The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 12, 1998, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 12, 1998, and January 18, 1999.

Issue

Whether there is basis to extend wage loss benefits beyond April 7, 1998.

Decision

That there is basis to extend wage loss benefits beyond April 7, 1998.

Background

While employed as a nursing assistant on July 6, 1997, the claimant injured his back while assisting a patient to a stretcher. The diagnosis reported by the attending physician was a muscle strain to the neck and lumbosacral region. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received benefits commencing July 7, 1997.

Subsequent medical information consisted of an x-ray report regarding the claimant's cervical and lumbosacral spines. The cervical spine revealed marginal bone lipping on the L4, L5 and L6 levels. No other bone or joint abnormality was seen. The lumbosacral spine films demonstrated a moderate degree of lumbar scoliosis convex left. There was a grade 1 retrolisthesis of L4 on L5 which was likely related to the degenerative change of the L4-5 facet joints. There was moderate narrowing of the L3-4 and L4-5 discs.

The claimant was regularly seen by his attending physician and underwent physiotherapy treatments directed towards his neck and back. On November 20, 1997, the claimant was assessed by a WCB medical advisor, at the request of the attending physician, to determine current status and functional capabilities.

Following the assessment, the WCB medical advisor noted that the claimant had a pre-existing history of congenital scoliosis with a T8 to T11 fusion which was performed when the claimant was 16 years old. She also noted that the claimant had degenerative changes on his lumbosacral spine on x-ray and that physiotherapy treatments had shown little improvement in the claimant's condition. The medical advisor felt that the claimant had strained his right upper trapezius and lower lumbar musculature in the accident of July 1997. The medical advisor also believed that the claimant's recovery was taking longer than what would normally be expected. This was possibly due to his muscular imbalance and degenerative disc disease secondary to his pre-existing thoracic scoliosis with fusion of T8 to T11. The medical advisor commented that once the claimant reached his baseline physical status and returned to his prior workplace duties, then any repetitive bending, twisting and heavy lifting would aggravate his upper and lower back complaints.

On December 12, 1998, the claimant was assessed by a physician specializing in pain and stress management, at the request of the WCB medical advisor. In his report, dated December 17, 1997, the physician diagnosed sleep disturbance and myofascial pain of the right supraspinatus, trapezius and both quadratous lumborum. A course of trigger point acupuncture was recommended as the choice of treatment. This was subsequently carried out.

The case was again reviewed by the WCB medical advisor on March 27, 1998, who noted that the claimant had been treated with physiotherapy and acupuncture. The claimant had also been provided with a gym membership. The medical advisor stated that the claimant had ongoing back stiffness with decreased range of motion of the thoracic spine which was most likely due to pre-existing pathology. In her opinion, the claimant had likely recovered from the workplace accident.

Based on the above comments, Claims Services notified the claimant that wage loss benefits would be paid to April 7, 1998. It felt that he had recovered from the effects of the July 6, 1997, compensable accident and that his ongoing complaints were related to his pre-existing condition. This decision was later appealed by a union representative, on behalf of the claimant to the Review Office.

Prior to considering the appeal, the Review Office obtained up-dated medical information from the treating physician specializing in pain and stress management.

On August 26, 1998, the Review Office determined, based on the weight of evidence, that the claimant had recovered from the effects of his injury and that the compensable accident was no longer playing a material role in his loss of earning capacity. The Review Office confirmed that the claimant was not entitled to wage loss benefits beyond April 7, 1998. On September 14, 1998, this decision was appealed to the Appeal Commission by the union representative and an oral hearing was held on November 12, 1998.

The claimant was advised on November 24, 1998, that the Appeal Panel wanted to obtain further medical information prior to its rendering a decision on his case. The Appeal Panel subsequently received a report, dated July 24, 1998, from the physician who had examined the claimant for long term disability purposes, as well as a report from an orthopaedic surgeon, dated December 16, 1998. These reports were then forwarded to all parties with a direct interest for comment. On January 18, 1999, the Panel met to render its final decision.

Reasons

The claimant sustained a compensable injury on July 6th, 1997. The condition was diagnosed as a muscular strain of the neck and the lumbosacral spine. Recent medical evidence indicated that the claimant was recovering from the effects of his strain. As of November 9th, 1998, the claimant began a six week return to work program and at the time of the hearing had only completed the first day's shift of three hours.

The claimant was examined by a physician on July 21st, 1998, for ongoing problems relating to neck and back pain. This examination came about as a result of the claimant's filing a claim pursuant to a long term disability plan of which he was a member. In addition to being eligible for benefits, the claimant was also entitled to a gradual return to program to be co-ordinated through the employer. The physician recorded the following remarks in a report, dated July 24th, 1998, to the disability plan consultant:

"This gentleman thus has ongoing symptoms although mild related to muscular strain of his cervical lumbar region with underlying degenerative disc disease of the lumbar region and long standing scoliosis with lower thoracic spinal fusion. He has difficulties undertaking any heavy physical activity and, as such, is not capable of undertaking the full duties of a Nursing Assistant. Specifically he would be limited in any heavy lifting, pushing, pulling or bending and twisting, He is fully capable of other work so long as these heavy activities are avoided. Considering the length of his current injury and the underlying structural abnormalities it may be difficult for this gentleman to be able to return to a position where he is required to do any heavy lifting etc. Within these limitations he is capable of full time employment."

At the request of the treating physician, the claimant was examined by an orthopaedic surgeon on November 24th, 1998. During his examination, the claimant made mention of the fact that he was involved in a work hardening program and that he was making good progress with respect to his condition. We requested the orthopaedic specialist to provide the Appeal Panel with a report outlining his examination findings. There was very little in the way of any clinical findings recorded. However, we did make note of final paragraph of the December 16th, 1998, account:

"My impression then was that Mr. [the claimant] was recovering from his severe low back sprain superimposed on his pre existing thoracolumbar scoliosis. He had previous lower thoracic spinal fusion with a right hump and fullness of the left flank, in addition to L4/L5 retrospondylolisthesis. He was encouraged to continue with his present rehabilitation programme and requested to report back if there was any further deterioration in his spinal condition."

The weight of evidence has led us to the conclusion that the claimant's wage loss benefits should be extended beyond April 7th, 1998. Given that the claimant's work hardening program was scheduled to be completed around the middle of December, we leave it up to the WCB to determine the duration of these benefits.

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 19th day of February, 1999