The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 27, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 27, 1999, and on November 24, 1999.

Issue

Whether or not responsibility can be accepted for the claimant's absence from work from May 21, 1997 to June 1, 1998, as being related to the compensable injury of November 24, 1994; and

Whether or not the worker is entitled to the payment of wage loss benefits for the period May 21, 1997 to June 1, 1998.

Decision

That responsibility can be accepted for the claimant's absence from work from May 21, 1997 to June 1, 1998, as being related to the compensable injury of November 24, 1994; and

That the worker is entitled to the payment of wage loss benefits for the period May 21, 1997 to June 1, 1998.

Background

On November 24, 1994, the claimant sustained a compensable right hip and right elbow injury when she slipped on some creamer containers lying on the floor. The initial diagnosis was low back pain syndrome from a traumatic event. Also of note was that the claimant had pre-existing degenerative disc disease. The claim was accepted as a Workers Compensation Board (WCB) responsibility and wage loss compensation was paid between November 28, 1994, and June 30, 1995, when it was determined that the effects of the soft tissue injury had resolved and that the claimant's difficulties were due to her pre-existing condition.

In a decision dated August 4, 1995, the Review Office confirmed that the claimant had recovered from the effects of the soft tissue strain and that any further difficulties were a result of an aggravation of a pre-existing condition, which was not the responsibility of the WCB. When reaching its decision, Review Office noted the results of a CT scan that was carried out on May 27, 1995. This showed that the claimant had a degenerative changes involving the apophyseal joints with a small hypertrophic spur at the L$-5 level on the left side projecting into the spinal canal, which was not caused by the compensable accident.

Subsequent medical documentation consisted of the following reports:

• On July 18, 1995, a physiotherapist reported that the claimant had attended a total of 51 physiotherapy treatments with only slight improvement in her back status and the claimant still complained of functional limitations due to back pain.
• On November 8, 1995, an orthopaedic surgeon reported that recent lumbar spine x-rays showed a retrolisthesis of L5 on S1 with a posterior osteophyte at the L5 area.The L5 vertebra was sclerosed.The specialist suspected that the claimant’s predominant problem was mechanical back pain and a CT scan was ordered. In a subsequent report dated November 29, 1995, the orthopaedic specialist confirmed that the claimant suffered from a mechanical type back pain and suggested a referral to the pain clinic with a diagnosis of some arthritis of L5-S1.
• On December 4, 1995, the attending physician wrote a report to the claimant’s worker advisor outlining his examination findings from November 28, 1994, through to November 14, 1995 as well as information about past medical history. The attending physician’s diagnosis was chronic low back pain syndrome in relation to the work related injury of November 1994. He felt the claimant was incapable of resuming her pre-accident employment duties even on a part time basis. He also stated that the claimant’s degenerative disc disease must have been present for many years and had been asymptomatic. The attending physician was of the opinion that the claimant’s current impairment had much more to do with the effects of the accident than the radiological appearance of her lower back area.
• On February 15, 1996, a WCB orthopaedic consultant reviewed the above reports at the request of Review Office. The consultant was of the view that full resolution of the claimant’s symptoms was delayed as a result of the osteoarthritis and degenerative disc disease with a poor response to physiotherapy modalities. The consultant stated that it was more than a year since the compensable accident and that the prognosis was poor for rehabilitation back to laundry work.

As per a subsequent decision by Review Office dated February 23, 1996, a Medical Review Panel (MRP) was requested under Section 67(4) of The Workers Compensation Act (the Act). An MRP was then arranged and took place on June 14, 1996.

Based on the MRP’s findings and opinion, Review Office reinstated the claimant’s benefits commencing June 30, 1995, as it determined that the claimant had not recovered from the effects of the compensable injury. Review Office noted the MRP’s comments that while there was evidence of a pre-existing condition involving the claimant’s spine, the claimant had been totally asymptomatic prior to the injury sustained. The basis for this response was a historical relationship as outlined on file and in discussions with the claimant. Review Office also noted that the MRP made certain recommendations concerning permanent physical restrictions on the part of the claimant’s work capabilities, and recommended adherence to the restrictions.

On September 23, 1996, the claimant’s file was referred to a Vocational Rehabilitation Consultant (VRC) to do a complete vocational assessment. Permanent restrictions were outlined to avoid heavy lifting and frequent bending.

In a memo dated January 13, 1997, the claimant’s VRC documented that the claimant returned to her pre-accident position in November, 1996. The claimant did not want to leave her employer as she had a pension tied in with them. The claimant was attempting to obtain a position during the day. The VRC noted that “reachers” would help to eliminate some of the bending that was required when the claimant reached into a laundry bin. The lifting was not excessively heavy. The VRC commented that the layout of the laundry room did not allow for fatigue mats, which would take some of the stress off the claimant’s back while she stood. A pair of Spenco Shock absorbers for the claimant’s shoes was recommended by the VRC.

