The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 30, 2004, at the request of legal counsel, acting on behalf of the claimant. Following discussion of the case, the Panel requested the convening of a Medical Review Panel (MRP) based on section 67(4) of The Workers Compensation Act. This was carried out on May 31, 2004 and the MRP's final report of June 29, 2004 was forwarded to the interested parties. On July 19, 2004, the panel met further to discuss the case.

Issue

Whether or not the claimant is entitled to wage loss benefits and services beyond February 13, 2001; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That the claimant is entitled to wage loss benefits and services beyond February 13, 2001.

Decision: Unanimous

Background

During the course of his employment as an auto mechanic on March 1, 1999, the claimant's right leg slipped on ice while pushing a car into the shop. He reported injuries to his lower back, right hip and right knee. The claimant sought treatment from a chiropractor on March 2, 1999 and was diagnosed with a lumbosacral disc herniation causing right posterior thigh pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to May 31, 1999 as the claimant was considered fit to return to his pre-accident employment.

In August 1999, the claimant advised the WCB that he had to stop working on June 8, 1999 because of pain. A CT scan which was carried out on July 15, 1999 revealed a central and slightly right paracentral disc herniation at the L5-S1 level with no evidence of spinal stenosis or nerve root compression. The claimant's WCB benefits were reinstated.

The claimant was examined by a WCB medical advisor on August 18, 1999. The medical advisor found the claimant to have some emotional stressors which may or may not be related to his compensable injury. The examination also revealed evidence of right sacroiliac joint dysfunction with soft to moderate signs of a disc on the right side at S1. There were no signs of augmentation and non-organic signs were 1/5. The medical advisor commented that the CT scan showed no clear evidence of disc involvement with radiculopathy although the clinical indications were that the claimant did in fact have soft to moderate signs of a disc on the right side at S1 besides the right sacroiliac joint dysfunction.

In September 1999, the claimant attended physiotherapy treatments.

On December 21, 1999, the claimant was again examined by a WCB medical advisor who noted several markers indicating non-organic complaints and evidence of dysfunction of the right sacroiliac joint with some associated muscular discomfort. The medical advisor noted that the claimant had gained weight and was deconditioned. There was concern that the claimant was developing psychosocial stressors with some degree of depression. It was felt that the claimant's course of physiotherapy had been unsuccessful.

On March 9, 2000, a WCB psychological advisor commented that the claimant was significantly pain focused and was experiencing an adjustment disorder with depressed mood. After speaking with the WCB psychological advisor on April 17, 2000, a WCB adjudicator recorded that the claimant did not have any psychological barriers that would prevent him from returning to work.

In a decision dated March 13, 2000, the WCB informed the claimant that full wage loss benefits would be paid up to March 17, 2000, at which time it was expected that he would be fit to perform his pre-accident duties. On March 17, 2000, legal counsel, acting on behalf of the claimant, disagreed with this decision stating that there was no medical opinion to support the position that the claimant was fit to return to his pre-accident duties.

On April 28, 2000, Review Office confirmed that the claimant was not entitled to payment of benefits beyond March 17, 2000. Review Office felt there was no evidence to confirm that the claimant's subjective complaints of pain were related to his workplace injuries. This decision was then appealed by the claimant's legal counsel and an oral hearing was arranged.

In its decision dated December 1, 2000, the Appeal Panel overturned Review Office's decision on the basis that there was evidence to support a finding that the claimant was disabled beyond March 17, 2000. Further details regarding the Panel's findings are contained in Appeal Panel Decision No. 116/00.

On December 15, 2000, a WCB medical advisor reviewed the file information and stated the following: "I agree with Dr. [WCB medical advisor] this claimant would have been considered fit to RTW [return to work] in Mar 2000, and likely before then based on video. It is not my view the 'findings' of Ms. [physiotherapist] relate to his CI [compensable injury]. It is not my view this prognosis warranted or justified on basis of CI in view of MOI [mechanism of injury] and file info."

Following review of the Appeal Panel's decision and after consulting with the WCB's healthcare branch, the WCB advised the claimant that he would be fit to return to his pre-accident duties following eight weeks of physiotherapy and a reconditioning program and that no further benefits would be issued beyond February 13, 2001. On March 9, 2001, the claimant's legal counsel appealed the decision and asked the WCB to refer the case to the Review Office for consideration. On March 22, 2001, the Review Office referred the case back to the sector manager to obtain current medical information.

A report was received from the treating physiotherapist dated April 3, 2001. Based on an assessment that was carried out on February 19, 2001, the physiotherapist stated, in part, that "I do feel that assessment information is consistent with an L5/S1 segmental lesion still being present to some degree however I do not feel that he is severely functionally limited at this time. I do feel that he could and should return to some form of employment. I question whether he would tolerate his pre-accident employment due to duties involving repetitive and prolonged forward flexion and rotation along with moderate lifting."

In a memo to Review Office dated April 4, 2001, the case manager noted that the treating physiotherapist was of the opinion that the majority of the claimant's symptoms had resolved and that the claimant had made steady progress even with his "passive approach" to physiotherapy. Based on this comment and the WCB's healthcare opinion of December 15, 2000, the case manager said there would be no change to his previous decision.

On May 11, 2001, the case was considered by Review Office following receipt of an appeal by the claimant's legal representative dated March 9, 2001 (received by Review Office on May 3, 2001). Review Office confirmed that, in it its opinion, the claimant had recovered from the effects of his March 1, 1999 lumbar injury and that wage loss benefits would not be extended beyond February 13, 2001.

