The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 11, 2002, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being October 2, 2002.

Issue

Whether or not the worker’s ongoing low back problems are related to the workplace injury of November 10, 2000.

Decision

That the worker’s ongoing low back problems are not related to the workplace injury of November 10, 2000.

Decision: Unanimous

Background

While employed as a refrigeration mechanic on November 10, 2000, the claimant reported injuries to left rotator cuff, right shoulder, neck (both sides) and upper back when the following event occurred, “Climbing ladder (permanently attached to bldg.) and hand slipped off of icy top rung. Fell 12’ to concrete & landed on feet, rolled & fell by grabbing rungs & hurt left shoulder but did not break anything.” When seen at a local hospital on November 10, 2000, the claimant was diagnosed with a contusion to the right posterior thorax. The diagnosis rendered by the attending physician on November 12, 2000, was a soft tissue injury to both shoulders and right foot. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On December 14, 2000, a WCB adjudicator spoke to the treating physiotherapist. The therapist felt that the claimant had a partial or complete tear of his rotator cuff on the right side. The therapist also indicated that he was treating the claimant’s lower back which was injured in the fall.

A progress report was received from the attending physician dated December 28, 2000. Subjective complaints indicated restrictive movements in both shoulders, right neck pain and lumbar back aching. Treatment included physiotherapy treatments and medication. It was suggested that a WCB medical advisor assess the claimant’s condition with a view to the claimant undergoing an MRI to rule out a torn rotator cuff.

A WCB medical advisor assessed the claimant on February 6, 2001. The medical advisor noted findings of subacromial impingement syndrome bilaterally. The left shoulder was of a milder nature than the right. The claimant displayed findings of muscular irritability primarily at his left upper trapezius, right rhomboid and right levator scapula musculature. The medical advisor recommended that x-rays of both shoulders and an MRI of the right shoulder be undertaken.

On March 7, 2001, the claimant was seen by a physician at the Pain and Injury Clinic. The physician outlined his examination findings with respect to the cervical spine and both shoulders. It was noted that range of motion in the claimant’s back region was full and he was able to toe and heel walk without difficulty. Gait was normal. The claimant was assessed with sleep disturbance, possible right rotator cuff tear, myofascial pain of the left hip, leg and right shoulder and soft tissue pain of the shoulders and back.

A report was received from a sports medicine physician dated March 19, 2001. He reported findings in relation to the claimant’s shoulders as well as recommendations for treatment.

On April 12, 2001, a chiropractor called the WCB’s offices stating his opinion that the claimant may have a compression fracture to his lower back which was caused by the accident.

On April 17, 2001, a WCB adjudicator contacted the claimant. The claimant indicated that he has had soreness in his upper and lower back since the accident and that this had been mentioned to the doctor at the hospital, his treating physician and the examining WCB medical advisor. The claimant commented that his chiropractor told him that his spine was compressed (claimant said he twisted his pelvis when he fell). The claimant stated that on one Saturday, his back was okay in the morning and when he went over to pick up something later in the day he had a sharp pain in his back and this was why he sought chiropractic treatment.

In a letter dated May 7, 2001, the claimant was advised that the WCB would not accept responsibility for his lower back injury or treatment as it was unable to confirm that this area was injured during the accident of November 10, 2000. This was based on a review of the medical reports on file. On May 17, 2001, the claimant appealed this decision to Review Office.

On June 8, 2001, Review Office determined that there was insufficient evidence to establish the claimant’s contention that he sustained a low back injury as a result of the accident. This decision was appealed by the claimant to the Appeal Commission on December 14, 2001 and January 15, 2002. In the interim, the claimant underwent a right shoulder arthroscopy and arthroscopic acromioplasty on February 6, 2002 and was referred to the WCB’s Vocational Rehabilitation Branch for vocational rehabilitation services. On March 8, 2002, the claimant was involved in a motor vehicle accident in which he injured his neck, right shoulder and back.

On March 11, 2002, an Appeal Panel hearing took place at the Appeal Commission. Following the hearing and discussion of the case, the Panel requested additional information from the claimant’s treating chiropractors and a general practitioner. On May 28, 2002, all interested parties were provided with copies of the correspondence that was received from the treating chiropractors and general practitioner and were asked to provide comment.

The Panel met further to discuss the case on July 9, 2002 and noted that the claimant underwent a Functional Capacity Evaluation (FCE) on June 13, 2002 and that primary adjudication was awaiting a response from a WCB medical advisor as to whether or not the claimant had any physical restrictions in view of the FCE report. The panel decided to await the medical advisor’s response prior to discussing the case further.

On August 13, 2002, primary adjudication wrote the claimant and he was informed that there “were many inconsistencies with your FCE results and we question your effort put forth during testing. Therefore, no work restrictions would be established…”. The claimant was advised that benefits would be paid to August 26, 2002, inclusive and final.

During a telephone conversation on August 19, 2002, the claimant advised his WCB case manager that he had chiropractic treatment for his low back in June which made participating in the FCE difficult. The claimant advised that his back was feeling better now but his movement was still restricted. On August 22, 2002, the claimant was advised by primary adjudication that arrangements were being made for him to be examined by a WCB medical advisor for August 26, 2002.

Primary adjudication wrote to the claimant on September 10, 2002, to advise that the WCB was no longer able to continue his claim for compensation. The following is an excerpt from this letter:

“4. Following your accident you had initial complaints of lower back, left hip and leg pain. Throughout the claim, there was minimal information regarding ongoing complaints or treatment to these areas. However, we do note that there was no further objective medical evidence in regard to your lower back by January 24, 2001. Since then you have had a further event at home that caused you to seek treatment for your lower back. You have been involved in a motor vehicle accident which required treatment for this area. It was also mentioned on file that you may have hurt your back, after slipping on ice, while walking to your Appeal Panel Hearing. Therefore, it is our opinion that any ongoing symptoms to your lower back would not be directly related to this claim.”

