The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 25, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on August 25, 1999.

Issue

Whether responsibility can be accepted for the worker's neck and back complaints as being related to the compensable injury sustained June 13, 1997;

Whether the claimant is entitled to payment of wage loss benefits; and

Whether a Medical Review Panel should be convened.

Decision

That responsibility cannot be accepted for the worker's neck and back complaints as being related to the compensable injury sustained June 13, 1997;

That the claimant is not entitled to payment of wage loss benefits; and

That a Medical Review Panel should not be convened.

Background

While employed as a slot attendant on June 13, 1997, the claimant experienced a sharp pain in her lower back from wearing a money belt filled with coins. The claimant advised that she kept on working as she thought the pain would go away. Her last day of work was June 17, 1997.

The employer's report of injury confirmed that the claimant had been complaining of lower back pain throughout the day of June 13th and asked if she could leave work early so she could attend her chiropractor. A Chiropractor's First Report dated June 19, 1997, confirmed the worker's history of injury as wearing a money/change belt which was laden with coins when she felt a sharp pain in her lower back. The diagnosis was "moderate lower lumbar facet dysfunction with inflammatory response resulting from downloading weight of change belt."

The claim for compensation was accepted as Workers Compensation Board (WCB) responsibility. The claimant commenced receiving wage loss benefits as of June 18, 1997.

On September 29, 1997, the attending chiropractor reported that the claimant was involved in a motor vehicle accident (MVA) on September 4, 1997. The chiropractor commented that in addition to neck and mid back pain which were related to the MVA, the claimant continued to complain of lower back pain.

On November 20, 1997, the claimant was assessed by a WCB chiropractic consultant regarding fitness to return to work. Following examination of the cervical, thoracic and lumbosacral spines, the chiropractic consultant stated that the claimant probably suffered a mild lumbosacral sprain/strain type of injury from the June 13, 1997, accident. The chiropractic consultant considered the claimant was fit for light duty activity and would be able to return to her previous work in two to three week's time. On December 16, 1997, the claimant returned to regular duties but only lasted one shift as the sharp pain in her lower back returned. The claimant then attended her family physician for treatment.

A Doctor's First Report was received concerning an examination of December 18, 1997, describing the worker's history of injury as follows: "Developed pain at the lower back and also on neck, after carrying heavy belts, held in place by a harness that goes around the neck, full of change, at the casino." The diagnosis was strained lumbar and cervical spines and a referral was made for physiotherapy treatments.

Following consultation with a WCB medical advisor in March 1998, the claimant was advised by primary adjudication that responsibility would not be accepted for any ongoing medical treatment as there was no mention of a neck injury at the time of the compensable injury. Primary adjudication concluded that the claimant had essentially recovered from the compensable injury as of November 1997, when she was last examined at the WCB.

On April 1, 1998, the Review Office acknowledged receipt of an appeal submission from the claimant dated March 26, 1998, requesting reconsideration of the adjudicator’s decision of March 12, 1998. File documentation also included the following reports:

• on March 12, 1998, the attending chiropractor stated in part that the injury sustained in the MVA was a mild to moderate cervical-thoracic strain/sprain. Mild aggravation of the lumbosacral injury was also noted and it was estimated that the claimant’s lower back was 20% worse after the MVA. The chiropractor commented that prior to the MVA the claimant did not suffer from any complaints to the neck or mid back region.

• in a report dated March 23, 1998, the attending physician indicated that the claimant was referred for treatment of her sprained neck and lumbar back and that these conditions were reportedly work related and that a WCB claim was filed but not accepted. The physician made reference to a physiotherapy report which identified the existence of “an anterior rotation” of the right hemipelvis, likely due to the uneven distribution of weight in her coin dispenser belt which she wears working at the Casino.” The physician stated that he fully agreed with the above assessment and was of the view that the claimant’s neck problem was of the same origin.

