The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 5, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 6, 2003;

Whether or not further responsibility should be accepted for medical treatment or other services in relation to either the August 2002 or October 2000 compensable injuries; and

Whether or not the worker is entitled to preventive vocational rehabilitation services.

Decision

That the worker is not entitled to wage loss benefits beyond March 6, 2003;

That no further responsibility should be accepted for medical treatment or other services in relation to either the August 2002 or October 2000 compensable injuries; and

That the worker is not entitled to preventive vocational rehabilitation services.

Decision: Unanimous

Background

On October 20, 2000, the worker reported an injury to her lower back region that she related to her work activities as an "overnight stock person" which consisted of continuous lifting of heavy items and bending. A report from her family physician dated October 31, 2000 diagnosed the worker with a muscle strain to the lower back. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing October 22, 2000. In January 2001, the family physician suggested a CT scan because of muscle spasms and pains in the worker's right leg.

On February 19, 2001, the worker was examined by a WCB medical advisor at the family physician's request. The WCB medical advisor stated in his examination notes that the worker was mildly obese and was extremely deconditioned. He felt that the worker likely sustained myofascial stress in the paralumbar region at the time of her compensable injury. Further diagnostic testing was ordered.

A CT scan of the lumbar spine was taken on March 8, 2001. On March 15, 2001, a WCB medical advisor commented that the CT scan revealed significant multi-level problems which pointed toward the likelihood of being pre-existing. He stated that the worker's back "would likely be at risk". In response to questions posed by primary adjudication on March 26, 2001, the WCB medical advisor stated that the worker aggravated her pre-existing back condition on a balance of probabilities. He stated that the prognosis for the worker's returning to her pre-accident duties as an overnight stocker was guarded.

A report was received from the treating neurosurgeon dated June 19, 2001. Based on a review of CT scan results and the worker's clinical presentation, the neurosurgeon was of the opinion that the worker did not have radiculopathy. He thought that the worker's low back pain and pseudo radicular pain was related to laxity of the zygapophyseal joints. He felt that an adequate physiotherapy program was appropriate and that surgery was not recommended.

On June 26, 2001, a WCB orthopaedic consultant reviewed the file information and stated, in part, that the worker's low back pain developed during the course of a normal work day and that there was no history of an acute injury occurring. He stated that the worker's initial symptoms would be consistent with a musculoligamentous sprain-strain and the other differential diagnosis would be a disc injury. He noted that the treating orthopaedic surgeon felt that the worker might have sustained an L4-5 disc herniation at some time but the clinical signs and symptoms did not indicate any form of nerve root compromise. The orthopaedic consultant commented that the evidence on file supported a graduated return to work program, which could be an important part of the worker's recovery program.

The WCB arranged for the worker to attend a physician at the Pain and Injury Clinic for treatment. In a report dated September 17, 2001, the physician outlined his examination findings and recommended a trial of acupuncture, medication for sleep disturbance and blood work.

A bone scan was carried out on October 15, 2001. No bony abnormalities were identified in the lumbosacral spine.

On October 26, 2001, the physician from the Pain and Injury Clinic reported that the worker had been treated five times with acupuncture and there was no change in her pain. He was not sure of the ongoing etiology of her pain. No further treatment was offered.

On November 20, 2001, the WCB referred the worker to a chiropractor for treatment. Reports from the chiropractor were later received dated November 22, 2001 and December 13, 2001.

On November 30, 2001, a WCB medical advisor reviewed the file information and answered several questions posed by primary adjudication.

In a decision dated November 30, 2001, the worker was informed of the WCB's position that based on the weight of medical evidence, the mechanics of the accident and the duration of time since the compensable injury, she had recovered from the effects of her compensable accident. Therefore, the WCB would not be responsible for wage loss benefits or treatment effective January 8, 2002. It was decided that any ongoing symptoms experienced by the worker were, on a balance of probabilities, related to her pre-existing condition. It was also the WCB's opinion that the worker was capable of increasing her hours of work in the graduated return to work program.

On January 10, 2002, the worker advised her WCB case manager that she was missing time from work due to a sore back. She was scheduled to perform ICS duties on January 7, 2002 but left work after three hours because of spasms in her back as well as pain in her leg.

In a letter to the worker dated January 18, 2002, the WCB case manager referred to subsection 22(1) of The Workers Compensation Act (the Act). Due to the worker's lack of participation in the return to work plan and her failure to attend for chiropractic treatment, the WCB felt that she did not receive the full benefit of the return to work plan provided. The case manager stated that no change would be made to the WCB's previous decision, i.e. that she had recovered from the effects of her compensable injury and that her ongoing symptoms were related to her pre-existing condition.

On August 13, 2002, the worker advised the WCB that she was lifting boxes at work on August 12, 2002 and felt a sharp pain in her back. The worker felt that the October 19, 2000 accident was responsible for her present back problems. The WCB advised the worker to file a new claim for this accident.

