The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 7, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on June 7, 1999, and on August 18, 1999.

Issue

Whether the claimant is entitled to payment of further wage loss benefits after July 3, 1998, in relation to his work related accident of April 21, 1998.

Decision

That the claimant is entitled to four weeks of benefits on a diminishing basis beyond July 3, 1998 for hours that would have been involved in an extended graduated return to work as outlined by the WCB medical advisor in his call-in examination of June 30, 1998.

Background

While performing the duties of a punch press operator on April 21, 1998, the claimant pulled his back muscles from pushing and pulling a welding machine. Following treatment at a local hospital the attending physician diagnosed a back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

Subsequent reports revealed that the attending physician and a company physician felt the claimant was ready to commence a graduated return to work program as of June 8, 1998, with no restrictions and at four hours a day. After completion of the program (July 3, 1998), the claimant was expected to have fully recovered from the effects of the compensable injury. Reports showed however that the claimant was not increasing his work hours as anticipated due to increased back pain. As a result, he was called into the WCB offices for assessment on June 30, 1998.

The examining medical advisor reported that the claimant demonstrated "abnormal illness behaviours, a Waddell's score of 5/5 and variable findings on repeated testing which did not correlate to any specific anatomical diagnosis." Based on the mechanism of injury as well as the initial medical reports and discussion with the claimant's physiotherapist, the medical advisor felt that the claimant likely sustained a strain injury to his left thoracolumbar paravertebral musculature. Recommendations were made for additional x-rays, further physiotherapy treatments and a lumbar stabilization program. In the interim, the medical advisor felt that the claimant should continue to gradually increase his hours at work by one hour per week over the next four weeks.

On July 9, 1998, the claimant was advised by primary adjudication of the WCB medical advisor's opinion that there were no objective findings to support ongoing disability from work activities beyond July 3, 1998. Following the completion of further physiotherapy treatments it was expected that the claimant would have fully recovered from the effects of his compensation injury.

An x-ray report of the lumbar spine taken July 3, 1998, indicated an acquired fusion of L4-L5 which may be related to non-specific inflammatory arthritis or possibly past trauma or past surgery.

The claimant was examined by a physical medicine and rehabilitation specialist at the request of the family physician. In his report dated July 29, 1998, the specialist diagnosed the claimant with a left S1 radiculopathy related to a disc herniation.

On August 25, 1998, the claimant underwent a CT scan of the lumbosacral spine. On August 31, 1998, a WCB medical advisor reported that the CT scan showed extensive degenerative changes at all levels, therefore a large pre-existing component. There was no disc herniation noted at any level. The medical advisor concluded that the claimant should still increase the hours of his graduated return to work program as indicated in his call-in notes.

In a letter to the claimant dated September 21, 1998, primary adjudication concluded that there was no basis to extend wage loss benefits beyond July 3, 1998, based on the following weight of evidence: the pre-existing condition which was considered unrelated to the April 21, 1998 compensable injury, the mechanics of the compensable injury, the clinical findings and the time that had passed. On November 23, 1998, an advocate for the claimant appealed the above decision and the case was referred to the Review Office. 

On February 5, 1999, the Review Office determined the following:

• the claimant’s loss of earning capacity after July 3, 1998, was not shown to be the result of a work related accident on April 21, 1998;

• disablement after July 3, 1998, was more likely the result of pre-existing degenerative changes in the claimant’s lumbar spine;

• the claimant was not entitled to further wage loss benefits after July 3, 1998, under the provisions of the current legislation and board policy.

The Review Office stated that file information revealed two separate injuries contributed to the claimant’s back problems which began about April 1998. The first was apparently a soft tissue strain to the thoracolumbar spine which resulted from an accident at work. The second involved a long-standing pre-existent degenerative condition of the lumbar spine which was not caused by a previous work related accident and was not significantly altered or made worse by the claimant’s work-related accident in April 1998. In the opinion of Review Office the weight of evidence reasonably established that the claimant’s work related injury had likely recovered to a pre-accident state by July 3, 1998 and that any disablement after this date was likely due to some other cause. There was also no objective medical evidence to show that actual effects of the work related accident continued to contribute significantly to the claimant’s symptoms and/or disablement after July 3, 1998.

On June 7, 1999, an Appeal Panel hearing took place at the request of the advocate who appealed the Review Office’s decision. Prior to the hearing, the Appeal Panel members were provided with a copy of a February 3 1999, report from a rehabilitation medicine specialist who had examined the claimant on February 2, 1999.

