The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 18, 2004, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant's ongoing back problems are related to any of his prior compensable back injuries.

Decision

That the claimant's ongoing back problems are not related to any of his prior compensable back injuries.

Decision: Unanimous

Background

With respect to the issue under appeal, the following is a brief summary of 13 prior claims that have been filed by the claimant with the Workers Compensation Board (WCB):

• on April 24, 1975, the claimant pulled his left shoulder muscle during the course of his employment as a labourer. The diagnosis rendered by the attending physician was a sprained left shoulder. The claim was accepted by the WCB and the claimant returned to work on May 6, 1975.
  
  
• on September 3, 1975, the claimant felt a sharp pain in his back when he slipped while lifting a bundle of shingles. On September 8, 1975, the attending chiropractor diagnosed the claimant with mid-dorsal and lumbar pain, mostly on the right. By September 19, 1975, the chiropractor reported that the claimant showed marked improvement and was able to resume work on September 22, 1975. The claimant was instructed to refrain from heavy lifting until his back was pain free.
  
  
• The claimant was walking up a flight of stairs on May 16, 1977 when he lost his balance and stepped on a foreign object. He then tried to reach for something to hold and felt a sharp pain in his back. The attending chiropractor diagnosed the claimant with a thoracolumbar sprain/strain and spinal manipulations were suggested. On May 25, 1977, the claimant was discharged from chiropractic treatment and was able to resume work by May 26, 1977.
  
  
• On September 13, 1977, the claimant picked up a 5 gallon pail of paint and felt pain in his back when he stumbled. The diagnosis rendered by the attending chiropractor was a right sacroiliac strain. On October 11, 1977, the claimant was discharged from chiropractic treatment and was instructed to return to work on October 12, 1977.
  
  
• The claimant incurred a sharp pain to his lower back on November 6, 1978 when he lost his footing while moving a 7 foot step ladder. The claimant was initially treated at a local hospital. On November 10, 1978, the attending physician diagnosed the claimant with a sprained lower back. The physician felt that the claimant could return to work by November 20, 1978.
  
  
• On September 27, 1979, the claimant was at the top of an aluminum extension ladder painting flashing when the ladder started to go over. As he attempted to jump away and land on his feet, he hit the ground and then fell onto his back. The diagnosis rendered by the attending physician was a back strain and the form of treatment rendered was bed rest and analgesics. X-rays of the cervical spine identified no fracture or dislocation. There was no abnormality noted on the dorsal spine. The lumbar spine revealed no fracture and no significant disc space narrowing. On October 5, 1979, the treating physician described the claimant's condition as follows: "Lumbosacral sprain improving but slowly. Pain cervical spine almost resolved but headaches persist intermittently. Paresthesiae legs resolving. ROM back improving, but again slowly." On October 13, 1979, the claimant was declared fully fit to return to work.
  
  
• While carrying a ladder on October 14, 1981, the clamant tripped on a drop cloth and felt pain through his mid and lower back. The attending physician diagnosed the claimant with an acute back strain/thoracolumbar spinal strain. On November 13, 1981, chiropractic x-rays of the thoracic spine revealed a very shallow thoracic scoliosis. Lumbosacral spine x-rays recorded, "Possible neural canal stenosis at L5 and a marked L5 discopathy. Lumbosacral instability. Facet insufficiencies in the lumbosacral region and a mild lumbar scoliosis."
  
  On March 3, 1982, the assistant director of medical services examined the claimant. He felt that the claimant had suffered a moderate back strain from which the claimant had almost fully recovered. He could find no evidence of any nerve root involvement or evidence of disc involvement. He felt that the claimant could return to work and was cautioned to be careful with lifting. On March 11, 1982, the claimant was discharged from chiropractic care.
  
  
• On May 31, 1982, the claimant suffered multiple soft tissue traumas to different areas of his anatomy after falling 7 or 8 feet off a scaffold. Subsequent file information revealed that the claimant was treated by two orthopaedic specialists and as well was assessed by a WCB medical officer. On November 15, 1982, primary adjudication determined that the claimant had sufficiently recovered from the effects of this accident and that wage loss benefits were payable to November 24, 1982. On November 25, 1982, wage loss benefits were reinstated based on a chiropractic report which revealed that the claimant's neck condition was related to the compensable accident and that it required treatment. Benefits were then paid to May 18, 1983 inclusive and final as the claimant had stopped chiropractic treatment.
  
  In April 1984, the claimant was assessed by a third orthopaedic specialist. He found no objective evidence of any abnormality except the possibility of a nerve root deficit at the L5 region. The specialist felt the claimant was fit for full physical activity without limitation.
  
