The Appeal CommissionThe Workers Compensation Act of Manitoba

This case involves a worker, employed as a cabinetmaker, who injured his back in a workplace accident in February 2000. His claim for compensation was accepted and benefits were paid accordingly, although he had no wage loss until January 2001.

In March 2001, his benefits were terminated as it was determined that he should have recovered from his injury by that time. This decision was upheld upon reconsideration by Review Office. Review Office denied his request for reconsideration a second time, subsequent to a Medical Review Panel report. It is that decision that he has appealed to the Appeal Commission.

A previous decision by the Appeal Commission overturned an adjudicative and Review Office decision denying his request for examination by a Medical Review Panel.

For this appeal to be successful, the Appeal Panel would have to determine that he continued to suffer a loss of earning capacity, as a result of his compensable injury, beyond March 9, 2001. We have so-determined.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant, his advocate, and from his former employer.

A key element in the Case Manager’s decision to end benefits on March 9, as well as in subsequent decisions by the Review Office revolved around the existence of a pre-existing back problem.

In its April 2002 decision, Review Office pointed to contradictory evidence on the file in respect of a previous back injury. The decision notes that both the claimant and his attending physicians contended that he had had no previous history of back pain. Review Office points out that the employer and then a friend of the claimant had reported to the board that the claimant had a long history of back pain.

On March 14, 2001, the Case Manager, wrote in a memo detailing a telephone conversation with the employer, that the “accident employer … feels that this gentleman has had ongoing back problems for as long as he can remember and has reported this to the employer.”

In a letter, dated and signed on October 14, 2003, the employer wrote that the Case Manager had misunderstood him, adding “[a]t no time prior to his injury of 2000 did Mr. [claimant] complain of back pain.” He repeated this statement in sworn testimony before the Panel.

We are inclined to accept this sworn testimony.

The manager of another former employer also wrote a letter, dated August 30, 2003. In it, she wrote that the claimant had worked for her for six years, as shop foreman. Furthermore, she wrote: “[n]ever did he complain about his back being sore.”

In an October 30, 2001 memo, the Case Manager wrote of a conversation with a friend of the claimant: “[s]he said that claimant has attended the doctor over the years for back pain as a result of heavy work duties, but did not file any claims.”

On August 5, 2003, his family doctor, who has treated him for over 35 years, wrote that his records showed only two visits for minor, non-work related back pain, one in 1978 and the other in 1989. Missing from his records was a WCB report, from September 1981, for pain in his right lower back. He lost nine days of earnings for that injury.

We are of the view that the comments made by the friend are, at least, second hand and should not be given much weight. Clearly, the evidence of his doctor, which showed only a few minor back problems, should be given considerably more weight.

This leads us to conclude that there is no substantive evidence to support that the claimant had a long history of back complaints. However, this is not to say that he was without back problems. An x-ray taken in February 2000, just after the injury date, showed degenerative changes with considerable narrowing at the L4/5 level.

It is incumbent upon us to determine the relationship, if any, between these pre-existing degenerative changes and his compensable injury.

Pursuant to Board Policy No. 44.10.20.10, Pre-Existing Conditions, where the pre-existing condition has been enhanced as a result of the compensable injury, the board will accept responsibility for the result of the accident. The policy defines “enhancement” as : “Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.”

A board medical advisor, in a memo dated July 17, 2001, wrote that the claimant’s problems were related to degenerative changes, which were all pre-existing and unrelated to the compensable injury.

A CT scan, taken in June 2001, showed mild degenerative changes throughout his lumbar spine, fro the L1 to S1 levels. Based on this CT and an examination, an orthopaedic specialist concluded that the claimant had “spondylosis of lumbosacral spines with facette joint arthritis which is pre-existing, but the work related injury of February, 2000 caused exacerbation of his pre-existing spondylosis and caused further mechanical spinal pain. He has not made complete recovery from his injuries …”

It was based on these differing opinions that the earlier appeal Panel allowed the claimant’s request for a Medical Review Panel (MRP) examination.