The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 25, 1999, following receipt of an appeal by a union representative, acting on behalf of the claimant. The Panel discussed the appeal on August 25, 1999.

Issue

Whether or not the claimant is entitled to the payment of any benefit beyond April 13, 1998.

Decision

That the claimant is entitled to the payment of benefits from April 13, 1998 to July 12, 1999.

Background

On September 26, 1997, the claimant submitted a claim for compensation regarding a back injury which he stated was caused from driving a jigger over seams in the floor. The date of injury was August 25, 1997 and the claimant kept working until November 1997. On September 10, 1997, the attending physician diagnosed the claimant with a lumbosacral strain.

On November 27, 1997, the claimant attended a chiropractor for treatment who reported lower back pain extending to the kidney area and down into the legs. Objective findings were edema at L5-S1 and decreased lumbosacral motion and pain on all lumbar movements. X-rays of the lumbosacral region were reported as showing discopathy at L5 and facet asymmetry. On December 10, 1997, the claimant attempted a return to work but experienced increased pain after working 3 hours. The chiropractor advised the claimant to remain off work.

In a progress report dated January 7, 1998, the treating chiropractor reported that the claimant was recovering slowly and had decreased extension movement with pain past the vertical quadratis. On January 16, 1998, the chiropractor noted that objective signs were decreasing with no relief of symptoms. A referral to another chiropractor was made. On January 16, 1998, the second chiropractor reported that the claimant was suffering from chronic subluxation complex.

On March 10, 1998, the claimant was examined by a Workers Compensation Board (WCB) chiropractic consultant. According to the examination notes, the claimant had persistent chronic facet syndrome which seemed to be aggravated by sitting or standing for extended periods of time. The chiropractic consultant also stated, "I feel that it is an interesting coincidence that within one or two months of him beginning the new job of riding the electric jiggers, he began to have problems, in the absence of any trauma. I feel that he should not try to return to this job. It is my opinion that there are many things that he could do as long as he is able to change positions fairly frequently. Apparently, lifting and bending does not bother him and so I feel confident that a job could be found for him." The chiropractic consultant further recommended that the frequency of treatment be reduced to once a week for about a month or until the claimant was able to return to some employment.

In a progress report dated March 10, 1998, the treating chiropractor reported that the claimant's lumbosacral pain increased significantly with withdrawal of care for one week and that the claimant could not stand or walk as long or as comfortably.

On April 1, 1998, the WCB chiropractic consultant clarified to a WCB adjudicator that the claimant should be able to return to work without restrictions by mid April 1998.

Subsequent to the WCB's chiropractic consultants comments, a progress report from the attending chiropractor dated March 31, 1998, indicated that the claimant had increased lumbosacral pain, paraspinal muscular hypertonicity and further loss of function and activities of daily living as a result of the decrease in a number of treatments provided.

On April 6, 1998, primary adjudication advised the claimant that in its opinion he had recovered from his compensable condition of August 25, 1997 and that compensation benefits would end one week from the letter, ie April 13, 1998. The decision was reached based on the chiropractic consultant's examination findings of March 10, 1998 and his comments of April 1, 1998.

In a submission to the Review Office dated May 28, 1997, a union representative provided a report from the treating chiropractor dated May 19, 1998. According to the union representative, the treating chiropractor's findings clearly indicated that the claimant had been unable to return to his pre-accident employment, keeping in mind that his job required constant standing, extensive bending and lifting. The union representative therefore requested that the WCB continue its responsibility to the claimant in the form of medical services and wage loss benefits beyond April 13, 1998.

On July 3, 1998, the Review Office confirmed that the claimant was not entitled to payment of benefits beyond April 13, 1998. When rendering its decision, the Review Office made reference to the WCB's chiropractic consultant's examination findings of March 18, 1998, and the reports from the treating chiropractor dated March 10, 1998, and May 19, 1998. The Review Office was satisfied that the report from the WCB's chiropractic consultant was accurate in its determination of whether the claimant had recovered from the effects of the accident and whether he was fit to return to some form of work activity.

On May 3, 1999, the union representative appealed the Review Office's decision and requested an oral hearing. Included with the appeal application were reports from a physiatrist dated April 23, 1999, and from the treating chiropractor dated July 29, 1998. On August 25, 1999, an oral hearing was convened.

Reasons

Chairperson Cathcart and Commissioner Frisken:

The majority Panel finds, on a balance of probability, that the claimant had not recovered from his compensable injury of August 25, 1997, when WCB benefits were ended on April 13, 1998.

Beginning on November 27, 1997, the claimant received many treatments from chiropractors and a thorough examination on March 10, 1998, by a WCB chiropractic consultant. The treatments the claimant received quite obviously were not successful. The WCB accepted the findings of their chiropractic consultant and removed benefits from the claimant based on his recommendations. The majority Panel believes that a better approach would have been to seek the advice of an orthopaedic specialist or similar medical practitioner.

