The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 15, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 15, 2002 and again on December 10, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 2, 2001.

Decision

That the worker is entitled to wage loss benefits from March 2, 2001 to October 16, 2001, inclusive.

Decision: Unanimous

Background

On March 6, 2000, the claimant fell approximately 6 feet off of a jig and landed on his back during the course of his employment as a production worker. A report received from the attending physician dated March 7, 2000 diagnosed the claimant with a sprain and contusions to the lower back and a contusion to the right leg with an abrasion. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits commenced on March 7, 2000.

On May 15, 2000, a CT scan of the lumbosacral spine was performed. The report stated that the L2-3, L3-4 and L4-5 disc spaces appeared normal. There was a minor central and slightly left posterolateral L5-S1 protrusion which approached the thecal sac but did not appear to compress significantly the adjacent S1 roots. There was no significant facet arthropathy.

In June 2000, primary adjudication referred the case to a WCB medical advisor to provide comment with respect to diagnosis, treatment and recommendations as to the claimant's work capability. The medical advisor was of the view that the diagnosis was a minor L5-S1 disc protrusion and that the claimant would benefit from physiotherapy treatment with the emphasis on pain management. The medical advisor felt that the claimant should participate in a graduated return to work program with restrictions.

The claimant was assessed by a neurologist on August 4, 2000. He concluded that the claimant had mechanical back pain with probable muscle spasm. The neurologist commented that the CT scan showed degenerative changes but no obvious root compression.

A physical medicine and rehabilitation specialist (physiatrist) reported on September 8, 2000, that the claimant had mechanical lower back pain and myofascial pain syndrome with associated trigger points. The specialist recommended that the claimant undergo advanced physiotherapy and an advanced back stabilization program.

The claimant began a return to work program on October 10, 2000 at four hours per shift. By October 19, 2000, the claimant discontinued the return to work program because of increasing pain.

Following an examination at the WCB's offices on December 7, 2000, a WCB orthopaedic consultant noted that the claimant's assessment was complicated by significant symptom amplification and evidence of pain focus. There was no clinical evidence of radiculopathy. Another CT scan was recommended.

On January 8, 2001, a CT scan of the lumbar spine was performed. The results revealed a small left paracentral disc protrusion was present at the L5-S1 area involving the left S1 nerve root.

In a memo to file dated January 26, 2001, the WCB orthopaedic consultant referred to his examination findings of December 7, 2000 and compared the results of the CT scan findings of May 15, 2000 and January 8, 2001. The consultant believed that the L5-S1lesion did not arise out of the work place injury. The consultant stated that the L5-S1 lesion was not a cause for the claimant's lower limb radiculopathy and did not provide an explanation for his continuing complaints and perception of disability. The consultant stated that the claimant failed to establish that he had a disability which prevented him from returning to his original work place duties. Based on this opinion, primary adjudication determined that the claimant had recovered from the effects of his diagnosed injury and that wage loss benefits would be paid to February 16, 2001 (later amended to March 2, 2001) inclusive and final.

Subsequent to the above decision, additional medical information was received from the claimant's physiatrist dated February 13, 2001. He was of the view that the claimant continued to suffer from the symptomatic results of a disc protrusion aggravating the left S1 nerve root. On March 1, 2001, the WCB orthopaedic consultant commented that this report only provided subjective information on pain, fatigue, etc. and that no objective findings were reported. The consultant noted that his examination findings (in December 2000) identified significant symptom amplification and pain focus and no evidence of lumbar nerve root compression or irritation.

Additional medical reports were received from a neurologist dated March 25, 2001 and a neurosurgeon dated September 4, 2001. The file also contained the results of nerve conduction studies (undated) and an MRI exam dated May 1, 2001. Following review of these reports, a WCB adjudicator wrote to the claimant on September 13, 2001 to advise that there was no evidence to confirm that his ongoing symptoms were related to the workplace injury of March 6, 2000. The adjudicator was therefore of the opinion that the claimant had recovered from the effects of his work injury.

On December 4, 2001, a union representative appealed the WCB's decision that the claimant had recovered from the effects of his compensable injury. The case was then forwarded to the Review Office for consideration.

On December 21, 2001, Review Office took into consideration all file information including a report from the treating neurosurgeon dated October 16, 2001. Review Office noted that no physician had been able to provide clinical objective medical evidence to support a contention that the claimant's subjective complaints of pain beyond March 2, 2001 had an organic cause which could be related to the compensable injury of March 6, 2000. Review Office concluded that wage loss benefits were not payable to the claimant beyond March 2, 2001.

The case was considered again by Review Office on May 31, 2002, as additional medical information had been received from an occupational health physician dated April 4, 2002. Review Office indicated that the new medical information did not provide any definitive diagnosis and that the occupational health physician agreed with the opinion on file from a previous physiatrist regarding a speculative diagnosis of internal disc disruption. There were a multitude of opinions on file from various physicians concerning the possibility of a disc playing a significant role with respect to the claimant's subjective complaints of pain. Their philosophies as to the significance of a disc playing a key role in this scenario were not in harmony with the new medical evidence. Based on these factors, Review Office found it impossible to rescind its prior decision that wage loss benefits were not payable to the claimant beyond March 2, 2001.

On June 27, 2002, the claimant's union representative submitted an Application to Appeal the Review Office's May 31, 2002 decision. The union representative later submitted new and additional medical reports prepared by the claimant's treating physiatrist dated February 5, 2002 and June 24, 2002.

An oral hearing took place at the Appeal Commission on October 15, 2002. Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant's treating psychologist. A report from the psychologist dated November 12, 2002, was forwarded to the interested parties for comment. On December 10, 2002, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

After a careful and thorough review of all of the evidence, it is our considered opinion that the claimant is entitled to wage loss benefits beyond March 2^nd, 2001, but only up to October 16^th, 2001 inclusive. We note that on or about this date in October all the suggested neurologic investigative procedures had been concluded. The treating neurologist reported to the attending physician on October 8^th, 2001 and advised as follows:
"I think I have exhausted everything from a neurologic point of view. The fact that the nerve conduction tests were negative or that EMG was negative does not necessarily exclude any nerve compression but I would agree that if he does have nerve compression it is at worst intermittent."

The foregoing report was subsequently succeeded by the treating neurosurgeon's report to the WCB dated October 16^th, 2001 in which he stated in part:
"It is also difficult to establish a posterior (sic) relationship to his work place injury. While it seems possible and previous medical reports may support the hypothesis that the low back pain could be related to this injury. The disc herniation seen on MRI and CT scan does not necessarily have a clinical counter part and I agree that this may be just an occasional finding."

These two reports in conjunction with the opinion expressed by the treating physical medicine and rehabilitation specialist in his April 17th, 2001 letter to the claimant's worker advisor have led us to conclude, on a balance of probabilities, that the claimant had recovered from the workplace accident and that he no longer had a loss of earning capacity by the time his benefits were terminated. We accept and adopt the treating physical medicine and rehabilitation specialist's opinion that the claimant should return to work. "With respect to his present disability status I would regard him as having a temporary partial disability, and I would continue to support Mr. [the claimant] by encouraging him to return to work at this time using the pain control measures that he has been prescribed."

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 16th day of January, 2003