The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 22, 2003, at the claimant's request. The Panel discussed this appeal on April 22, 2003, and again on September 12, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 28, 2002.

Decision

That the worker is not entitled to wage loss benefits beyond May 28, 2002.

Decision: Unanimous

Background

In September 2000, the claimant filed an application for compensation benefits indicating that he had been lifting bottles of water out of his van and noticed some pain in his lower back on the left side. The pain moved into his left hip and was constantly present. The bottles weighed approximately 43 lbs. a piece. The injury date was recorded as August 14, 2000.

A Doctor's First Report dated August 29, 2000, diagnosed the claimant with an L/S spine musculoskeletal sprain. The report also noted that the claimant had an L4-L5 disc removed 3-4 years ago. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on August 29, 2000.

During the course of the claim, the claimant underwent physiotherapy treatments and was as well treated by a general practitioner. A CT of the lumbar spine performed on December 19, 2000, revealed degenerative disc disease and narrowing at L5-S1. There was a right paracentral disc protrusion involving the right S1 nerve root. A left lateral disc protrusion was seen at the L5-S1 level involving the exiting left L5 nerve root in the exit foramen and lateral recess above. A large vertical posterior ridge osteophyte at L4-L5 was also found.

In a report to the general practitioner dated March 5, 2001, an orthopaedic surgeon reported that he thought the claimant may have a slight recurrence of a disc herniation which he thought was subsiding and it was possible that this may be due to some epidural scarring. An MRI was ordered which later took place on July 30, 2001.

In a follow-up report to the general practitioner dated August 21, 2001, the orthopaedic surgeon stated that the MRI showed a bit of scarring but also showed a bit of a central disc and right sided disc herniation. He thought that the disc was too small to be clinically relevant. The specialist noted that the claimant was scheduled to be treated by epidural steroids and that he would see him again to see how he responded to this treatment.

On October 29, 2001, the orthopaedic specialist noted that the claimant had his epidural steroid injection which did not seem to make much of a difference. The claimant was going for a second injection at a different level to see if this may help. The specialist indicated that the claimant was not a good candidate for surgery and no further follow-up appointments would be scheduled.

On December 4, 2001, the claimant was examined by a chiropractor and the following diagnoses were made: chronic advanced lumbosacral subluxation sprain associated with right sciatica; chronic compensated thoracic subluxation sprain associated with costo-vertebral joint subluxation sprain and chronic compensated cervical subluxation sprain.

A report was received from the physical medicine and rehabilitation specialist (physiatrist) dated December 19, 2001 which indicated that the claimant reported no improvement following the transforaminal epidural injection along the right L5 spinal nerve. Clinical examination still showed blunting of the right achilles reflex with absence of dural tension. His motor power had resolved. The physiatrist commented that the claimant's ongoing complaints included mid-thoracic and periscapular discomfort which he could not relate to the claimant's low back condition. The physiatrist felt that it was safe for the claimant to pursue a reconditioning program.

A Functional Capacity Evaluation was performed at the WCB's offices and a full report concerning this assessment is on file dated February 15, 2002.

The claimant was examined by a WCB medical advisor on March 25, 2002. The claimant was described as a muscular and fit looking young man with some evidence of reduction of range of movement in the lumbosacral region and also in extension. The claimant showed no evidence of radiculopathy bilaterally. He had some evidence of pain in the low back over the right sacroiliac joint. There was no clear evidence of muscle spasm or tightness. The claimant did not seem to be particularly de-conditioned on examination. Suggestions were made for the claimant to proceed with a four week reconditioning course with a view to a return to his pre-accident job duties.

A WCB chiropractic consultant reviewed the file on April 17, 2002. He commented that further chiropractic treatment would not benefit the claimant and a reconditioning program was suggested.

A four week reconditioning program was arranged for the claimant commencing April 29, 2002.

On May 3, 2002, the attending chiropractor commented that the claimant was unable to perform his pre-accident work. He recommended a new work placement and retraining.

