The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 2003, at the request of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she was not entitled to wage loss benefits beyond December 10, 1998. The Panel discussed the appeal on November 4, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond December 10, 1998.

Decision

That the claimant is not entitled to wage loss benefits beyond December 10, 1998.

Decision: Unanimous

Background

In February 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back and left hip/lower leg injury that she sustained at work on August 15, 1998. On this date, the claimant said she was sorting dental books into a 50-54 lb. bin when she felt a popping, intense pain in her back. The claim was initially denied by the WCB as it was determined that the case failed to meet the requirements of Sections 4(1), 1(1) and 17(5) of The Workers Compensation Act (the Act). This decision was later overturned by the Review Office and the claim was accepted.

Following Review Office's decision, the WCB had to determine exactly what benefits the claimant was entitled to with respect to time loss and medical aid expenses. In this regard, the claim was forwarded to a WCB medical advisor to review the file information and to answer several questions posed by primary adjudication. The medical advisor's response to primary adjudication is dated November 6, 2002.

On November 15, 2002, the claimant was advised that the WCB was accepting responsibility for 12 weeks of wage loss benefits from September 18, 1998 to December 12, 1998 inclusive, along with medical aid expenses. This decision was based on the opinion expressed by a WCB medical advisor who was of the view that the claimant's diagnosis was that of an acute ligamentous strain/sprain of the lumbar area and that the normal recovery period for this type of injury would be 8-12 weeks. In January 2003, the claimant disagreed with the decision and the case was forwarded to Review Office for consideration.

In a decision dated February 28, 2003, the Review Office summarized the opinions and test results on file provided by the claimant's treating physicians between August 1998 and May 2002. The Review Office further considered the opinion that was expressed by the WCB medical advisor on November 6, 2002. Based on its review, Review Office confirmed the decision that wage loss benefits were not payable to the claimant beyond December 10, 1998.

Review Office stated that the medical community were at a loss to explain how the claimant still had the same or similar subjective complaints of pain as she did at the time of her injury on August 15, 1998, almost 4 ½ years later. No treatment plans provided a resolution of her symptoms and all radiological tests turned out to be normal. Without a diagnosis which can be related to the original compensable injury of August 1998, Review Office was unable to relate the claimant's subjective complaints of pain to her initial compensable injury. It was felt that the claimant had other non-compensable physical conditions which may be playing a role in her overall general health and pain complaints. On July 19, 2003, the claimant disagreed with Review Office's decision and an oral hearing was arranged.

Following the hearing on November 4, 2003, the Appeal Panel decided to convene a Medical Review Panel (MRP) in accordance with section 67(3) of the Act. A MRP later took place on May 21, 2004 and the final report of July 15, 2004 was forwarded to the claimant for comment. On August 10, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The Appeal Panel is of the unanimous opinion that the claimant is not entitled to wage loss benefits beyond December 10, 1998. We have come to this conclusion after a thorough review of all of the evidence including the file evidence, the evidence given orally at the hearing of this matter and the MRP's report dated July 15, 2004.

The claimant's injury occurred on August 15, 1998. Initially, she did not see her physician until August 26, 1998 and was given a diagnosis of possible osteoarthritis or L5 nerve root irritation. The majority of the claimant's symptoms at that time related to her left hip and leg. X-rays and blood tests were normal. Several subsequent appointments with her physician revealed attempts by him to have the claimant engage in physiotherapy, chiropractic treatment and various forms of drug therapy. All treatments proved unsuccessful either because the claimant was reluctant to participate or because she felt that the treatment was exacerbating her pain. In the case of drug therapy, the claimant admitted to her physician that she was "paranoid about pills" and consequently discontinued the treatment after taking only one pill. The physician felt that a complicating factor in treating the claimant was "her reluctance to participate in certain treatments."

The claimant was referred by her physician to a physiatrist. In his correspondence dated January 12, 1999 he felt that the claimant suffered from "minor lumbosacral spine mechanically irritative symptomatology with prominent current muscular symptomatology." He recommended a therapeutic trial of steroid medication to the area of the left sacroiliac joint. He, however, was unable to arrange a specific treatment for the claimant as she wanted to think about her options.

A CT scan was performed on May 19, 1999 and its impression was that no abnormality was identified. On June 16, 1999 the claimant advised her physician that she was unwilling to follow the recommendations of the physiatrist and she was referred to another sports medicine physician. In his report dated April 12, 2000, this physician indicated that he had recommended and did try injections to the claimant's SI joints. There was no noted improvement from the injections and he was unsure as to a diagnosis on the claimant.

The claimant was referred to a specialist in physical medicine and rehabilitation. In his report dated June 4, 2000, the specialist indicated that the claimant's physical findings and symptoms did not indicate a specific medical diagnosis. His findings on his examinations done on January 10, 2000 and May 15, 2000 revealed non-specific low back pain, non-specific hip pain and possible left trochanteric bursitis (hip). He felt that the claimant's limitations were based upon subjective complaints of pain only with no identifiable underlying pathology.

The claimant underwent a bone scan on December 27, 2001 and the impression from this scan was that it was normal.

The claimant was referred to another physical medicine and rehabilitation specialist whom she saw on February 17, 2002 and May 23, 2002. He discussed with her the benefit of undergoing injection to the trigger points with 1% Lidocaine which the claimant refused. He was of the opinion that the claimant possibly "had discogenic lumbosacral pain with regional myofascial trigger points of the left piriformis and gluteal muscles and sensitive spinal segments" (report dated June 4, 2002). He felt that she would benefit from the trigger point injections and he also gave her a series of exercises to perform.

On November 6, 2002 a WCB medical advisor reviewed all of the medical evidence to that date that was on file. She was of the view that based on all of the evidence, the claimant had sustained a strain. In her opinion, the normal recovery time for such a diagnosis was a maximum of eight to twelve weeks. The medical advisor agreed that there was no specific diagnosis to account for the claimant's symptoms and found it puzzling that no treatment at any time had helped the claimant. She was critical of the claimant's failure to partake in a number of recommended treatments despite her complaints of severe problems.

At the hearing of this matter, the claimant specified that she had not seen a medical doctor about her back or leg symptoms in well over a year. While the claimant had seen her new family physician once during that period she did not mention her back to him. No other intervention had been sought in a significant amount of time to assist her with her back difficulties. In terms of treatment, the claimant was only doing her exercises but the time spent on the exercises was minimal. No attempts had been made to secure any form of alternate employment since the initial accident.

This matter was reviewed by a MRP and their findings were released in a report dated July 15, 2004. In response to specific questions from this Appeal Panel, the MRP found the most probable diagnosis of the claimant's condition to be non-specific low back pain. With all due respect to the MRP, this Appeal Panel does not agree that non-specific back pain is a diagnosis. Clinically, none of the tests performed on the claimant have shown any abnormalities. The claimant has not participated in the treatment recommended to her. Her symptoms after 5 ½ years relate now to areas other than that described in the initial medical reports. We have trouble making the link between what is being described as her current symptoms and what was initially described as left hip and knee pain. We are not convinced that the initial trauma has not resolved.

This Panel can find no reason to disagree with the opinion of the WCB medical advisor on November 6, 2002. We also note that the MRP was of the opinion that there was a discordance noted "between casually observed and examined range of motion, tenderness and movement." This appears to be in line with the opinion of the WCB medical advisor.

Accordingly, based upon a weighing of all of the evidence herein, we can see no reason why the claimant had not recovered from her accident by December 10, 1998. Clinically, there has been no clear diagnosis of a continuing injury and we are of the view that the non-specific back pain being experienced by the claimant is not related to the initial compensable injury.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of September, 2004