Prior to considering the claimant’s appeal, the Review Office sought the opinion of a WCB orthopaedic consultant with regard to whether a relationship existed between the worker’s neck and lower back complaints and the accident of June 1997. Following review of the case, the orthopaedic consultant provided the opinion that there was no relationship between the claimant’s neck and back symptoms as a result of the activity occurring on June 13, 1997. The neck symptoms became prominent after the MVA of September 4, 1997. He states that wearing a money belt about the waist would not do any significant trauma to the back other than symptoms possibly associated with muscle fatigue.

On April 24, 1998, the Review Office determined that no responsibility could be accepted for the worker’s current neck and back complaints as these were not considered to be related to the compensable injury sustained at work in June 1997. It was also determined that the claimant was not entitled to payment of further wage loss benefits.

The Review Office indicated that the initial claim was clearly filed for the lower back region which was diagnosed as a sprain/strain type of injury. Review Office further stated that when the claimant was examined by the WCB chiropractic consultant in November 1997, there was very limited physical findings noting that the worker seemed to be overly cautious regarding movements involving the lumbosacral spine. The Review Office accepted the opinion expressed by the WCB orthopaedic consultant that the claimant’s current neck and back difficulties were not a result of the work activity engaged in by the claimant and therefore further responsibility for her claimed wage loss and medical treatment after December 15, 1997, would not be accepted as part of the claim.

On September 11, 1998, legal counsel requested a Medical Review Panel (MRP) on behalf of his client. Legal counsel contended that a difference of medical opinion existed between the WCB’s orthopaedic consultant and the claimant’s attending physician and chiropractor as to the etiology of the continuing neck and back pain preventing the claimant from returning to her pre-accident employment. A submission was also received from the employer’s advocate who objected to the convening of a MRP as they did not believe there was a significant difference of medical opinion with respect to a medical matter.

On December 4, 1998, the Review Office denied the request for a MRP. The Review Office based its decision on the commentary expressed by the attending chiropractor which the Review Office felt did not constitute a difference of medical opinion as a chiropractor was not considered a medical physician. In addition, Review Office stated that the report by the attending physician did not contain a full statement of the facts and reasons to support the medical conclusion that the worker’s cervical and lumbar problems were a direct result of the worker’s accident of June 13, 1997. It was particularly noted that the cervical difficulties did not become prominent in terms of being reported or treated until after the motor vehicle accident which Review Office saw as the proximate cause of the cervical difficulties. Review Office believed that the worker had achieved recovery from the injury of June 1997 by the date of her last wage loss payment in mid December, 1997. The solicitor appealed Review Office’s decisions, and an oral hearing was convened.

Following the hearing on June 29, 1999, the Appeal Panel requested additional information from an orthopaedic specialist prior to discussing the case further. On July 15, 1999, all interested parties were provided with the report from the orthopaedic specialist and were asked to provide comment. Submissions were later received from legal counsel representing the claimant and from an advocate acting on behalf of the employer. On August 24, 1999 and September 2, 1999, the Panel met to render its final decisions.

Reasons

The issues in this appeal are whether or not responsibility can be accepted for the worker's neck and back complaints as being related to the compensable injury sustained on June 13, 1997; whether or not the claimant is entitled to the payment of wage loss benefits; and whether a Medical Review Panel (MRP) should be convened.

The relevant subsections of the Workers Compensation Act (the Act) are subsection 4(1) which provides for compensation benefits to be paid where a worker suffers personal injury by accident arising out of and in the course of employment; subsection 39(2) which provides for the duration of wage loss benefits and subsection 67(4) which provides for the convening of a medical review panel where there is a difference of medical opinion on a medical matter affecting entitlement to compensation between the WCB medical advisors and a physician selected by the worker.

We reviewed all the evidence on file and given during the process of the hearing and find that the evidence supports a finding, on a balance of probabilities, that responsibility should not be accepted for the worker's neck and back complaints as related to the compensable injury sustained June 13, 1997. We find that the claimant is not entitled to the payment of wage loss benefits and that a medical review panel should not be convened.

