The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 3, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day and again on March 23, 2006.

Issue

Whether or not the worker is entitled to benefits and services beyond July 26, 2002.

Decision

That the worker is not entitled to benefits and services beyond July 26, 2002.

Decision: Unanimous

Background

On January 25, 2001, the worker filed a claim with the Workers Compensation Board (WCB) for lower back pain that he attributed to an accident occurring at work on January 16, 2001. The worker stated:

"I was painting small parts on the production line - some rails were stacked to the floor and when I bent low to paint bottom edges and (sic) felt a hard pull and sharp leg pain in right leg and lower back at or behind the buttocks region. According to therapist he feels that I slightly hurt the sacreatic (sic) joints".

In a report dated January 16, 2001, the treating physician diagnosed the worker with a "lumbar strain (rule out disk radiculopathy)".

X-rays of the lumbosacral spine dated January 16, 2001 revealed slight scoliosis with little spurring at multiple levels and moderate narrowing of the L3-4 disc.

On January 24, 2001, the claim was accepted by the WCB and benefits were paid to the worker commencing January 17, 2001.

In a memo dated January 26, 2001, a WCB adjudicator documented a telephone conversation that he had with the worker. Specifically, the worker indicated that he filled out a green card for a previous incident occurring at work on January 9, 2001. He stepped up on a bar at the back of a bus to put up a sound barrier. The bar broke and caused him to fall down and hurting his back and banging his shin. The worker landed on his leg, then his back. He indicated that the incident occurred near the end of his shift and that he saw a company nurse. He further stated that he initially had back pain which subsided and that he worked all week and was fine. The worker advised that he had been working below waist level on January 16, 2001 and that he felt low back pain two hours into his shift and his back cracked.

In February and May 2001, the worker returned to modified duties but experienced increasing low back pain. Benefits were reinstated on both occasions.

In a physiotherapist's report dated March 20, 2001, it was reported that the worker had fallen down some stairs and aggravated his low back. On April 30, 2001, the worker advised his case manager that he had seen a doctor immediately after the fall and that he had only bruised himself. He indicated that he had completely recovered from this incident.

Following a WCB examination on August 1, 2001, a WCB medical advisor concluded that the worker demonstrated evidence of a dysfunction of his right sacroiliac joint as well as a high suspicion of a disc protrusion at L4-5 on the right together with evidence of a radiculopathy. A CT scan was ordered.

A CT scan dated August 22, 2001 revealed a left L4-L5 posterior lateral disc protrusion with probable involvement of the left L5 nerve root. There was mild central focal disc prominence at L5-S1. A right paracentral osteophyte was present in the right L5 nerve root.

On December 14, 2001, an orthopaedic specialist examined the worker. In his report dated January 14, 2002, the specialist was of the view that the worker "may have had an episode of L4-5 disc protrusion, possibly with a right radiculopathy, from which he would have been expected to make a reasonable recovery with rest and anti-inflammatory medication. At some point along the way, the analgesic usage has become inappropriate, and there is now evidence of extreme symptom amplification." The specialist suggested a referral to the WCB's Pain Management Unit (PMU).

On March 14, 2002, the worker was assessed at the WCB's PMU. At a subsequent PMU case conference, it was determined that the worker did not meet the criteria for chronic pain syndrome as his disability was not proportionate in all areas of functioning. It was suggested that the worker would benefit from a reconditioning program.

The worker was interviewed by a WCB chronic pain consultant and his interview results are on file dated May 29, 2002.

Arrangements were made for the worker to attend a five week reconditioning program with an end date of July 26, 2002. On June 24, 2002, the treating physiotherapist advised the WCB that the worker attended the program although he was in a lot of pain. He arrived wearing his slippers as he was in too much pain to put his shoes on. On July 10, 2002, the treating physiotherapist advised the WCB that the worker was very pain focused.

A video tape surveillance of the worker's activities was conducted on July 2 and 6, 2002. A WCB medical advisor reviewed the videotape on July 17, 2002 and provided primary adjudication with his opinion with respect to the worker's functional capabilities.

On July 18, 2002, a WCB case manager determined that the worker would be fit to return to work following completion of his reconditioning program and that wage loss benefits would be paid to July 26, 2002 inclusive and final. This decision was based on the surveillance evidence which showed that the worker was "…able to move and bend freely without any signs of pain or discomfort…".

Subsequently, the worker wrote to the WCB regarding several concerns surrounding his claim. In a decision dated April 19, 2004, a WCB sector services manager confirmed that a previous work accident did occur on January 9, 2001 whereby the worker had injured his back and right leg/shin while standing on a bar and the bar broke. As there was no time loss directly associated with the January 9, 2001 injury, it was determined that the worker was not entitled to WCB wage loss or benefits and services as a result of this injury. The sector services manager also was of the view that the new information did not alter or change the decision to conclude responsibility for the worker's January 16, 2001 claim as of July 26, 2002.