  On February 7, 2003, the Review Office made the determination that the claimant was not entitled to a permanent partial impairment award or permanent restrictions with respect to the May 31, 1982 accident. This decision was reached by Review Office after considering the results of the WCB medical officer's exam and the three orthopaedic consultants' opinions that "…there was no significant injury which occurred on May 31, 1982 and they also felt that the claimant should be at work performing his regular duties." This decision was confirmed/clarified to the claimant by Review Office on March 20, 2003 and May 15, 2003.
  
  
• The claimant was carrying tools and a tool box on September 20, 1984, when he slipped on wet grass and felt a slight pain in his back. As the day wore on, his back condition worsened and his right leg went numb and he couldn't bend. The diagnosis rendered by the treating chiropractor was a thoraco-lumbar strain. Treatment consisted of spinal adjustments and electrotherapy.
  
  On January 23, 1985, the claimant was assessed by a WCB chiropractic consultant who was of the opinion that the claimant had persistent spinal problems extending from his cervical through to his thoracic and lumbar regions. A referral to a neurologist was also suggested.
  
  In a letter to the family physician dated March 12, 1985, the neurologist reported that he could not find any neurologic deficit and that x-rays showed the claimant had a reverse spondylolisthesis of the L5 lumbar vertebra on the S1. He noted that the claimant may have some spinal stenosis which could cause some localized pain. He could not explain his other symptoms for which no neurological basis could be found. In a further report dated April 2, 1985, the neurologist indicated that a March 15, 1985 CT scan showed no abnormalities.
  
  In a letter to the WCB dated July 3, 1985, an orthopaedic specialist noted that he had examined the claimant on May 13, 1985. The specialist felt that the claimant was suffering from acute or chronic lumbosacral sprain, however, no clinical evidence was present. He also found that the claimant was fit to return to work, based on the clinical and radiological findings.
  
  
• On November 2, 1995, the claimant was lifting a manhole cover from a dock onto a trailer when he slipped and felt a pain in his mid and upper back. On November 3, 1995, the treating chiropractor diagnosed the claimant as having incurred a moderate rotational strain of the thoracic region with mild sprain of the left sacroiliac. On January 23, 1996, a general practitioner reported that the claimant had first been seen on January19, 1996 and that there was no evidence of an acute back injury. Neurological examination of the claimant's legs was normal.
  
  On February 3, 1996, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor was of the opinion that the claimant had recovered from the effects of his compensable accident and that there was no need for any chiropractic treatment as of January 19, 1996.
  
  
• The claimant felt pain in his neck and mid back on June 6, 1996 after lifting a manhole cover. No time loss was incurred by the claimant as a result of the incident. The diagnosis rendered by the treating chiropractor was a mild to moderate right cervical/thoracic strain with associated articular hypomobility. The claimant received chiropractic treatment up to August 13, 1996.
  
  
• On August 15, 1996, the claimant was a passenger in a half-ton truck that rear-ended the car in front of him. The diagnosis rendered by the attending chiropractor was a moderate deceleration strain/sprain to the cervical/thoracic and lumbar spine.
  
  In a report dated October 9, 1996, the attending physician reported a history of injury as "longstanding upper back pain exacerbated after lifting a manhole cover." The diagnosis rendered was upper back pain strain/exacerbation of fibromyalgia syndrome. In a subsequent conversation with the attending physician, it was clarified to a WCB medical advisor determined that the actual diagnosis was myofascial pain with trigger points and referred pain. It was also felt that the claimant did not meet the criteria for a diagnosis of fibromyalgia.
  
  On October 25, 1996, the claimant was examined by a WCB chiropractic consultant and the following opinion and recommendations were outlined:
  
  
  1. "In my opinion, there is no clinical basis to support the diagnosis of fibromyalgia syndrome.
     
     
  2. Mr. [the claimant] has in my opinion suffered a sprain/strain injury to the lower cervical and upper thoracic spine. There is no clinical sign of nerve root or other neurological involvement.
     
     
  3. I am supportive of Mr. [the claimant's] and Dr. [treating chiropractor's] intentions to attempt a return to work in modified duties as of October 28, 1996. In my opinion this should not need to run longer than three to four weeks. It is in this interim that Mr. [the claimant] should embark upon a series of strengthening exercises in order to harden himself for a return to unrestricted duties. Once he has returned to unrestricted duties, it is unlikely that chiropractic manipulative therapy will be needed for longer than four additional weeks."
     
     
  Subsequent file information revealed that the claimant returned to modified duties on October 28, 1996 and then to regular duties as of November 25, 1996.
  
