The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 27, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on August 27, 2002 and again on December 3, 2002.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond May 30, 1995.

Decision

That the claimant is not entitled to wage loss benefits beyond May 30, 1995.

Decision: Unanimous

Background

On December 31, 1993, the claimant "slipped off a top step, and stumbled down to bottom concrete floor - the stairs had about 10-13 steps, hurting my lower back." The diagnosis rendered by the attending physician was a bruised lumbar spine and a muscular soft tissue injury. The attending physician commented that the claimant suffered a back injury one year ago. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced shortly thereafter.

Lumbosacral spine x-rays dated January 5, 1994, revealed minor spurring anteriorly at the L4-5 level. Disc spaces were intact. There was no significant bone abnormalities demonstrated.

On March 22, 1994, a rehabilitation medicine specialist (physiatrist) diagnosed the claimant with chronic mechanical back pain. The claimant was, however, capable of returning to work. On April 11, 1994, the claimant commenced a graduated return to work program.

On April 18, 1994, the claimant was washing down "skimmers" with a hose when his lower back started to pain and ache. He then went for a walk and began to notice that his hips and lower back felt very sore and his legs felt tired and rubbery. After reporting the incident to the office he was leaving work and his legs gave out and he fell on his back and struck a protruding pipe with his left arm. A second claim for compensation was filed and was accepted as a WCB responsibility.

The claimant was examined by a chiropractor on April 27, 1994. The diagnosis rendered on that date was an acute strain/sprain of the lumbar, thoracic and left sacroiliac areas.

An orthopaedic surgeon assessed the claimant in June 1994. The specialist found little in the way of positive physical findings and could not make a firm diagnosis as to the claimant's condition.

A WCB medical advisor examined the claimant on July 25, 1994. He felt that the claimant was suffering from levator syndrome, which was likely due to myofascial trigger points in the pelvic floor muscles and more specifically in the levator, ani and coccygeus muscles. The medical advisor was of the opinion that the claimant's ongoing complaints were related to the compensable injury, but he was not considered to be totally disabled. The claimant was encouraged to return to work.

In October 1994, a physician specializing in colon and rectal surgery diagnosed the claimant with post-traumatic spastic levator syndrome and a referral was made for the claimant to receive treatment in this regard. File information showed that the treatment did not provide the claimant with any lasting benefit.

On November 29, 1994, primary adjudication determined that the claimant was capable of resuming his regular work activities effective November 29, 1994. This decision was reached following consultations with a WCB medical advisor and the claimant's attending physician.

In February 1995, a solicitor appealed the decision to end benefits on November 29, 1994 based on a note authored by a second physician dated December 20, 1994, in which he indicated that the claimant should stay off work until at least January 23, 1995. The solicitor requested that a Medical Review Panel (MRP) be convened as he felt there was a difference of opinion between the WCB's doctor and the claimant's attending physician.

At the request of primary adjudication, the solicitor submitted a report from the claimant's treating physician dated April 21, 1995. The physician stated, in part, that the claimant was assessed on December 14, 1994 with complaints of pain in his lower sacral area, back and rectal area. Arrangements were made for the claimant to be seen by a physiatrist as the treating physician felt there was a distinct possibility that the claimant suffered from myofascial pain syndrome.

On May 23, 1995 and June 21, 1995, primary adjudication wrote to the solicitor to advise that the physician's April 21, 1995 letter did not provide any objective medical information that would support the claimant's contention of total disability beyond November 29, 1994. As a result, no change would be made to its earlier decision and there was no basis to convene an MRP.

On July 11, 1995, the solicitor asked Review Office to consider a report from the claimant's physiatrist dated May 30, 1995. The solicitor referred to the comments made by the specialist that the claimant was incapable of returning to a job requiring physical labour or any activities involving his left upper limb or spine. It was also recommended that the claimant undergo a functional capacity evaluation.

In a decision dated August 18, 1995, Review Office noted that recent medical information confirmed that the claimant was suffering from difficulties related to his compensable injury. The myofascial pain syndrome in the upper and lower back were related to the claim, however, no responsibility was being accepted for the shoulder difficulty as this was not considered a compensable injury. As to whether or not the claimant was entitled to ongoing wage loss benefits, Review Office suggested that a WCB adjudicator contact the employer to "…determine exactly what type of employment they had made available to the worker in December 1994 and also to determine if this work was available to the worker on an ongoing basis. If the employer did have suitable work available for the worker, it is Review Office's opinion that the worker would not be entitled to payment of full wage loss benefits."

