Decision #118/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 4, 2003, at the request of the claimant. The Panel discussed this appeal on September 4, 2003 and again on October 8, 2003.

Issue

Whether or not the claimant is entitled to further compensation benefits after October 2, 2002.

Decision

That the claimant is not entitled to further compensation benefits after October 2, 2002.

Decision: Unanimous

Background

On May 3, 2002, the claimant phoned the call centre at the Workers Compensation Board (WCB) to report a cervical/thoracic lumbar injury which occurred on March 13, 2002 during the course of his employment as a cook. The claimant described the accident to the call centre as follows:

"I was hauling 5-gallon pail of dish water. I was draining the slump pail and it had freshly snowed and there was an icy patch, and I slipped and I pulled my back while holding onto the pail and falling to the ground on my back. The pail landed on top of me. This happened approx. 10:00 p.m. Because no one else was available to replace me, I had to keep working. I was taking Tylenol for the pain so I could carry on working."

The last date that the claimant worked following his accident was April 11, 2002.

A Chiropractor's First report was received dated April 17, 2002. The diagnosis rendered was a lumbar strain/instability, cervicothoracic strain. The claimant was also treated by his family physician and on April 15, 2002 the claimant was diagnosed with mechanical back pain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant commencing April 13, 2002.

On September 9, 2002, a chiropractic consultant examined the claimant with respect to his ongoing time loss. The chiropractic consultant reported his examination findings and commented that further chiropractic care is not likely to be of benefit.

In a letter dated September 25, 2002, Rehabilitation & Compensation Services advised the claimant that his wage loss benefits would be paid to October 2, 2002 inclusive and final as it was felt that he was fit to return to work. This decision was based on the fact that there were minimal objective findings reported by the treating chiropractor and a WCB chiropractic consultant and as well because it was felt that the normal recovery for a sprain/strain was six to eight weeks. On October 1, 2002, the claimant appealed this decision stating that he was still in pain due to his back injury from March 2002.

On December 6, 2002, Review Office determined that the claimant was not entitled to compensation benefits after October 2, 2002. Review Office found little evidence to support a relationship between the claimant's loss of earning capacity after October 2, 2002 and the work injury of eight months earlier. Review Office commented that the claimant's attending physician, on August 9, 2002, reported no findings to support an ongoing injury and also the WCB's chiropractic consultant's examination of September 9th reported minimal findings. On May 29, 2003, the claimant appealed Review Office's decision and an oral hearing was arranged.

Following the hearing, the Panel discussed the case and requested additional information be obtained from the orthopaedic specialist who had examined the claimant in July 2003. A report from the specialist was later received dated September 3, 2003 and was forwarded to the interested parties for comment. On October 8, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant’s compensable injury was initially diagnosed as mechanical low back pain. Several months after the injury the attending physician submitted a progress report to the WCB dated August 13th, 2002 in which he noted objective findings, “no obvious tenderness, normal straight leg raising, good range of movement, good reflexes”. In addition, he recommended an assessment by a WCB physician of his patient with regards to his chronic recurrent low back pain. The claimant was examined by a WCB chiropractic consultant on September 9th, 2002. We took note, in particular, of the following comments in his examination notes:

“Mr. [the claimant’s] reported pain appears to be disproportionate to the relatively minimal objective findings. I think that he has suffered a sprain/strain spinal injury. In my opinion, he is primarily suffering, at the time of examination, from myofascial irritability. At the time of examination, I thought that he would be fit for a return to the workplace without restrictions, especially if he were to pursue an occupation, as planned, in a lighter line of work, such as guiding a fishing or hunting group.”

We note that the foregoing examination revealed very little, if any, in the way of positive findings. Certainly by the time of this examination the evidence confirms that the worker’s diagnosed mechanical low back pain had resolved.

Based on the weight of evidence, we find that the claimant’s current back complaints are, on a balance of probabilities, related to a non-compensable pre-existing degenerative back as noted in a CT scan of the claimant’s lumbosacral spine dated May 7th, 2003. In further support of this conclusion, we took into account certain comments made by the claimant’s treating orthopaedic surgeon, which are contained in a letter to the attending physician dated September 3rd, 2003.

“He was able to do a sit-up from the couch. Straight leg raising was 70° bilaterally producing some mid-lumbar pain and the neurological examination showed no abnormality in the legs.

L5-S1 shows a moderate bulge versus a broad mild central herniation. Also noted there is quite marked degenerative change in the facet joints.

He said that he is restricted to weights no more than 10 lbs.

I think he is probably capable of more lifting than that, certainly at waist height and perhaps some restriction on repetitive lifts over 20 lbs. from floor to waist. I am not sure if this would get him back to work as a cook in the fly-in camps over the winter months, but he is probably capable of the cooking duties.”

After having carefully considered all of the evidence, we find that the claimant is not entitled to further compensation benefits after October 2, 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 16th day of October, 2003

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