The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

At the claimant's request, an Appeal Panel hearing was held on September 29, 2003. The Panel discussed the appeal and made its decision on that date.

Issue

Whether or not responsibility is accepted for the claimant's low back condition beyond September 5, 2001; and

Whether or not the claimant is entitled to a Permanent Partial Impairment award.

Decision

That responsibility should not be accepted for the claimant's low back condition beyond September 5, 2001; and

That the claimant is not entitled to a Permanent Partial Impairment award.

Decision: Unanimous

Background

The claimant began work with the accident employer in 1986. In 1992, he suffered a compensable injury to his back when he fell down a flight of stairs at his work. He returned to work approximately four months after his injury. The claimant experienced another compensable back injury at his work in 1995 and returned to work after about three months.

On November 26, 1996, the claimant was injured while resuscitating a cardiac arrest patient. The injuries reported in the accident were to the lower back and left side of his upper pelvis. Initially, the claim was accepted by the Workers Compensation Board (WCB) and various types of benefits were paid to the claimant.

However, since 1998 there has been considerable debate over both the nature and degree of the claimant's injuries and the issue of whether he has recovered from the workplace accident to the point that it is no longer contributing to a material degree to any loss of earning capacity which may exist.

In August, 1998, the claimant's wage loss benefits were discontinued because he had declined to participate in a return to work program. When the decision was appealed, Review Office held that there was no evidence to support the worker's claim that he had not physically recovered from his accident to the point that he could not have resumed a graduated return to work program put in place for him. (Order No. 166/99)

In making its decision, Review Office concluded that the claimant had several pre-existing conditions in his lumbar spine. It also noted that while the worker had demonstrated disc herniations on a CT scan, his clinical presentation did not accord with the radiological findings.

The decision cited a significant volume of medical evidence. Among the reports considered were: a) an April, 1998 report of the claimant's attending physician who suggested that the radiographic findings did not adequately explain the severity of the worker's pain; b) a report of the Medical Advisor indicating that he was not able to relate the worker's current and ongoing difficulties to the compensable accidents; c) and a September 8, 1997 report by a specialist in physical and rehabilitation medicine who indicated that the physical examination correlated imperfectly with the physical findings.

The debate was renewed later in that same year. At issue before the Review Office in October, 1999 was whether the claimant's myofascial findings were related either to his 1992 or 1996 injury. The Review Office also considered whether the claimant had a diagnosis of chronic pain syndrome related to his November 26, 1996 accident.

In its decision, Review Office concluded that the worker had physically recovered from his accident with the preponderance of difficulties now being experienced related to pre-existing factors. (Order No. 638/99)

Review Office specifically rejected the conclusion of a occupational health specialist in March of 1999 that the worker's current myofascial findings were related to a 1992 injury or to the current claim. In doing so, it noted that during the most recent claim, the worker was seen repeatedly by a specialist in physical medicine and rehabilitation who did not provide this diagnosis. In its view, if the worker did have myofascial pain syndrome, it would not be related to any compensable claims as the diagnosis was only made in March of 1999.

In terms of chronic pain syndrome, the Review Office concluded that the claimant's pain behaviors and pain complaints were more related to pre-existing factors that to the actual compensable injury. However, this conclusion was not accepted by the Appeal Commission. In July 2000, the claimant's benefits were reinstated in accordance with Appeal Panel Decision No. 68/00. The Appeal Panel determined that the claimant met the diagnostic criteria for chronic pain syndrome. Additional details about that determination are available in the decision.

Arrangements were made for the claimant to attend the Canmore Pain Clinic but he was discharged early in the program because of what was considered to be a lack of commitment. Due to the claimant's non-participation in the treatment program, his benefits were suspended effective February 7, 2001. The decision to suspend the claimant's benefits was confirmed by both the Review Office and the Appeal Commission. For additional details, please refer to Appeal Panel Decision No. 23/02.

While much of the debate between 1999 and 2002 focused on the issue of chronic pain syndrome, the claimant continued to explore the question of whether he had physically recovered from his compensable accidents.

In May of 2000, the claimant's representative received a letter from a specialist in physical medicine and rehabilitation. The specialist made reference to myofascial findings and proposed a treatment which involved a paraspinous block and needling. In a February 1, 2001 letter, the occupational health physician reiterated his contention that "[the claimant's] degenerative back condition began with his 1992 work injury and that subsequent radiographs demonstrate enhancement." In a letter dated April 24, 2001, the specialist in physical medicine and rehabilitation made reference to his earlier letter of May 5, 2000 and noted that the claimant did not respond to paraspinous blocks or supraspinous needling.

