The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 30, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 30, 2004 and again on November 16, 2004.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond October 7, 2003.

Decision

That the claimant is not entitled to wage loss benefits beyond October 7, 2003.

Decision: Unanimous

Background

In September 2002, the claimant filed a claim with the Workers Compensation Board (WCB) for the gradual onset of lower back pain which had progressively become worse three weeks prior on August 8, 2002. The claimant related his back difficulties to the nature of his employment activities as a heavy equipment operator.

Medical information revealed that the claimant had been initially diagnosed with mechanical low back pain and was treated with physiotherapy. On November 25, 2002, a CT scan of the lumbar spine revealed a small right paracentral disc protrusion at L5-S1.

In a narrative report dated January 9, 2003, a physical medicine and rehabilitation specialist (physiatrist) reported that the claimant most likely suffered from a right L5-S1 disc herniation causing right sided S1 radiculitis. He felt that the claimant had now recovered from the radiculitis but still had mild mechanical and discogenic pain with reduced functional capabilities.

On January 22, 2003, a WCB physiotherapy consultant examined the claimant and found residual weakness of the right ankle plantar flexors. The consultant advised the claimant to "resume all activities around the home with stretch breaks as needed. This included working on his car. I suggested working for 15 minutes, followed by a stretch break. This would serve as a conditioning program." It was also suggested that the claimant might benefit from a reconditioning program which was subsequently arranged.

On April 24, 2003, the claimant was assessed by a WCB medical advisor with regard to his current status and functional capabilities. The medical advisor reported that the claimant continued to report symptoms compatible with a right L5-S1 disc herniation but that he was able to work with restrictions. Recommendations were made for an MRI examination, trigger point needling, an opinion from a second physiatrist and a Functional Capacity Evaluation (FCE).

An MRI examination took place on May 26, 2003. A small right paracentral disc herniation at L4-L5 was noted with evidence of an annular tear. The radiologist commented that the abnormality found was at the L4-5 level, whereas the prior CT scan suggested a disc protrusion at L5-S1. Mild degenerative changes were also noted at the left three segmented disc levels without disc herniation.

In a report to the WCB dated September 16, 2003, the second physiatrist summarized by saying that the claimant primarily had symptomatic right S1 radiculopathy.

A report was received from a pain clinic dated September 6, 2003. The medical director stated, in part, "Mr. [the claimant's] symptoms did seem to be consistent with a right S1 nerve root irritation. His symptoms, however, could also be compatible with discogenic pain and there may, in fact, be some relevance to the annular tear noted on the MRI scan." Treatment suggestions included a right S1 nerve root injection.

As it was 13 months since the compensable accident, the claimant was assessed by a WCB medical advisor on September 23, 2003. The current diagnosis was reported as non-specific, mechanical low back pain. Clinical examination demonstrated a full active range of motion of the lumbosacral spine with central and right low back pain at the extremes of the range. Neurological examination was normal and there was no objective evidence of soft tissue pain or dysfunction and the muscle power was well preserved. There were no measurable objective medical findings to base workplace restrictions on.

On October 1, 2003, primary adjudication informed the claimant that his wage loss benefits would be paid to October 7, 2003 as a loss of earning capacity no longer existed and that he was considered capable of returning to his regular work duties. As a basis for its decision, primary adjudication referred to the September 23, 2003 WCB examination findings/report, wherein it was noted that the claimant had advised the WCB medical advisor about doing all the repairs on his own race car and racing it twice in the past year.

The next documentation on file was a surveillance report outlining the claimant's activities on September 22, 26 & 27, 2003.

A follow-up report was received from the treating physiatrist dated October 10, 2003. The specialist commented that the claimant still had significant discogenic pain with mild right leg radiculitis. Suggested treatment plans included epidural corticosteroid injections.

On January 21, 2004, a worker advisor, acting on the claimant's behalf, provided the WCB with a report from the treating physiatrist dated January 20, 2004. The worker advisor contended that this report supported the position that the claimant had not recovered from his compensable accident of August 7, 2002.