On September 19, 1995, primary adjudication determined that the claimant was only entitled to receive partial wage loss benefits for the period of November 30, 1994 to January 6, 1995 as he was considered fit for modified duties on a 4 hour per day basis and because work duties within his restrictions were available. Payment of benefits beyond January 6, 1995 would not be issued as the claimant had advised his employer on September 6, 1994, that he wished to be demoted from his accident job once the WCB declared him fit to return to work. The claimant voluntarily removed himself from his accident job as an operator and was not entitled to benefits beyond the date when his employment was terminated.

Based on an appeal submission from the solicitor dated April 1, 1996, Review Office determined on May 31, 1996, that the claimant was entitled to full wage loss benefits beyond November 29, 1994 to at least May 30, 1995 (the date of the last medical report on file). Review Office felt that the operator position was out of the claimant's physical limitations and that he was therefore entitled to full wage loss benefits. Benefits beyond May 30, 1995, were to be held in abeyance pending receipt of further medical evidence indicating that the claimant had fully mitigated the effects of his accident by complying with medical treatment to resolve his injury.

Following receipt and review of up-to-date medical information, primary adjudication wrote to the claimant on September 10, 1996. Primary adjudication stated, in part, "After May 30, 1995, there is an absence of regular medical treatment specifically directed toward your myofascial pain syndrome of the thoracic and lumbar regions. As you failed to attend for treatment of this syndrome, and to fully mitigate the effects of your injury, there is no basis to extend payment of wge loss benefits beyond May 30, 1995." On November 28, 1996, the solicitor appealed the decision to Review Office.

Prior to considering the claimant's appeal, Review Office arranged for him to be assessed by a WCB medical advisor on March 3, 1997 and by a WCB Pain Management Unit (PMU) medical advisor on May 27, 1997. Review Office contacted the employer on August 14, 1997 and found that the seasonal work the claimant had applied for was about as physically demanding as his pre-accident position. In a September 12, 1997 decision, Review Office decided to convene an MRP under section 67(3) of The Workers Compensation Act (the Act) prior to making a final decision with respect to the issue under appeal.

On April 10, 1998, Review Office determined that the claimant was not entitled to benefits subsequent to May 30, 1995. Review Office agreed with the MRP's findings that the claimant had recovered from the physical effects of his accident. Review Office did not agree with the MRP's findings, that the claimant's chronic pain behaviour was a sequela of either or a combination of both of the compensable accidents. Review Office believed that the claimant's chronic pain behaviour was more reasonably related to his being unable to resolve his employment circumstances as he had hoped rather than his compensable accidents. On April 26, 2002, the solicitor appealed Review Office's decision to the Appeal Commission.

On August 27, 2002, following an oral hearing, the Appeal Panel requested additional information prior to discussing the case further. Specifically, the Panel requested clarification from the WCB's PMU regarding the difference between the terms "Chronic Pain Syndrome" and "Chronic Pain Behavior". On November 18, 2002, all interested parties were provided with the additional information received by the Panel and were invited to provide comment. On December 3, 2002, the Panel met to render its final decision with respect to the issue under appeal and in arriving at its decision took into consideration a submission forwarded by the claimant's legal counsel dated November 29, 2002.

Reasons

After thoroughly reviewing the evidence, we have reached the conclusion that the most probable diagnosis of the injury sustained by the claimant was a soft tissue strain involving his lumbar spine. In this regard, we note that the treating chiropractor proffered the diagnosis of an "acute sprain/strain of lumbar/thoracic and L [left] sacroiliac areas". The claimant's lower back condition was exhaustively investigated and the various diagnostic tests and examinations confirmed that there was no evidence of disc herniation, spinal stenosis or nerve root compression. However, there were degenerative changes recorded in the January 15^th, 1998 MRI of the lumbar spine: "The lumbar intervertebral discs appear of normal height and signal intensity. There is no evidence of disc herniation, spinal stenosis or nerve root compression. Mild hypertrophic facet degenerative changes are seen involving the right L5-S1 apophyseal joint." Following its examination of the claimant on November 28^th, 1997, the Medical Review Panel also confirmed a diagnosis of a soft tissue strain of the claimant's back.

The evidence confirms that subsequent to the compensable incident the claimant's condition had been resolving given the fact that he had attempted to return to work at a seasonable job. In a letter to his employer dated September 9th, 1994, the claimant suggested that "…it would be in my best interest to check with my manager [name] all angles or possibilities to see if I could come up with another job on the city or maybe a summer seasonal job…".

We find based on the weight of evidence that the claimant's compensable injury had, on a balance of probabilities, resolved by the time his benefits were terminated. In addition, we further find that any difficulties experienced by the claimant subsequent to the date of termination of benefits are again, on a balance of probabilities, related to a number of non-compensable medical problems that are referred to by his health care givers. Accordingly, the worker is not entitled to wage loss benefits beyond May 30th, 1995 and his appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of January, 2003