During the spring of 2001, the WCB also continued to investigate the file. At the request of the WCB's Special Investigations Unit, the claimant was put under surveillance on at least fourteen different occasions between March 20, 2001 and September 5, 2001. This videotape and file evidence was reviewed by the WCB's Pain Management Unit (PMU) on September 22, 2001. Following this review, PMU expressed the opinion that the claimant did not qualify for a diagnosis of chronic pain syndrome.

At around the same time (September 17, 2001), the WCB medical advisor was asked to review all files relating to the 1992, 1995 and 1996 claims with a view to the questions of whether there was any evidence of myofascial pain syndrome being related to the claimant's compensable injuries and whether the pre-existing condition was related to the compensable injuries.

The medical advisor's answer to these questions was no. In reviewing the files, he made reference to a November 1992 x-ray of the patient which revealed minor degenerative spurring in the upper lumbar. He observed that the 1992 diagnosis was mechanical lower back pain with no neurological findings.

He also highlighted the claimant's comment in April of 1995 that his back "has been basically, ok" and that it would act up once in a while but never enough for him to seek medical attention. The medical advisor noted that the 1995 diagnosis was a sprain of back with no abnormal neurological findings.

With reference to myofascial pain syndrome, the medical advisor indicated that no trigger points were observed in 1997 despite numerous examinations. In his view, it was "difficult to relate myofascial pain syndrome to compensable injuries." On October 1, 2001, the medical advisor concluded that there was also no need for work restrictions.

On October 30, 2001, a WCB case manager advised the claimant that it was the opinion of Claims Services that he had recovered from the effects of his November 26, 1996 workplace injury and that wage loss benefits would be paid to September 5, 2001 inclusive and final.

On January 15, 2002, a solicitor, acting on behalf of the claimant, appealed the decision to the Review Office. The solicitor contended that the termination of wage loss benefits was inconsistent with WCB policy and The Worker's Compensation Act (the Act). The claimant felt that he had not recovered from the effects of his workplace injury and that his benefits should be reinstated retroactive to February 6, 2001.

The solicitor made reference to numerous medical reports on file between 1999 and 2001 to support her position that the claimant had not recovered from his injury. She placed particular reliance on the previously referenced conclusions of the occupational health physician who suggested that the claimant's degenerative back condition began with his 1992 work injury. The solicitor also cited the previously referenced May 5, 2000 and April 24, 2001 reports from the specialist in physical medicine and rehabilitation.

The employer's representative responded on April 2, 2002. In terms of the physical injury, he acknowledged that there was ample evidence suggesting the presence of a pre-existing osteoarthritic spine but "absolutely no evidence" to suggest that the workplace injury resulted in any neurological or other anatomical abnormalities. "Rather the evidence supports that he had sustained soft tissue injuries superimposed on a degenerative spine."

The employer's representative also took issue with the suggestion that "any current myofascial findings are related to a 1992 injury or the current claims" by citing the October 1999 decision of the Review Office referred to previously. With reference to the issue of any outstanding physical impairment related to the workplace injury, it was his view that there was no organic pathology or myofascial pain that could be considered to be contributing to the current loss of earning capacity.

On April 19, 2002, Review Office considered the solicitor's appeal and the submission from the employer's advocate. Review Office determined that responsibility should not be accepted for the claimant's low back condition beyond September 5, 2001.

In presenting its analysis, Review Office first addressed the issue of the claimant's physical status by making reference to the Review Office decision of February 1999. It noted that "although the worker had demonstrated disc herniations on a CT scan, all physicians involved in his care had remarked that the clinical presentation on examination did not correspond with the radiological findings."

Review Office noted that reports by physiatrists on file speculate that the claimant's radiological findings may be related to multiple compensable injuries commencing in 1992 and that the claimant has had evidence of a paracentral disc herniation at L4-5. It pointed out, however, that the claimant's clinical signs after the 1996 accident did not correspond to the disc herniation found and that the body mechanics of the November, 1996 workplace injury would not herniate a lumbar disc.

Review Office agreed with the employer and CPU that the claimant's various symptoms were not consistent with the main criteria for the diagnosis of CPS. With regard to the physical aspect of the claim, Review Office made reference to its decision of October 1999 that there was no longer a cause and effect relationship between the claimant's subjective complaints of pain and the original November 26, 1996 injury.

Review Office found no new medical evidence that would alter its previous opinion. Review Office did not feel that the chest compression maneuver that the claimant performed at the time of the accident had any bearing on the x-ray finding. In its view, the original condition was merely a strain superimposed on a degenerative lower back condition.

In January 2003, the claimant raised a number of issues for consideration by the WCB. He requested the convening of a Medical Review Panel and suggested that he was entitled to a permanent partial impairment award for his lower back. With respect to the second issue, a WCB case manager wrote to the claimant on February 24, 2003. The claimant was advised that he was not entitled to a PPI award as he was considered to be recovered from the effects of his work place injury. The decision to deny the claimant a PPI award was confirmed by the Review Office in its decision dated May 9, 2003.