In a decision letter dated February 9, 2004, primary adjudication confirmed its earlier decision that the claimant was not entitled to benefits beyond October 7, 2003. Primary adjudication relied on the following evidence in reaching its decision:

• the WCB call in examination notes of September 23, 2003 which noted that dural tension signs were negative, the claimant demonstrated a full active range of motion and muscle power was well preserved;
  
  
• in the December 1, 2003 report from the worker advisor, the claimant was noted to have had 25% restricted range of motion, and had positive dural tension signs. A cause and effect relationship between these findings and the findings of September 23, 2003 had not been shown;
  
  
• the September 2003 surveillance videotapes showed no signs of pain behavior and the claimant was able to move freely and enter/exit his car on several occasions with no noticeable pain behavior or hesitation. The claimant demonstrated his ability to lift and place heavy liquid containers in his trunk without any noticeable difficulties or signs of pain;
  
  
• the claimant's ability to maintain, repair and race his car.

On May 21, 2004, the case was considered by Review Office at the worker advisor's request. The worker advisor advanced the argument that the medical information on file subsequent to October 7, 2003 fully supported that the claimant was unable to return to his full regular duties as a result of his workplace injuries.

In considering the worker advisor's appeal, Review Office obtained an opinion from a WCB orthopaedic consultant. Review Office stated that the consultant did not believe that the claimant's disc herniation or annular tear were attributable to his work given the lack of a specific accident and the gradual onset of symptoms over a three week period. Review Office concluded that it was unable to accept the contention that the worker's job duties resulted in either a disc herniation or annular tear given that there was no specific accident, that his complaints were originally isolated to his lower back, and the onset of his symptoms occurred over a period of time.

On September 20, 2004, an oral hearing was held at the worker advisor's request. Following the hearing, the Appeal Panel requested additional information from the specialist at the pain clinic who had been treating the worker. A report from the specialist was later received dated October 6, 2004 and was provided to the interested parties for comment. On November 16, 2004, the Panel met to further discuss the case and rendered its final decision.

Reasons

“The MR abnormality is labelled (sic) as L4-5 which is not concordant with the CT level of the L5-S1 supplied by the clinical information. The MR is labelled (sic) as if the last segmented disc is L5-S1. Careful plain film correlation prior to surgical intervention is required. Note is also made of mild degenerative change about the left three segmented disc levels without disc herniation.”

The treating physiatrist provided a follow up medical report dated July 3, 2003 to the claimant’s WCB case manager. In that report, he stated:

“His right S1 radiculitis has resolved. He has mild mechanical and discogenic pain related to exertion and moderate degree of activities. There are no indications for further investigations such as MRI of the spine or any indication of nerve roots blocks. He should continue dynamic lumbar stabilization exercises on a regular basis and follow principles of proper ergonomics and body mechanics to prevent exacerbation of back pain. He may return to modified duties.”

The claimant was called in by the WCB for an examination by one of its medical advisors on September 23, 2003. He recorded the following comments in his examination notes:

“The current diagnosis is non-specific, mechanical low back pain. Today’s clinical examination demonstrated a full active range of motion of the lumbosacral spine with central and right low back pain at the extremes of the range. Dural tension tests were negative in the standing, sitting and supine positions and the neurological examination was unremarkable. There was also no objective evidence of soft tissue pain or dysfunction and the muscle power was well preserved.

Based on today’s examination, there are no measurable objective medical findings on which to base workplace restrictions. His active lumbosacral range of motion is full, with no palpable soft tissue abnormalities, negative dural tension signs, and a normal neurological examination. He has been encouraged to perform the previously demonstrated home exercises and to remain as active as possible.”

After carefully weighing all of the evidence, we find that the effects of the claimant’s compensable injury have, on a balance of probabilities, resolved by October 7, 2003. Even the recent MRI of September 15, 2004 does not alter the diagnostic and clinical findings with respect to the claimant’s low back. We further find that the claimant is not entitled to wage loss benefits beyond October 7, 2003. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of January, 2005