 2000. There was no new medical information provided to the WCB to indicate that the claimant's recent time loss and need for treatment was by reason of the original accident/injury diagnosed as a lumbar sprain. Review Office found that the evidence supported on a balance of probabilities, that the claimant had recovered from the physical effects of her compensable back injury of February 24, 1999.

That there will be no convening of a Medical Review Panel.

Review Office noted that the claimant's current physician and the WCB's medical advisor, had acknowledged that the claimant's problems were a result of mechanical low back pain as a result of repetitive microtrauma following the injury, and mild multi-level degenerative disc disease. Review Office concluded that there was no difference of medical opinion with respect to a medical matter that was required under Section 67(4) of the Workers Compensation Act and no basis to convene a MRP.

On February 6, 2002, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

This case involves a hospital worker, who suffered a sprain/strain to the lumbosacral region of her back. Her claim for compensation was accepted and benefits were paid.

Within a few months, she was, by her own admission, feeling "wonderful" and her doctor advised there was no need for her to remain off work. About thirteen months after the original injury, she suffered a recurrence. Initially, her doctor felt she was able to continue working. After her symptoms had persisted for a week or so, she sought further physiotherapy treatment. The board agreed and a program of treatment was commenced. It ended on May 18, 2000.

The adjudicator determined that she was not entitled to any benefits beyond that date, which decision was upheld, upon appeal, by the Review Office. She has further appealed to this Commission.

There were two issues before the Panel: whether or not benefits should be extended beyond May 18, 2000, and whether or not a Medical Review Panel should be convened to consider her case.

For her appeal to be successful on the first issue, the Panel would have to determine that she continued to have a loss of earning capacity, owing to her workplace injury, beyond that date. We were not able to come to that conclusion. To succeed on the second, we would have to find that her case met the criteria set out in section 67(4) of The Workers Compensation Act (the Act). We found that the criteria were not met.

Should benefits be extended beyond May 18, 2000?

Between the time of her original injury in February 1999 and June 1999, the claimant returned to work and had subsequent exacerbation of her symptoms on a couple of occasions. By the beginning of July, she was able to return to her regular duties. From then until March 2000, she continued to work at her regular duties. Then, as noted above, she suffered another exacerbation and received further benefits until May 18, 2000.

We note, from the file, that the claimant did have a history of back problems, including some congenital deformities, which pre-dated her injury of February 1999.

In December 2000, the claimant contacted the board seeking vocational retraining benefits, as, in her opinion, she was no longer able to work as a hospital worker due to her workplace injury. In considering that request, a board medical advisor noted that a recent x-ray showed multi-level disc disease; and that the claimant's compensable injury had been a mechanical injury. She offered the opinion that the claimant's current symptoms likely represented an aggravation of degenerative disc disease and not of the workplace injury. This opinion was re-affirmed in a second review of the file conducted in March 2001.

We have placed considerable weight on this medical opinion, especially when added to previous medical reports which had indicated that the claimant had recovered from the effects of the injury.

We also note that the claimant moved to Ontario in mid-2000 and in October started to work as a home care worker. Shortly thereafter, she suffered another injury to her lower back. While one doctor describes this as an exacerbation of her February 1999 injury, we view it as a discrete event. Given the length of time from the original injury, a relatively minor mechanical back injury, which had been reported to be healed, we conclude that the October 2000 injury was a new injury, not related to the compensable injury under consideration in this claim. (While the October 2000 injury may be compensable, that would be the responsibility of the compensation program of the Province of Ontario.)

Given the foregoing, we find that the preponderance of evidence supports a conclusion that, by May 18, 2000, the claimant had recovered from the effects of her compensable injury of February 1999. We further find that she did not incur a loss of earning capacity beyond that date, as a result of this injury.

Therefore, the appeal on this issue is dismissed.

Should a Medical Review Panel be convened?

The claimant also asked that her matter be referred to a Medical Review Panel for further examination.

For this to occur, the Panel would have to find that her case met the criteria set out in section 67 of The Workers Compensation Act (the Act). Subsection 67(4) reads as follows:

Reference to panel on request
67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Subsection 67(1) defines "opinion" as meaning a full statement of the facts and reasons supporting a medical conclusion.

Upon reviewing the respective medical positions on file, we find little differences in the opinions expressed. We note, as did the Review Office, that the claimant currently suffers from mechanical low back pain, which has resulted from repetitive micro-traumas, including but not limited to the injury of February 1999. Both agree that she has congenital back problems, which contribute to her problems, and that she has mild multi-level degenerative disc disease.

We have concluded that the test required by section 67 of the Act has not been met. Therefore, we shall not refer the matter to a Medical Review Panel.

Accordingly, the appeal on this issue is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of April, 2002