The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 23, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker had recovered from the effects of her compensable injury by July 24, 2003.

Decision

That the worker had recovered from the effects of her compensable injury by July 24, 2003.

Decision: Unanimous

Background

On March 3, 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred on January 16, 2003 from moving cases from one pallet to another. The worker stated that she immediately sought medical attention and was referred for physiotherapy treatments. She stated that she has been on light duties ever since and that she missed time from work only to attend physiotherapy treatments.

On March 4, 2003, an employer representative advised the WCB that he had no concerns with the claim and that the incident did occur as reported by the worker.

Medical information confirmed that the worker was treated by a physician on January 16, 2003 and was diagnosed with a lower back strain. The physician documented that the worker had prior back trouble when she slipped on ice the year previously.

On March 11, 2003, the treating physiotherapist noted that the worker complained of constant pain in the lower back, left buttock and left leg down to the calf. The diagnosis rendered was an L4-5 disc with nerve root impingement.

Following a meeting that took place between the worker and her employer on March 18, 2003, the worker discontinued modified duties and went on stress leave.

On April 15, 2003, a WCB medical advisor reviewed the case and authorized further physiotherapy treatments at 3 times per week for four more weeks. A CT scan was ordered. The medical advisor also outlined specific work restrictions, i.e. to avoid repetitive bending, twisting, sitting and standing and the opportunity to rest as needed.

In a memo to file dated April 17, 2003, a WCB case manager provided a brief summary of the accident history and the medical information found on file. He also documented information about the meeting which took place on March 18, 2003 between the worker and her employer and made arrangements for the worker to see a psychologist.

Reports were received from a clinical psychologist dated April 28, 2003, April 30, 2003 and May 20, 2003 with regard to the worker's psychological status.

In a memo to file dated May 7, 2003, a vocational rehabilitation consultant (VRC) documented that he had discussed the case with the treating psychologist and the WCB case manager who was handling the case. It was confirmed by the VRC through the case manager, that the worker's current psychological stresses, which resulted in her being off work, were not compensable and that there was no benefit entitlement in this regard.

On May 9, 2003, the worker was notified that the WCB would continue to accept responsibility for medical aid treatment as it related to her lower back injury but it would not accept responsibility for any time loss beyond March 17, 2003. It was felt that any time loss beyond March 17, 2003 was due to the March 18, 2003 disciplinary meeting between the worker and her employer and that this was not considered a compensable injury or compensable time loss.

On May 30, 2003, the treating physiotherapist applied for additional funding as the worker was making slow progress with her pain and mobility. On the same day, the WCB's physiotherapy consultant denied approval for the additional treatment as there was no evidence of sustained benefit with treatment after his review of the physiotherapy and/or medical reports on file.

The worker was assessed on June 12, 2003 by the WCB physiotherapy consultant to determine her current status. Following the assessment, the physiotherapy consultant stated that it was impossible to render an anatomical diagnosis of the worker's back and leg complaints due to inconsistencies noted in the examination. The consultant suggested that the worker wean herself from using her cane and wearing a back corset (both prescribed by her physiotherapist) as there were no objective findings to justify usage of these items.

Additional reports were received from the clinical psychologist dated June 27, 2003, July 31, 2003 and August 31, 2003 concerning the worker's psychological status.

On July 24, 2003, the worker was notified by the WCB of its decision that she had recovered from the effects of her compensable injury and that she was not entitled to further WCB benefits or services. This decision was based on a review of the file information which included the June 12, 2003 assessment by the WCB's physiotherapy consultant.

In a submission to Review Office dated October 28, 2003, the worker's advocate asked that a full review of all the evidence be conducted as it was felt that the worker was entitled to retroactive wage loss benefits to September 26, 2003. The advocate noted that the worker's short-term disability benefits ceased as of September 26, 2003. He stated that the worker was only allowed to return to work by her doctor and WCB authorized doctors if she were given light/modified duties. As the employer had no light/modified duties available for the worker, the advocate felt that the worker was entitled to regular wage loss benefits in the interim.

On November 28, 2003, Review Office outlined its position that it agreed with the case manager's decision to end responsibility for the claim as of July 24, 2003 as it was felt that the worker's condition as of July 2003, did not have a diagnosis to support her subjective complaints of pain. Review Office felt it was unable to draw a conclusion that the worker's subjective complaints of pain in July 2003 were related to the incident of January 16, 2003.

