The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 12, 2006, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act; and

Whether or not the worker is entitled to payment of wage loss benefits beyond June 9, 2004.

Decision

That a Medical Review Panel will not be convened pursuant to subsection 67(4) of the Act; and

That the worker is entitled to payment of wage loss benefits beyond June 9, 2004.

Decision: Unanimous

Background

In April 2003, the worker filed a claim with the Workers Compensation Board (WCB) for an injury to her spine and lower back from moving four cases of beer, 24 bottles in each case, on December 24, 2002. The worker advised the WCB that her last day of work was January 21, 2003.

The worker has a previous WCB claim for a lower back injury that occurred on April 1, 2002 when she slipped while on her way home from work. The diagnosis rendered by the treating physician was a lumbosacral strain. There was no time loss incurred as a result of the injury.

With respect to the worker's December 24, 2002 claim, initial medical reports showed that the worker was treated by a physician on January 9, 2003 and was diagnosed with low back pain. On January 21, 2003 the worker attended a hospital emergency facility with complaints of left buttock and left groin pain that had been present for about one week. The diagnosis rendered was a muscle spasm.

Following an investigation into the case, a WCB adjudicator accepted the claim on May 28, 2003 based on the diagnosis of a lower back strain and benefits were paid to the worker commencing January 21, 2003.

On June 10, 2003, a CT scan of the lumbar spine revealed minimal disc bulging noted posteriorly and centrally at the L5-S1 level but there was no definite focal disc herniation. Nerve root compression was not identified at any level and there were no signs of neural foraminal stenosis or spinal stenosis. Early degenerative changes were found in the facet joints at the lumbosacral junction.

In August 2003, the WCB's healthcare branch suggested that the worker undergo nerve conduction studies (NCS) and an MRI to determine the cause of her back and leg complaints. On October 15, 2003, the MRI of the lumbar spine revealed no disc herniation, spinal stenosis or nerve root compression. Nerve conduction studies done on October 14, 2003 revealed an L5 root irritation.

Based on the recommendations of the WCB's healthcare branch, arrangements were made for the worker to undergo a lumbar stabilization program and a Functional Capacity Evaluation (FCE).

On February 18, 2004, a WCB orthopaedic consultant examined the worker. In an addendum to his examination notes dated February 18, 2004, the consultant stated that the worker's symptoms did not suggest a radiculopathy affecting a specific dermatome. There were no definite objective neurological findings. The worker had full range of movement of her lumbar spine and hips and very marked tenderness was reported in the lower back. It was noted that the worker had a limited degree of degenerative changes in her lumbar spine and the consultant did not expect it to result in her present degree of disability. The consultant could not find any objective reason why the worker could not return to work in a light duty capacity. He felt the worker may benefit from a conditioning program if she was unable to tolerate the usual back exercises.

On April 8, 2004, a WCB adjudicator asked the orthopaedic consultant for clarification of the addendum to his examination notes. In a response dated April 16, 2004, the consultant stated:

"There are no objective signs of a work related injury. There may be some evidence of early degenerative change at L5-S1. I feel this would be mild and pre-existing. She may have suffered an aggravation of this at the time of her work related injury. She may also have suffered a soft tissue strain. I feel either of these (the aggravation or strain) should have resolved by now. There could be some subsequent deconditioning.

Because of the possible degenerative changes she should avoid lifting over 20 lbs., avoid working in a bent position or in the same position for over 1 hour.

I feel a reconditioning program would be appropriate. However, she reported having more pain when she had physiotherapy in Jan/04."

Based on the examination by the WCB orthopaedic consultant on February 18, 2004, a WCB case manager determined on May 13, 2004, that there were no objective findings to support the worker's inability to return to work. The case manager noted that the worker was offered a reconditioning program but declined the offer as the worker felt she would be unable to complete the program as she was still having difficulty with back pain. The case manager indicated that she would continue to pay the worker wage loss benefits for the duration of the reconditioning program which would have been four weeks. Therefore, wage loss benefits would be paid to June 11, 2004 inclusive.

On June 2, 2004, the worker disagreed with the above decision. She stated that more examinations should be done to find out what was causing her pain and spasms and loss of strength in her leg. She stated that she was never given a definite diagnosis.

Prior to considering the worker's appeal, Review Office sought the medical advice of a WCB orthopaedic consultant to Review Office. On June 29, 2004, the consultant stated that the NCS was of questionable relevance in view of the normal CT, MRI and physical examination findings that occurred more than a year later. He felt that the test results were unremarkable, with no evidence of progression of any serious underlying organic disease. He stated that the worker's claimed leg symptoms were subjective in nature with no evidence of any underlying problem to explain them.

