The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 29, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this case on several occasions, the last one being December 20, 1999.

Issue

Whether or not the claimant has recovered from the effects of his compensable accident as of October 19, 1998.

Decision

That the claimant has not recovered from the effects of his compensable accident as of October 19, 1998.

Background

The claimant, on August 17, 1998, was pushing a 1,000 pound mixer when his foot slipped on some fat causing pain to his lower back and right hip region. The diagnosis reported by the attending physician was an acute lumbosacral strain. Treatment consisted of analgesics, bed rest and a referral to physiotherapy. It was also noted that the claimant had a prior compensable low back injury in June 1991 with 188 days of time loss.

On September 9, 1998, the attending physician questioned the possibility of an L4-5 disc/radiculopathy.

On September 15, 1998, a Workers Compensation Board (WCB) medical advisor reviewed the case at the request of primary adjudication. The medical advisor stated that he reviewed the results of prior x-rays dated December 23, 1991 and a CT scan of the spine dated April 27, 1992. He did not believe that the claimant had any significant pre-existing conditions. He felt the claimant was probably able to do light duties that did not involve lifting greater than 20 pounds or excessive bending and stretching. A review of these restrictions was recommended in three month's time. The medical advisor commented that, based upon the history on file, he saw no reason to perform a CT scan and that there was no radiculopathy.

Follow-up reports from the attending physician revealed that on September 23, 1998, range of spine movement was improving. The claimant had shooting pains down his right leg. Prolonged standing caused numbness in the right leg. The diagnosis was lumbar spine strain and L4-5 radiculopathy. Recommendations were made for the claimant to continue with medication and for 3 further weeks of physiotherapy.

On September 29, 1998, the employer called the WCB indicating that modified duties were available for the claimant as of September 17, 1998, that were in keeping with the restrictions outlined by the WCB medical advisor. The employer advised, however, that numerous attempts to contact the claimant about the modified duties was met with no response. On September 30, 1998, primary adjudication advised the claimant that wage loss benefits would only be paid to September 16, 1998, as there were modified duties available beyond that date.

On October 7, 1998, the claimant exhibited tenderness in the lower back together with mild hyperthesia in the right lateral thigh. The physician questioned the possibility of an L4-5 radiculopathy.

A WCB physiotherapy consultant examined the claimant on October 20, 1998. The consultant was of the opinion that the claimant had suffered a sprain to the right sacroiliac joint in the compensable injury on August 17, 1998 and that he continued to demonstrate muscular weakness and articular dysfunction in the area. Recommendations were made for additional physiotherapy treatment toward the sacroiliac joint and surrounding musculature.

On November 24, 1998, the treating physiotherapist reported that the claimant did not report for physiotherapy after November 5, 1998. The physiotherapist questioned a disc injury and was of the view that the claimant was unfit to return to his regular duties.

On November 2, 1998, primary adjudication wrote to the claimant indicating that he was still considered capable of returning to modified duties as of September 17, 1998, and that the WCB accepted responsibility for continued physiotherapy costs. In response, on December 14, 1998, a union representative contended that the claimant was unable to return to modified duties and provided medical reports, dated October 19, 1998, and November 30, 1998, in support.

The orthopaedic surgeon stated that he examined the claimant on October 19, 1998. In his opinion, the claimant was suffering from degenerative disc disease of the spine without any definite evidence of any nerve root entrapment. The patient should be treated symptomatically and should avoid jobs and activity, which gave him symptoms, particularly bending. Due to the fact there was no definite neurological findings, no further investigation was indicated.

On November 30, 1998, the treating physician stated, in part, that when the claimant was examined on November 13, 1998 he showed paravertebral tenderness involving L3-S1, lumbar flexion possible to 70 degrees with pain in the low back and right hip area. Extension was possible to 20 degrees with pain in the same areas, lateral rotation and lateral flexion possible to 15 to 20 degrees range with pain. The physician advised the claimant that he was not ready for a return to work to his previous occupation and required further treatment and investigations.

