Decision #35/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on February 25, 2003, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to a Permanent Partial Disability award for the effects of his work related accident of March 25, 1985.

Decision

That the worker is not entitled to a Permanent Partial Disability award for the effects of his work related accident of March 25, 1985.

Decision: Unanimous

Background

The claimant was lifting a case of aluminum cans when he felt a sharp pain in his lower back on March 5, 1985. Medical reports revealed that the claimant incurred a small central disc protrusion at the L4-L5 region as a result of the accident. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly. By August 1986, the WCB considered the claimant fit to return to work without restrictions and that he was not entitled to a Permanent Partial Disability (PPD) award.

In a February 11, 1997 chiropractic report, it was noted that the claimant had decreased range of movement in his lower back. The claimant was then asked to attend the WCB offices to determine his physical status and to determine whether or not he now qualified for a PPD award.

A WCB medical advisor assessed the claimant on September 26, 1997. The medical advisor compared lumbosacral spine x-rays dated October 2, 1997, with those that were previously taken on July 2, 1985.

The medical advisor concluded that on a balance of probabilities, the claimant had recovered from the effects of his 1985 compensable injury. He noted that the claimant was currently suffering from degenerative disc disease involving mainly the L5-S1 level. He believed that the degenerative disc disease of the L5-S1 level was not related to his 1985 compensable injury, but rather, likely related to the natural progression of his degenerative disc disease with some contribution from his obesity considering the weight gain he had from 1986 to 1997.

On October 14, 1997, a WCB supervisor advised the claimant that the WCB was unable to award him compensation in recognition of a permanent partial impairment award, based on the September 26, 1997 medical advisor's examination findings. On November 4, 1997, the claimant's advocate disagreed with this finding and the case was forwarded to Review Office for consideration.

Review Office considered the advocate's appeal on November 21, 1997. Review Office made note of the WCB medical advisor's comments that the results of recent x-ray studies had shown little if any change at the L4-L5 disc. This was the specific region of the 1985 work related injury. The x-rays then and now both showed only slight narrowing of the disc space. The moderate reduction in the ranges of motion in the lumbar spine were consistent with, and were more likely caused by degenerative disc disease at the L5-S1 level and the claimant's obesity. Review Office acknowledged the opinion expressed by the treating chiropractor that the claimant's reduced mobility in his lower back resulted from his 1985 work related accident. The chiropractor, however, had not supported his opinion with a full statement of the facts and reasons for his conclusion. Review Office therefore upheld the previous decision that the claimant was not entitled to a PPI award. On January 21, 2003, the claimant's advocate appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, the claimant sustained what was eventually diagnosed by his treating orthopaedic surgeon as an "acute on chronic lumbosacral sprain with irritation of the nerve root of L4". A lumbar myelogram conducted on July 2nd, 1985 confirmed a small central disc protrusion at L4-5. Later, on August 8, 1986, a WCB medical officer examined the claimant and concluded based on his clinical examination that the claimant did not have a rateable permanent partial disability. In his opinion, the claimant had recovered from the protruded disc and was capable of working without restrictions.

On August 12th, 1986, the WCB medical officer forwarded a copy of his notes made during his examination of the claimant to the treating physician. After this date, there has been absolutely no further medical evidence dealing with the claimant's back difficulties, which has appeared on file until February 11th, 1997 when the claimant's advocate forwarded a report prepared by the claimant's treating chiropractor to the WCB. The chiropractor's report eventually prompted an updated clinical examination of the claimant to be undertaken by the WCB's medical services.

Following his examination, the WCB medical advisor informed the treating chiropractor of his September 26th, 1997 clinical findings.
"After reviewing the available information on file, and from the present examination, it is my opinion, on a balance of probability, the claimant has recovered from the effects of the compensable injury of 1985. The claimant is currently suffering from degenerative disc disease involving mainly the L5-S1 level.
I believe the degenerative disc disease of the L5-S1 level is not related to his 1985 compensable injury, but rather likely related to the natural progression of his degenerative disc disease…".

The claimant through the services of his advocate submitted a report dated March 5th, 1998 to the WCB from a second treating physician and requested the convening of a Medical Review Panel pursuant to the provisions of the Act. After exhausting the entire appeal process, the request was finally denied by the Appeal Commission. There was nothing contained in this 1998 report, which even remotely implied that the claimant had any kind of a permanent partial disability.

There has been no medical evidence filed in conjunction with the appeal before us to support the contention that the claimant sustained a permanent partial disability as a consequence of his March 25th, 1985 compensable accident. In the absence of any credible evidence, we have no alternative but to dismiss the claimant's appeal. Accordingly, the worker is not entitled to a permanent partial disability award.

Panel Members

R. W. MacNeil, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of April, 2003

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