The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 6, 2004, at the request of legal counsel, acting on behalf of the claimant. Following its review and after receipt of additional information from the claimant's treating physician and physiotherapist, the Panel met further on August 3, 2004, to render its final decision.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 8, 2003.

Decision

That the worker was not entitled to wage loss benefits beyond August 8, 2003.

Decision: Unanimous

Background

During the course of her employment as a registered nurse on February 16, 2003, the claimant lifted a 300 lb. patient off of the floor with a co-worker and injured her back. On February 23, 2003, the attending physician reported that the claimant was complaining of severe low back pain and that she had pre-existing conditions of osteoarthritis, osteoporosis, diabetes and hypertension.

On March 2, 2003, the claimant was admitted to hospital with a history of lower back pain. The final diagnosis rendered on the date of discharge was low back pain, diabetes, congestive heart failure, osteoarthritis and osteoporosis. The Workers Compensation Board (WCB) accepted the claim as a back strain injury and wage loss benefits were issued to the claimant commencing February 23, 2003.

In a memo to file dated March 27, 2003, a WCB adjudicator documented that the attending physician was frustrated with the claimant as she was non-compliant and was not filling her prescriptions. He felt that the claimant would never get back to work.

A CT scan performed on May 1, 2003, revealed no evidence of disc herniation. A mild loss in AP height was noted at the L4 vertebral body that was consistent with a compression fracture of undetermined age.

Following a call-in examination at the WCB's offices on June 3, 2003, a WCB medical advisor reported that the clinical findings supported "a diagnosis of lumbosacral strain with mechanical back pain on the basis of pre-existing conditions, in addition to a general deconditioned state of the claimant, due to a variety of reasons, including poorly controlled diabetes, obesity, osteoarthritis and osteoporosis." The medical advisor outlined seven treatment recommendations with respect to the claimant's compensable back condition and her non-compensable health issues.

A report received from a physiotherapist dated July 7, 2003, revealed that the claimant complained of lower back and right hip pain along with right shoulder complaints. The initial assessment was limited as the claimant was unable to lay down supine or prone. The physiotherapist felt that the claimant was very debilitated.

On July 23, 2003, a WCB medical advisor reviewed the file information and was of the opinion that the claimant had recovered from her lumbar strain injury, including delayed time line allowance for her pre-existing conditions. He stated that any ongoing complaints would not be related to the compensable injury.

In a memo to file dated August 1, 2003, a WCB adjudicator noted that the claimant had only attended for physiotherapy on two occasions, July 7 and July 18, 2003. The claimant cancelled one appointment after that and was a "no show" for her physiotherapy the following week.

In a letter dated August 1, 2003, primary adjudication informed the claimant that her wage loss benefits would be paid to August 8, 2003 inclusive and final. Primary adjudication concluded that the claimant sustained a muscular injury as a result of her accident and that based on the weight of evidence she had recovered from her work injury. In the opinion of primary adjudication, any ongoing complaints experienced by the claimant were directly related to her significant pre-existing conditions. On August 6, 2003, the claimant appealed this decision to Review Office.

On October 10, 2003, Review Office determined that there was no entitlement to wage loss benefits beyond August 8, 2003. Review Office noted that there was no medical information available to support the claimant's contention that she was still suffering the effects of her accident. It was noted that the claimant was less than compliant with her attending doctor's recommendations concerning treatment related to the accident and treatment related to her non-compensable conditions. In January 2004, legal counsel, acting on behalf of the claimant, appealed Review Office's decision and a non-oral file review was arranged.

Following discussion of the case on May 6, 2004, the Appeal Panel determined that additional information be obtained from the claimant's treating physician and physiotherapist, prior to rendering a decision with respect to the issue under appeal. On July 16, 2004, all parties were provided with copies of the reports that were received from the physician and physiotherapist and were asked to provide comment. On August 3, 2004, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

Prior to making a decision with respect to the issue under appeal, we requested a copy of an examination report from a consulting physician to whom the claimant had been referred by the treating physician. We closely reviewed the contents of this report and noted that it did not outline any symptomatology related to the compensable injury. The lawyer acting on behalf of the claimant advances the argument that his client “ought to be evaluated for a Partial Permanent Impairment Award” as the range in her neck has been reduced by about 30%. However, it should be noted that this issue was not before the Panel.

We find based on the preponderance of evidence that the claimant sustained a musculoligamentous strain to her lower back at the time of her compensable injury. In addition, we further find that the weight of medical evidence does not support the claimant’s contention that she is still suffering from the effects of the accident. In our view, the claimant has, on a balance of probabilities, recovered from her compensable injury and any ongoing difficulties are related to her non-compensable pre-existing conditions. Therefore, the claimant is not entitled to wage loss benefits beyond August 8, 2003. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of September, 2004