Decision #118/99 - Type: Workers Compensation
An Appeal Panel hearing was held on June 28, 1999, following receipt of an appeal from a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on June 28, 1999.
Whether or not the back difficulties experienced by the claimant in November 1996 are related to the compensable accident sustained on February 12, 1996; and,
Whether or not a Medical Review Panel should be convened.
That the back difficulties experienced by the claimant in November 1996, are not related to the compensable accident sustained on February 12, 1996; and,
That a Medical Review Panel should not be convened.
On February 28, 1996, the claimant completed a Worker's Report of Injury or Occupational Disease due to a low back injury sustained at work on February 12, 1996. According to the claimant's report, he was scanning a carton of baby milk formula across the scanner and in doing so, twisted his back which resulted in a burning sensation to the right side of his lower back. This subsequently progressed to involve both the left and right sides of the claimant's lower back. Initial medical treatment was sought on February 13, 1996. The physician noted a history of low back pain due to lifting at work with restricted flexion/extension of the lumbosacral spine. A previous history of low back problems was indicated and the claimant was diagnosed with a recurrent lumbosacral myofascial strain. Anti-inflammatory medication and heat were prescribed which was followed by physiotherapy. In early March 1996, the Workers Compensation Board (WCB) accepted financial responsibility for the claim and wage loss benefits were provided to the claimant.
The claimant was reassessed by his family physician on several occasions and on April 4, 1996, was considered fit to return to light duties. A slow improvement in the claimant's medical status was reported by the physician.
In a telephone conversation with the employer on April 11, 1996, the adjudicator was advised that the claimant had returned to work to light duties on April 8, 1996. The claimant was provided with full wage loss benefits until his return to work date. The claimant was then provided with partial wage loss benefits to April 19, 1996, when he resumed regular time hours at light duties.
The claimant was assessed by his family physician on April 26, 1996, and in the covering report, the physician suggested the claimant continue with light duties until assessed by an orthopaedic surgeon.
The file was reviewed by a WCB medical advisor on May 6 and 10, 1996. The medical advisor noted the family physician's suggestion that the claimant be assessed with permanent restrictions. A review of all of the claimant's files suggested that permanent restrictions would be inappropriate. It was felt that the examination findings on May 5, 1996, were consistent with a full functional recovery.
On May 29, 1996, the adjudicator wrote to the claimant and advised that it was the opinion of the WCB that the claimant had now recovered from the effects of his February 12, 1996, compensable injury. The claimant was advised that this decision was reached following a review of the file by a WCB medical advisor.
In early June, 1996, the WCB received a copy of a report from an orthopaedic surgeon. The report provided a history of episodes of mechanical back pain since 1990. The examination showed a number of tender points in the lumbosacral area with no signs of sciatic nerve root irritation nor lower extremity neurologic deficit.
No further activity transpired on this file until February 1998, when a worker advisor, representing the claimant, wrote to the WCB. It was the worker advisor's position that the claimant's time loss from work in November 1996, was related to the compensable injury of February 12, 1996. In his submission, the worker advisor indicated that on or about November 15, 1996, the claimant experienced a pulling sensation while lifting a box of portraits at work. The worker advisor submitted medical reports from the claimant's family physician and Physical Medicine and Rehabilitation Specialist which he felt supported the claim.
Although not subject to this appeal, it should be noted the claimant did file a claim for a back injury with the WCB for an injury occurring on November 30, 1996. The WCB and again on appeal to the Review Office, denied responsibility for that claim.
By letter dated May 25, 1998, the adjudicator wrote to the claimant and his representative to advise that responsibility for the recurrence of symptoms occurring in November 1996, could not be accepted as being related to the February 12, 1996, compensable event. It was felt, based on a review of the file by a WCB medical advisor, that there was insufficient medical information to relate a diagnosis of myofascial pain syndrome to the February 12, 1996, workplace injury.