On August 16, 2002, the worker filed a claim with the WCB for the accident occurring on August 13, 2002 (accident date later changed to August 12, 2002). The worker stated that she was lifting a box weighing 10 - 15 lbs. and her back went out. She stated that she had a claim before for 3 bulging discs from doing this before and now it happened again.

A report was received from the family physician dated August 15, 2002. The diagnosis rendered was a lumbosacral spine disc lesion. A CT scan was suggested.

On October 30, 2002, the family physician provided the WCB with treatment dates and his examination findings of the worker between January 2, 2002 and August 15, 2002. He felt the worker "…never recovered from her injury from October 2000 and lifting and carrying boxes, etc. at work just made it worse this time. She should be considered as not a re-injury but continuation of the previous injury."

On December 2, 2002, a WCB medical advisor was asked by primary adjudication to review the file and to comment on a diagnosis. The medical advisor stated that given the mechanics of injury, the diagnosis would be a lumbar strain. She stated that the family physician provided no objective evidence for a disc lesion (i.e. no signs of nerve root compression).

In a letter dated December 6, 2002, the WCB accepted responsibility for the worker's August 12, 2002 accident on the basis of a "back strain". Given the medical evidence and the mechanics of the accident, the WCB determined that, on a balance of probabilities, the worker had recovered from this injury effective October 7, 2002 and any ongoing symptoms were related to her pre-existing condition.

On December 18, 2002, a worker advisor appealed the WCB's decisions of November 30, 2001, January 18, 2002 and December 6, 2002 to Review Office. The worker advisor argued that the conclusions reached by the WCB were not supported by file evidence nor were they in compliance with WCB policy.

On February 21, 2003, Review Office referred the worker's 2002 file back to primary adjudication as it felt that the file information lacked medical evidence. Primary adjudication then wrote to the worker's treating physicians for up-dated medical information.

In the interim, Review Office determined on February 21, 2003, that the worker had recovered from the effects of her October 19, 2000 injury by December 26, 2001. Review Office noted that the worker's CT scan showed a tri-level bulging disc scenario, which would therefore pre-dispose the worker to strains and provide a situation where she had a back at risk. It appeared that the worker experienced a situation of overuse syndrome on October 19, 2000 due to the demands of her job. The lumbar region of her spine had succumbed to the stressors placed on it that day and this resulted in a strain injury. Review Office noted that the worker received 14 months of coverage for this strain scenario and that by December 26, 2001 the results of the strain would have resolved.

The family physician provided the WCB with a report dated March 18, 2003 outlining his examination findings and the dates when he saw the worker from August 15, 2002 to March 6, 2003. He stated that the current diagnosis remained the same, i.e. injury to the back causing L4-5 disc prolapse. He also noted that the CT scan "says it is touching the left L5 nerve root, however, her pain is mostly on the right side. Perhaps a (sic) MRI might shed more light on this…".

On April 3, 2003, primary adjudication determined that no change would be made to its decision of December 6, 2002 based on a review of the new medical evidence provided by the family physician.

A report was received from a physiatrist dated May 24, 2003. The report outlined his examination findings of the worker on April 25, 2003 and May 23, 2003.

On June 9, 2003, an orthopaedic surgeon provided the WCB with his examination findings of the worker on May 18, 2001 and March 27, 2003.

On June 19, 2003, the family physician clarified "…her second injury did aggravate her condition and her pain had increased radiating down her leg. However, with not working, rest, etc. she has gone back to her pre-accident level."

The worker's 2000 and 2002 claim files were reviewed by a WCB orthopaedic consultant on November 4, 2003. Based on the consultant's opinions, primary adjudication determined the following on November 19, 2003:

- That the worker had recovered from her October 19, 2000 compensable injury. Reference was made to Review Office's decision of February 21, 2003 in this regard.

- That the worker had recovered from the effects of her August 2002 compensable injury and was not entitled to ongoing wage loss or medical treatment on a retroactive basis. Primary adjudication concluded that the diagnosis in relation to the 2002 compensable injury was a musculoligamentous lower back strain; there was no evidence of acute lumbar disc herniation or lumbar nerve root compression or irritation; and there was no evidence of mechanical back pain in view of normal conventional x-rays and two CT scans.

- There was no clinical evidence of a pre-existing condition that would predispose the worker to subsequent injury, therefore there was no evidence to support a permanent impairment or a disability. It was therefore determined that the August, 2002 injury was a new accident and was not a recurrence of her October 19, 2000 injury.

- The abnormalities reported on two CT examinations had not been identified as clinically relevant. Therefore, the abnormalities did not represent clinical lumbar disc herniation or clinical lumbar nerve root compressions that would support evidence of a pre-existing condition.

- Based on the diagnosis of a musculoligamentous lower back strain and the lack of clinical evidence to support a pre-existing condition that would predispose the worker to subsequent injury, she did not qualify for preventive vocational rehabilitation.

On January 9, 2004, the worker advisor requested a Medical Review Panel (MRP) based on subsection 67(4) of the Act. On March 18, 2004, the request for an MRP was denied by the WCB.

