Decision #106/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 19, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on July 19, 1999.

Issue

Whether or not the claimant is entitled to compensation benefits beyond November 29, 1990 in relation to his compensable accident of March 8, 1990.

Decision

That the claimant is entitled to compensation benefits beyond November 29, 1990, until his return to work on January 21, 1991.

Background

During the course of his employment as a truck driver on March 18, 1990, the claimant sustained an injury to his mid back and right shoulder, while pulling on a pry bar attempting to free a skid. Medical attention was sought on the day of accident and a diagnosis of a strain to the mid back at the spinal process and right trapezius was reported. The physician prescribed medications, rest, ice and a course of physiotherapy. The WCB accepted responsibility for the claim and the claimant was provided with payment of temporary total disability benefits.

In consultation with the family physician, the WCB arranged for the claimant to return to work on a graduated basis effective July 3, 1990. The graduated return to work lasted until approximately August 7, 1990, when the claimant was advised that the employer could no longer provide light duties.

Due to ongoing symptomotology including sciatica, the family physician arranged for the claimant to have a CT Scan performed. The test was carried out on September 4, 1990. The results were interpreted by the radiologist as follows:

    "...The disc spaces are all maintained. There is no evidence of disc prolapse or root lesion.

    There is a mild degree of spondylolisthesis of L5 on S1. This could be confirmed by reference to plain films of the lumbar spine.

    No recent process is identified."

The claimant was seen by a specialist in rehabilitation medicine on August 20, 1990. The specialist, in his report dated September 13, 1990, provided the following diagnoses to account for the claimant's continuing symptoms:

  • Spondylosis of the thoracolumbar spine;
  • Mechanical back pain syndrome; and
  • Myofascial pain syndrome of the trapezius and quadratus lumborum muscle.

The specialist prescribed medication and a physical therapy program.

The claimant was reassessed by the physical medicine specialist on October 15, 1990. In his covering report, the physician reported there was no spasm or local tenderness of the paraspinal muscles. Range of motion of the lumbar spine and forward flexion was full. Right lateral flexion caused pain on the ipsilateral side. Straight leg raising 75 bilaterally and Lasegue's test was negative. No neurological deficit was noted. The physician indicated the claimant was anxious to return to work but it was recommended that he complete his therapy treatments first after which the claimant could return to work to a position which would not involve frequent bending or lifting of objects weighing more than 24 - 30 pounds.

On November 4, 1990, the file was reviewed by a WCB medical advisor, who expressed the opinion that there were no recent objective medical findings to indicate the claimant was still suffering from the direct effects of his March 8, 1990, compensable injury. It was said that any restrictions placed on the claimant's return to work would be related to his pre-existing spondylolisthesis and not to his compensable injury of March 8, 1990.

By letter dated November 22, 1990, the WCB advised the claimant that responsibility for his claim including the payment of temporary total disability benefits would be paid to November 29, 1990, inclusive and final. It was felt, in the opinion of the Benefits Division, the evidence indicated that the claimant had recovered from the effects of the compensable accident.

The claimant appealed the decision rendered by the Benefits Division to the Review Office on November 27, 1990. In their decision, dated December 14, 1990, Review Office determined that there was no entitlement to compensation benefits beyond November 29, 1990. Review Office advised that weight of medical evidence indicated the claimant had recovered from the effects of his compensable injury and therefore there was no entitlement to further compensation benefits.

The physical medicine and rehabilitation specialist provided a letter to the WCB dated January 4, 1991. The report indicated that the claimant attended therapy treatment as an outpatient until September 1990 and that his pain significantly reduced. The claimant's sitting, standing, and working tolerance had also improved. Physical examination of the neck revealed normal lordosis, no trigger or tender points and range of motion was within normal limits. Examination of the lumbosacral spine revealed normal lordosis and no spinal or muscular tenderness. Range of motion, including straight leg raising were normal. No neurological deficit was noted. The impression was that there had been significant improvement from the claimant's mechanical neck and back pain syndrome but he still had low exercise tolerance. No further investigations were indicated. It was recommended that the claimant should continue with a conditioning program for the next couple of weeks. He could then resume a new sedentary or modified job which would not involve heavy lifting.

Subsequent to the Review Office decision and upon the request of a worker advisor who was representing the claimant, the file was referred to the WCB's vocational rehabilitation department to consider the claimant's entitlement to preventive rehabilitation services. After a review of the file which included a vocational assessment, the WCB advised the claimant on December 16, 1991, that he did not qualify for preventive rehabilitation benefits/services.