On September 13, 2002, the claimant was provided with copies of the following documents that were received by the Panel and he was asked to provide comment:

• Medical summary & examination notes dated August 26, 2002 by a WCB medical advisor
• Memo dated August 27, 2002
• Memo dated August 22, 2002 by WCB case manager
• Five page memo dated August 7, 2002 by WCB medical advisor
• PT discharge report of August 16, 2002
• Report by specialist dated July 3, 2002
• Memo by WCB representative to WCB medical advisor
• Functional Capacity Evaluation dated July 13, 2002.

On October 2, 2002, the Panel met further to discuss the case and took into consideration a submission by the claimant dated September 19, 2002.

Reasons

This appeal involved a worker who fell from a ladder, while working in November 2000. As a result, he incurred injuries to the area across his upper back, including both shoulders and his neck, as well as to his right foot. His claim for compensation was accepted and benefits were paid.

The claim was accepted for soft tissue injuries to both shoulders. About six months after the accident, the claimant was experiencing lower back pains and requested the board to accept this problem as being related to the November 2000 accident. The board did not accept this injury as work related. Upon reconsideration by Review Office, this decision was upheld. He appealed the latter decision to the Appeal Commission.

For his appeal to be successful, the Panel would have to determine that his ongoing lower back problems are causally related to the workplace accident of November 2000. We were not able to make that determination.

In coming to our decision, we made a thorough review of the claim file, as well as holding an oral hearing, at which we heard testimony from the claimant.

We made the following findings, which were considered in coming to our conclusion:

• There was no mention of any problem with his lower back in the worker's initial report to the board; in the report from the emergency room on the day of the accident, or in the report from his initial visit to his family doctor.
• The first mention of lower back injury is in an adjudicator's memo, dated December 14, 2000, which notes that the physiotherapist is treating this area.
• A report from his family doctor, dated December 22, 2000, notes that he has lumbar back pain.
• The physiotherapist makes no mention of treatment for lower back problems in either the Case Summary for the period from the accident to December 14, or in his Application for an Additional Fee, dated January 11, 2001.
• On February 6, 2001, the claimant was called in for examination by a board medical advisor. There is no mention of lower back pain.
• The report of an examination by a specialist in pain management, dated March 7, 2001, notes that range of motion in the lumbar spine was full, that he was able to heel and toe walk without difficulty, that his gait was normal and that there was good range of motion of his hips.
• On April 12, 2001, a chiropractor, who had examined the claimant, reported to the board that he suspected the claimant might have a compression fracture to his lower back, caused by the workplace accident.
• In a conversation with the case manager, on April 17, the claimant reported that, on the previous Saturday, at home, he bent over to pick up something and had suffered a sharp pain in his lower back.
• An adjudicator's memo of April 23 notes that the treating physiotherapist reported that he had treated the claimant for pain in his upper back (T5 - T6 area) in the fall of 2000, but not his lower back.
• On April 24, 2001, his family doctor reported an injury to his lumbar back region.
• On April 17, 2002, a chiropractor reported that, among other things, an x-ray of the claimant's spine showed degeneration of the L5 - S1 disc. She also noted a decrease in range of motion, and considerable pain, in the lumbosacral region.
• August 22, 2002 -- Adjudicator's memo reported on a conversation with the physiotherapist who treated the claimant in the aftermath of the accident. The physiotherapist noted that treatment had focussed on the shoulder and upper back area. By January 24, 2001, there were no objective findings in relation to his lower back. It was the physiotherapist's opinion that the claimant did not have a long lasting lower back injury, although he did have continuing pain complaints.
• This same memo reports that, on March 8, 2002, the claimant had had a motor vehicle accident, which exacerbated his lower back pain.

We also note that, on August 26, 2002 and subsequent to the oral hearing conducted by our Panel, the claimant was examined by a board medical advisor, who provided an extensive report on the claimant's medical history, of her clinical notes and of her findings and opinions. Among other things, she noted:

• The claimant has a history of recurrent bouts of low back pain, which predates the November 2000 workplace accident. The description of these bouts is similar to that of April 2001, with a sudden onset of low back pain and radiation down the legs. He had sought chiropractic treatment for these.
• While it was quite possible that the accident caused some jarring to his back, the medical evidence indicates that this had pretty well resolved by January 24, 2001.
• She observes that "this level of disability which he indicates predated the bending accident of April 2001, is completely unsupported by any of the medical information received just prior to that time."
• In her opinion, "his ongoing back complaints appear to be part of a continuum of a problem he has had for many years. They would not be related to the compensable injury …."

It is our conclusion that - on a balance of probabilities - the doctor is correct in her finding.

We place considerable weight on the fact that the claimant had very few complaints about his lower back, prior to the April 2001 non-compensable bending incident. In particular, we note that, on March 7, 2001 - four months after the accident, his lumbar range of motion was normal and he was able to perform other tests indicative of lumbar problems without difficulty. In the days after the bending incident, his chiropractor gives a very different report. This alone leads us to find that his back problems, at that time, were due not to the workplace accident, but to the discrete event which happened in his home.

We are not saying that the claimant does not have any problems with his lower back. From his testimony and from the recent medical reporting, it is clear that he does have such problems. The issue before us was whether or not his back problems are related to his workplace accident. As already noted, we find that they are not.

We also note that his current back problems may indicate an aggravation caused by the March 2002 motor vehicle accident. However, this accident occurred after the decision of the Review Office, and was clearly not work-related. As such, it did not form part of our consideration. We came to our conclusion based on the state of his back on June 8, 2001.

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 6th day of November, 2002