The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 14, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on a number of occasions, the last one being February 11, 2004.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

On November 18, 1999, the claimant submitted a claim for workers compensation benefits indicating that she was experiencing pains in her hips, pelvis and lower back which she attributed to the repetitive nature of her employment activities. The claimant noted that she had been experiencing these difficulties over the past 2 ½ to 3 years. Information received from the employer indicated that they had no record of an accident occurring in the workplace and that the claimant no longer worked for the company.

In order to adjudicate the claim, primary adjudication contacted the claimant on December 17, 1999 to gather information concerning her work duties with the accident employer and details regarding the onset of her symptoms.

Primary adjudication also received medical information from the claimant's treating physicians which included reports from a physical medicine and rehabilitation specialist (physiatrist), a chiropractor and two general practitioners. A Workers Compensation Board (WCB) medical advisor then reviewed all the documentation on file and provided primary adjudication with his written opinion/comments dated June 27, 2000.

In a WCB decision dated June 30, 2000, the claimant was informed that her claim for compensation had been denied based on the following rationale:

"When reviewing the medical information, it appears that the symptoms began following your total abdominal hysterectomy and have persisted since that time regardless of whether you were at work. While there is no question you are suffering from physical problems, we can not relate them historically, medically, or causally, to your work activities at [name of accident employer]. Therefore, as we have not established that an accident by definition, occurred in the course of your employment, we are unable to establish that your current difficulties meet the criteria for an acceptable claim under the Workers Compensation Act."

On August 4, 2000, the case was considered by Review Office following receipt of an appeal by the claimant dated July 5, 2000. The Review Office upheld the decision by primary adjudication that the claim was not acceptable. In reaching this decision, Review Office relied on the following evidence when it concluded that the claimant's problems commenced post-surgery in 1996:

• the claimant's applications for short term disability benefits dated September 14, 1998 and November 1, 1999 in which she indicated on both forms that her problems were not accident related.
  
  
• the general practitioner who signed the application for short term disability benefits on September 14, 1998, in which he noted that the claimant's condition was not due to an injury on the job.
  
  
• the referral letter by the general practitioner to the physiatrist dated September 16, 1998. In this letter, the physiatrist reported that the claimant had been experiencing pain in her left hip and low back for several years duration. He also noted that the claimant had been experiencing increasing pain since undergoing surgery in April 1996 which involved a total abdominal hysterectomy and lymph node dissection.
  
  
• a report by the physiatrist dated November 6, 1998 in which he stated, "…she relayed having onset of symptomatology following surgery that resulted in a radical hysterectomy, this done in June 1996."

In addition to the above, Review Office noted that the employer was not aware of the claimant having sustained an accident in the workplace, and that the claimant had applied for short term disability benefits on November 1, 1999, making it questionable that the claimant herself was blaming her employment at that point in time. The application was filed after the claimant was terminated from her employment for excessive absenteeism. The weight of evidence did not support the worker's contention that her left hip and low back problems were caused by an accident in the workplace.

On March 22, 2002, legal counsel for the claimant submitted an application to appeal the Review Office's decision of August 4, 2000. In support of his position that the claim was acceptable, legal counsel submitted a report from an orthopaedic surgeon dated March 8, 2002 for consideration.

On May 17, 2002, legal counsel asked the Appeal Commission to postpone scheduling an oral hearing as he was gathering further medical evidence for the Panel's consideration. In the meantime, legal counsel submitted the following medical evidence for consideration:

• prescription for a muscle relaxant and anti-inflammatory dated September 18, 1995;
  
  
• consultation report from Bethesda Hospital dated October 17, 2000 and October 31, 2000;
  
  
• January 26, 2001 report from a physiatrist;
  
  
• report from the claimant's treating chiropractor dated August 29, 2001;
  
  
• chart notes from Cancercare Manitoba dating from February 20, 1996 and April 28, 1998;
  
  
• CT lumbar spine report dated August 23, 2001; and
  
  
• October 7, 2002 report from the treating orthopaedic specialist.