  
• On November 26, 1996, the claimant sustained an injury to his neck, upper and lower back due to the following incident: "I was jackhammering concrete around a man hole frame when the steel frame broke and the hammer (jack) went through - I couldn't let go fast enough and it pulled me down and forward - I felt a sharp pain in my mid and lower left side back." On November 26, 1996, the treating chiropractor diagnosed the claimant with a moderate cervical-thoracic - lumbar strain/sprain with possible annular disruption at L5-S1. Spinal adjustments, low volt muscle stimulation cryotherapy and stretching exercises were prescribed. On December 3, 1996, a general practitioner diagnosed the claimant with an acute back strain.
  
  On January 7, 1997, the claimant was assessed by a WCB chiropractic consultant. Following his examination, he concluded that the claimant suffered from a cervical thoracic and lumbosacral musculoligamentous sprain/strain type of injury. There were no signs of nerve root tension or irritation and objectively, there were few positive findings. The chiropractic consultant suggested that the claimant could return to normal work activity after two to three weeks of slowly increasing his physical activity.
  
  In a progress report dated January 21, 1997, the attending physician noted that the claimant had almost full range of motion but still had pain with flexion of the lumbar spine.
  
  Prior to commencing light duties on January 27, 1997, the claimant was involved in a motor vehicle accident and filed a claim with the Manitoba Public Insurance (MPI).
  
  On February 17, 1997, primary adjudication advised the claimant that his employer had located a modified/light duty position for him which was deemed suitable to his work capabilities as of January 27, 1997. As the claimant, however, was unable to commence the light duty position because he was involved in a MVA that weekend, no further responsibility would be accepted by the WCB with respect to any time loss beyond January 24, 1997.

On September 7, 2000, the claimant wrote to the WCB requesting his claim to be re-opened as he was of the view that he had never fully recovered from the combined series of workplace accidents and the motor vehicle accident of January 25, 1997. The claimant noted that his benefits through MPI had been terminated as it was determined by MPI's consultant that "the fact that he is no longer working is likely due to his employment and his prior WCB injuries, which may have, weakened him physically and susceptible to be unable to work."

On October 27, 2000, the claimant met with a WCB adjudicator and it was noted in a memo bearing the same date that the claimant was off work as a result of his MVA until July 1998 and that he then returned to a light duty position up until February 4, 2000. He then tried a regular duty position which involved frames and repair work but had to quit after 2 to 5 days because of intense pain.

Following review of the claimant's 1984, 1995 and three 1996 claims, primary adjudication determined on March 23, 2001, that each workplace accident resulted in an acute, muscular strain/sprain injury, with no bone or neurological involvement, from which the claimant had recovered. It felt that the claimant's current problems were not, on a balance of probability, related to any one or all of these accidents.

Based on a letter authored by the claimant dated March 7, 2003, primary adjudication reviewed prior claims dating back to 1975 through to 1981. On March 17, 2003, primary adjudication advised the claimant that it was of the view that each incident had resulted in an acute sprain/strain type of injury to his back, with the exception of the 1975 left shoulder strain. It also determined that the claimant had made a full and complete recovery from each and every incident and that the claimant had been able to resume his normal workplace activities. Therefore, the WCB was unable to relate any of the claimant's prior accidents (i.e. two 1975 claims, two 1977 claims, one 1978 claim, one 1979 claim and one 1981 claim), individually or cumulatively, to any of his current difficulties.

On September 19, 2003, the case was considered by Review Office based on an appeal submission received from the claimant with respect to the two decisions that were rendered by primary adjudication on March 23, 2001 and March 17, 2003. The Review Office considered 12 prior claim files along with evidence received from an MPI chiropractor consultant dated June 21, 2000.

The Review Office determined that the claimant's back problems between 2001 and 2003 were not related to any of his 12 prior WCB back claims based on the following rationale:

• the medical evidence on each back claim described incidents resulting in muscular strain/sprain type injuries and none of the claims revealed any evidence of bone or neurological involvement of disc herniation.
  
  
• Review Office stated that it had no idea what other back traumas the claimant may have incurred outside of the workplace in the past quarter of a century. According to file evidence involving MPI, Review Office was aware that the claimant had been involved in four non-compensable motor vehicle accidents in addition to the claimant's being run over by a car. This was considered by Review Office to be a significant, non-compensable accident history involving the same part of the anatomy which he had attempted to claim through the WCB.
  
  
• after reviewing all the evidence, Review Office stated that it could not reach a conclusion that the claimant's back and neck complaints in the past few years had a relationship to the 12 listed claims between 1975 and 1996, and therefore confirmed the decisions on file from primary adjudication.

