The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 15, 2003, at the claimant's request.

Issue

Whether or not the claimant is entitled to wage loss benefits and services beyond July 13, 1995; and

Whether or not responsibility should be accepted for the surgical procedure of November 12, 2002.

Decision

That the claimant is not entitled to wage loss benefits and services beyond July 13, 1995; and

That responsibility should not be accepted for the surgical procedure of November 12, 2002.

Decision: Unanimous

Background

In October 1992, the claimant sustained injuries to his head, neck, back and pelvic area when he became dizzy and fell onto a cement pad while descending a flight of stairs. File information revealed that the claimant incurred soft tissue injuries as a result of the accident. In December 1992, x-rays were taken of the cervical, dorsal and lumbar spines. The results revealed "Negative C spine. Blocked vertebra at C1-C2. Reverse spondylolisthesis L5-S1 less than grade 1 with early degenerative disc disease." The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant which included vocational rehabilitation benefits.

On June 6, 1995, a medical advisor with the WCB's Pain Management Unit interviewed the claimant. The medical advisor stated, in part, "Mr. [the claimant] has improved enormously with his chronic pain multi-disciplinary program. In view of his soft tissue injuries only, he should be able to return to some form of work. He should be started on a very graduated basis one to two hours three times a week and gradually increased as tolerated. Theoretically, in the presence of soft tissue injuries only, there would be no reason why for physical reasons alone he could not work without restrictions."

On June 6, July 10 and 11, 1995, the claimant's activities were videotaped. In a Pain Management Unit Case Conference memo dated July 21, 1995, the medical advisor stated the following:

"The videotape was viewed of July 11, 1995. Mr. [the claimant] showed no evidence of pain behaviors in 1 ½ hours of sustained vigorous work. This is in stark contrast to reported inability to sustain more than an hour of essentially sedentary work. It is also on the same day (earlier) as he was reported to be in bed by [VR's name], having a 'bad day'. All restrictions re chronic pain behavior can be lifted."

The section head of healthcare management services also reviewed the videotape evidence. In a memo dated July 24, 1995, a WCB adjudicator documented that it was the section head's opinion that the claimant demonstrated full thoracic lumbar spinal movements and his upper extremities were being used equally with no evidence of functional impairment. The section head felt that the claimant was capable of full physical work without restrictions.

On July 24, 1995, primary adjudication determined based on the videotape findings, that the claimant was capable of full physical work without restrictions and that any restrictions related to chronic pain behavior could be lifted. The claimant was advised that it was the WCB's decision that he had recovered from the effects of his compensable injury and that wage loss benefit would be paid to July 13, 1995 inclusive and final. This decision was upheld by the Review Office on March 8, 1996.

In a letter to the WCB dated September 6, 2002, the claimant indicated that he was to undergo surgery which he felt was a result of his compensable injury and he asked the WCB to reimburse him for travel expenses and time loss benefits as a result.

Medical information dated September 30, 2003, revealed that the claimant was under a physician's care since June 19, 2001 with complaints of severe neck pain, decreased sensation in the right arm and some weakness. The claimant was considered totally disabled and was unable to work because he could hardly use his right arm. The diagnosis reached was a C8 radiculopathy on the right side.

In a letter dated November 20, 2002, primary adjudication advised the claimant that it was unable to accept responsibility for any costs resulting from the recommended surgery. It was felt that the current diagnosis of C8 radiculopathy was not related to the initial injury given the diagnosis (soft tissue injury) and because the cervical level differed from the initial injury. On January 16, 2003, the claimant appealed this decision, stating that he underwent surgery on November 12, 2002 and that it was definitely related to his 1992 accident. The claimant therefore requested benefits retroactive to July 1995.

Prior to considering the claimant's appeal, Review Office requested and received additional information from the claimant's attending neurosurgeon along with the operative report with respect to the surgery that was performed. Review Office then referred the case to a WCB orthopaedic to provide an opinion as to whether or not the surgery was a direct consequence of the compensable accident. The orthopaedic consultant responded to Review Office's request on March 25, 2003.

In a decision dated March 28, 2003, Review Office accepted the opinion which was put forth by the WCB orthopaedic surgeon that the operative procedure was unrelated to the compensable accident of October 7, 1992. Review Office denied responsibility for the surgical procedure, the medical costs or any time loss that resulted from it. It also saw no reason to disturb its last decision that terminated the claimant's entitlement to further benefits effective July 13, 1995. There was no entitlement to retroactive benefits to July 13, 1995 as Review Office found no compelling evidence that the worker remained disabled and unable to work beyond that date as a result of the accident. The claimant disagreed with Review Office's decision and a non-oral file review took place on July 15, 2003.

Reasons

The claimant was originally diagnosed as having sustained a musculoligamentous injury to his mid and low back area. He subsequently developed chronic pain syndrome. However, the videotape surveillance conducted in 1995 clearly demonstrated that the claimant could perform work activities with full thoracic lumbar spinal movements and that he was capable of using his upper extremities without any evidence of functional impairment and/or evidence of pain behavior. We agree with the WCB medical advisor's opinion of July 24th, 1995 that the claimant could carry out full physical work without restrictions. Accordingly, we find based on the weight of evidence that the claimant is not entitled to wage loss benefits and services beyond July 13th, 1995.

With respect to the second issue, the claimant advanced the argument that his recent cervical surgery was causally related to his compensable injury of 1992. In support of his argument, the claimant relied upon certain statements recorded by treating specialists:

• May 14th, 2002 letter from a rheumatology and internal medicine specialist to the attending physician - "This patient is suffering from previously diagnosed chronic pain syndrome, in the form of fibromyalgia, with characteristic tender trigger points and symptoms above."
• March 14th, 2003 letter from the treating neurosurgeon to the WCB Review Office - "In summary, Mr. [the claimant] has had established chronic pain syndrome, which did not respond to recent cervical spine surgery. In view of the fact that he hasn't experienced relief of pain since the accident in 1992, I suspect that his chronic pain problem is closely related to the accident."

We find that the assertion about there being a causal connection between the C7-T1 anterior discectomy and fusion to the compensable incident by the out of province treating physicians to be speculative in nature and that such remarks do not correlate with the medical evidence and otherwise. In coming to this determination, we attached considerable weight to unequivocal comments recorded by a WCB orthopaedic consultant in a memorandum to file dated March 25th, 2002. In his view, the surgery was not a direct consequence of the compensable incident:

"The claimant has reported multilevel degenerative disc disease of the C-spine (MRI & Xrays in 1994) & degenerative changes noted at surgery on C7-T1. It has not been established that the findings at surgery are as a result of the CI in 1992."

Also, we took into consideration comments made by a treating neurosurgeon, which are contained in a letter dated September 25th, 2001 to the attending physician. "Thank you for referring Mr. [the claimant] for a second opinion with bilateral arm symptoms after a motor vehicle accident several years ago. He only recently started with episodes of severe lower neck pain radiating down the arms to the elbows more so on the right side than on the left." (Emphasis ours)

We find based on the preponderance of evidence that the claimant's recent cervical surgery is not causally related to his October 7th, 1992 compensable injury. Consequently, responsibility for the surgical procedure of November 12, 2002 should not be accepted by the WCB. Accordingly, the claimant's 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 26th day of August, 2003