In reaching its decision, Review Office relied on the evidence provided by the claimant's treating physicians between December 2000 and January 2001 which noted that the claimant's range of motion in his lumbar spine had increased through physiotherapy although he was still tender in the lumbar region. Consideration was also given to the comments made by the treating physiotherapist in her report of April 3, 2001. Review Office stated that the majority of the claimant's symptoms commented on by medical professionals between 1999 and 2000 had resolved. Review Office could not relate any of the claimant's current subjective complaints of pain to his lumbar injury of March 1, 1999 and agreed with primary adjudication to end wage loss benefits on February 13, 2001.

On December 17, 2002, the claimant's legal representative provided Review Office with a report by a physical medicine and rehabilitation specialist dated December 12, 2002. In his report, the specialist indicated that he had an opportunity to review the results of a MRI dated July 25, 2002. He concluded that the claimant's symptoms were related to his CT scan findings of compression and/or irritation of the right L5 nerve root. While he was unable to state with certainty what event led to the disc herniation, he did find that a disc herniation could result from the injury mechanics of the compensable injury.

Legal counsel was of the view that this report contradicted the opinion offered by the WCB physician on December 15, 2000. In the event that Review Office did not reinstate the claimant's benefits based on the new information, a request was made to convene a Medical Review Panel (MRP) to resolve the difference of medical opinion.

In a response dated February 18, 2003, Review Office advised legal counsel that after reviewing all the information on file, no change would be made to its 2001 decision. Review Office stated that the file would be returned to primary adjudication to consider the request to convene a MRP.

On March 27, 2003 and June 18, 2003, both primary adjudication and Review Office denied the request to convene a MRP as both felt that a difference of medical opinion did not exist as was required by section 67(4) of The Workers Compensation Act. In November 5, 2003, legal counsel appealed Review Office's decisions and a non-oral file review was carried out on January 30, 2004.

Following discussion of the case, the Appeal Panel decided to convene a MRP based on subsection 67(4) of the Act. A MRP was later convened on May 31, 2004, and its final report of June 29, 2004 was forwarded to the interested parties for comment.

In its report, the MRP diagnosed the claimant's current low back condition as being related to right sided radicular pain in the distribution of L5 and S1. It concluded that the current low back condition was the result of the injury sustained in March 1999 and noted that there was MRI and CT scan evidence of a central disc protrusion which could be causing the symptoms.

In terms of whether the claimant had recovered from his workplace injury as of February 13, 2001, the MRP found that he had not. It its view, as of the writing of the report, the claimant had not completely recovered from the effects of a workplace injury. The panel was unanimous in stating that he was approximately 90 percent recovered.

The panel did not recommend any permanent or temporary restrictions but it did strongly recommend a program of weight reduction and reconditioning for the claimant. In terms of offering a prognosis, the panel was unanimous in opining that on physical grounds the prognosis was good but on psychological grounds it was guarded at best.

On July 19, 2004, the Panel met further to discuss the case and considered a final submission from the claimant's legal representative dated July 7, 2004. In addition to requesting that the claimant's benefits be retroactively reinstated, the legal representative asked that the reconditioning recommendation of the MRP be acted upon and that the Appeal Panel "determine the relationship of the psychological problems referenced in the response to Question # 7 if any, to the compensable incident of March 1, 1999."

Reasons

In making its decision, the Panel has reviewed and considered the entirety of the record including the various medical reports and x-ray findings.

In reaching its conclusions, the Panel places particular weight on the findings of the specialists comprising the MRP. Based upon a comprehensive review of the file, they were unanimous in the view that: a) the claimant's current low back condition is the result of the injury sustained in March 1999; and, b) the claimant had not fully recovered from the effects of his workplace injury by February 13, 2001. The MRP is supported in its conclusion by the February, 19, 2001 report of the physiotherapist who expressed the view that the claimant had only partially recovered as of that point in time.

While the WCB medical advisor, in his report dated December 15, 2000 could not relate the finding of the physiotherapist to the claimant's compensable injury, it is noted that the report from the physical medicine and rehabilitation specialist dated December 12, 2002 suggests a different possibility. He observed that the claimant's symptoms were related to the CT scan findings of compression and/or irritation of the right L5 nerve root and that the disc herniation could result from the injury mechanics of the compensable injury.

In addition to seeing and treating the claimant on a frequent basis, the physical medicine and rehabilitation specialist has had the benefit of the July 25, 2002 MRI of the claimant which was not available to the WCB medical advisor at the time of his December 15, 2000 opinion. Likewise, in addition to having an opportunity to review the July 25, 2002 MRI, the MRP has also been able to call upon the expertise of its various specialists along with a recent face to face examination of the claimant. These factors lead the Panel to place more weight on the opinions of the physical medicine and rehabilitation specialist and the MRP as compared to the views of the WCB medical advisor.

As a consequence, the Panel concludes, based upon a balance of probabilities, that the claimant is entitled to wage loss benefits and services beyond February 13, 2001.

The claimant's legal representative has also asked that the Panel "determine the relationship of the psychological problems referenced in the response to Question # 7 if any, to the compensable incident of March 1, 1999." The Panel notes the MRP comments regarding the claimant's prognosis on psychological grounds being guarded and recognizes that a number of years have passed since a psychological assessment was conducted.

The Panel therefore recommends that the WCB arrange to have the claimant's current psychological status re-assessed in order that the WCB may provide further consideration with respect to its relationship to the compensable injury.

Panel Members

B. Williams, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of August, 2004