The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 6, 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 is entitled to wage loss benefits for the period November 27, 2001 to July 31, 2002, inclusive.

Decision

That the worker is not entitled to wage loss benefits for the period November 27, 2001 to July 31, 2002, inclusive.

Decision: Unanimous

Background

While performing the duties of a cement finisher on July 30, 2001, the worker was bending over and when he tried to straightened up, he felt a pain in his lower back.

X-rays of the lumbosacral spine dated July 31, 2001 revealed appearances that were consistent with L4-5 disc degeneration.

A Doctor's First Report indicated that the worker was examined on July 31, 2001 and the diagnosis rendered was a lumbar back strain. The doctor also stated that the worker's pre-existing condition of degenerative joint disease may affect his recovery.

On October 11, 2001, bone scan results revealed a mildly increased tracer uptake within the right 7 and 8 ribs posteriorly. The appearances were consistent with rib fractures, the age being indeterminate.

Subsequent file records consisted of a report by an orthopaedic specialist dated October 16, 2001 and a neurologist dated October 17, 2001.

The case was reviewed by a medical advisor with the WCB's healthcare branch on November 7, 2001. Following this review, primary adjudication advised the worker on November 19, 2001 that it was the WCB's position that he had recovered from the effects of his workplace injury and that wage loss benefits would be paid to November 26, 2001 inclusive and final. The worker was notified that his case would be referred to the WCB's preventive vocational rehabilitation (PVR) committee to determine if he was eligible for preventive vocational rehabilitation in light of his pre-existing back condition.

On February 14, 2002, the PVR Committee determined that the worker did not qualify for further PVR consideration. It was determined that the worker's pre-existing condition was relatively minor in nature and reflected a condition which was basically normal for his age population. Also, the worker's claims history did not demonstrate a recent pattern of risk for injury.

In September 2004, the worker attended the offices of the WCB with his advocate to appeal the decision to deny him benefits beyond November 26, 2001. The worker indicated that he applied for and received benefits from CPP for the period commencing August 2002 and that he was looking to be compensated from November 27, 2001 to July 31, 2002. In a subsequent letter dated September 15, 2004, the worker appealed the WCB's decision to deny him preventive vocational rehabilitation services.

On December 22, 2004, the case was considered by Review Office. Review Office made reference to a number of medical reports on file that it had requested and received from the worker's treating physicians. These reports were dated March 18, 2002, July 30, 2002, October 4, 2002, November 18, 2002 and January 29, 2003. Review Office also considered the worker's application for a disability pension.

Review Office concurred with the opinion of the case manager, i.e. that the worker had recovered from the effects of his July 2001 injury by November 26, 2001. Weight was placed on the fact that the worker's range of motion had returned to normal and there was no evidence of muscle spasm. When the worker was examined on September 20, 2001, he displayed 'global symptomology' and medical reports done after wage loss benefits ended did not support that the worker was suffering from the residual affects of an acute back injury. Review Office felt the worker's symptoms were more consistent with degenerative disc disease. Review Office stated that this condition was the result of the normal aging process and was not compensable.

On January 31, 2005, the worker's advocate appealed Review Office's decision and an oral hearing was requested.

Reasons

The Panel was asked to determine whether the worker is entitled to wage loss for the period from November 27, 2001 to July 31, 2002, inclusive. For this appeal to be successful, the Panel must determine that the worker had a loss of earning capacity during this period due to his July 30, 2001 workplace injury. In other words the Panel must find that the worker could not work due to his workplace injury. We were not able to make this finding. We found that the worker had recovered from his workplace injury.

During the hearing there was discussion about the remedy being sought by the worker. The issue as noted refers to benefits for a limited period. The worker's advocate indicated that the worker should receive benefits until his retirement date which is beyond the period noted. It was agreed that the Panel would deal with the identified issue and that further entitlement may be considered if the Panel accepted the appeal.

Evidence and Argument at Hearing

The worker attended the hearing with a friend who served as his advocate and assisted in translating the Panel's questions and the worker's responses. The advocate made a submission on the worker's behalf.

The advocate noted that prior to this workplace injury, the worker did not miss work. He was a good provider and was a balanced and happy man. Since the injury the worker has been in pain and has not been able to work. This has caused the worker great stress. He has applied for and received CPP benefits.

The worker described the accident, immediate symptoms, and current symptoms. He acknowledged that his current symptoms are not confined to his back. He believes that all his current symptoms are due to the accident as he had no problems before the accident.

Analysis

On a balance of probabilities, we have found that the worker's inability to work beyond November 26, 2001 is not due to his workplace injury of July 30, 2001.

We note that the injury was initially diagnosed by the worker's treating physician as a lumbar back strain. We consider this diagnosis to be consistent with the mechanics of the accident as described by the worker. When examined on July 31, 2001, his treating physician noted objective findings including movements of the back restricted in all directions by 70-80%, increased tone of paravertebral muscles and no neurological signs. The physician noted that pre-existing degenerative joint disease may affect recovery.

An x-ray was obtained on July 31, 2001 and the report notes appearances consistent with L4-5 disc degeneration. This is consistent with the treating physician's observations.

The worker was later seen by an orthopaedic surgeon who provided a report dated October 16, 2001 which noted that the worker had good movement of his back, no restriction in neck movement and no wasting of shoulder girdle muscles. He also noted that in addition to back pain the worker now has pain at the base of the neck and shoulder. Because of these complaints of global pain, he referred the worker to a neurologist. Subsequently the worker also developed pain in his left lower limb about his knee, calf and thigh.

A neurologist examined the worker on October 11, 2001 and commented that he could not find any neurological defect. He noted that straight leg raising test was negative, no muscle wasting was detected and no weakness was detected. A CT scan of the lumbosacral spine was ordered which confirmed the existence of 'Multi-level minor degenerative changes" and "No evidence of disc herniation or foraminal encroachment."

A WCB medical consultant reviewed the worker's file on November 7, 2001 and commented that the worker had a temporary aggravation of his pre-existing condition which had resolved. After our review of the medical information and the improvement noted by the various physicians in the lumbar back area, we agree with this assessment and find that the worker's inability to work is not due to the July 30, 2001 accident.

We note that the worker saw a different orthopaedic surgeon who examined the worker in relation to his left knee. In a report dated October 4, 2002, the surgeon provides the opinion that the worker's left knee problem is related to early osteoarthritis and that the left leg pain seems to be a claudification type pain due to occlusive vascular disease. This supports our finding that the worker's left leg and knee complaints are not related to the workplace injury.

We note that the worker suffers from a variety of medical problems including:

-frequent episodes of vertigo and severe headaches
-arteriovenous malformation
-ischemic heart disease
-shoulder and neck pain
-left knee weakness
-multilevel degenerative disc disease and facet changes.

At the hearing the worker attributed his other conditions to his workplace injury, indicating that he did not have any problems before the injury. We found that the medical evidence, on a balance of probabilities, does not relate these conditions to his workplace injury.

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 18th day of May, 2005