On July 6, 2004, Review Office determined that the worker was not entitled to payment of wage loss benefits beyond June 9, 2004. Based on the opinion expressed by the WCB orthopaedic consultant on February 18, 2004, Review Office felt there was no reason why the worker could not return to work in a light capacity and believed that the worker was appropriately compensated up to and including June 9, 2004.

On December 17, 2004, a worker advisor asked Review Office to reconsider its July 6, 2004 decision based on up-dated medical information. On May 18, 2005, Review Office determined that the new medical information did not alter its decision of July 6, 2004.

In a submission dated August 20, 2005, the worker advisor requested the convening of a Medical Review Panel (MRP) based on new medical information from the worker's treating physician who was of the opinion that the worker had not recovered from the effects of her work related injury.

On October 4, 2005, a WCB sector manager, following consultation with a WCB healthcare advisor, determined that no change would be made to the decision of May 13, 2004 and that an MRP would not be convened. It was the opinion of the sector manager that the worker had essentially recovered from her injury and there was no differing medical opinion. On October 12, 2005, Review Office agreed with the sector manager's position. On October 19, 2005, the worker advisor appealed Review Office's decisions and an oral hearing was convened.

Reasons

There are two issues to be determined in this review. The first issue is whether the worker is entitled to payment of wage loss benefits beyond June 9, 2004. For this appeal to be successful, the panel must find that the worker suffered a loss of earning capacity due to a workplace injury after June 9, 2004. In other words the panel must find that the worker was unable to work after this date due to her workplace injury. The panel did find that the worker was unable to work due to her workplace injury during the period from June 10, 2004 until she completed the treatments on July 18, 2005 plus a reasonable recovery period thereafter.

Worker's Submission

The worker was represented by a worker advisor who provided a written submission on behalf of the worker.

With regards to the first issue the worker advisor submitted that the evidence confirms that the worker has met the definition of accident and that the worker remains medically restricted as a result of her injury. He advised that the worker requests wage loss benefits until she is fit to return to her pre-accident employment.

On the second issue the worker advisor submitted that there is a difference of medical opinion between the worker's treating physician and a WCB medical officer.

Analysis

The panel has concluded, on a balance of probabilities, that the worker is entitled to wage loss benefits to July 18, 2005 and for a reasonable period thereafter to recover from the treatments (facet blocks) received on this date. In making this decision the panel places significant weight upon the opinion of the WCB physical medicine and rehabilitation consultant who examined the worker on April 7, 2005 and further considered the file on September 20, 2005.

The WCB physical medicine and rehabilitation consultant examined the worker on April 7, 2005. In his report he commented:

"In view of the period of time that has elapsed since the initial incident of 3 years, and receipt of a number of courses of physiotherapy, plus aggressive needling treatments with only minimal reported improvement, the subjective symptomatology, in spite of no definite diagnosis identified, the claimant would be expected to be at the point of maximal medical improvement. It is reasonable, despite this, to proceed to a trial of diagnostic blocks as referred."

The diagnostic blocks referred to in the WCB consultant's report were performed on July 18, 2005. On this date the worker received right sided L4-L5 and L5-S1 lumbar facet blocks. The worker's treating physical medicine and rehabilitation specialist reported on July 26, 2005 that:

"On July 18, 2005 the patient was seen in the pain clinic by [physician] who performed right sided L4-L5 and L5-S1 lumbar facet blocks. Obviously, the patient responded extremely well to this procedure and on July 18th she was seen in the Rehab Outpatient Clinic and reported complete resolution of her right sided low back and buttock pain.

On examination, her range of motion of the lumbar spine was full in all direction and was not associated with discomfort. Neurologic examination did not reveal abnormalities. She did not have evidence of spinal segmental sensitization and on deep muscle palpation I could identify only right gluteus medius silent trigger point."

In a memo dated September 20, 2005, the WCB physical medicine and rehabilitation consultant reviewed the treating physical medicine and rehabilitation specialist's report and commented:

"The pain clinic physician apparently reported complete resolution of the right sided low back and buttock pain following the right lumbar facet blocks. The physical medicine and rehabilitation specialist, on her examination of July 18, 2005, noted full lumbar spine range of motion, normal neurologic examination, no spinal segmented sensitization and what appeared to be essentially resolution of the prior reported myofascial pain syndrome as on deep palpation was there only one trigger point but asymptomatic (silent). This examination suggested further improvement since my call-in examination of April 7, 2005, to essentially resolution of any prior components."

The panel accepts and relies upon the above comments and finds that the worker is entitled to wage loss benefits until the date of the facet blocks, July 18, 2005, plus any reasonable time necessary to recover from this treatment.

The appeal is allowed.

With regards to the second issue pertaining to the MRP, the panel has not addressed this issue given its determination on the first issue.

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 28th day of February, 2006