The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 2003, at the request of an advocate, acting on behalf of the employer. The Panel discussed this appeal on November 4, 2003.

Issue

Whether or not the claimant is entitled to compensation benefits after July 31, 2002.

Decision

That the claimant is not entitled to compensation benefits from July 31, 2002 through to October 2002.

Decision: Unanimous

Background

In May 2002, the claimant filed a workers compensation claim for a low back injury that occurred on April 12, 2002 when he slipped on some ice in his employer's parking lot. A report from the attending physician dated April 17, 2002, indicated that the claimant may have sustained a subluxation of the intervertebral facets. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid commencing April 17, 2002.

Subsequent file information consisted of progress reports from the attending physician along with physiotherapy reports. On July 12, 2002, the claimant underwent a CT scan of the lumbar spine which revealed a right L4-5 disc protrusion with minimal displacement of the L5 nerve root. On July 23, 2002, a WCB medical advisor reviewed the CT scan results and was of the view that the claimant could return to work with restrictions.

The claimant returned to modified duties on August 1, 2002. On August 3, 2002, the claimant ceased work due to increased pain in his back. Primary adjudication then made arrangements for the claimant to be assessed by a WCB medical advisor on September 20, 2002.

Prior to the September 20th examination date, the claimant contacted his case manager on several occasions to advise that it would be detrimental for him to travel from Brandon to Winnipeg to attend the WCB examination because of his back condition. On September 20, 2002, the case manager confirmed to the claimant that his benefits would end on July 31, 2002 as he did not attend for his examination at the WCB's offices as requested and because it was determined that he was fit to perform 8 hours of work.

On January 21, 2003, a worker advisor appealed the above decision to Review Office. The worker advisor referred to a Physical Capabilities Analysis report dated September 3, 2002 which stated that the claimant was unfit for any work and that the claimant had restrictions on driving or riding for more than 20 kms. The worker advisor was therefore of the position that the claimant was unable to perform any work duties after August 3, 2002 and that he was physically unable to attend the WCB's examination on September 20, 2002.

In a decision dated March 28, 2003, Review Office determined that the claimant was entitled to compensation benefits after July 31, 2002. Review Office indicated that it did not support the adjudicative decision to withhold benefits as the evidence did not establish that the claimant was physically capable of performing a full day's work activities as was alleged by the case manager. In support of its position, Review Office noted that the claimant had an unsuccessful attempt at returning to work at the beginning of August. It also noted that the attending physician, on August 14, 2002, sent a referral to a neurosurgeon for consultation, indicating that the claimant was considered unfit for all work activities (modified or regular) until October 30, 2002. On May 23, 2003, an advocate for the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 22 of the Workers Compensation Act provides in part that where an injured worker fails in the opinion of the WCB to mitigate the consequences of his/her accident, then the WCB may in its discretion reduce the worker's compensation to such sum as would be payable, if any, had the worker mitigated the consequences of the accident. In the particular case at hand, we find that the claimant did indeed fail to mitigate the consequences of his accident after July 31st, 2002.

Firstly, we note that the claimant had self imposed travel restrictions which he had communicated to his doctor and to the WCB, and as a result chose not to attend scheduled medical examinations at the WCB. Secondly, a neurosurgeon examined the claimant on October 24th, 2002 and reported to the treating physician as follows:

"This gentleman manifests no evidence of radiculopathy or myelopathy. His sensory, motor and reflex examinations are without evidence. His general examination demonstrates a moderately obese gentleman with a fair range of lumbar and thoracolumbar spinal movement. He is moderately flexible. There is no positive straight leg raising. I've viewed his films and there is a small disc protrusion which does not merit neurosurgical attention. I am unable to correlate this man's physical examination and CT findings with his rather generous allotment to symptoms. Certainly there is no indication that there is a neurosurgically treatable disorder."

The findings in the foregoing report clearly suggest that there was no compensable condition in play at this time. In other words, there was little symptomatology, which could be attributed to any clinically diagnosed condition or to the original compensable injury. Finally, these findings by the neurosurgeon are, in our view, totally consistent with the attending physician's clinical notes of July 25th, 2002. "CT scan reveals disk prolapse L4-5 level involve R L5 nerve root. Not compatible with clinical findings of L sided L5 nerve root irritation."

Based on the preponderance of evidence, we find that the claimant is not entitled to compensation benefits after July 31, 2002 through to and including October 24, 2002 when the WCB terminated the claimant's benefits. Accordingly, the employer's appeal is hereby allowed.

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 4th day of December, 2003