The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on March 23, 2005, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Decision: Unanimous

Background

This worker has a number of compensation claims with the Workers Compensation Board (WCB) for back injuries that occurred in the workplace between October 20, 1980 and September 22, 1998.

On March 8, 2004, the worker's advocate provided the WCB with a submission outlining three issues for consideration. In particular, the advocate presented the WCB with new medical information which he felt supported the position that the worker was entitled to a Permanent Partial Impairment (PPI) assessment for the back injuries that he sustained in 1980, 1986 and 1998.

In a response to the advocate dated March 26, 2004, a WCB case manager determined there was no indication that the worker suffered any permanent impairment from the 1980, 1986 or 1998 claims.

On May 14, 2004, the WCB's Review Office considered the worker's 1980, 1986 and 1998 claims to determine whether or not the worker was entitled to a PPI award for his low back. Following its review of all three claims, Review Office stated it was quite clear that none of the three claims contained a diagnosis beyond that of a strain. Review Office looked for something significant to appear but found that the diagnoses supplied by the physicians, chiropractor and orthopedist along with radiological evidence, did not indicate anything sinister leading support to the contention that any problems in 2004 had a relationship to any of the three claims. In conclusion, Review Office found no evidence to rescind the case manager's decision of March 26, 2004. On November 19, 2004, the worker's advocate disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

We were asked to determine whether the worker is entitled to a permanent partial impairment award. There were three injuries before us for consideration. After reviewing the injuries we concluded that the worker is not entitled to a permanent partial impairment award with respect to these injuries.

The worker was represented by an advocate who submitted that the totality of the lumbar injuries beginning in 1980 form the basis for consideration of a P.P.I. award. As noted in the background the advocate made an extensive submission to the WCB dated March 8, 2004 in which a request was made that the worker be called in for a PPI assessment.

The advocate's submission refers to five injury claims including claims which occurred in 1988 and 1993. Review Office did not consider these claims in its determination. We understand that the 1988 claim has been considered by the Appeal Commission and therefore is not part of this appeal. With respect to the 1993 claim, we understand that it dealt with the worker's right shoulder and forearm and an impairment award has been granted.

We have considered the injury claims from 1980, 1986 and 1998 and have concluded that there is no basis for a Permanent Partial Disability (PPD) award on the 1980 and 1986 claim and no basis for an impairment award on the 1998 claim.

The 1980 claim was diagnosed as a muscle strain by the attending physician. An orthopaedist diagnosed the injury as a low back strain and noted there were no objective signs present on examination. We did not find that the medical and other evidence on file suggests or supports a permanent injury. On a balance of probabilities, we found that the worker did not suffer a permanent disability as a result of this injury and is not entitled to a PPD award.

The worker's 1986 injury claim was diagnosed by the attending chiropractor as an acute traumatic lumbopelvic subluxation complex. The worker received 11 chiropractic treatments over a three week period and received WCB wage loss benefits for seven days. In reply to a submission by the employer's representative, the worker's advocate agreed that this was not a significant injury. On a balance of probabilities, we found that the worker did not suffer a permanent disability as a result of this injury and is not entitled to a PPD award.

The worker's 1998 accident was diagnosed by the attending chiropractor as an acute lumbosacral strain with associated vertebral subluxation complexes and muscle spasms. The worker was discharged from care by his chiropractor on November 30, 1998 as he had not sought care since October 2, 1998. On a balance of probabilities, we found that the worker did not suffer an impairment as a result of this injury and is not entitled to a impairment award.

We note and rely upon the report of an orthopaedic surgeon dated January 1, 1995. The surgeon notes that all of the investigations have been borderline or negative including a CT scan and x-rays. He provides the opinion that the worker's pain may be early disc degeneration at the L4-5 or the facets at this level, or both.

We also note that the worker was examined by a physiatrist in March 2003. The physiatrist reports that the worker's subjective complaints are not consistent with the objective findings. He also notes that symptom magnification was evident during the assessment. We do not consider that this report establishes that the worker has suffered a permanent injury due to the above discussed accidents.

After carefully reviewing all the evidence we found that it does not support the contention that these injuries caused permanent disability or impairment. Accordingly 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 17th day of May, 2005