On November 16, 1995, legal counsel, on behalf of the claimant, submitted additional medical reports and requested the Review Office to reconsider its previous decision with respect to the claimant's entitlements. Legal counsel requested, should the Review Office not be able to overturn the previous decision, that the matter be referred to a Medical Review Panel. The Review Office considered this claim on March 7, 1996 and advised that there was no basis on which to extend any further compensation (wage loss benefits, healthcare costs, or vocational rehabilitation services). Review Office did not consider there to be a difference in medical opinion and found no basis on which to convene a Medical Review Panel.

On April 6, 1999, legal counsel, on behalf of the claimant, appealed the Review Office decision to the Appeal Commission and requested that an oral hearing be convened in order to determine the claimant's entitlements to compensation benefits beyond November 29, 1990. An oral hearing was convened on July 19, 1999.

Reasons

The claimant is seeking benefits beyond November 29, 1990 in relation to his compensable accident of March 8, 1990. As noted in the submission made by the claimant's solicitor at the hearing, the claimant returned to work on January 21, 1991, and they are seeking restoration of benefits to that date.

In reviewing the evidence on file and presented at the hearing, we note that the claimant originally suffered an injury to his mid-back and right shoulder area while trying to free a pallet at work on March 8, 1990. The original diagnosis by the claimant's attending physician was a back strain, with an associated time loss until a graduated return to work was arranged in June 1990 on to light duties. This return to work lasted for approximately one month in July 1990, with evidence that the employer did not have "light duty" positions formally developed, and that the claimant's job duties continued to be physically demanding.

On September 13, 1990, the claimant's attending physician noted persistent pain to mid-back, right trapezius and lower back areas, with objective findings of discomfort to the right trapezius muscle and decreased flexion, extension, and lateral flexion of the back. On the same date, the claimant was seen by a physiatrist whose exam noted right and left trapezius trigger points, and right quadratus lumborum trigger points. There was also tenderness noted over interspinous processes and spinal processes at T7-L3, and a positive test for right sacroiliac. His impression was of spondylosis of thoracolumbar spine, mechanical back pain syndrome, and a need to rule out disc herniation. A CT scan performed on September 4, 1990 ruled out disc herniation but noted mild spondylolisthesis at L4-L5 level.

On October 18, 1990, a report by the attending physiatrist notes that the claimant was receiving outpatient therapy at the Rehab Centre and was reporting a significant reduction in right hip and lower back pain. He placed restrictions on the claimant of no frequent bending, or lifting objects greater than 25-30 lb.

During this period, the claimant was also found to have two other conditions having an impact on the length of the claimant's recovery. The November 15, 1990 report by the claimant's attending physician notes two factors delaying recovery, being a leg length discrepancy of 3 cm, and spondylolisthesis at L4-L5. The claimant was fitted with heel lifts to accommodate the leg length discrepancy.

At this point, the WCB referred the file to a WCB medical advisor for comment. In a memo dated November 4, 1990, the medical advisor is asked if the claimant appears fit to resume pre-accident employment. He responds, "Please refer to Dr. [physiatrist]'s restrictions 18 Oct 90 report. Yes - provided pre-accident employment fits in within the framework of these restrictions: time frame 6 months maximum. Otherwise no." In a subsequent clarification memo of November 17, 1990, the medical advisor states "restrictions in my opinion would now be related, if imposed, on pre-existing spondylolisthesis, not to CI per se." The WCB subsequently terminated benefits to the claimant on November 29, 1990.

We note, however, that the claimant continued to be treated for mid-back and shoulder difficulties. A report by the attending physiatrist dated January 4, 1991 states:

    "Impression: There has been significant improvement from his mechanical neck and back pain syndrome and he still has low exercise tolerance.

    Recommendations: There are no indications for further investigation. He should continue conditioning program at Rehab Centre for the next couple of weeks and should resume a new sedentary or a modified job which does not involve heavy lifting beginning the middle of January 1991."

The claimant's evidence at the hearing was that he attended outpatient therapy at the Rehab Centre daily after termination of his benefits, and that all treatment was targeted at his mid-back/shoulder areas, and not to his lower back. The claimant did in fact return to his pre-accident employment and duties on January 21, 1991 and was able to sustain that position until the company was shut down in July 1991.

We place considerable weight on the medical evidence provided by the claimant's attending physiatrist noted above, in particular his diagnosis of myofascial trigger points in the mid-back and trapezius areas, and the continuity of the treatment regimen into January 1991 targeted at those anatomical areas with a view to increasing the claimant's exercise tolerance for a successful return to work.

We find that the evidence supports, on a balance of probabilities, a finding that the claimant had not fully recovered from the compensable accident as of November 29, 1990, and that he is entitled to restoration of benefits until his return to work on January 21, 1991. Accordingly, the appeal is hereby accepted.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of August, 1999

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