On October 6, 2003, the claimant and his advocate submitted an Appeal of Claims Decision form to the Appeal Commission with respect to decisions rendered by Review Office on May 15, 2003 and September 19, 2003. On March 18, 2004, an oral hearing was held at the Appeal Commission.

Reasons

After having thoroughly considered all of the evidence, we find that the claimant's ongoing back problems are not, on a balance of probabilities, related to any of his prior compensable back injuries. In arriving at this conclusion, we attached substantial weight to the following body of evidence.

• January 7^th, 1997 - WCB chiropractic consultant's examination notes: "Following my examination and consultation with Mr. [the claimant], it would be my opinion as a result of his accident dated November 26, 1996, in all probability, he suffered from a cervical thoracic and lumbosacral musculoligamentous strain/sprain type of injury. Following my examination, there are no signs of nerve root tension or irritation and, objectively, he has few positive findings.
  Given Mr. [the claimant's] history of previous back injury, it is my opinion that he should return to work on light duty for a period of two to three weeks and during the two to three week time frame, he should be slowly increasing his physical activity to a point at the end of the three week period, he should be able to return to normal work activity.
  It is also my opinion that Mr. [the claimant] has to become more active with physical exercise activities directed towards the lumbosacral spine and I have discussed this situation with him and with his treating chiropractor and they are all in agreement that he should increase his physical activity to help in conditioning for returning back to regular duties."
  
  
• January 15^th, 1997 - Letter from treating chiropractor to WCB. "Please note that it is my opinion that Mr. [the claimant] should be placed in a two to three week work hardening program in order to facilitate a successful return to his job duties with the [employer]. In review of the frequency of work place injury to his back, it is hoped that a work hardening program should substantially strengthen Mr. [the claimant], so that the likelihood of future similar injury would be significantly reduced."
  
  
• January 21^st, 1997 - Progress report. Treating physician's examination reveals an almost complete range of motion with some pain on flexion of lumbar spine. In addition, he recommends light duties together with continued medication.
  
  
• We note that a return to work program was established and implemented. Full support for this program was given by the treating physician, treating chiropractor, WCB chiropractic consultant as well as the claimant himself.
  
  
• January 25^th, 1997 - The claimant is involved in a significant non-compensable motor vehicle accident two days before he was to return to work on light duties.
  
  
• The claimant underwent an extended treatment regimen following the motor vehicle accident but unfortunately he was unable to return to his pre-accident employment.
  
  
• April 22^nd, 2000 - Letter from treating chiropractor to MPIC. "Mr. [the claimant's] current complaints are consistent with those initially documented at the time immediately following this motor vehicle accident. I believe that the majority of Mr. [the claimant's] ongoing problems are related to the motor vehicle accident of January 25, 1997, although, his past history of work related injuries has in all likelihood contributed to the delayed recovery noted to date.
  In relation to the November 26, 1996 workplace injury, we are provided with an independent view of Mr. [the claimant's] status prior to his January 25, 1997 motor vehicle accident. Dr. [name], Chiropractic
  Consultant to the WCB, examined Mr. [the claimant] on January 7, 1997. In addition to his WCB duties and private practice Dr. [name] is one of the more experienced independent examiners that MPI has utilized over the past decade.
  Without doubt, the extent of injuries and Mr. [the claimant's] recovery from such injuries related to the January 25, 1997 motor vehicle accident have projected beyond original expectations. Pre-accident workplace injuries were no doubt a factor in creating a weakened condition of the muscular and ligamentous condition of Mr. [the claimant's] spine at the time of the January 25, 1997 accident. However, in the period preceding Mr. [the claimant's] motor vehicle injuries, no prediction of long-term workplace disability relate to workplace injuries was indicated. The possibility of permanent workplace disability now exists in relation to injuries sustained in the January 25, 1997 motor vehicle accident."
  
  
• May 7^th, 2003 X-rays of cervical and lumbar spines. We note the x-rays reveal moderately severe degenerative problems. However, there is no causal connection to any of the claimant's workplace accidents.
  

When assessing the impact of the January 1997 motor vehicle accident with respect to the claimant's back condition, we aligned ourselves very closely with the treating chiropractor's April 22^nd, 2000 opinion. We attached greater weight to his report as opposed to subsequent reports received from other health care givers quite simply because the attending chiropractor treated the claimant both before and after his January 25^th, 1997 motor vehicle accident whereas the other practitioners did not.

We further find based on the weight of evidence that the intervening motor vehicle accident was the most significant cause of the claimant's ongoing difficulties.

Finally, we also find that the claimant has, on a balance of probabilities, recovered from the effects of all of his compensable back problems. Accordingly, 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 May, 2004