The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 3, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on October 3, 2002 and again on November 13, 2002.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond October 11, 2000.

Decision

That the claimant is not entitled to wage loss benefits beyond October 11, 2000.

Decision: Unanimous

Background

In April 2000, the claimant filed a claim for compensation benefits relative to a lower back injury that occurred on March 27, 2000, during the course of his employment as a welder. Following an investigation into the case, the Workers Compensation Board (WCB) accepted the claim and benefits were paid to the claimant commencing March 27, 2000. The following is a summary of medical information which lead to the claimant's benefits being terminated on October 11, 2000:

• when treated on March 27, 2000, the attending physician noted that the claimant had a five day history of low back pain which began at work on March 22nd. His job involved welding and a lot of bending and lifting. The diagnosis rendered was a lumbar back sprain.
  
  
• on April 20, 2000, the attending physician indicated that the claimant was still having back pain and was going to physiotherapy treatments.
  
  
• a May 15, 2000 x-ray report of the lumbar spine revealed small osteophytes at multiple levels. There was no significant disc narrowing. There were small Schmorl's nodes at the L1 and L2 levels. No focal bone description was seen and the SI joints appeared normal.
  
  
• in a June 23, 2000 memo, a WCB adjudicator noted that the claimant returned to work for 4 hours at lighter duties on May 27, 2000 and then went off work totally on June 7, 2000. The claimant indicated that his back was in so much pain that he couldn't work any longer.
  
  
• a CT scan of the lumbosacral spine taken on July 14, 2000 revealed no evidence of a disc herniation, spinal stenosis or nerve root compression at any of the imaged levels. The paraspinal soft tissues appeared normal.
  
  
• in memo dated August 14, 2000, a WCB adjudicator noted that the claimant's physiotherapist was contacted and the claimant's condition was worsening with physiotherapy treatments. In response to several questions posed by the adjudicator, a WCB medical advisor indicated that the current diagnosis was mechanical lumbar strain. There was a prolonged cause and effect relationship between the diagnosis and the compensable injury. The medical advisor opined, however, that the claimant was not totally disabled.
  
  
• the claimant was assessed by a WCB medical advisor on August 30, 2000 and it was determined that the examination findings were consistent with sacroiliac joint dysfunction and lumbosacral dysfunction. Chiropractic treatment was recommended. The medical advisor commented that the claimant was not completely disabled and that a graduated return to work program was in order. Restrictions were outlined.
  
  
• on September 11, 2000, the WCB advised the claimant of his graduated return to work schedule and that he would receive partial wage loss benefits up to October 6, 2000. By October 10, 2000, the WCB expected that he would be back at regular duties.
  
  
• in a progress report dated September 15, 2000, the attending physician indicated that the claimant still had persistent lower backache and that even a sitting job was not manageable. The claimant had difficulty getting out of a chair with pain in his lower back which radiated into his right thigh. The claimant walked with a limp and was tender in the lumbosacral region with spasms. The claimant was considered disabled for one week effective September 18, 2000.
  
  
• on September 27, 2000, the claimant was advised by primary adjudication that his wage loss benefits were being suspended effective September 18, 2000, in accordance with Section 22 of The Workers Compensation Act (the Act) as the claimant failed to contact a chiropractor to start chiropractic treatments which were recommended by the WCB. The claimant was also not returning any phones calls to the WCB.
  
  
• in a memo dated October 25, 2000, a WCB adjudicator documented that she had spoken with the claimant. As to the graduated return to work program, the claimant advised that he started the program on September 11th and as the week went on, he began to experience a gradual increase in back pain from sitting at a table. On Friday (September 17th), he was doing some scraping for 2 hours around the welding parts of a trailer that was about 4 feet high. His back hurt so much that he could hardly move or stand. He then contacted his doctor who advised him to remain off work for one week.

The claimant indicated that he went to B.C. with his son, who was a truck driver, between September 18 to 22nd. When his back hurt, the claimant said he would lay down in the sleeping bunk to rest. The claimant went to B.C. as there was nothing for him to do and his doctor had advised him to remain off work. The claimant said he was waiting for a phone call from the chiropractor's office but no one called to let him know when his chiropractic treatment was to start.

