The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 10, 2005, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not responsibility should be accepted for wage loss benefits and medical treatment beyond July 17, 2000.

Decision

That responsibility should not be accepted for wage loss benefits and medical treatment beyond July 17, 2000.

Decision: Unanimous

Background

Following a two-person lift and transfer of a patient from a wheelchair to a commode on May 25, 1999, the worker injured the right side of her lower back. The diagnosis rendered by the attending physician was a back strain. X-rays of the lumbosacral spine dated May 26, 1999 revealed minor degenerative changes. File information also revealed that the worker had undergone a right knee arthroscopy on June 4, 1999 which was not related to the compensable injury. The claim was accepted by the Workers Compensation Board (WCB) for the worker's back injury and benefits were paid accordingly.

On September 7, 1999, the worker was examined by a WCB medical advisor and it was concluded that the worker sustained a mechanical injury to the right paralumbar region from her compensable injury. The clinical examination noted the absence of nerve root findings and myofascial features. On November 9, 1999, the treating physician reported that the worker had returned to work on October 25, 1999 but her back pain returned.

The case was reviewed by a WCB medical advisor on December 14, 1999. The medical advisor took note of a report from the worker's treating physiotherapist outlining the following factors that were delaying the worker's recovery: "Obesity, general poor conditioning, numerous missed appointments and left knee pain."

In a January 19, 2000 report to the attending physician, an orthopaedic specialist diagnosed the worker with "sciatica right lower limb".

A CT scan of the lumbosacral spine was performed on March 1, 2000. The results identified no nerve root compression.

On May 16, 2000, the treating orthopaedic specialist advised the WCB that the worker had been undergoing physiotherapy and he was not certain that the worker had improved very much. Clinically, the worker had normal range of lumbar spine movements associated with complaints of pain in the last few degrees.

On July 5, 2000, a WCB medical advisor reviewed the file information and concluded, on a balance of probabilities, that the worker's ongoing signs and symptoms related more to obesity and deconditioning. It was felt that the compensable injury was not the cause of the worker's ongoing symptoms. On July 10, 2000, the WCB advised the worker that wage loss benefits would be paid to July 17, 2000 inclusive as it was determined that she had recovered from the effects of her compensable injury.

In August 2003, the worker asked the WCB to re-open her claim as she was still having back difficulties that she related to her May 25, 1999 compensable injury. The WCB then obtained up-dated medical information from the worker's treating physicians which included laboratory investigations, hospital and consultation reports.

On March 17, 2004, a WCB medical advisor reviewed the file information and made the comment that there was considerable degenerative disc disease noted on the imaging studies and was of the view that there was no cause and effect relationship between the worker's current problems and her May 25, 1999 low back injury.

On March 18, 2004, the worker and her advocate were advised that no change would be made to the WCB's decision of July 10, 2000 as it was felt that the findings noted on the recent MRI assessment were unrelated to the worker's May 25, 1999 injury. On April 7, 2004, the worker's advocate appealed this decision to Review Office.

In its decision of May 28, 2004, Review Office determined that responsibility should not be accepted for wage loss benefits or medical treatment beyond July 17, 2000. After considering all of the file evidence, Review Office felt that the worker's non-compensable conditions were more likely responsible for her physical presentation as opposed to the strain injury that occurred on May 25, 1999. On October 21, 2004, the worker's advocate appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The issue before us was whether responsibility should be accepted for wage loss benefits and medical treatment beyond July 17, 2000. For this appeal to be successful we must find that the worker's loss of earning capacity and medical treatments after July 17, 2000 were caused by her May 1999 workplace injury. We were not able to make this finding.

Worker's Submission

A written submission was made by the worker's representative on behalf of the worker. The representative provided a list of information on the claim file which he considered relevant to the issue. He expressed the opinion that Review Office erred in relying on certain evidence and arriving at certain conclusions. He noted that the Review Office decision conflicts with the opinion of the worker's orthopedic surgeon.

