The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 18, 1999, at the request of the claimant. The Panel discussed this appeal on November 18, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond September 2, 1998.

Decision

That the claimant is entitled to payment of wage loss benefits from September 3, 1998 to December 18, 1998.

Background

On September 26, 1997, the claimant stated that she tripped on a rubber mat that was rolled up behind a till and fell forwards. The injuries reported were a pull to the back and neck, more concentrated over the right side of the back. Initial chiropractic reports diagnosed a lumbosacral sprain/strain, discopathy and subluxation. On November 27, 1997, the attending physician diagnosed the injury as a lumbosacral sprain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 30, 1997.

On December 15, 1997, an orthopaedic specialist reported that the claimant had been complaining of lower back and buttock pain since the September 1997 accident. X-rays of the lumbar spine, taken on November 18, 1997, showed anterior marginal lipping on a number of mid-lumbar vertebral bodies without any appreciable disc space narrowing. Further x-rays of the lumbar spine in the form of oblique views were suggestive of apophyseal joint arthritis at L5-S1. X-rays of the hip joints failed to demonstrate any abnormality. It was felt that the claimant would benefit from physiotherapy and that she should lose weight. The specialist also noted that the claimant had psoriasis and multiple joint pain involving her wrists, elbows and shoulders.

In January 1998, a WCB medical advisor reviewed the case at the request of primary adjudication. In the opinion of the medical advisor, the current diagnosis was mechanical back strain with apophyseal joint arthritis suspected at the L5-S1 level. The medical advisor was of the view that the claimant was capable of light duties with restrictions of no heavy lifting over 15 pounds. Subsequent file documentation revealed that the employer could not accommodate the lifting restrictions of 15 pounds and that the claimant started physiotherapy treatments on January 16, 1998.

On February 9, 1998, the treating orthopaedic specialist reported that the claimant had been having pain in her right calf for about three weeks as well as pain on the posterior aspect of the thigh for about six weeks. The specialist felt that the symptoms in the calf were radiating pain from her back. As the signs of local pain suggested thrombophlebitis, the specialist suggested a venogram. He also arranged for a CT scan and bone scan to be carried out as well.

On February 9, 1998, the venogram results revealed a filling defect in the mid superficial femoral vein consistent with acute deep vein thrombosis. On February 18, 1998, the claimant was discharged from physiotherapy due to being diagnosed with deep vein thrombosis (DVT).

On April 24, 1998, the CT scan showed no evidence of spinal stenosis, disc herniation or nerve root compression at the L3-4 or L5-S1 levels. At L4-5 there was a slight central disc protrusion but no nerve root entrapment. The bone scan carried out on April 24, 1998, was reported as being normal.

A WCB medical advisor examined the claimant on May 11, 1998. During the interview portion of the examination, the claimant told the medical advisor that the February 9th appointment with the orthopaedic specialist was prompted in view of complaints she made to the family physician regarding several weeks history of a "deadness" localized to the right buttock and posterior right thigh. Following the onset of this "deadness" symptom, the claimant said she was removing a plate from a microwave in late January 1998 when she turned to the right at which point the right lower limb felt "dead", not moving and giving way. As a result of this incident, the claimant fell to the floor striking her right thigh and experiencing immediate calf pain. It was following this incident that the calf pain became more prominent, and persistent, which resulted in the referral to the orthopaedic specialist and subsequent diagnosis of DVT.

Following the examination, the medical advisor stated that the mechanism of injury and early symptoms suggested a diagnosis of lower lumbar musculoligamentous strain. The medical advisor also stated that the occurrence of deep vein thrombosis was a non-compensable issue and that it had probably prolonged the claimant's recovery period. Suggestions were made for the claimant to resume physiotherapy treatment. On June 29, 1998, the claimant advised a WCB adjudicator that she had been referred to physiotherapy three weeks prior and was still on the physiotherapy treatment waiting list. Later documentation noted that the claimant started physiotherapy treatments on August 4, 1998.

On August 10, 1998, a WCB medical advisor clarified that a graduated return to work was appropriate. Restrictions were outlined for the claimant not to lift over 25 pounds, to avoid repetitive bending/twisting and that she was able to sit for five minutes two times per hour. It was also indicated that the claimant should work for six hours per day for two weeks, then be reassessed. On August 17, 1998, the WCB medical advisor documented that the claimant's attending physician was in agreement with the graduated return to work plan and physiotherapy education.

In a letter dated August 24, 1998, primary adjudication advised the claimant that her graduated return to work program would begin August 13, 1998 and would continue to September 2, 1998, inclusive. It was the opinion of Claims Services that after completion of the return to work program, the claimant would have fully recovered from the effects of the compensable injury. Wage loss benefits would be paid to September 2, 1998, inclusive and final. File documentation later showed that the claimant resumed employment on August 21st but only worked two hours per day.