• a report was received from the treating chiropractor dated October 3, 2000. The diagnosis rendered was radicular low back pain, likely discogenic, and myofascial pain. The chiropractor felt that the claimant was capable of light duties. On October 25, 2000, the claimant was advised that the WCB was authorizing chiropractic treatment up to November 28, 2000 inclusive.
  
  
• a bone scan report dated October 4, 2000 showed no significant abnormalities.
  
  
• a report was received from an orthopaedic surgeon dated November 28, 2000. He reported that the claimant was seen on September 27, 2000. The surgeon felt that the claimant did not require surgery. He was of the view that the claimant had evidence of degenerative changes of the lumbar spine that the claimant had mechanical back pain. If the claimant did very heavy activities, the surgeon felt that the claimant may well experience some back discomfort.
  
  
• in a memo to file dated January 3, 2001, a WCB adjudicator noted that a WCB chiropractic advisor spoke with the treating chiropractor and both agreed that the claimant should be able to return to work. Chiropractic treatment was to be covered to January 15, 2001, inclusive and final. As of October 12, 2000, the WCB chiropractic advisor felt that the claimant should have been able to return to work on a graduated basis. The adjudicator noted that time loss between September 15th to October 11th, 2000, would be authorized due to the aggravation that the claimant had suffered on September 11th, but not including the time loss while going to B.C.
  
  
• in a letter dated January 4, 2001, the claimant was advised that the WCB would cover his time loss from September 23rd to October 11, inclusive. As of October 12, 2000, the claimant was considered capable of participating in a graduated return to work program, which the employer was able to accommodate. Wage loss benefits would not be paid from September 18th to 22nd, as the claimant had been out of the province.

In April 2002, the claimant appealed the above decision, stating that he was still only able to work no more than one hour per day before suffering from severe back pain and then forced to stop work for the rest of the day.

On May 3, 2002, Review Office confirmed that the claimant was not entitled to payment of wage loss benefits beyond October 11, 2000. Review Office paid particular note of the orthopaedic surgeon's report in which he stated there were very few clinical findings on examination, that the bone scan proved to be negative and that the claimant had mechanical back pain. In Review Office's opinion, the claimant's back difficulties could be explained by the degenerative changes noted on the spinal x-rays. Review Office felt it was inconceivable that the claimant could still be suffering from the effects of his strain injury some 2 years after it began in March of 2000. Review Office noted that the last medical/chiropractic report clearly indicated that the claimant was capable of performing his regular duties effective January 10, 2001. There were no medical reports available after that date to contradict this opinion. On July 16, 2002, an advocate acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was held on October 3, 2002.

Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant's treating physicians. On October 23, 2002, all interested parties were provided with copies of the additional information that was obtained by the Panel and they were asked to provide comment. On November 13, 2002 the Panel met to render a final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant sustained what was diagnosed as a lumbar back sprain while performing welding duties on March 27th, 2000. A CT scan conducted on July 14th, 2000 confirmed that there was no evidence of a disc herniation, spinal stenosis or nerve root compression at any of the image levels. Following a clinical examination on August 30th, 2000, a WCB medical advisor concluded that the claimant was not completely disabled and that an immediate attempt should be initiated to have the claimant return to work on a graduated basis to modified duties.

A review of the treating physician's patient history with respect to the claimant disclosed the following: "Advised patient that he has uncomplicated back pain, that there is nothing serious wrong, he has muscle spasm in the back the cause of which is not known. Rest was not a good treatment and that he should continue working. Explained how spasm in muscles becomes worse with rest.

After carefully considering all of the evidence, we find that the claimant has, on a balance of probabilities, recovered from the effects of his compensable injury. There is no current medical reason indicating why the claimant cannot return to work. Accordingly, the claimant is not entitled to wage loss benefits beyond October 11th, 2000 and his 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 27th day of November, 2002