The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 9, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 9, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits beyond July 9, 1997, due to the effects of his work related accident in June 1997.

Decision

That the claimant is entitled to payment of wage loss benefits beyond July 9, 1997, due to the effects of his work related accident in June 1997.

Background

On June 2, 1997, the claimant was descending a ladder on the side of a fuel truck when he was hit on his tailbone by a swinging compartment door. When seen at a hospital emergency room on June 14, 1997, the attending physician reported a two week history of tenderness at the base of the coccyx. No neurological deficit was noted. The physician's diagnosis of the claimant's condition was coccydynia. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid to July 9, 1997, when the claimant returned to work. It was at this time that the attending physician reported the claimant had minimal tenderness over the coccyx and good range of motion.

On July 25, 1997, a chiropractor reported that the claimant was first seen on July 11, 1997, with subjective complaints of "constant pain in tailbone, referring to medial thighs. Difficulty sitting." Objective findings revealed lumbar range of movement normal in all directions, sacroiliac mobility normal, tenderness surrounding and on coccyx. The chiropractor noted that the claimant was treated on July 11, 16, and 23 with ice, ultrasound, soft tissue and trigger point therapy to coccyx area but no improvement had been noted.

A WCB chiropractic consultant spoke with the attending chiropractor by phone on August 8, 1997. The attending chiropractor stated that she had some concern regarding the claimant's ongoing time loss which she did not authorize. After a review of the file contents, a WCB chiropractic consultant determined that there was no evidence to support time loss past the return to work date of July 9, 1997.

On July 29, 1997, a second treating physician reported that he had referred the claimant to an orthopaedic surgeon as the claimant was exhibiting tenderness over the coccyx region.

On October 2, 1997, the orthopaedic specialist reported that the claimant had marked tenderness to palpation over the coccyx. The claimant was given an injection into the coccygeal region to see if it would give him some relief.

The case was reviewed by a WCB medical advisor on October 12, 1997. The medical advisor's opinion was that the new medical evidence did not provide support for total disability past July 9, 1997.

The next report from the orthopaedic specialist was dated October 22, 1997. The specialist indicated that the coccygeal injection which took place on October 1st did not provide the claimant with any major long term relief and that a bone scan was being arranged.

On November 5, 1997, the claimant was advised by primary adjudication that the medical information submitted by both his general practitioner and orthopaedic specialist had been reviewed by a WCB medical advisor. This information indicated that although the claimant had tenderness over the coccyx area, there were no fractures evident on x-rays. The x-rays also indicated the coccyx was normal. Primary adjudication concluded the medical evidence did not support total disability after July 9, 1997.

A follow-up report from the orthopaedic specialist, dated December 15, 1997, noted that the bone scan performed on October 30, 1997, showed mild increased uptake at L1, L2 and L4. According to the specialist, these findings were considered consistent with early degenerative changes. The patient however, had no evidence of increased uptake about the sacrum, or the coccyx. The specialist concluded his report by stating that he had made no further appointments to see the claimant. "It is my impression that I would follow the patient with observation."

On November 4, 1998, a worker advisor appealed the WCB's decision of November 5, 1997, on behalf of the claimant. The worker advisor contended that the claimant had not completely recovered from his compensable injury until December 15, 1997. This contention was based on medical information noted throughout the file.

In a decision, dated December 4, 1998, the Review Office stated it was not satisfied that the claimant's loss of earning capacity after July 9, 1997, was a reasonable consequence of his previous work-related accident or that wage loss benefits were payable after this date, under section 39 of the Act. The Review was of the opinion that:

• the weight of evidence suggested the claimant suffered a minor contusion to the coccyx region at the time of the work related injury. This was confirmed by the fact that medical tests/examinations showed no objective clinical findings of any significant injury, and that the claimant was able to continue performing his regular duties for almost 2 weeks after the accident happened.
• the claimant should have been able to return to work by July 9, 1997, based on the predominant healthcare evidence, without any increased risks of further injury or damage to the coccyx region.
• a somewhat different medical opinion was noted concerning the claimant's employment capability in July 1997, which had not been significantly supported by objective findings of disablement, and found that this may have been influenced to a large degree by the nature of the claimant's subjective complaints.
• the claimant did not even try a return to work when advised by his attending doctors that he was able to do so and consequently made little effort to mitigate the effects of his work-related accident subsequent to July 9, 1997.

On January 5, 1999, the worker advisor appealed the Review Office's decision and an oral hearing was held on February 9, 1999.

Reasons

A review of the evidence reveals that the claimant had not completely returned to his pre-accident status at the time of the termination of his benefits. The medical evidence confirms that the claimant continued to receive ongoing medical treatment beyond July 9th, 1997, up to December 15th, 1997. In this regard, we attached considerable weight to the following body of evidence:

• July 25th, 1997 - chiropractor's first report. Date of first treatment July 11th, 1997. "Constant pain in tailbone. Difficulty sitting. Tried 3 treatments (July 11, 16, 23) ... but no improvement noted. Have referred patient for medical care."
• July 29th, 1997 - first report from the second treating physician. He diagnosed a coccyx injury and recommended the claimant be examined by an orthopaedic specialist.
• October 2nd, 1997 - letter from the orthopaedic surgeon to the treating physician. "This gentleman was seen today, October 1st. The patient does have marked tenderness to palpation over the coccyx. At this time I gave the patient an injection into the coccygeal region to see if this would give him relief."
• October 22nd, 1997 - letter from the orthopaedic surgeon to the treating physician. "This gentleman was seen today, October 22nd. I note that the patient was given a coccygeal injection when I saw him three weeks ago, October 1st. The patient states that he only had a little bit of relief from the injection. The patient, hence, did not get any major long term relief. At this time, I am scheduling him for a bone scan which will be done at the Grace Hospital. I will keep you informed."
• December 15th, 1997 - letter from the orthopaedic surgeon to the treating physician. "The patient ... was scheduled for a bone scan which was done at the Grace Hospital on October 30, 1997. I do note that the bone scan showed mild increased uptake at L1, L2 and L4. These were considered consistent with early degenerative changes. However, the patient had no evidence of increased uptake about the sacrum, nor the coccyx. This patient, when seen on December 3rd, was advised of these findings. The patient, I note, did have an xray September 15th, which showed no fracture of the coccyx. The bone scan, which was done on October 30th, also showed no increased uptake, which would be consistent with there being no fracture. I have made no further appointments to see this patient. It is my impression that I would follow the patient with observation."

We find, based on a preponderance of evidence, that the claimant was, on a balance of probabilities, incapable of performing his pre-accident duties as a heavy equipment operator at the time his benefits were terminated. Accordingly, the claimant is entitled to the payment of wage loss benefits beyond this date. We note that benefits were specifically being sought from July 10, 1997, to December 15, 1997, being the claimant's last treatment date.

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 4th day of March, 1999