Decision #27/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 16, 1998, following receipt of an appeal from a worker advisor, acting on behalf of the claimant. The Panel discussed this case on December 16, 1998.

Issue

Whether the claimant is entitled to the payment of wage loss benefits beyond March 20, 1997; and

Whether a Medical Review Panel should be convened.

Decision

That the claimant is entitled to the payment of wage loss benefits beyond March 20, 1997, that is from March 21, 1997 to April 27, 1997; and

That a Medical Review Panel should not be convened.

Background

While employed as an insulation worker on October 23, 1996, the claimant was pulling material from shelves when he felt pain in his lower back. When seen by a chiropractor on October 24, 1996, the diagnosis was reported as a lumbosacral strain. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. X-rays of the lumbar spine taken November 20, 1996, revealed early discopathy of L4 & 5, and facet asymmetry.

On November 27, 1996, the claimant sought treatment from his family physician and a diagnosis of acute inflammation of the lumbar spine was made. The claimant was referred for physiotherapy treatments. On January 16, 1997, a bone scan was reported as being normal.

On February 28, 1997, the claimant was examined by a WCB medical advisor concerning his physical status and functional capabilities. Based on history and physical examination the medical advisor was unable to provide an anatomical diagnosis regarding the claimant's low back pain. There were no symptoms or signs indicative of nerve root irritation. The claimant had good range of motion of his lumbosacral spine and x-rays and a bone scan were normal. The medical advisor concluded that the claimant should return to normal activities including his workplace duties on a graduated basis. The medical advisor recommended the claimant should limit lifting and repetitive bending and twisting of the lumbosacral spine for the first few weeks. He based his conclusions on the claimant's subjective complaints rather than objective findings.

In a letter dated March 13, 1997, primary adjudication determined in light of the weight of evidence, that the claimant had recovered from the effects of the compensable injury. The claimant was paid wage loss compensation to March 20, 1997, inclusive and final.

On July 14, 1998, a worker advisor submitted additional medical evidence from a physiatrist, dated May 30, 1997, who diagnosed the claimant's condition as spondylitic spinal pain with S1 radiculopathy. Based on this report, the worker advisor requested that the Review Office rescind primary adjudication's decision of March 13, 1997 and award wage loss benefits to the claimant together with appropriate medical aid benefits. If the Review Office was not in agreement, then the worker advisor requested a Medical Review Panel (MRP) under section 67(4) of the Workers Compensation Act (the Act).

At the request of Primary Adjudication, the case was reviewed by a WCB medical advisor on August 12, 1998, following receipt of the additional medical evidence provided by the worker advisor. After reviewing the medical advisor's comments, primary adjudication determined that there would be no change to its earlier decision and that the worker advisor's request for a MRP would be denied. The case was then referred to the Review Office for further consideration.

On October 2, 1998, the Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond March 20, 1997, and that a MRP would not be convened. The Review Office based its decision on the weight of medical information, i.e. reports provided by the claimant's chiropractor, family physician, physiotherapist, the WCB's medical advisor's report dated February 1997, the results of x-rays, bone scan and CT scan. In the opinion of Review Office, there was no evidence to support the contention that the claimant remained disabled solely by reason of the compensable injury, a strain of the lumbosacral spine, beyond March 20, 1997. The Review Office also felt there was no difference of medical opinion to warrant the convening of a MRP.

On October 26, 1998, the worker advisor appealed the Review Office's decision and an oral hearing was later held on December 16, 1998.

Reasons

As recorded in the background notes, the claimant's benefits were terminated on March 20th, 1997. The WCB's Claims Services and Review Office were both of the view that the evidence failed to support the claimant's contention he remained disabled by reason of the compensable injury beyond this date. On the other hand, the claimant's worker advisor advanced the argument that the claimant had not fully recovered from the effects of the compensable injury and therefore his benefits were prematurely terminated.

The claimant was examined by a WCB medical advisor on February 28th, 1997. Contained in her examination notes were the following comments:

    "Based on today's history and physical examination, I am unable to provide an anatomical diagnosis regarding the claimant's low back pain. There are no symptoms or signs indicative of nerve root irritation. The claimant has good range of motion of his lumbosacral spine and x-rays and a bone scan were normal.

    Based on the above, I would encourage the claimant to return to his normal activities, including his workplace duties, as soon as possible. Hopefully, this can be arranged on a graduated basis with him (sic) limiting very heavy lifting and repetitive bending and twisting of the lumbosacral spine for the first few weeks. This is based on the (sic) his subjective complaints rather than any objective findings."

Despite the medical advisor's recommendation for a graduated return to work program, none was ever initiated by the WCB. Instead, the claimant's benefits were terminated strictly on the basis of a lack of objective findings.

The evidence confirms that the claimant did, on his own initiative, approach his employer and request suitable alternate work duties. Unfortunately, however, the employer did not always have light duties available and thus it could not accommodate the claimant's request until April 28th, 1997.

The claimant returned to work on the above date and performed duties which allowed him to avoid heavy lifting, repetitive bending and twisting as was recommended by the WCB's medical advisor. The employer paid the claimant wages from April 28th to May 30th, 1997. On June 1st, 1997, the claimant voluntarily retired from the employer's employment. The worker advisor informed the Panel that his client had in fact applied for CPP retirement benefits in January of 1997 and also that his client had met with the employer's human resource person to advise of his intention to retire on June 1st,1997. Consequently, the claimant was only seeking wage loss benefits for the five week period from March 21st to April 27th, 1997.

We find, based on the medical advisor's report of February 28, 1997, that the claimant was not, on a balance of probabilities, capable of returning to his pre-accident duties at the time his benefits were terminated. The medical evidence further confirms that the claimant did recover from the effects of the compensable injury subsequent to his retirement. The wage loss incurred over the above five week period could reasonably be anticipated and therefore should be paid to the claimant.

Given our determination with respect to the first issue, it becomes unnecessary to decide whether a Medical Review Panel should be convened.

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 9th day of February, 1999

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