The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 24, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being March 5, 2003.

Issue

Whether or not the worker had recovered from the effects of the compensable injury as of June 2, 2001.

Decision

That the worker had recovered from the effects of the compensable injury as of June 2, 2001.

Decision: Unanimous

Background

On July 18, 1996, the claimant was involved in the following workplace accident:

"I was standing on a six foot ladder next to a large steel trough approx. 110 lbs. when a bracket broke with the trough hitting myself in the chest knocking me off the ladder onto my back on forklift bars with the trough landing on my leg."

Initial medical reports diagnosed the claimant with a back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant up to January 8, 1999, when it was determined that he had recovered from the effects of the compensable accident and that he was suffering from a pre-existing spinal condition. As the claimant disagreed with this decision, the case was sent to the Review Office and then to an Appeal Panel in November 2000. The Appeal Panel overturned the decision rendered by Review Office and benefits were reinstated to the claimant for the period January 8, 1999 and June 8, 1999. For complete details leading up to the Appeal Panel's decision, please refer to Appeal Decision No. 119/00.

On April 20, 2001, a WCB case manager advised the claimant that his file had been reviewed to determine if his current problems were in any way related to his work related injury of 1996. The case manager stated that it was the WCB's position that any problems experienced by the claimant were due to his pre-existing condition (i.e. L5 spondylolysis associated with mild forward spondylolisthesis) and that he had fully recovered from the effects of his 1996 injury. This decision was reached following a full review of his file and consultation with WCB Healthcare Management Services. On December 4, 2001, a solicitor acting on behalf of the claimant, appealed this decision to Review Office and a report from a physical medicine and rehabilitation specialist was submitted for consideration dated October 1, 2001.

Prior to rendering a decision, Review Office sought the medical advice of a WCB orthopaedic consultant on December 20, 2001.

On December 21, 2001, Review Office decided that the claimant had recovered from the effects of his July 18, 1996 compensable accident by June 2, 2001. Review Office agreed with the opinion expressed by the WCB's orthopaedic specialist that the claimant's pre-existing condition, confirmed by a CT scan in January 1997, was the culprit in the production of the claimant's pain symptoms. Review Office indicated that the orthopedist considered this was the diagnosis producing the claimant's problems and thus he did not feel there was a need to search elsewhere for a different diagnosis.

Review Office further stated that the orthopedist did not feel the mechanism of injury of July 18, 1996 would have been significant enough to enhance the pre-existing condition and consequently the WCB was dealing with an apparent aggravation of this condition. Review Office and the orthopedist were both of the view that any aggravation occurring to the claimant's low back and in particular to his pre-existing condition on July 18, 1996 would have resolved by June 2, 2001. Hence, the claimant's appeal was denied. On March 20, 2002, legal counsel for the claimant appealed Review Office's decision and an oral hearing was held on April 24, 2002.

Following the hearing and discussion of the case, the Appeal Panel requested that a Medical Review Panel (MRP) be convened in accordance with Section 67(3) of The Workers Compensation Act (the Act). The MRP later took place on September 20, 2002 and the MRP's report was forwarded to all interested parties for comment.

Subsequent file information revealed the claimant asked the Appeal Panel on several occasions for additional time to prepare his final submission as he wanted to get in touch with his physical medicine and rehabilitation specialist to provide comment on the MRP's findings. The claimant's request was granted by the Panel. On March 5, 2003, the Panel met to render its final decision with respect to the issue under appeal and took into consideration a letter submitted by the claimant dated February 27, 2003.

Reasons

As outlined in the background notes, the claimant sustained injury to his back after a fall from a ladder. The claimant's condition was diagnosed as a back strain. Prolonged low back and right leg complaints prompted the treating physician to make arrangements for a CT scan of the claimant's lumbosacral spine. This procedure was carried out on January 29^th, 1997 and revealed as follows: "L5 spondylolysis associated with mild forward spondylolithesis. No disc protrusion has been demonstrated."

A second CT scan of the claimant's lumbar spine was undertaken on August 26^th, 2002. Scans were obtained from the L3 through to the S1 level. The radiologist reported:
"At the L5-S1 level there is bilateral spondylolysis affecting the L5 vertebra, resulting in the Grade I to Grade II spondylolisthesis. There is no disc bulge or protrusion or central canal stenosis. There is effacement of the epidural fat around the L5 nerve roots in the neural foramina, due to mild osseous narrowing that is symmetric bilaterally. There is no significant change from the earlier CT scan, with bilateral spondylosis resulting in Grade I to Grade II spondylolisthesis."

Notwithstanding the radiological evidence confirming there was no L5-S1 disc bulge, the claimant testified at the hearing that he continued to experience pain in the lumbar 5 region, numbness down his right leg and severe shooting pains down his right leg stopping at the ankle. Counsel acting on behalf of the claimant advanced the argument that the recent evidence provided by the treating physical medicine and rehabilitation specialist …"should be given regard and that this decision of the Board, which is based on a paper review of a CT scan that was conducted several years ago and of which we have been aware for several years, should not be paid heed."

In light of the foregoing, we requested that a Medical Review Panel (MRP) be convened pursuant to section 67(3) of the Act and an examination of the claimant took place on September 20^th, 2002. We attached considerable weight to the following opinions expressed by the MRP medical examiners in their report:
"The Panellists agree that there was a pre-existing condition which was probably relevant. The pre-existing condition was spondylolisthesis of L5 on S1. The Panellists agree that the pre-existing condition was probably temporarily aggravated, causing the pre-existing condition to become symptomatic. The Panellists believe that the aggravation due to the accident should have resolved by June 1, 2001. The condition remains symptomatic primarily due to the pre-existing spondylolisthesis."

"The Panellists agree that the effects of Mr. [the claimant's] July, 1996 injury would have been resolved by June 2, 2001."

"Mr. [the claimant] continues to have chronic low back pain on the basis of first to second degree spondylolisthesis at L5 on S1."

"The Panellists believe that the etiology of the low back condition is congenital spondylolisthesis L5 on S1. The Panellists can find no evidence that Mr. [the claimant's] current condition is causally related to the 1996 workplace accident injury."

"The Panellists agree that Mr. [the claimant] is currently physically capable of performing his regular duties as an electrician. The Panellists can find no evidence that Mr. [the claimant] requires physical work restrictions."

We find based on the preponderance of evidence that the worker had, on a balance of probabilities, recovered from the effects of the compensable injury as of June 2^nd, 2001. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
G. Overgaard, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of April, 2003