The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 29, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed the case on September 29, 1999, and November 30, 1999.

Issue

Whether or not the claimant is entitled to further benefits subsequent to September 11, 1998, in relation to his compensable accident of February 16, 1998.

Decision

The claimant is not entitled to further benefits subsequent to September 11, 1998, in relation to his compensable accident of February 16, 1998.

Background

On February 16, 1998, the claimant was lifting a core table when he slipped on a "mucky" area. The claimant indicated that he kept on working, but by the end of his shift he was in a lot of pain and went directly to the hospital. He was given a muscular injection and was referred to physiotherapy.

A report from the hospital, dated February 16, 1998, diagnosed the claimant with a lumbar strain. Medication and physiotherapy were the suggested forms of treatment. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced.

X-rays of the cervical and thoracolumbar spines were carried out on February 26, 1998. The impression revealed the following: "There is evidence of fusion of the C-5 and C-6 vertebrae through the facet joints with rudimentary disc space. There has been little change in the appearance of the cervical spine since an old exam dated March 1995. The bony changes may be related to congenital fusion or be related to an old episode of juvenile rheumatoid arthritis."

On April 7, 1998, an orthopaedic specialist examined the claimant at the family physician's request. Following assessment, the claimant was diagnosed with a neck strain and mechanical low back pain.

A WCB medical advisor examined the claimant on June 1, 1998, to determine his present status, work capabilities and the need for any further investigations. The medical advisor noted previous back injuries which the claimant had sustained in December 1986, September 11, 1995 and December 12, 1995. Following assessment, the medical advisor indicated that he felt the claimant "had some minor paralumbar and perhaps cervical muscle strain problems, however, there appears to be an emotional overlay. He is still on anti-depressant medication and this may play some part. There is no question that he is profoundly deconditioned, having discontinued exercises and not being at work for some time and this is evident by virtue of his pain which occurs with very little effort of any kind." The medical advisor suggested that the claimant be entered into an immediate lumbar stabilization program in order to increase his strength and tolerance of work over a four, and if necessary, six-week period.

On June 1, 1998, the claimant was examined by a neurosurgeon. The neurosurgeon concluded from the history and physical findings that the claimant did not have any evidence of radiculopathy or cervical myelopathy. He thought the claimant's difficulties were arthropathic or muscular in origin. It was suggested that the claimant would best benefit from intensive physiotherapy as opposed to neurosurgical therapy.

A WCB medical advisor reviewed the case on July 14, 1998. He determined that the claimant was fit for modified duties and should avoid heavy lifting over 25 pounds, repetitive bending or twisting or prolonged standing. These restrictions should be in effect no longer than four weeks.

In a progress report dated September 3, 1998, the attending physician indicated that the claimant was still experiencing lower back pain and that it was worse with physical activity. In a further report, dated September 16, 1998, the family physician's examination findings showed some paraspinal muscle spasm with tenderness in the lumbar area. There was tenderness over the SI joints especially to the right. There was decreased range of movement about 20 degrees anteriorly, 10 to 20 degrees laterally, 0 degrees to the back. Straight leg pickup 30 degrees both legs. Reflexes were intact.

On September 8, 1998, primary adjudication wrote to the claimant indicating that it shared the opinion of a WCB medical advisor that the claimant had now recovered from the effects of his work injury and that his ongoing symptoms were related to pre-existing back problems. Based on the weight of evidence, the mechanics of the compensable injury, the diagnosis of injury and the time that had passed indicated that the claimant had recovered from the effects of the work injury. On December 22, 1998, a worker advisor appealed this decision to the Review Office and submitted new medical documentation from a rheumatologist, dated December 13, 1998.

On February 5, 1999, Review Office rendered the following decisions:

"That the work related accident of February 1998 had not contributed materially to either the claimant's ongoing back symptoms or to his loss of earning capacity after September 11, 1998; and

That these chronic back symptoms and any associated loss of function are more likely attributed to pre-existing conditions.or to functional overlay resulting from a history of chronic problems which did not result from an accident arising out of and in the course of employment; and

That the claimant is not entitled to further benefits under the Act, after September 11, 1998."

Review Office indicated that the claimant suffered various soft tissue injuries to the lower back by reason of work related accidents including the most recent in February 1998. Reports further showed that the claimant had a history of chronic back problems along with other health issues, which did not likely originate with a work-related accident. Review Office did not find there was sufficient weight of medical evidence to show that there continued to be a reasonable causal connection between the claimant's ongoing complaints and/or loss of back function after September 1998 and the work related accident. Review Office believed there was evidence to support another more probable cause such as pre-existing degenerative changes and inherent personal susceptibility.

On July 8, 1999, the worker advisor appealed the Review Office's decision and requested an oral hearing. Further reports were also submitted from the rheumatologist, dated June 21, 1999, and CT lumbar spine results, dated March 3, 1999.

An Appeal Panel hearing was then held on September 29, 1999, after which the Panel requested additional information be obtained from the claimant's treating chiropractor and from the physiotherapy clinic where he had attended a work hardening program from August to September 1998. On November 2, 1999, all parties were provided with the reports received by the Panel and were asked to provide comment. On November 30, 1999, the Panel met and considered rebuttal argument from the worker advisor, dated November 18, 1999, and a report from the family physician, dated November 18, 1999.

Reasons

As the background notes indicate, the claimant injured his back while lifting a core table. The injury was diagnosed as a lumbar strain. A CT scan of the lumbar spine taken on March 3rd, 1999, confirmed that there was no disc prolapse, no annular bulging and no evidence of spinal stenosis identified.

A WCB medical advisor examined the claimant on June 1st, 1998. In his examination notes, he recorded the following comments to which we attached considerable weight:

"In summation, I feel that the claimant had some minor paralumbar and perhaps cervical muscle strain problems, however, there appears to be an emotional underlay. There is no question that he is profoundly deconditioned, having discontinued exercises and not being at work for sometime and this is evident by virtue of his pain which occurs with very little effort of any kind."

The medical advisor recommended that the claimant be entered into a lumbar stabilization program with the goal of increasing his strength and tolerance of work "over a four (and if necessary) to six week period."

The treating physiotherapist reported that the claimant presented with complaints of pain across his low back. He felt that the claimant's main problems were mechanical spinal pain and general deconditioning from lack of activity. "He [the claimant] was started on a basic program of stretching of the back and thigh muscles, strengthening of the trunk muscles, and some aerobic exercise to build stamina. Some stretching of his neck muscles was also added. He attended twice a week for 5 weeks, at which time there was not much measurable progress but I think this is understandable considering how deconditioned he was."

Further evidence received subsequent to the hearing from the claimant's former chiropractic clinic revealed that the claimant had been receiving chiropractic treatments from May 8th, 1992 to February 6th, 1998. The chiropractor advised that the claimant presented with primary complaints of cervical-thoracic and peri-scapular muscle pain with headaches and secondary thoracic and central lumbo-sacral pain associated with his work.

A WCB medical advisor was asked to comment on the claimant's pre-existing conditions and their effect on disability duration. In a memorandum, dated February 25th, 1999, he responded by saying:

"There is some weight of argument to this concern of prolonged impairment due to claimant's pre-existing. However based on the call in exam of June 98 by M/A the weight of evidence for prolonging recovery relates to 'Pain behaviour' or non organic complaints on behalf of the claimant."

We find, based on the weight of evidence that the claimant's ongoing difficulties are not, on a balance of probabilities, related to his compensable injury. Consequently the claimant is not entitled to further benefits subsequent to September 11th, 1998, in relation to his compensable accident of February16th, 1998. Accordingly, the claimant's appeal is hereby dismissed.

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