The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on July 22, 1999, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to a permanent partial impairment award as a result of the November 24, 1988 accident.

Decision

That the claimant is not entitled to a permanent partial disability award as a result of the November 24, 1988 accident.

Background

The claimant injured his back on November 24, 1988, while unloading bales of peat moss from a trailer when he fell to the ground onto a board. The same day a chiropractor diagnosed an acute traumatic spinal subluxation complex. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced shortly thereafter. It was also noted that the claimant had two prior compensable back injuries which occurred in 1986 and 1987.

On July 18, 1989, the claimant was examined at the WCB offices by a chiropractic consultant. The opinion was that the claimant suffered from a lumbar strain involving the L3-4 and L4-5 areas. On August 16, 1990, a second WCB chiropractic consultant was of the view that the claimant had persistent facet syndrome at the L4-5 and L5-S1 levels which was very easily irritated. By January 21, 1991, the claimant was considered to have recovered from the effects of the compensable injury and his case was referred to the WCB's vocational rehabilitation branch in light of recommended preventative restrictions.

In June 1993, the claimant was assessed by a WCB medical advisor to determine whether he had incurred a permanent partial impairment (PPI) award as a result of the accident. Following examination, the medical advisor stated that the cause of the claimant's ongoing symptoms of low back pain with radiation into the right lower extremity was unknown. There was no evidence of disc protrusion and/or nerve root entrapment. It was noted that the claimant had been involved in a motor vehicle accident (MVA) on October 20, 1990, and had been assessed by an orthopaedic specialist on February 20, 1992.

In a report, dated February 20, 1992, the treating orthopaedic specialist reported that lumbar spine x-rays showed spondylolysis or a congenital developmental defect at the lower aspect of L5-S1 and slight narrowing of the L5-S1 disc. The specialist further stated that the claimant's low back problem appeared to be aggravated but there was no new injury from the MVA. The specialist expected that the claimant would fully recover from all his injuries sustained in the MVA.

In late July 1993, a WCB medical advisor determined there was no indication for a PPI award given the history of pre-existing disease and the medical reports on file which showed little evidence of functional dysfunction of the spine. It was felt that the claimant had a back at risk and preventative restrictions were outlined to avoid heavy lifting, excessive bending and crouching.

Subsequent file documentation included progress reports from the treating physician regarding ongoing difficulties experienced by the claimant. The results of a CT scan dated August 13, 1994, showed no significant abnormality. On September 2, 1994, a WCB medical advisor determined that the claimant had recovered from any aggravation of a pre-existing condition which resulted from the 1991 compensable injury.

On March 24, 1998, the claimant's advocate made reference to medical reports from a physiatrist and requested that a PPI rating be established. In a report, dated May 27, 1997, the physiatrist concluded that the claimant's ongoing low back discomfort was consistent with bilateral L4-L5 facet syndrome. In a subsequent report, dated July 18, 1997, the specialist assessed the claimant as having mechanical low back pain.

On April 6, 1998, primary adjudication wrote to the advocate stating that there would be no impairment award with respect to the compensable injury as it was felt that the claimant had fully recovered from the effects of his compensable injury.

Subsequently, primary adjudication obtained additional reports from the attending physician, dated August 28, 1998, and from the treating chiropractor, dated September 10, 1998. Following consultation with a WCB medical advisor, primary adjudication confirmed that the claimant had recovered from the effects of his compensable injury and that any restrictions were preventative in nature and not related to the compensable injury.

On March 15, 1999, the advocate wrote to the Review Office to consider whether the claimant was entitled to a PPI assessment pursuant to WCB Policy No. 44.90.10 and Sections 37(b); 38(1) and 38(4) of the Workers Compensation Act (the Act). On April 9, 1999, Review Office determined the worker did not have a permanent impairment award as a result of the November 24, 1988 accident.

Prior to rendering its decision, Review Office obtained an opinion from a WCB orthopaedic consultant who stated that the original injury most likely consisted of a low back contusion and/or sprain. The consultant was unable to identify any pre-existing conditions given that the CT scan taken in 1994 showed no abnormality. The consultant was also of the further opinion that the 1988 accident would most probably not have resulted in any permanent impairment. It was noted that the most likely source of the worker's current back complaints had never been established.

The Review Office stated that the preponderance of available medical evidence did not support the contention that the worker had a significant pre-existing condition, if any, prior to the 1988 accident. The only physician who had commented on this was the treating orthopaedic surgeon who had examined the claimant following the 1990 MVA. His diagnosis of spondylolysis was not supported by a later CT scan taken in 1994 which showed no significant abnormalities including no disc protrusion. Given the mechanics of the 1988 accident and the original diagnosis, Review Office believed that the accident would not have caused the worker to have suffered a permanent partial impairment. The decision of Review Office was later appealed by the advocate and a submission, dated July 14, 1999 was submitted to the Appeal Commission. On July 22, 1999, an Appeal Panel review took place.

Reasons

At the time of his compensable injury, the claimant was diagnosed as having incurred an acute traumatic spinal subluxation complex. Eight months following the incident, a chiropractic consultant to the WCB examined the claimant and offered his opinion that the original diagnosis was a lumbar strain involving the structures between L3-4 and L4-5. A CT scan of the claimant's lumbosacral spine taken in 1994 revealed no evidence of any disc protrusion or any other significant abnormality. In the opinion of an orthopaedic consultant to the WCB, the 1988 accident would not have resulted in any permanent impairment.

A careful review of the medical evidence does not support the contention of any impairment at the time of injury. The preponderance of evidence on the other hand clearly suggests that the claimant has, on a balance of probabilities, long since recovered from the effects of his compensable injury. Accordingly, we find that the claimant is not entitled to permanent partial disability award as a consequence of his 1988 work related accident.

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 2nd day of September, 1999