Prior to considering the appeal, Review Office obtained an opinion from a WCB orthopaedic consultant on December 30, 1998.

In a decision, dated February 12, 1999, Review Office determined that the claimant was entitled to wage loss benefits beyond September 14, 1998 and that he had recovered from the effects of his compensable accident as of October 19, 1998. When rendering its decision, Review Office made reference to the attending physician's comments and the opinions expressed by the examining orthopaedic surgeon on October 19, 1998. Review Office concluded that the weight of evidence supported the claimant was entitled to wage loss benefits beyond September 14, 1998, and that he had recovered from the effects of the compensable accident by October 19, 1998.

On June 4, 1999, the union representative appealed Review Office's decision that the claimant had recovered from the effects of the compensable injury by October 19, 1998. On July 29, 1999, an Appeal Panel hearing was conducted.

Following the hearing and discussion of the case, the Appeal Panel requested that an independent specialist examine the claimant with respect to his present physical status. An appointment with the independent specialist was arranged for September 13, 1999. The examination results were received at the Appeal Commission on October 26, 1999 and then forwarded to the interested parties for comment.

In early November 1999, the Appeal Commission was informed that the claimant had been assessed by a physiatrist in August and November 1999 and that he had a CT scan performed on October 31, 1999. In light of this, the Appeal Panel decided to obtain a copy of the physiatrist's report along with the CT scan results. The reports were then forwarded to the independent specialist to ascertain whether this new evidence in any way changed the opinion outlined in his report of September 13, 1999. A response from the independent orthopaedic specialist was received, dated December 3, 1999, and was forwarded to all interested parties for comment.

On December 20, 1999, the Panel met to render its final decision.

Reasons

At the request of the Appeal Commission, an independent orthopaedic specialist examined the claimant on September 13th, 1999. We noted in particular the following comments contained in his report:

"On the current examination and interview, I feel that this man has an L5 radiculopathy on the right side with a possible L4-5 disc protrusion on the right side. He also has suggestion on the x-ray of an L4-5 disc injury from the traction epiphysis.

There is a definite relationship between the present signs and symptoms of L5 radiculopathy as related to the most recent accident of August 13, 1998. Though this man has a long history of low back pain at no time in the whole follow-up did he show any signs of right leg radiculopathy except about a week or two following the most recent injury. This, however, has persisted and has not really changed. His back pain has settled to some degree but is still persisting.

I feel that this man's preexisting condition of back pain has been enhanced in that he now has right sided radiculopathy. To definitely confirm (sic) and establish this, I would recommend that he have a CT scan or an MRI of his lumbar spine."

After receiving the above noted report and before making a final decision, it was brought to our attention that the claimant had undergone a CT scan as well as an examination by a rehabilitation medicine specialist. The advocate acting on behalf of the employer suggested that "it would not be appropriate for the Panel to address the issue of whether Mr. [the claimant] had recovered from the effects of his injury until all the critical evidence has been received." In this regard, the advocate suggested that this additional evidence would no doubt assist in determining the etiology of the claimant's ongoing symptomatology. Accordingly, we requested copies of the CT scan and the specialist's examination findings.

The CT scan of the claimant's lumbosacral spine revealed a broad- based central L4-5 disc herniation and a small shallow right L5-S1 foraminal disc herniation. The rehabilitation medicine specialist commented, "he should not be doing any heavy lifting and could (sic) not advance in his butcher job. I would like him to come off work for the next six weeks to ensure that rest would not cause progression of this disk herniation and that we would end up with Cauda Equina Syndrome." The independent orthopedist considered that the CT scan and this further examination only confirmed his earlier findings and opinion.

We find, based on the preponderance of evidence that the claimant has not, on a balance of probabilities fully recovered from the effects of his compensable injury. We note, however, that the claimant is not totally disabled but rather is capable of performing some form of modified work duties. The compensable injury has not resulted in a total loss of earning capacity.

Panel Members

R. W. MacNeil, Presiding Officer
H. Middlestead, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of December, 1999