On November 14, 2002, an oral hearing was held at the Appeal Commission. Following the hearing and discussion of the case, the Panel requested additional information from the claimant's treating orthopaedic specialist. On March 21, 2003, legal counsel was provided with a report from the orthopaedic specialist dated March 13, 2003 and the results of an MRI assessment dated January 28, 2003.

In a submission dated February 24, 2003, legal counsel asked the Panel to postpone its meeting to discuss the case pending receipt of further medical information that was forthcoming.

On December 2, 2003, legal counsel provided the Appeal Panel with additional medical information dating from September 16, 1998 through to September 11, 2003 together with a submission by the claimant and a list of medications that were prescribed to her.

On December 10, 2003, the Panel met to discuss the case and decided to await the results of an MRI assessment that had been arranged by the orthopaedic specialist along with his consultation report.

On January 27, 2004, legal counsel was provided with a report by the orthopaedic specialist dated January 8, 2004 and a left hip arthrogram dated December 11, 2003 and was asked to provide comment.

On February 4, 2004, legal counsel asked the Appeal Panel to postpone its next meeting pending receipt of the results of upcoming medical appointments that the claimant had scheduled. On February 6, 2004, the Appeal Panel denied the request and asked legal counsel to provide his final comments to the Panel no later than February 10, 2004.

On February 9, 2004, legal counsel called the Recording Secretary at the Appeal Commission to advise the Panel to consider his submission of December 2, 2003 to be his final comments in connection with the case and the issue under appeal.

Reasons

The claimant in this case filed a claim in November 1999 for problems with her hips, pelvis, and low back, which she states had developed in the last 2.5-3 years from her job as a labourer in a manufacturing operation. Her claim has been denied by the adjudicative and Review Office levels of the Workers Compensation Board (WCB), and she has appealed those decisions to this panel.

Sections 1(1) and 4(1) of The Workers Compensation Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his or her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In order for this worker's claim to be acceptable, we would have to find that her injuries are causally related to her employment. We have carefully reviewed the evidence available in the file and presented at the hearing, as well as the evidence and submissions provided after the hearing, and we have concluded, on a balance of probabilities, that the claimant's current medical conditions are not causally related to her job duties as a labourer. In reaching this conclusion, we have placed particular weight on the following evidence.

It is apparent to us, from the arguments advanced by the claimant's advocate and from the earlier decisions on this case, that there are several matters that have increased the complexity of the case. These include:

• The apparent inability of many medical practitioners to pinpoint a specific medical diagnosis for the groin and hip pain, which would assist us in assessing whether that diagnosis could have arisen out of the job duties that the claimant had been performing for her employer.
  
  
• The role of a non-compensable medical condition (for cervical cancer) which required a hysterectomy and a bilateral pelvic lymphadectomy (removal of lymph nodes) in April 1996. One of the issues in this claim is whether the consequences of that surgery or medical condition are a factor in the claimant's medical status - whether ongoing pain complaints arose from that surgery, or whether they appeared before that surgery or well after;
  
  
• The claimant's delay in filing this claim (November 1999) and her failure to advise her employer it was work-related until that time, even though she indicated the condition had been present for a few years, and had led to many work absences and a number of medical treatments in the preceding three years, with no attributions of work-relatedness in that period;

The first issue is perhaps the most important for us to consider, as we need to find that the claimant's job duties somehow led to the development of her medical difficulties, in order to accept her claim. At the hearing, we obtained considerable evidence from the claimant as to her specific job duties, and we also had the opportunity to view a videotape of her job duties. Clearly, there are physical elements to her job. Our challenge remains, though, to determine, from the medical evidence, what her medical diagnoses are, and whether they can be reasonably found to have arisen out of her performance of those job duties.

At the hearing, it was evident from our questions of the claimant and her advocate, that a medical diagnosis, outside of degenerative changes in the lumbar spine, had yet to be established for the claimant's hip/groin problems. The claimant advised us that other diagnostic tests (in particular an MRI) and a follow-up visit to her attending physiatrist were pending.

To help us resolve this matter, we asked for additional medical information after the hearing was over. We then provided ample opportunity afterwards for the claimant to see another orthopaedic specialist and to have another MRI performed, to see if a biologically plausible link could be established between her medical condition and her job duties.