The representative concluded:

"In light of the medical evidence and other material contained in the claim file, including the reports of medical specialists and the Board's own medical advisors, all of which we submit, point to the fact that the claimant's continuing symptoms are a direct result of her compensable accident on May 25, 1999, we respectfully ask that Appeal Commission allow the claimant's appeal and grant that the Board accept responsibility for wage loss benefits and medical treatment beyond July 17, 2000."

Analysis

The worker asked that we find that her wage loss and medical treatments after July 17, 2000 are related to her May 1999 workplace injury and that the WCB compensate her accordingly. We were not able to make this finding.

After considering all the evidence and the submission made on behalf of the worker, we have been unable to relate the worker's medical condition after July 2000 to her May 1999 compensable injury. Further, we were not able to relate her current medical condition as diagnosed by her treating orthopedic surgeon and demonstrated on a July 2003 MRI scan to her 1999 workplace injury. Therefore we find, on a balance of probabilities, that the worker's condition, wage loss since July 2000 and medical treatments are not related to her May 1999 accident and are not the responsibility of the WCB.

The worker's benefits were terminated in July 2000. In a letter dated July 10, 2000 the WCB advised the worker that "In our opinion, based on your history of injury, diagnosis, expected symptom duration, subsequent investigations, current clinical findings, and pre-existing factors that are not related to the compensable injury, that you have essentially recovered from your work injury."

The worker did not appeal this decision until August 2003.

We have reviewed all the evidence and find, on a balance of probabilities, the worker had recovered from the May 1999 work injury. In arriving at this conclusion we note that a WCB medical advisor examined the worker in September 1999 and noted "…current clinical evaluation notes the absence of nerve root findings…". We also note that in March 2000 the worker had a CT scan which found no evidence of disc protrusion or nerve root compression. This CT scan also confirmed that the worker had early facet arthropathy at the L3-4 and on the left L5-S1.

We also note that in May 2000, the orthopedic surgeon who was treating the worker found that "Clinically she has normal range of movements in the lumbar spine associated with complaints of pain in the last few degrees…" In July 2000 the WCB medical advisor provided the opinion that the worker's ongoing signs and symptoms, on balance, relate more to her pre-existing condition and deconditioning.

The file evidence also discloses that the worker has many symptoms that were noted by the physician who treated the worker from 1999 to October 2002. In a report dated February 18, 2004, the physician commented that:

"She has been having multiple complaints; mainly related to her back, lower extremities and hand pain, general weakness, fatigue…

She has had multiple medical problems including uncontrollable diabetes mellitus type 2 with peripheral neuropathy, back pain, osteoarthritis of back without disc protrusion, migraine headache, bilateral carpal tunnel syndrome, obesity, urinary tract infection, insomnia, anxiety, and fatty liver…"

As noted above, worker did not re-contact the WCB regarding her claim until July 2003, more than three years after her benefits were terminated. The evidence indicates that during this three year period the worker reported an increase in symptoms arising from an incident at home and had an MRI scan which found a disc protrusion.

With respect to the MRI scan, we note that an MRI performed in January 2002 found no evidence of disc herniation, or nerve root compression. These findings differ from those noted on the MRI scan performed in July 2003 which found "…a small central and slightly right posterolateral L3-4 disc protrusion…"

The worker's representative attributes the July 2003 MRI scan findings to the May 1999 accident and notes that "…medical conditions resulting from accidental trauma continue to deteriorate for many years…" The representative relies on the comments of the orthopedic surgeon who is currently treating the worker and who concluded there is "… a cause-and-effect relationship between her reported accident and her current status."

We prefer the opinion of the WCB medical advisor who noted the differences between the 2002 and 2003 MRI scans and opined that a cause and effect relationship could not be made between the May 1999 injury and the diagnosis arising from the July 2003 MRI. The medical advisor also noted that the MRI scan found considerable degenerative disc disease.

We note that in the interval between the MRI scans, the worker reported an accident which occurred at home in July 2003. At this time the worker was admitted to hospital with increasing back pain after having been on her hands and knees scrubbing the floor. It is after this accident that the worker contacted the WCB. We find that this intervening accident provides a better explanation for the difference between the MRI scan results. We are not able to link the July 2003 MRI scan to the May 1999 workplace injury. We find that the worker's current condition is not related to her May 1999 workplace injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of February, 2005