The worker advisor wrote to the WCB Review Office on September 29, 1998, requesting reconsideration. In that letter, the worker advisor also requested that the claimant's file be referred to a Medical Review Panel pursuant to subsection 67(4) of the Worker's Compensation Act (the Act) as it was felt that a difference of medical opinion respecting entitlement to benefits existed between the claimant's treating physicians and the medical advisor at the WCB.
The matter was referred to the Supervisor of Case Management at the WCB who wrote to the claimant's Physical Medicine and Rehabilitation Specialist on October 26, 1998, for further clarification. The specialist's response was received at the WCB on December 22, 1998, and by letter dated December 24, 1998, the Case Management Supervisor advised the worker advisor that the request for a MRP was denied as the information provided was not definitive enough to warrant the convening of a panel.
The file was then reviewed by the WCB Review Office. By letter dated January 25, 1999, the Review Office advised all interested parties that the WCB's previous decisions were being upheld. Specifically, Review Office determined that the claimant had recovered from the compensable injury of February 12, 1996, at the time he stopped working in November 1996, that the myofascial pain experienced by the claimant was not the result of a work place injury and that a Medical Review Panel would not be convened.
That the back difficulties experienced by the claimant in November 1996, are not related to the compensable accident sustained on February 12,1996.
The Appeal Panel is of the unanimous opinion that the back difficulties experienced by the claimant in November of 1996 are not related to the compensable accident sustained on February 12, 1996. A recurrence of the claimant’s compensable injury has not been proven on a balance of probabilities.
The majority of the evidence on the claimant’s file indicates that after the claimant returned to work in April, 1996, he experienced no reported difficulties with his back until November, 1996. During the period between February 1996, the claimant did not seek any extra medical attention for his reported back difficulties and in fact missed an appointment with a specialist in Physical Medicine and Rehabilitation in July, 1996. He did attend an appointment with an Orthopaedic Surgeon. The claimant also gave evidence at the hearing of this matter to the effect that during the period between April and November, 1996, his back was feeling better and he “felt fine.” This evidence was also corroborated by the specialist who indicated after seeing the claimant on February 27, 1997, that the claimant was able to work from February to November, 1996, with very little trouble until he experienced an episode of back discomfort in November, 1996.
The medical evidence on the claimant’s file is also speculative as to the cause of the claimant’s difficulty in November, 1996. The specialist was of the opinion that it was likely that the November, 1996, incident was a separate injury. Although the specialist also indicated that while it was not clear which injury the claimant was referring to, the November incident “may have been an aggravation of a previous condition that may or may not have fully recovered.” The problem with this opinion is not only that it appears uncertain but that the specialist did not see the claimant until February, 1997, approximately one year after the February, 1996, injury. For this reason the specialist did indicate that, “there is no way I can establish whether or not he had been “fully recovered” in that interval.”
The orthopaedic surgeon who saw the claimant in May, 1996, also noted in his report on May 28, 1996, that his examination of the claimant showed “a number of tender points in the lumbosacral area, but no signs of sciatic nerve root irritation, nor lower extremity neurologic deficit.” An x-ray of May 21, 1996, also demonstrated osteopenia “but no motor joint abnormalities. The claimant was also informed by the surgeon that “the significant pain he has is not mirrored by a corresponding degree of injury in his low back.”
It has also not been established by the evidence that the myofascial pain experienced by the claimant was related to the compensable accident. The opinion of the specialist in Physical Medicine and Rehabilitation was that he was suffering from regional myofascial pain of a mild nature.
The WCB medical specialist was also of the opinion that it was “unlikely that the exacerbation of back pain and myofascial pain diagnosed by the Physical Medicine and Rehabilitation Specialist on February 27, 1997, would be related to the back strain sustained in the injury of February 12, 1996.
For all of the above noted reasons, this Panel cannot find that the claimant’s back problem in November 1996, was related to the February 12, 1996 accident.
That a Medical Review Panel should not be convened.
Section 67(4) of the Workers Compensation Act states that:
“Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.”
The Appeal Panel is of the opinion that there is no difference of medical opinion on this file particularly in light of the many speculative comments on the claimant’s problems. We do not consider that there is a difference of medical opinion related to any definitive diagnosis of the claimant.
K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of August, 1999