On May 29, 2003, the claimant appealed Review Office's decision dated April 22, 2002 and May 9, 2003 and an oral hearing was arranged. The claimant's notice of appeal focused on the argument that he had not recovered from the effects of his workplace injury. In particular, he argued that there was "clear evidence of objective physical impairment" and that "relevant medical opinions were not taken into account."

The oral hearing took place on September 29, 2003. The claimant noted his long employment at the accident employer and placed particular emphasis on the May 5, 2000 letter of the specialist in physical medicine and rehabilitation as well as the February 1, 2001 letter from the specialist in occupational health. In his view, these were important pieces of new medical evidence which had not been properly considered by the Review Office. The claimant also challenged the conclusions drawn from the videotape surveillance and called his brother as a witness to, among other things, repudiate one specific piece of the surveillance evidence.

An overview of the argument presented to the panel by the employer's representative can be found marked as Exhibit 1 to the September 29, 2003 oral hearing.

Reasons

The Panel would note that the claimant's benefits are already under suspension due to his non-participation in the treatment program designed for chronic pain syndrome. The Panel also observes that the claimant's notice of appeal as well as his argument at the hearing were focused on his position that there was evidence of physical impairment causally related to his compensable injuries.

For these reasons, in making its determination that responsibility should not be accepted for the claimant's low back condition beyond September 5, 2001, the panel will restrict its reasons to the suggestion that physical injuries causally related to the claimant's workplace accidents are contributing to a material degree to any loss of earning capacity that may exist.

The panel's deliberations have been assisted by a review of Board Policies and the Legislation. In particular, reference can be made to s. 4(1) of the Act and Policy 44.10.20.10, Pre-Existing Conditions. The policy provides that where a loss of earning capacity has been caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the Board will accept responsibility for the result of the accident.

However, the Policy also provides that the loss of earning capacity is no longer the Board's responsibility in circumstances where:

1. a worker has recovered from the workplace accident to the point that it is no longer contributing to a material degree to the loss of earning capacity, and;
2. the pre-existing condition has not been enhanced as a result of a workplace accident, and;
3. the pre-existing condition is not a compensable injury.

In this case, the claimant argues that as a result of a workplace accident he has an injured back that has resulted in a loss of earning capacity. He emphasizes the evidence of a disc herniation, the myofascial finding reported in the May 5, 2000 letter of the specialist in physical medicine and rehabilitation and the linkage between his injuries and the 1992 accident asserted by the specialist in occupational health in the letter of February 1, 2001.

The evidence makes it clear that the claimant has an injured back. However, based upon its review of the entire record, the Panel finds on a balance of probabilities that any loss of earning capacity which may exist as a result of these physical injuries is not a sequela of the claimant's compensable workplace accidents. The Panel finds that the reasoning of the Review Office on this point is persuasive.

Even if a loss of earning capacity by the claimant could be related to the disc herniation, the Panel cannot conclude on a balance of probabilities, that the disc herniation was the result of a workplace accident. As noted in the May 5, 2000 letter of the specialist in physical medicine and rehabilitation as well as the September 2001 comments of the WCB medical advisor, imaging tests in 1992 "showed minor degenerative spurring upper lumbar vertical bodies but no other significant abnormality." The diagnosis of the 1995 injury was that it was merely a sprain of the back with no abnormal neurological findings. With regard to the workplace accident in 1996, the Panel finds on a balance of probabilities that the mechanics of a chest compression would not herniate a lumbar disc.

While the specialist in occupational health suggests a linkage between the 1992 accident and the claimant's current situation, the Panel prefers the opinion of the WCB Medical Advisor who answered "no" to the question of whether the pre-existing conditions were related to the compensable injuries.

The Panel also concludes that the myofascial findings from 1999 cannot be related on a balance of probabilities to the workplace accident of 1996. As noted in the background, despite numerous examinations of the claimant, no trigger points were observed in 1997. While a finding is not necessary for its determination, the panel would also observe that the claimant did not respond to paraspinous blocks or supraspinous needling a fact which may raise some questions about the validity of the diagnosis of myofascial pain syndrome.

In making these findings, the Panel does not dispute the existence of the claimant's lower back problems. However, the Panel finds on a balance of probabilities that the claimant's existing physical difficulties with his back are not causally related to his compensable injuries. The Panel finds that the claimant has recovered from these accidents to the point where they are no longer contributing to a material degree to any loss of earning capacity.

The finding that the claimant is not entitled to a Partial Impairment Award flows from the Panel's conclusion that no responsibility should be accepted for the claimant's low back condition beyond September 5, 2001. There is no partial impairment that can be causally related to a compensable workplace accident.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2003