Following the hearing and discussion of the case, the Panel requested additional medical information from the physician who had examined the claimant on behalf of the employer. Copies of his written progress notes were later obtained dated June 3, 1998, June 4, 1998, July 15, 1998, and September 1, 1998, and were distributed to the interested parties for comment. On August 18, 1999, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether or not the claimant is entitled to further wage loss benefits after July 3, 1998 in relation to his work related accident of April 21, 1998.

The relevant subsection of the Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

In this appeal we reviewed all the evidence on file and given or received during the hearing process and find that the evidence supports a finding that the claimant is entitled to further benefits for four weeks after July 3, 1998 on a diminishing basis as per the extended graduated return to work recommended by the WCB medical advisor following his call-in examination of June 30, 1998 in relation to the work related accident on April 21, 1998 and as set out at the end of this decision.

The claimant suffered a work related accident to his back while pulling a machine at work on April 21, 1998. The weight of medical opinion supports a diagnosis of a soft tissue muscular low back strain injury. We note in a report, dated May 13, 1998, that the claimant's attending physician recommended that the claimant return to medium work on May 19, 1998 with the use of proper bending and lifting. However, the claimant indicated that he had increasing pain. In subsequent reports dated May 21 and 27, 1998 the attending physician recommended that the claimant work four hours per day on a graduated basis.

In a memorandum to file dated May 25, 1998 a WCB medical advisor indicated that he was aware that the employer had no light duties available and felt that a graduated return to work was appropriate over the next four weeks. In a report dated June 3, 1998, the claimant's attending physician advised that the claimant was capable of medium work and could try a graduated return to work commencing at four hours per day. The claimant was advised by letter, dated June 8, 1998, from WCB Claims Services, that the employer had agreed to a graduated return to work program from June 8, 1998 to July 3, 1998 and that it was expected that following his return to work the claimant would be fully recovered from the effects of his compensable injury. We note that the employer's occupational physician was aware of the trial graduated return to work. The claimant did not progress in the graduated return to work as expected and a call-in examination by a WCB medical advisor was arranged for June 30, 1998.

Following his examination the WCB medical advisor confirmed a diagnosis of a strain injury to the left thorocolumbar paravertebral musculature with no neurological signs, and he authorized further physiotherapy to progress the claimant through a lumbar stabilization program and indicated his opinion that the claimant should increase his hours of work in the graduated return to work program to increase by one hour per week over the next four weeks. This concurs with the opinion of the claimant's attending physician in a report dated July 2, 1998.

A CT scan of the lumbar sacral spine performed 25 August 1998 showed no disc protrusion and extensive pre-existing degenerative changes at all levels of the lumbosacral spine.

The claimant was examined by a consulting physical medicine and rehabilitation specialist who, in reports dated July 29, 1998 and February 3, 1999, indicates that the claimant's presentation was consistent with an S1 radiculopathy. In his report of February 3, 1999 the specialist records " a recent exacerbation of low back and left leg pain. This started when he was bent over tying his shoes."

We find that the description of this exacerbation is consistent with the large pre-existing degenerative component demonstrated on CT scanning in that day to day activities may precipitate symptoms of pain. We find that the diagnosis of S1 radiculopathy is not fully established and, in any event, unrelated to the compensable event of April 21, 1998. We also find that the claimant would have fully recovered from the effects of his work related low back strain accident following the extended graduated return to work program as recommended by the WCB medical advisor. Any further symptoms are, on a balance of probabilities, related to the pre-existing condition and not the compensable event of April 21, 1998. As well, any restrictions at this time would be preventative in nature as a result of the significant pre-existing conditions and not the compensable event.

We find the claimant is entitled to four weeks of benefits on a diminishing basis beyond July 3, 1998 for hours that would have been involved in an extended graduated return to work as outlined by the WCB medical advisor in his call-in examination of June 30, 1998 commencing at four hours benefits per day for one week, three hours benefits per day for one week, two hours benefits per day for one week and one hour benefits per day for one week. We unanimously concur with the medical advisor that following such an extended graduated return to work the claimant would have been fully recovered from any effects of his work place accident of April 21, 1998. Therefore the claimant's appeal is allowed in part.

Panel Members

D. A. Vivian, Presiding Officer
H. Middlestead, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of August, 1999