The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 25, 2001, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being April 8, 2002.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond April 19, 2000.

Decision

That the claimant is entitled to wage loss benefits beyond April 19, 2000.

Decision: Unanimous

Background

On April 12, 1999, the claimant injured her back and right hip when she tried to help a resident from falling off her chair. The initial diagnosis reported by the attending chiropractor was a right sacro-iliac sprain. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits commenced on April 19, 1999. Subsequent medical information and correspondence on file revealed the following:

• x-ray report of May 14, 1999 showed narrowing of the L4-5 disc. There was minor marginal osteophyte formation. There were relatively mild osteoarthritic changes in the facet joints.
  
  
• on May 28, 1999, a second chiropractor diagnosed the claimant with chronic lumbar disc syndrome.
  
  
• on May 28, 1999, a general practitioner diagnosed the claimant with mechanical low back pain (acute muscle strain paralumbar left).
  
  
• a second physician stated on June 15, 1999 that the claimant had L3-4-5 disc prolapse or nerve impingement and a CT scan had been arranged.
  
  
• a CT scan report of the lumbosacral spine dated June 23, 1999 revealed some narrowing of the L4-5 disc. At the L3-4 level there was broad but a relatively shallow disc protrusion. At the L4-5 level there was a shallow broad posterior disc protrusion which may just encounter the exiting L-5 roots. At the L5-S1 level there was a broad but shallow posterior disc protrusion which may just encounter the exiting S1 nerve root.
  
  
• on August 11, 1999, a physical medicine and rehabilitation specialist was of the impression that "Clinically and neuroradiologically, Mrs. [the claimant] has L4-L5 and L5-S1 disc herniation with radiculitis.
  
  
• the claimant was assessed by a WCB medical advisor on August 26, 1999. The medical advisor commented that an MRI scan would help to confirm or rule out any disc involvement.
  
  
• an MRI of the lumbar spine revealed "desiccation of the intervertebral disc at L4-5. There is no evidence of disc herniation, spinal stenosis or nerve root compression at any of the imaged levels. No other significant abnormality is seen."
  
  
• on October 14, 1999, an orthopedic specialist noted that the claimant's medical status appeared to be purely mechanical lumbar back pain. The claimant likely injured one of her discs and has mechanical back pain and intermittent facet joint pain. It was important for the claimant to push on and to work on flexibility, conditioning, strengthening and endurance activities and was unfit for work.
  
  
• in letter dated February 23, 2000, the claimant was informed by primary adjudication that her case had been reviewed by a WCB medical advisor. It was the WCB's opinion that the claimant was no longer suffering from the effects of the compensable accident of April 12, 1999 and that any ongoing disability would likely be related to degenerative disc disease. Wage loss benefits would be paid to February 29, 2000, or the date which the claimant returned to work, whichever was earlier.
  
  
• on April 26, 2000, a worker advisor requested reconsideration of the February 23, 2000 decision based on additional medical reports dated March 26, 2000, April 5, 2000 and April 6, 2000. The worker advisor believed that these reports supported the position that the claimant had not recovered from the effects of her April 12, 1999 accident.
  
  
• in a decision dated June 23, 2000, Review Office determined that the claimant remained disabled as a result of the accident and was entitled to benefits beyond February 29, 2000, based on an opinion which was expressed by a WCB orthopaedic consultant to Review Office. Review Office stated, in part, "the diagnosis following the compensable injury of April 12, 1999, the diagnosis was discogenic back pain and mechanical low back pain. However, the claimant had pre-existing degenerative disc disease at L4-5 with multi-level osteoarthritis of the posterior facets. It was also the opinion of this consultant that the degenerative disc disease and multi-level osteoarthritis may be contributing to her slow recovery from the compensable injury."
  
  
• a report was received from a second orthopaedic specialist dated April 26, 2000 (date of exam was April 19, 2000) stating that two sets of CT scans, an MRI and x-rays had been reviewed. There was evidence of desiccation of the intervertebral disc at L4-5, otherwise the MRI was normal. The CT scans do not show any impingement of any nerve roots. There did appear to be some evidence of degenerative changes on x-ray. The specialist noted the claimant had leg symptoms that were not explained by the findings on the MRI or CT scan or x-ray. Her back pain may be discogenic in nature and was not amiable to surgery.
  