On April 15, 2004, the worker advisor wrote to Review Office and requested reconsideration of the issues listed in her previous and subsequent submissions.

In a decision dated June 25, 2004, Review Office determined that wage loss benefits were to be extended up to and including March 6, 2003 which was the date that the worker's treating physician felt that the worker had returned to her pre-August 12, 2002 lumbar status. Review Office also decided to refer the worker's 2000 claim to an MRP in accordance with subsection 67(3) of the Act prior to determining whether or not the worker qualified for coverage under the WCB's policy on preventive vocational rehabilitation.

An MRP was held on November 25, 2004 and the MRP's opinions/ findings are contained in a report to the WCB dated December 22, 2004.

On January 4, 2005, Review Office confirmed that wage loss benefits were not payable beyond March 6, 2003. Based on a review of the MRP's findings along with other medical information on file, Review Office did not feel that the medical evidence warranted an extension of benefits beyond March 6, 2003.

Review Office noted that the MRP found the worker did not have a pre-existing low back condition and, as the main criteria in policy 43.10.60 on Preventive Vocational Rehabilitation was the establishment of a pre-existing condition, Review Office was of the view that the circumstances involved in this scenario did not meet the criteria as set out in the policy. Therefore, the worker did not qualify for preventive vocational rehabilitation.

On February 2, 2005, the worker advisor appealed Review Office's decisions of June 25, 2004 and January 4, 2005 and an oral hearing was arranged.

Reasons

After having thoroughly reviewed and considered all of the evidence, we find that the worker is not entitled to wage loss benefits beyond March 6, 2003. We further find that no further responsibility should be accepted for medical treatment or other services in relation to either the August 2002 or October 2000 compensable injuries. The preponderance of evidence leads us to conclude that the worker has recovered from the effects of both her 2000 and 2002 compensable injuries and that worker's current ongoing difficulties are not, on a balance of probabilities, causally related to the said injuries.

In arriving at the foregoing conclusions, we attached substantial weight to the following body of evidence.

Medical Review Panel (MRP) conducted on November 25, 2004 - The MRP diagnosed the worker's current low back condition as follows: "Her current condition is chronic mechanical low back pain. The evidence comes from her current examination which shows tenderness on deep palpation in the sacroiliac joints, paraspinal muscles and spinous processes of the lumbosacral spine. There are no abnormalities on the neurologic exam and straight leg raising is full bilaterally.

Has the worker now recovered from the effects of her October 19, 2000 low back injury? Yes."

June 9, 2003 - Letter from a treating orthopaedic surgeon to the WCB, the narrative of which reads in part:

"Computerised (sic) axial tomography of lumbosacral spine of 8th March, 2001, at Concordia General Hospital revealed some bulging of the intervertebral discs with no significant nerve root compression or spinal stenosis."

"I understand that she was examined by Dr. [neurosurgeon] on 19th June, 2001, when he felt that there was no genuine clinical or radiological evidence of nerve root pressure. He felt that neurosurgical intervention would not benefit this patient and advised her to continue with her course of physiotherapy."

"Her musculoskeletal examination showed no significant changes apart from the fact that her straight leg raising was found to have improved to 80 degrees bilaterally."

"Further computerized axial tomography of lumbosacral spine on 19th December, 2002, as requested by her Family Physician, Dr. [name], showed no significant evidence of nerve root compression or spinal stenosis."

November 4, 2003 WCB orthopaedic consultant's memorandum to file, which reads, in part: "The case manager has raised the matter of preventive vocational rehabilitation services. It is my opinion that the claimant does not qualify for this service, based on clinical diagnosis, not on x-ray findings.

1. The most probable diagnosis in relation to the compensable injury of August 2002 was a musculoligamentous lower back strain. I find no evidence of acute lumbar disc herniation or lumbar nerve root compression or irritation. I find no evidence of mechanical back pain in view of normal conventional x-ray and two CT scans without demonstration of degenerative changes in the lumbar posterior articulations.

2. On the balance of probabilities, the claimant has recovered from the effects of the above injury.

3. There is no clinical evidence of a pre-existing condition that would predispose the claimant to subsequent injury. The abnormalities reported on two CT examinations have not been identified as clinically relevant. In other words, these abnormalities do not represent clinical lumbar disc herniations or clinical lumbar nerve root compressions.

4. In my opinion, there is no clinical pre-existing condition for which preventative (sic) restrictions would be required."

The provision of preventive vocational rehabilitation is entirely discretionary on the part of the WCB. We have found that the worker has recovered from both of her compensable injuries and that her current difficulties are not causally related to these injuries. The policy requires that there also be a demonstrated increase in risk to the anatomical area of injury in order for preventive vocational rehabilitation to be considered. In this case at hand, we note the absence of a confirmed pre-existing condition or evidence of an increased risk of injury. We therefore find that she does not qualify for preventive vocational rehabilitation. Accordingly, the worker is not entitled to such services.

The worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of June, 2005