On the advice of his union representative, the claimant had his family physician refer him to a physiatrist. The physiatrist’s diagnosis is “most likely [the claimant] on November 25, 1997, at work suffered disc herniation at L5-S1 level causing left L5-S1 radiculopathy. He also suffered musculoligamentous strain and mechanical spinal pain. ...In my opinion he did not recover from the work related injuries he suffered in the accident of November 25, 1997.” The physiatrist’s prescribed treatment as detailed in his report of April 23, 1999, has resolved the claimant’s medical problem. This was verified by the claimant’s testimony at the hearing. He also received a letter dated July 9, 1999, allowing him to return to work as of July 12, 1999.

The majority Panel found the claimant a credible witness. It finds that the weight of the medical evidence supports the claimant’s appeal. Benefits are thus to be restored from April 13, 1998 to July 12, 1999.

Panel Members

R. Cathcart, Presiding Officer  R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of October, 1999

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The issue in this appeal is whether or not the claimant is entitled to the payment of any benefit beyond April 13, 1998, in respect of his compensable accident.

After having reviewed all the evidence in the file and as presented at the hearing, the minority finds on a balance of probabilities that the claimant has only a limited entitlement to benefits after April 13, 1998, in respect of his compensable injury in the fall of 1997.

These benefits would be restricted to medical aid benefits for the physiatry and physiotherapy treatments that the claimant received in early 1999, and for a limited number of chiropractic treatments subsequent to the termination of benefits in April 1998. Specifically, I find that the claimant would not be entitled to wage loss benefits, on the basis that he was not totally disabled from work after April 13, 1998, was capable of both full and modified duties as of that date, and that the claimant took no steps to mitigate any potential wage losses subsequent to that date.

In support of my findings regarding entitlement to medical aid benefits, I note the following evidence:

In reviewing this evidence, it is clear that the claimant did suffer a continuity of symptoms to the same area of the back that derives from the compensable accident, and that the treatment modalities introduced by the physiatrist and the physiotherapist in early 1999 were effective in managing a successful and full recovery from the injuries developed at the workplace in August 1997. It is also apparent from the evidence that the chiropractic care given to the claimant after the termination of benefits was in excess of that recommended by the WCB chiropractic consultant, and was also of no value in managing or improving the claimant’s symptoms. As such, the minority would have allowed medical aid benefits for the treatments provided by the physiatrist and physiotherapist in 1999, but would only have covered a limited number of chiropractic treatments, being those authorized by the WCB chiropractic consultant in his report of March 10, 1998, namely once per week for about one month.

With respect to the claimant’s entitlement to wage loss benefits beyond April 10, 1998, I note the following evidence:

• The WCB chiropractic consultant on March 10, 1998 states that

“I feel that he should not try to return to this job. It is my opinion that there are many things that he could do as long as he is able to change positions fairly frequently. Apparently, lifting and bending does not bother him and so I feel confident that a job could be found for him.”

• The claimant’s attending chiropractor’s report of April 1, 1998 notes that the claimant was capable of “light work.”
• The claimant’s attending chiropractor’s letter of May 19, 1998 to a union representative notes that “By early May 1998 he [the claimant] was reporting he was feeling the best he had ever had since he hurt himself.” Dealing with return to work, the chiropractor notes that the claimant “is not able to pursue his regular duties with his pre-accident employer. To put him back into such an environment would certainly result in an exacerbation of the existing injury and in all likelihood put him in a greater risk of some other injury.” [emphasis mine]. Dealing with potential restrictions, the chiropractor’s answers are equivocal, stating “In-so-far as your question with regards to return to work without restrictions, that is as yet undetermined.”
• The claimant was advised by the WCB adjudicator on April 6, 1998 of the termination of benefits. The correspondence outlines the findings of the chiropractic consultant, and the WCB’s position that the claimant was considered to be fully recovered from the compensable injury. The letter also indicates the concerns by the chiropractic consultant that the claimant could reinjure himself and therefore suggested, on a preventative basis, that the claimant return to a different type of work.
• At the hearing, the claimant and his representative both acknowledged that the employer had a modified return to work program available, but were ambivalent or uncertain as to whether it would apply to worker with preventative conditions as outlined in the WCB adjudicator’s decision letter.
• The evidence on file and at the hearing is that there were no efforts undertaken by the claimant to contact the employer regarding a return to work into a different position, with the only communication being the claimant’s advising of his intention to appeal the termination of benefits. As well, there were no discussions initiated on his behalf by his union upon their involvement in the file several months later for a possible return to work. The claimant also did not seek or attempt any other employment activities during this period.

I find that the evidence supports, on a balance of probabilities, a conclusion that the claimant was not totally disabled and was capable of performing work subsequent to April 13, 1998. In this regard, I note the findings of full recovery by the chiropractic consultant, and I find that even with the preventative restrictions noted by the consultant, there was a responsibility on the claimant to mitigate his wage loss benefits by contacting his employer about returning to employment and the possibility of modified duties, which the claimant failed to do. Accordingly, I would not have granted wage loss benefits to the claimant subsequent to the termination of benefits on April 13, 1998.

In summary, then, the minority would have accepted the claimant’s appeal for payment of benefits beyond April 13, 1998, but would have limited these benefits to the medical aid expenses noted above.

A. Finkel, Commissioner