On January 14, 1997, the claimant advised her VRC that she was finding it difficult to manager her job in the laundry room at night. She worked from 11:00 p.m. to 7:00 a.m. She stated that at night she was the only person working and in her opinion, if there was one more person helping her she could manage her job.

On April 9, 1997, the VRC again suggested to the claimant that “reachers” could help reduce the amount of bending that she would have to do in a given shift. The claimant, however, was of the opinion that “reachers” would only slow down her production. The claimant then became upset because all she wanted was an additional person. According to the VRC, the employer was not able to accommodate the claimant by adding another member. The claimant advised the VRC that she could apply for a day position in the laundry, which did have another staff person working if and when a position became available. It was pointed out however, that the day position was heavier than the night position that she was currently working. The VRC concluded that given the claimant had returned to her pre-accident position, her file would be closed with respect to vocational rehabilitation.

Subsequent file documentation showed that the claimant had been off work since the end of May 20, 1997, due to pain in her low back and both legs. In a statement dated September 29, 1997, the claimant advised that since being off work she was not getting any better and was gradually getting worse.

In a progress report dated August 6, 1997, the attending physician noted tenderness in the lumbosacral area, with major restriction of forward flexion and hyperextension. The diagnosis was low back pain with left sciatica. X-rays of the lumbosacral spine dated May 21, 1997, noted disc degenerative changes at the lumbosacral junction. Osteoarthritis was seen in the lower lumbar apophyseal joints. The appearances have not changed since 1994 and no new abnormalities or further progression was seen.

On October 10, 1997, a WCB medical advisor reviewed the file.  In his opinion, the claimant was most likely suffering the effects of a pre-existing condition of osteoarthritis and degenerative disc disease of the lumbosacral spine and not the effects of the sprain injury of November 24, 1994. Based on this opinion, primary adjudication wrote to the claimant on October 21, 1997, indicating that any time loss from work since May 1997 was not related to the compensable injury of November 24, 1994 but was due to the pre-existing degenerative changes.

The WCB medical advisor, at the request of an adjudicator, again reviewed the case on August 4, 1998, following receipt of a March 5, 1998, report from the claimant’s treating physician. The adjudicator described the claimant’s work duties as a laundry aid as follows:  “she has to sort the laundry, then load it onto the washers and dryers. Claimant then has to fold it and place it on carts. The bags of soiled laundry can weigh between 15 and 25 lbs.  Clmt would have about 20 to 30 bags of laundry per shift and she can work at her own pace.” The medical advisor was asked whether the compensable injury played a significant role in the claimant’s ongoing back problems. His response was “no.”  When asked whether the claimant was still capable of working the described duties his response was “yes”. On August 7, 1998, primary adjudication advised the claimant that no change would be made to its earlier decision of October 1997 given the comments expressed by the WCB medical advisor.

On December 14, 1998, a worker advisor contended that the claimant was entitled to additional wage loss benefits because “the weight of medical evidence shows that her chronic low back pain caused her inability to carry on her work duties beyond May 21, 1997. It also shows that her disabling condition is related to her injury of November 24, 1994.”

Following consultation with a WCB orthopaedic consultant on January 12, 1999, the Review Office determined that no responsibility could be accepted for the worker’s absence from work from May 21, 1997 to June 1, 1998, as this absence was not considered to be related to the compensable injury of November 24, 1994 and that she was not entitled to payment of wage loss benefits.

The Review Office was of the opinion that, on a balance of probabilities, the claimant’s continued low back complaints were due to the pre-existing state of her degenerative lumbar spine. Review Office believed that the claimant had recovered from her 1994 sprain injury and that her ongoing back difficulties which necessitated medical treatment and time loss commencing in May 1997 were more probably related to her pre-existing condition than to the effects this accident.

At the request of the worker advisor, an Appeal Panel hearing was held on September 27, 1999. Following the hearing and discussion of the case, the Appeal Panel requested additional medical information from the orthopaedic surgeon who had examined the claimant on August 27, 1997. A report was subsequently received from the specialist dated August 27, 1997, and was forwarded to the interested parties for comment. On November 24, 1999, the Panel met to render its final decision.

Reasons

The issues in this appeal are whether or not responsibility can be accepted for the claimant's absence from work from May 21, 1997 to June 1, 1998 as being related to the compensable injury of November 24, 1994; and whether or not the worker is entitled to the payment of wage loss benefits for the period May 21, 1997 to June 1, 1998.