The Employer's Report of Injury dated June 23, 1997 reveals that the claimant indicated that, on June 13, 1997 she had lower back pain throughout that day and requested to leave early in order to attend her chiropractor. The Worker's Report of Injury, dated July 7, 1997, also records that the claimant was having problems with her lower back after wearing a money belt and feeling a sharp pain in her lower back.

An attending chiropractor's first report dated July 18, 1997 indicates that the claimant suffered from constant lower back pain and diagnoses "moderate lower lumbar facet dysfunction with inflammatory response resulting from downloading weight of change belt."

The claim was accepted by WCB, wage loss benefits commenced June 18, 1997 and continued until December 15, 1997. On September 4, 1997 the file reveals that the claimant was involved in a non work-related motor vehicle accident in which the claimant's neck and back were injured as reported by an Emergency Room physician on September 4, 1997. We note that the claimant saw her attending chiropractor on September 15, 1997 and that in a report dated September 29, 1997 he indicates:

" In addition to neck and mid back pain which are accident (MVA) related Ms. (the claimant) continues to complain of lower back pain."

We note at that time the attending chiropractor submits part of his accounts to MPIC. At that time he also indicates that the claimant could return to work on light duties if they were available.

In a narrative report dated March 12, 1998 the attending chiropractor was asked about the claimant's injuries following the MVA he notes, "mild aggravation of Ms. (the claimant's) lumbosacral injury." He further expressed his opinion that while her work-related disability was not altered by the MVA of September 4, 1997 the claimant remained capable of light duty work. He also confirms in his report that prior to the accident the claimant did not suffer from any complaints to the neck and mid back region.

In the same narrative report dated March 12, 1998 we note the attending chiropractor indicates that the claimant attempted an unsuccessful return to work in mid December and that she experienced an increase in lower back symptoms. The attending chiropractor gave his opinion that the job duties of the claimant's position were too demanding for her body stature. He had also expressed a similar opinion in a report dated September 2, 1998 to MPIC that " her continued work disability is more specific to the fact that the physical demands of a Slot 1, Change Attendant exceeds Ms. (the claimant's) physical capabilities."

The claimant was examined by a WCB chiropractic advisor on November 20, 1997. We note the following from his report:

" Sitting down for lengths of time, i.e., an hour in a good chair, will then cause some lumbosacral discomfort. Ms. (the claimant) stated sitting in a soft chair for 20 to 30 minutes will initiate lumbosacral discomfort. In the morning when she rises there was occasional lumbosacral discomfort. She states that the discomfort may wake her up two or three times during the course of a week. Walking will initiate lumbosacral discomfort and can be associated with numbness extending down into the anterior thigh."

" On September 4, 1997 Ms. (the claimant) was involved in a motor vehicle accident...

As a result of the accident dated September 4, 1997, Ms. (the claimant) stated that she experienced discomfort in her cervical spine, both left and right sides, indicating the area from C4 down to T1... . The discomfort in the cervical spine did extend out through the trapezius muscle to where it inserts into the spine of the scapular on both left and right sides... . There was also lumbosacral discomfort as a result of the accident."

The WCB chiropractic advisor gave his opinion in the report that the claimant suffered from a mild lumbosacral sprain/strain type of injury and that the claimant was fit for light duties. He suggested that Ms. (the claimant) increase her exercise activity and then should be able to return to her normal work activities, otherwise, if she was unable, a different therapeutic approach to her discomfort would be suggested.

A WCB medical advisor was asked to review the file and on April 16, 1998 indicates in a memorandum that there:

" is no relationship between the claimant's neck and back symptoms as a result of the activity occurring June 13, 1997. The neck symptoms became prominent after the MVA of September 4, 1997. Wearing a money belt about the waist will not do any significant trauma to the back other than symptoms possibly associated with muscle fatigue."

The claimant was subsequently seen by a consulting orthopaedic surgeon for complaints of pain in the right side of her lower back. In a report dated January 11, 1999, the specialist indicates,

" she describes it as a feeling of swelling that usually comes if she is up and around too long or sits for too long until after she changes position. Physical activities like cleaning houses or vacuuming, bending over for too long or repeated bending can also cause her similar pain. Sometimes she is able to bend over and it does not bother her."