In reviewing the recent medical documentation, we note that the most recent MRIs rule out any pathology in the groin or hip areas, and that the orthopaedic specialist has no answer to the claimant's problems at this time. His speculative diagnosis - a femoral hernia - is increasingly remote from the notion of a work-related injury. What we are left with, at this point, is the known degenerative condition in the claimant's back, and her 1996 surgery for a non-compensable cancer condition.

Dealing with the claimant's back condition, we note that an x-ray in September 1998 identifies degenerative changes at the L5-S1 level, and that early degenerative disease of the spine was confirmed in a bone scan which was done in November 1998. Later, a treating physiatrist reviewed a January 28, 2003 MRI of the pelvis and lumbar spine. In his letter of March 13, 2003, he notes early disc desiccation and disc space narrowing at L5 and S1, as well as posterior plate spurring with no evidence of disc herniation, spinal stenosis, or thecal sac or nerve root compression. Recently, an orthopaedic specialist examined the claimant, and in his report of September 11, 2003, he notes that her back pain is described as a constant 10/10 without medication and a 5-6/10 with medications. He notes only a degenerative lumbar spine condition, and continues to explore other hip pathologies (labral tear) which he later rules out.

Although the claimant has asked, on the file, whether her degenerative condition could have been caused by her work, we note that there is no medical evidence on file to suggest that this condition had arisen out of her work duties, nor is there a body of scientific literature pointing to the development of a degenerative back condition from these types of job duties, in the absence of an acute trauma to the back. Indeed, a later report by another attending physician dated June 24, 2003, notes that the claimant had spina bifida which may play a role in her degenerative back disorder.

Dealing with the impact of the claimant's non-compensable surgery, we note that there is a dispute over the timing of the emergence of the claimant's hip/groin/leg symptoms. The claimant indicates that the symptoms first showed up nine months after the surgery. However, we note during our questioning, that the claimant indicated that she missed two months of work in 1996 (from April to June) recovering from her surgery. When she returned to work, her evidence is that she occasionally missed days from work, between June 1996 and September/October 1998, when she had a longer absence from work. These absences occurred within the nine months gap that the claimant has suggested.

The linkage of the claimant's current symptomology to the surgery is also suggested in a letter sent by her attending physician to a specialist, dated September 16, 1998, where he states, "In April 1996, she underwent a total abdominal hysterectomy for cancer of the womb, and at the same time had lymph node dissection. Since that time, she has been experiencing pain in the hip, going into the left groin area which goes down her leg. She has noticed increase in this pain since the surgery." As well, a letter from the clinic dated June 24, 2003 reviewed the claimant's clinical files going back to 1987, and a June 18, 1996 notation refers to a finding by an oncology clinic that the claimant had numbness in her thighs, with no herniations observed.

Coupled with these medical assessments and chronologies of events, we have to consider the factors surrounding the timing of the claimant's filing of this claim with the WCB. We note that many physicians were involved with the claimant in the 1996-1999 time period, during which the claimant was routinely taking time off work for this medical condition. We note that these doctors generally would know about the legal requirements to file a medical report with the WCB, if the claimant had in fact advised them that the injury arose out of work. Indeed, some of the doctors involved in the claimant's care are very familiar with the WCB, and none had done so. While this is not in any way determinative of the matter, their approach to the claimant's medical condition is far more in keeping with the claimant having a non-compensable source to her medical conditions than a work-related source.

In this vein, we also note that the claimant had, in September 1998, applied for short term disability for the same condition that she is describing as being in play at this time. Both she and her doctor both signed off indicating that her medical problems were not work-related.

Based on our consideration of all of this evidence, we have concluded, on a balance of probabilities, that the claimant's medical difficulties are not causally related to the job duties that she performed with her employer. We don't deny that the claimant has medical problems. It is obvious that she is in a lot of pain, and that she, appropriately, continues to seek medical answers to help her with her medical condition. However, from the medical evidence in the file, we are unable to find that her current medical problems arose out of and in the course of her employment. Accordingly, we find that this claim is not acceptable, and would deny the claimant's appeal.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of February, 2004