The relevant subsection of the Workers Compensation Act (the Act) is 39(2) which provides for the duration of wage loss benefits. Relevant WCB Policy is Section 44.10.20.10, Pre-Existing Conditions.

We find that the evidence supports a finding, on a balance of probabilities, that responsibility should be accepted for the claimant's absence from work from May 21, 1997 to June 1, 1998 as being related to the compensable accident of November 24, 1998 and therefore the claimant is entitled to the payment of wage loss benefits for the period May 21, 1997 to June 1, 1998.

In reaching this conclusion we noted that the claimant slipped and fell at work onto her right hip. At that time the claimant's attending physician diagnosed traumatic major low back pain syndrome. X-rays of the lumbosacral spine taken at the time revealed that the claimant had pre-existing degenerative disc disease and the claim was accepted as a WCB responsibility for a low back strain with an aggravation of the pre-existing degenerative disc disease and benefits were paid accordingly.

On May 24, 1995 the claimant was examined by a WCB medical advisor who indicated that there was localized tenderness in the lumbosacral junction which was in the area of degenerative disc disease noted on the radiological examination which he felt might reflect an aggravation of the pre-existing disease as a result of the compensable injury. He also recommended a low dose antidepressant to help the claimant sleep and to reduce her pain.

Benefits were discontinued initially on June 30, 1995 on the basis that the compensable injury had resolved and the ongoing symptoms were due to a non compensable pre-existing condition. Due to the fact that the claimant's husband was terminally ill and the claimant was suffering from severe financial difficulties she returned to work December 30, 1995 while in the process of appealing her denial of benefits.

The file was reviewed by the WCB orthopaedic consultant on February 15, 1996 who notes in part that full resolution of the claimant's symptoms was delayed as a result of the osteoarthritis and degenerative disc disease with a poor response to physiotherapy modalities. He also offered his opinion that as it was more than a year since the compensable accident that the prognosis was poor for rehabilitation back to laundry work. (emphasis ours)

A Medical Review Panel (MRP) was convened on June 14, 1996 and we note that the panellists unanimously agreed that the diagnosis was low back strain; that the claimant did have evidence of a pre-existing condition which the panel found to be totally asymptomatic prior to the claimant's accident and that they would consider the claimant's current condition to be "Chronic Back Pain injury related." The panel further unanimously agreed that the claimant was not fully recovered from the effects of the compensable accident as of May 24, 1995. The panellists also unanimously agreed that the claimant was restricted in her ability to lift or bend as a result of the compensable accident and that the restrictions were probably permanent. We note the panellists felt that the restrictions were appropriate even where the claimant had modified her work of her own initiative.

Review Office, in its decision dated August 7, 1996, found that the claimant had not recovered and was entitled to further benefits. In the Review Office decision of the same date we note the following:

"It is also noted in reviewing the report of the Medical Review Panel, that the claimant had returned to work approximately three to four months prior to this examination and in this regard the adjudicator will contact the employer for clarification. As well, the panel have made certain recommendations concerning restrictions and the claimant's work capabilities and these should be adhered to. (emphasis ours).

We find that the Review Office accepted the findings of the MRP that the claimant had permanent restrictions as a result of her compensable accident and we see no reason to disturb this finding. As a result of the Review Office decision the claimant's benefits were reinstated and the claimant's file was referred to Vocational Rehabilitation.

Subsequent to this referral we note the claimant expressed a strong interest and desire to maintain her employment ties with the accident employer. In this regard we note that preliminary consideration was given with respect to modifications of the claimant's pre-accident duties in order to facilitate the claimant's wishes to remain with the accident employer.

We note in a memorandum dated April 9, 1997 from the rehabilitation consultant that the claimant expressed concern with respect to her ability to perform her duties without assistance. The memorandum suggests that only very limited rehabilitation services in the form of minor job site modifications were the focus and extent of the rehabilitation efforts. In our opinion, had the claimant received appropriate vocational rehabilitation services in keeping with the initial Review Office decision and that of the MRP panellists respecting the claimant's permanent restrictions, the claimant may well have been able to remain in the work force.

It is our view that the permanent restrictions accepted by the WCB, the nature of the claimant's employment duties, the fact that English is not her primary language, and her subsequent stoppage from work in May 1997 suggest that further vocational rehabilitation efforts were required. In light of the above we find that responsibility should be accepted for the claimant's absence from work from May 21, 1997 to June 1, 1998 and that the claimant is entitled to benefits for that period until she voluntarily retired from the work force on June 1, 1998. Therefore the claimant's appeal is allowed.

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 2nd day of December, 1999