In further correspondence dated June 2, 2004, the sector services manager advised the worker that the date of accident had been changed to reflect a January 9, 2001 date of injury. The incident occurring on January 16, 2001 would be considered a recurrence.

On October 7, 2004, a WCB medical advisor reviewed the file information at the request of primary adjudication. This review included new medical information received from the worker's treating physicians dated July 2002 through to July 2004. The medical advisor stated that in his opinion, the new evidence did not support a direct cause-effect relationship between the work injury and the current diagnosis. According to the treating orthopaedic specialist, the medical advisor indicated that the worker suffered from pre-existing facet arthropathy. The medical advisor further stated that the new medical evidence did not alter the previous WCB decision that the worker was fit to resume employment in July 2002. He stated that the treating rheumatologist's consult was very general and merely reviewed the worker's state of health. It was not specific to the occurrence of any injury.

In a decision dated October 20, 2004, a WCB case manager advised the worker that the new medical information did not alter the WCB's decision that he was fit to return to work in July 2002. On October 30, 2004, the worker appealed this decision to Review Office.

On February 18, 2005, Review Office considered the file information which included a further submission by the worker dated November 23, 2004 and a submission by the employer's advocate dated January 24, 2005. Review Office confirmed that the worker was not entitled to WCB benefits or services beyond July 26, 2002. Review Office concluded, following a review of all of the file evidence, that the worker had recovered from the effects of his compensable right sided low back injuries incurred on January 9 and 16, 2001.

In March 2005, the worker appealed Review Office's decision of February 18, 2005. On October 3, 2005, an oral hearing was convened. The worker was represented by a worker advisor.

Following the hearing and after discussion of the case, the Appeal Panel arranged for the worker to be seen by an independent medical examiner to assess his current medical condition and its possible relationship to the compensable injury. The worker was subsequently examined by an orthopaedic specialist and his examination report of February 14, 2006 was forwarded to the interested parties for comment. On March 23, 2006, the Panel met further to discuss the case and considered final submissions by the employer's representative and the worker advisor.

Reasons

The divergence of evidence including the video tape surveillance led us to conclude that prior to our making a final decision with respect to the worker’s claim, it would be appropriate for him to undergo an independent medical examination. As the background notes indicate, the worker was examined and assessed by an independent orthopaedic surgeon. He was specifically requested to opine on the worker’s current condition, its relationship, if any, to the compensable injury and the necessity for physical work restrictions as a consequence of this condition. In addition to his report, we relied on the following reports from the WCB medical advisor and treating physiotherapist in determining the worker’s medical condition, his functional capacity and work relatedness.

On or about July 17, 2002, a WCB medical advisor reviewed the video tape surveillance of the worker and assessed the worker’s apparent functional capacity. We agree with the medical advisor, who reported in part as follows:

“The C [claimant] is noted to be able to stand during most of this period. He is noted to enter his vehicle and leave it on several occasions. He mows his lawn for approximately one hour and also works under the hood of his car in a bent-over position for 2 hours. Based on above, this C is not de-conditioned. He can endure prolonged standing. He can endure working in a flexed forward position for up to 2 hours. I have no opinion as to weights C is able to lift. He enters and leaves vehicle freely. I cannot establish any restrictions for this C.” (Emphasis ours)

The foregoing assessment is entirely consistent with a treating physiotherapist’s earlier report of March 19, 2001 which notes that the worker was much better, his having walked three kms one way to the physiotherapy appointment and on examination had full range of motion in the lumbosacral spine.

In arriving at our decision, we attached considerable weight to the independent orthopaedic surgeon’s report, which included the following comments:

“There is evidence on his plain radiographs of a degenerative disc and facet osteoarthritis. Hence, the diagnosis of Mr. [the worker’s] currently (sic) low back condition, radiographically, is related to osteoarthritis of his spine.”

“Mr. [the worker] was subsequently seen exiting my office, walking at a pace that I could not keep up with, and able to walk approximately 100 yards in 20 seconds. Hence, although he does have evidence of osteoarthritis in his back, and does complain of low back pain, I do not see any disability related to this.”

“Mr. [the worker’s] current low back condition is not a result of his workplace injuries in January 2001.”

After having taken into consideration all of the evidence, we find that the worker’s current low back difficulties are not related to his compensable injury and that on a balance of probabilities he has fully recovered from said injury. Therefore, the worker is not entitled to benefits and services beyond July 26, 2002. Accordingly, the worker’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of May, 2006