  
• on August 28, 2000, primary adjudication determined that the claimant was no longer eligible to receive benefits after April 19, 2000 based on the opinion expressed by a WCB medical advisor. It was the medical advisor's opinion that the specialist's report of April 26, 2000 provided no medical evidence to support that the claimant was incapable of returning to her pre-accident duties insofar as the compensable injury was concerned on a balance of probabilities. "In his opinion the compensable injury likely aggravated the pre-existing condition, but at this point any ongoing problems would be related entirely to your pre-existing condition."
  
  
• on September 15, 2000, a worker advisor requested the convening of a Medical Review Panel (MRP) in accordance with Section 67(4) of The Workers Compensation Act (the Act). The worker advisor contended that there was a clear difference in medical opinion between the claimant's attending physicians and WCB's physicians as to the relationship of the claimant's ongoing low back and leg condition with the April 12, 1999 compensable injury. The worker advisor's request for an MRP was granted on November 14, 2000 and an MRP took place on March 2, 2001.
  
  
• in a letter to primary adjudication dated May 4, 2001, the worker advisor contended that the MRP report supported the position that the claimant had not recovered from the effects of her April 12, 1999 compensable injury and that the WCB was responsible for payment of wage loss and medical expenses beyond February 29, 2000.
  
  
• in a May 10, 2001 response, primary adjudication informed the worker advisor that based on the MRP results, it was unable to change its decision of August 28, 2000. Primary adjudication stated, in part, "The MRP confirmed that the most probable diagnosis from the 1999 incident was low back strain. It would be our opinion, that 2 years post incident should be ample time to recover from this strain. In addition, there continues to be no objective findings resulting from the original accident, and no restrictions can be related back to the 1999 accident." On June 14, 2001, an advocate for the claimant appealed this decision to Review Office.

On July 6, 2001, Review Office stated that the medical evidence established the injury sustained by the claimant was a simple low back strain and that recovery from such injuries generally occur in 8 to 12 weeks. The only suggested link between the April 12th accident and the claimant's ongoing complaints of permanent, incapacitating low back pain was her persistent complaints. Review Office noted that the MRP panelists reported that there was a total absence of any objective medical findings to support the claimant's ongoing contention of disability and did not recommend any further treatment. Review Office believed that the claimant had long since recovered from the effects of the low back strain sustained on April 12, 1999 and was not entitled to wage loss benefits beyond April 19, 2000. On July 16, 2001, the claimant's advocate appealed Review Office's decision and an oral hearing was held on October 25, 2001.

Following the hearing and discussion of the case, the Appeal Panel requested that arrangements be made for the claimant to be assessed at the Institute for Low Back and Neck Care and the Sister Kenny Institute, prior to discussing the case further. The assessment reports dated February 25th and February 27, 2002 were distributed to the parties with a direct interest for comment. On April 5 and 8, 2002, the Panel met to discuss the case and considered a submission from the claimant's advocate which was received at the Appeal Commission on March 31, 2002.

Reasons

The claimant in her evidence described persistent back pain since her injury that had not resolved despite numerous medical interventions. We found the claimant to be an extremely credible and forthright witness. For these reasons, we decided to have the claimant examined externally. Based on the recent medical and psychological assessments carried out by the Institute for Low Back and Neck Care and the Sister Kenny Institute, we note that the claimant presented with a diagnosis of chronic pain syndrome. We find that this condition is, on a balance of probabilities, a sequela of her compensable injury of April 12th, 1999. Accordingly, the claimant is therefore entitled to the payment of wage loss benefits beyond April 19, 2000.

We note the claimant was found on assessment to be a suitable candidate for sponsorship into a chronic pain rehabilitation program. It is our strong recommendation that the claimant be introduced into such a treatment program.

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 May, 2002