On September 2, 1998, the claimant wrote to the WCB stating that she was having severe pain in her lower back during the return to work program. She stated that she was cheated out of her recovery treatment plan, as she was not able to get into a physiotherapy program until August 4th. She also felt that she should not have returned to work until her physiotherapy program was completed. When she resumed work on September 2nd, working only two hours per day, she was experiencing the same symptoms of pain in her buttock with burning and a scalding or swelling feeling in her right leg.

A follow-up report was received from the treatment orthopaedic specialist, dated September 24, 1998. The specialist stated that the claimant's symptoms in her back and leg seemed to have greatly improved. She was advised to continue with exercises and refrain from any bending and lifting until her present pain fully settled down. On March 29, 1999, a physiotherapist reported that the claimant commenced physiotherapy treatment on August 4, 1998 and was discharged from therapy on December 18, 1998.

In a decision, dated May 14, 1999, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond September 2, 1998.

In the opinion of Review Office, there was no medical justification for the claimant's having remained off work completely after September 2, 1998, with respect to the accident that took place in September 1997. The report from the orthopedist, who saw the claimant on September 24, 1998, did not provide any objective evidence of disability from employment apart from the suggestion for the worker to lose weight and to continue with her exercises. Review Office did not see any reason to restore the claimant's wage loss benefits as it did not believe the worker continued to experience a loss of earning capacity due to the injuries sustained on September 26, 1997, beyond September 2, 1998.

On June 22, 1999, a union representative appealed Review Office's decision and requested an oral hearing. The union representative took the position that the claimant's return to work was delayed due to a condition secondary to the injury. On November 18, 1999, an oral hearing was convened.

Reasons

The mechanism of injury together with the claimant's symptomatology led the WCB medical advisor, who examined the claimant on May 11th, 1998, to determine a diagnosis of lower lumbar musculoligamentous strain. It was also noted that x-rays disclosed minimal arthritic changes through the apophyseal joints and L3 level. The treating orthopaedic specialist suggested in December 1997 that a course of physiotherapy treatment would be of benefit for the claimant's recovery. The claimant followed her orthopedist's recommendation until approximately the middle of February when it was determined that she had developed a deep vein thrombosis in her right leg. Consequently, physiotherapy was discontinued until such time as the deep vein thrombosis had been adequately treated. It was anticipated that this process would take about three months.

In her examination notes of May 11th, the medical advisor remarked:

"The occurrence of deep vein thrombosis in mid February represents a non-compensable issue which has prolonged recovery in that its presence has interfered with optimal treatment course, i.e., active physiotherapy stabilization/rehabilitation. Following the examination, I will be contacting the attending physician to confirm resuming treatment plan at this time."

Unfortunately, the earliest that the claimant was able to get in to see her physiotherapist was not until August 4th, 1998.

Shortly after the resumption of her physiotherapy, the claimant began a graduated return to work program. A WCB medical advisor felt that given the amount of time the claimant had been off work such a program would be most appropriate. Restrictions of no lifting more than 25 lbs., avoid repetitive bending/twisting and being allowed to sit for 5 minutes twice an hour were imposed. This return to work plan continued until September 2nd, 1998, when the claimant stopped working. At the hearing the claimant stated:

Q. Was there a reason why you stopped as of September 2, 1998?

A. Well, yes, because I was now no longer on this plan where I was being reimbursed, you know, from Workers Compensation. And my employer would have nothing to do with a graduated plan, light duty or anything. Like, "You're ready to work your job basically like full-time or else."

The treating orthopaedic specialist again examined the claimant on September 24th, 1998. His examination notes contained the following comments:

"This lady's symptoms in her back and her leg seemed to have improved a great deal. She was advised to continue with exercises and refrain from any bending and lifting until her present pain fully settles down. It was also suggested to her to lose weight. She also told me that her previous job did involve a fair amount of lifting and bending as she stocked the shelves. It was also suggested to her to consider looking for alternate form of job that does not involve as demanding on her back."

The evidence confirms that the claimant continued her physiotherapy throughout the fall of 1998. The physiotherapist provided the WCB with a report, dated March 29th, 1999, outlining the claimant's progress during this time period.

"Due to scheduling problems she was not reassessed until October 27. At that time the client stated that she generally felt better, had started a walking program as well as continuing with her back and lower limb stretching and strengthening exercises. The client was discharged from physiotherapy December 18, 1998."

At the time when the claimant's benefits were terminated, it is clear that the claimant had not fully recovered from the effects of her compensable injury and that she required further physiotherapy. However, we find, based on the weight of evidence, that the claimant had, on a balance probabilities, recovered from her compensable injury by December 18th, 1998. Therefore, the claimant is entitled to the payment of wage loss benefits beyond September 2, 1998, up to and including December 18th, 1998, when she was discharged from physiotherapy.

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 8th day of December, 1999