The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 23, 2004, at the claimant's request.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond February 12, 2003 in relation to the compensable accident of December 11, 2002.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond February 12, 2003 in relation to the compensable accident of December 11, 2002.

Decision: Unanimous

Background

During his employment activities as a painter on December 11, 2002, the claimant was coming down a scaffold when he slipped on the second last rung causing him to fall on his back onto a concrete floor. Medical information received from the attending physician revealed that the claimant complained of tenderness over his lumbar spine and left hip as well as restricted movements in all directions. The diagnosis rendered was a contusion to the lumbar area. The physician also noted that the claimant had a prior history of low back strains. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant commencing December 12, 2002.

Up-dated progress reports were received from the attending physician throughout December 2002 and January 2003.

On February 4, 2003, a WCB medical advisor examined the claimant's lower back. In his examination report of the same date, the medical advisor noted that the family physician had diagnosed the claimant with a contusion and that follow-up reports revealed no objective findings other than tenderness of the lumbosacral area. The latest objective medical report submitted by the family physician was dated five days prior to the call in examination and he noted straight leg raising on the right of 70 degrees and 40 degrees on the left which was significantly reduced during this examination. The medical advisor's opinion was that the claimant may have sustained a mild contusion from the self-reported incident and allowing for pre-existing back problems, would expect recovery within the normal 6-8 week period for such an injury.

On February 6, 2003, a WCB case manager confirmed to the claimant that the WCB was unable to accept responsibility for his claim beyond February 12, 2003 inclusive. Based on the initial diagnosis of injury and the time that had passed since the injury and the current clinical examination findings, the case manager determined that the claimant had essentially recovered from the effects of his compensable injury and thus was able to resume his normal workplace activities.

In a report dated February 20, 2003, the family physician outlined his opinion that given the "chronicity of this man's low back problem with acute exacerbation from his recent fall at work and incomplete resolution to date. I suggest an extension of WCB benefits for an additional 6 to 8 weeks with periodic follow up as indicated."

On April 11, 2003, the case was considered by Review Office at the request of the claimant as he disagreed with the WCB's decision that he had recovered from his accident. Review Office noted that the pattern being followed by the worker appeared to be very similar to the pattern displayed during his prior claims with the WCB. The claimant was very pain focused and considering the initial diagnosis of a contusion and the initial estimate of one to two weeks off work, and given the non-anatomical findings produced during the examination on January 29, 2003, Review Office could not attribute the claimant's ongoing claim of lost time from work to the accident that occurred on December 11, 2002. On November 7, 2003, the claimant appealed Review Office's decision and a non-oral file review was held.

Reasons

After having thoroughly considered all of the evidence, we find that the claimant is not entitled to payment of wage loss benefits beyond February 12, 2003 in relation to the compensable accident of December 11, 2002. In arriving at this conclusion, we preferred to attach greater weight to the WCB medical advisors clinical findings of January 29, 2003 rather than the opinion offered by the claimant’s treating physical medicine and rehabilitation specialist.

The WCB medical advisor recorded the following comments in his examination notes:

“It is noted the claimant has had several WCB claims related to his lower back, dating back to 1987. It is noted through several of these claims that the claimant has undergone numerous investigations and been referred to at least (sic) orthopaedic specialists, there being no significant pathology detected in the course of their review of his prior injuries. It is also noted that the claimant has had similar mechanisms of injury in slipping and falling, missing a rung of a ladder while descending scaffolding with subsequent claims having led to WCB discontinuation or termination of benefits.

Despite attempts to engage in discussion of past injuries, the claimant appears very pain-focused and feels his back has deteriorated over the years because of all these injuries, despite the investigations and medical opinions to date suggesting otherwise.

The claimant was [placed in the supine position, where he able (sic) to only demonstrate straight leg raising to 20° on the right and 30° on the left. With the medical examiner’s assistance, the claimant’s passive range of movement for straight leg raising was 80° and 85° on the right and left-hand sides respectively. In addition, passive range of movement noted full and complete hip flexion, extension, internal and external rotation, in addition to adduction and abduction. The claimant was asked to roll onto his abdomen and placed in a reverse Lasegue position where bilateral testing was negative.

The claimant attended his family physician and was diagnosed with a contusion and, in subsequent follow-ups, no objective findings were reported, the exception being tenderness of the lumbosacral spine. The latest objective medical report from the family physician five days prior to the call-in noted straight leg raising on the right of 70° and 40° on the left, which is significantly reduced during today’s examination.

Today’s examination would note the claimant presents with 5/5 Waddell’s features, and therefore the examination’s validity is put into question. It is noted the claimant has had several prior low back claims that have been denied or overturned by the WCB on the basis of a lack of any significant objective findings by way of imaging or from several specialists’ reviews and memos.

Today’s clinical findings would not support any significant ongoing disability as it relates to the described mechanism or accident. It is the medical advisor’s opinion that the claimant may have sustained a mild contusion from the self-reported incident and, allowing for pre-existing back problems, would expect recovery within the normal 6-8 week period for such an injury.

The claimant appears to be very pain-focused in his belief system, and several attempts to engage in discussion by way of explanation and instruction into the nature of his injuries were met with resistance.”

 

We find based on the preponderance of evidence that the claimant has, on a balance of probabilities, recovered from the effects of his compensable accident of December 11, 2002 and that his current back difficulties are related to his non-compensable progressive degenerative disc disease of the lumbar spine. As there is no further entitlement to payment of wage loss benefits, 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 5th day of March, 2004