The specialist also recorded that the claimant attributes her symptoms to a problem at work beginning in June 1997. We note that at the time of this report the claimant had not worked at her pre-accident duties, or in any reported work capacity, for more than a year.

The orthopaedic specialist also indicates, " to complicate matters, she was involved in a car accident in September of 1997. She apparently had increased pain in her lower back, that according to her lasted for a month or two before it began to ease off. " (emphasis ours)

We note, as recorded in the specialist's report of January 11, 1999, the clinical examination at that time was essentially normal, and that on a clinical basis the claimant's symptoms in her lower back seemed to be a mechanical type of low back pain.

We find that the weight of the evidence, on a balance of probabilities, demonstrates that the claimant suffered a low back strain from which she had recovered by December 15, 1997 when benefits were discontinued. We conclude that the evidence reveals that the neck and upper back problems were never mentioned or reported as associated to any work place incident by the claimant or her attending healthcare practitioners at any time prior to the MVA and that it is only after the MVA that any neck or upper back problems became apparent or were reported. We are of the opinion, based on the weight of evidence, that the claimant's neck complaints were unrelated to the compensable event and that the non-compensable MVA resulted in a temporary aggravation of the claimant's compensable lumbosacral spine condition, as supported by evidence provided by the WCB's chiropractic consultant, the claimant's treating chiropractor, the orthopaedic surgeon and the claimant. The evidence reveals that this temporary aggravation appears to have been resolved a month or two after the MVA and during the time the claimant was in receipt of benefits.

Evidence on the file and given at the hearing also reveals that normal day to day activities precipitate the claimant's low back symptoms which is consistent with a diagnosis of mechanical back pain and inconsistent with a continuing relationship to the compensable low back strain of June 30, 1997.

It has been stated that the claimant's ongoing difficulty may be related to her physical stature, however, benefits and services can only be provided where an established injury arising out of and in the course of employment has occurred. The legislation does not allow for the provision of these services where the inability to perform the job duties are related to factors other than a compensable injury. We concur with the employer's advocate that, in that case, the restriction of not returning to the claimant's pre-accident job would therefore be preventative and not related to the compensable event.

Therefore we find that further responsibility beyond December 15, 1997 should not be accepted for the worker's neck and back complaints in relation to the compensable accident of June 13, 1997 and that the claimant is not entitled to the payment of wage loss benefits.

With respect to the third issue relating to the convening of a medical review panel we find that a difference of medical opinion as required by subsection 67(4) of the Act has not been established. In this regard, we concur with the determination of the WCB Review Office that the legislation contemplates a difference of medical opinion and not chiropractic opinion as this is not the opinion of a "medical" practitioner or a WCB medical advisor. The legislation clearly contemplates a medical practitioner; under the Act, a physician is defined as:

" a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his profession in Manitoba."

In order for a MRP to be ordered, the panel must find a difference of medical opinion supported by a full statement of the facts and reasons supporting a medical conclusion such that it would affect entitlement to compensation.

We find that the evidence shows that the attending physician has not put forward a full statement of the facts and reasons to support his medical conclusion that the claimant's cervical and lumbar problems are a direct result of the compensable event of June 13, 1997; and that the attending physician may have given his opinion without knowledge of the full facts.

In this regard we note the absence of evidence or reports of any neck and upper back problems prior to the MVA and the consistent reporting of these problems in reports at the time of, and immediately following, the MVA. We further note that the attending physician did not see or examine the claimant until six months after the compensable event and approximately three months after the MVA. At that time benefits had been discontinued and a return to work had been attempted for one day, and we note that in his reports, the attending physician appears to relate the claimant's problems to the general nature of the claimant's work and not the incident of June 13, 1997. We find that the requirements of the legislation have not been met and the request to convene a MRP is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of September, 1999