The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 12, 2002, at the claimant's request.

Issue

Whether or not the claimant's ongoing lower back complaints are related to the compensable injury of October 10, 1996.

Decision

That the claimant's ongoing lower back complaints are not related to the compensable injury of October 10, 1996.

Decision: Unanimous

Background

While employed as a stranding machine operator on October 10, 1996, the claimant sustained a compensable right sided lower back injury from lifting a take-up cradle from the floor to a horizontal position. The claimant was initially diagnosed with a muscular lumbar sprain injury and then myofascial pain syndrome of the right quadratus lumborum muscle. File information also revealed that the claimant had prior back problems for approximately 10 years. Following a course of physiotherapy treatment, a home program for myofascial pain, an ergonomic assessment of his work station and a graduated return to work program, the claimant returned to full duties in April 1997 with his accident employer.

In November 2001, the claimant contacted the Workers Compensation Board (WCB) requesting re-training (Graphic Design) as the physical aspects of his job functions had increased and he was experiencing recurring back pain. On December 18, 2001 a WCB adjudicator contacted the claimant by phone and the following information was obtained:

• within 6 months of returning to work after the 1996 claim, the claimant got a job on the tearing machine. This job was initially not as heavy as the stranding machine job but over the years it became worse. As the company has slowed down, the claimant did odd jobs such as painting and felt much better as a result. He still had back pain but was not as continuous as before.
  
  
• with respect to time loss, the claimant missed the odd day or two since the original injury and would go to a walk-in clinic for his back. As he is not paid for time loss he tried to work through the pain.
  
  
• the claimant saw his doctor on a regular basis and had mentioned his ongoing back difficulties to him but was afraid to mention it too often as the doctor had indicated that 'if you keep coming back I gotta pull you out'. The claimant advised that he had been with his employer for 23 years and was concerned about not being able to do his job even though his physiatrist had recommended it.
  
  
• the claimant felt that his difficulties are related to the original claim as the pain is in the same area and he feels the same type of pain.

In a letter dated January 16, 2002, the claimant's attending physician noted that the claimant returned to see him on September 24, 1997 regarding his left low back. Since the September 1997 visit the claimant had been seen 34 times in the office regarding varying problems and there were no notes in these records regarding complaints of back pain. The only investigation performed was a lumbar spine x-ray taken on December 12, 1996 (the impression read "mild lumbar spasm".) Since he had not seen the claimant regarding his back pain since 1997, the physician could not state what his current spinal condition was or how his current symptoms related to the original injury.

On February 12, 2002, primary adjudication wrote to the claimant to advise that updated medical information was obtained and was reviewed by a WCB healthcare advisor. "It is the WCB's opinion there is not a clear diagnosis currently and based on the available evidence there is no causal relationship between your current difficulties and the 1996 injury." On February 25, 2002, the claimant appealed the decision and the case was referred to Review Office.

On April 5, 2002, Review Office determined that the claimant's ongoing low back complaints were not related to the October 10, 1996 work injury. Review Office commented that since returning to work in April 1997 the attending doctor reported only seeing the claimant once for low back pain. When the doctor saw the claimant on September 27, 1997, his back pain was on the left side as opposed to the right-sided complaints which were associated with the October 10, 1996 accident at work.

Review Office took into consideration medical literature which suggested that muscular strain injuries, such as the worker suffered on October 10, 1996, resolve after reasonably short periods of time. In the claimant's case, he was off work slightly over 6 months. Review Office was of the opinion that the claimant's present complaints were more likely associated with his acknowledged long history of back problems than the muscular strain injury sustained in October 1996. In April 2002, the claimant appealed Review Office's decision and a non-oral file review was arranged.

On April 18, 2002, a letter from the claimant's attending physician indicated the following:

"Mr. [the claimant] suffers from chronic myofascial pain of the lumbar and thoracic spine. He has suffered from this at work for 5 years. I am writing this letter to certify that Mr. [the claimant] would be better off medically if he found an alternate occupation which was not so physically demanding on his back. I have advised Mr. [the claimant] that if he can find alternate employment without the heavy stresses on his back that this would be preferable and that if this means he must retrain for an alternate position, that this is advisable."

Reasons

This case involves a worker who injured his back in a workplace accident in October 1996, for which he received compensation benefits until he returned to his regular duties, on a full-time basis, in May 1997.

In November 2001, he requested that the board reactivate his claim, as he was now suffering considerable pain in his lower back. He attributed this back pain to his workplace accident. In particular, he felt that his employer had been remiss in not implementing the ergonomic changes to his workplace, which had been recommended by the board in 1997.

This claim for further benefits was denied by the board, which decision was upheld by Review Office. He then appealed to this commission.

For his appeal to succeed, the Panel would have to determine - on a balance of probabilities - that his current back problems are related to his workplace accident. We were unable to make that determination.

In coming to our decision, we made note of the following factors:

• In the normal course, the type of accident he suffered in 1996 - a muscular strain to the lumbar region - heals in a short time.
  
  
• After receiving physiotherapy treatment and participating in a graduated return to work program, he was able to return to his regular duties seven months after the injury.
  
  
• It is noted in the medical file that, prior to his injury, the claimant had a ten-year history of lower back pain.
  
  
• According to his doctor's records, between May 1997 to November 2001, the claimant complained about ongoing back pain on only one occasion: September 24, 1997.

This leads us to conclude that the claimant's back problems are not a result of his compensable injury.

We do not deny that the claimant is suffering from back problems. However, we are unable to establish a link between his current problems and his workplace accident.

Accordingly, the appeal 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 15th day of July, 2002