On May 15, 2002, the attending physician advised the WCB that he did not feel that the claimant was capable of returning to his original employment due to continued physical limitations and risk of re-injury.

In letter from primary adjudication dated April 25, 2002, the claimant was advised that he no longer would be receiving further wage loss benefits after May 28, 2002, being the end date of his reconditioning program. It was primary adjudication's decision, based on the weight of evidence, the mechanics of his accident, the duration of time since the compensable injury, and, on a balance of probabilities, that the claimant had sufficiently recovered from his compensable accident. Any suggestion that the claimant should avoid certain activities was possibly made to prevent subsequent exacerbation of symptoms or further injury. On May 14, 2002, the claimant appealed this decision to Review Office.

Prior to considering the claimant's appeal, Review Office wrote to the attending therapist to obtain a final report concerning the reconditioning program that the claimant undergone. Review Office also sought the medical advice of a WCB orthopaedic consultant.

In a decision dated August 22, 2002, Review Office agreed that the claimant had a back at risk but that this was because of his pre-existing spinal problems and not because of this particular accident. Taking into account the WCB's policy on pre-existing conditions, Review Office believed that the claimant was not entitled to the payment of wage loss benefits beyond May 27, 2002 as it felt that the compensable injury was not playing a material role in the worker's claim for loss of earning capacity beyond that date. In March 2003, the claimant appealed Review Office's decision and an oral hearing was arranged.

Following the hearing on April 22, 2003, the Appeal Panel requested that arrangements be made for the claimant to be assessed by an independent orthopaedic specialist. This examination later took place on July 7, 2003 and the specialist's report was forwarded to the claimant for comment.

On July 24, 2003, a solicitor who represented the claimant after the hearing, wrote to the Appeal Panel, indicating that the claimant disagreed with the opinion expressed by the independent orthopaedic specialist.

In a letter dated July 31, 2003, the solicitor was advised that the Appeal Commission would entertain her comments with respect to the independent orthopaedic specialist's report of July 7, 2003 but it would not be accepting any further medical opinions with respect to this case. The solicitor was given until August 22, 2003, to provide the Appeal Panel with any written comments that she wished to make concerning the independent orthopaedic specialist's report dated July 7, 2003. A response from the solicitor was later received dated August 22, 2003 and was considered by the Panel. On September 12, 2003, the Panel met again to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant sustained a soft tissue and ligamentous strain and had a partial temporary aggravation to his low back region on August 14th, 2000, while at work moving heavy bottles of water. Following the hearing, we requested that the claimant be examined by an independent outside orthopaedic specialist.

This examination took place on July 7th, 2003. In answer to our questions, the orthopaedic specialist responded as follows:

1. "His current low back condition diagnosis is degenerative changes dorsolumbar spine and degeneration of lumbar discs.
2. In my opinion, his current low back condition is not a result of his injury of August 14, 2000.
3. In my opinion, his current low back condition does not prevent him from being able to work at his previous job as a delivery driver. He should wear his back corset when doing this job as he did for many years previously.
4. In my opinion, he had a relevant pre-existing condition prior to his injury of August 14, 2000. The pre-existing conditions were degeneration of dorsolumbar spine, degeneration lumbar discs and spinal stenosis L4-5.
5. In my opinion, the injury sustained on August 14, 2000, was influenced by his pre-existing condition. He sustained a partial temporary aggravation of his pre-existing condition. In my opinion, the effects of the injury on the pre-existing condition have long since resolved.
6. In my opinion, he would have been capable of returning to his work as a delivery driver in May 2002."

After taking into consideration all of the evidence together with the foregoing orthopaedic specialist's opinion, we find that the claimant's compensable injury had, on a balance of probabilities, completely resolved by the time his benefits were terminated. We further find therefore that the worker is not entitled to wage loss benefits beyond May 28th, 2002. 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 30th day of September, 2003