On January 10, 2005, the worker's advocate appealed Review Office's decision of November 28, 2003. The advocate felt that the decision should be overturned as objective medical evidence and the return to work conditions were not considered by Review Office. On March 23, 2005, an oral hearing was held to consider the worker's/advocate's appeal.

Reasons

The issue before the Panel was whether the worker had recovered from the effects of her compensable injury by July 24, 2003. For the worker's appeal to be successful we must find that the evidence establishes, on a balance of probabilities, that the worker continued to suffer the effects of the injury after this date. We were not able to reach this conclusion. We found that the worker recovered from the effects of the workplace injury.

Evidence and Argument at Hearing

The worker attended the hearing with a representative who made a submission on her behalf. The worker answered questions posed by the panel. The employer was represented by its human resource specialist who made a presentation for the employer.

The worker's position is that she has not recovered from the workplace injury. She advised that, from time to time, she still uses a cane and wears a corset due to the injury. She said that the pain she suffers now is almost equal to the pain she had in March 2003 when she left her employment on stress leave.

The worker described the accident. She also described the modified duties that were provided by the employer after the accident and noted that she could stand, sit or walk around as she needed. She confirmed that she did not leave her employment on March 18, 2003 as result of the accident or an inability to perform the modified duties. She also stated that she could perform the modified duties if they were available at this time.

With respect to medical treatment, the worker advised that she received some physiotherapy treatment and felt much better as a result. She confirmed that she is not currently receiving any treatment for her back. She last saw her family doctor for her back injury in July 2004. He prescribed medication for pain. She has a new physician but he has not treated her back injury.

The employer's representative acknowledged that the injury did occur and that the worker was accommodated in light duties until March 18, 2003 when she left work on stress leave which was not related to the compensable injury. The employer representative noted that the worker's condition seemed to deteriorate after the worker left work and that this deterioration was more consistent with a degenerative process than the acute injury which occurred at work. The employer agrees with the Review Office decision.

Analysis

Having considered all the evidence including the worker's evidence at the hearing, we find that the worker had recovered from the effects of the workplace injury by July 24, 2003.

In arriving at this decision we place significant weight upon the following evidence:

-Examination by WCB physiotherapy consultant on June 12, 2003. The consultant noted inconsistencies in the examination and concluded that it was "…impossible to render an anatomical diagnosis…" for the worker's back and leg complaints. He noted pain behaviour throughout the examination and commented that he could not correlate the worker's complaints to a bulging disc. The consultant did find there was no wasting or atrophy, knee jerk and ankle jerk were brisk and equal bilaterally, straight leg raise in sitting position was full bilaterally with full ankle dorsiflexion. The consultant noted that the worker did not miss time from work due to the compensable injury which did not correlate with the level of disability she demonstrated at the examination.

-CT scan report of May 1, 2003 which found:

"The preliminary digital radiograph demonstrates degenerative disc narrowing at L2-L3, L3-L4 and possibly mild degenerative narrowing at L4-L5. At L3-L4, there is marked diffuse bulging laterally on the left which extends into the exit foramen with possible involvement of the exiting left L3 nerve root. Clinical correlation required. At L4-L5, there is mild to moderate diffuse disc bulging with extension into the exit foramen bilaterally. The bulging disc approaches the exiting left L5 nerve root. Significant involvement is not strongly suspected although clinical correlation will be required. At L5-S1, no abnormality has been demonstrated. Mild facet arthropathy is present at L4-L5. The remaining examination was unremarkable with no evidence of any significant stenosis involving the central canal, lateral recess or exit foramen."

-MRI report of June 10, 2004 which found:

"There is mild degenerative narrowing and desiccation of the L2-3, L3-4 and L5-S1 intervertebral discs. The remainder of the lumbar intervertebral disc are normal in height and signal intensity. There is no evidence of disc herniation, spinal stenosis or nerve root compression at any of the imaged levels. At the L4-5 level mild degenerative changes are noted in the right facet joint. No other significant lumbar spinal abnormality is identified."

We find that the evidence on file regarding the worker's condition now and in July 2003 is more consistent with her deteriorating pre-existing degenerative condition than the results of the acute work injury which occurred more than 27 months ago.

The worker's appeal is denied.

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 29th day of April, 2005