The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 2, 1998, following receipt of an appeal by legal counsel, acting on behalf of the claimant. Following the hearing and discussion of the case, the Appeal Panel requested further medical information from the employer and requested that a Medical Review Panel (MRP) be convened in accordance with Section 67(3) of the Workers Compensation Act (the Act). On March 5, 1999, the Panel met to render it final decision.

Issue

Whether there is basis on which to extend compensation (wage loss benefits, vocational rehabilitation services, medical aid) beyond November 28, 1996.

Decision

That there is basis on which to extend compensation (wage loss benefits, vocational rehabilitation services, medical aid) beyond November 28, 1996.

Background

A complete background concerning the details of this case can be found under Excerpt No. 42/98 and will be not be repeated in its entirety at this time.

Briefly, on July 27, 1982, the claimant was working in an awkward position underneath a locomotive traction motor when he experienced severe back pain. The attending physician diagnosed a strain of the intervertebral ligament. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid up to November 28, 1996, when it was determined that the claimant no longer had compensable restrictions in relation to the 1982 workplace accident. This decision was upheld by the Review Office when it determined there was no basis to extend compensation (wage loss, benefits, vocational rehabilitation services, medical aid) beyond November 28, 1996. The Review Office concluded that the claimant had recovered from the effects of the
compensable injury and that his current symptoms of mechanical low back pain and/or facet joint arthropathy was likely not related to the compensable injury. Legal counsel for the claimant appealed the Review Office's decision and an oral hearing was arranged for September 2, 1998.

On September 14, 1998, the Appeal Panel decided that a Medical Review Panel (MRP) was in order to assist it in reaching a decision concerning the issue under appeal. Additional information was also requested from the accident employer regarding an assessment that the claimant underwent in 1995 regarding his "lifting capabilities."

In response to the Panel's request, the accident employer provided the Appeal Commission with a copy of a Functional Capacity Evaluation (FCE) which was performed on April 25, 1996. The reason for the referral had been to assess the claimant's functional capacity to determine whether he would be capable of working in a diesel shop. Under "Summary and Recommendations", the occupational therapist made the following statements:

"[The claimant] is a 53 year old male who worked as an electrician until his back injury in 1982. Since that time he has worked in a light duty job in which he sat in a reclined chair at a table operating a computer and doing paper work. He stated that once per hour he got out of the chair, stretched and walked around for about 5 minutes.

A functional capacity evaluation was performed on April 25, 1996. Results of the evaluation demonstrated [the claimant] to be very limited. He would be able to lift 5 pounds at waist height on an occasional basis, carry 5 pounds with two hands at waist height over short distances, be seated in a reclined position for most of a work day with breaks 2-3 times hourly to walk and stretch, push and pull light objects such as a small four wheeled cart on a smooth surface, work at one level for the most part i.e. climbing a minimal number of steps, and perform little or no work overhead. His endurance for light work in a short time period appeared fine, however the discomfort [the claimant] reported prevented him from doing most things on a repetitive basis.

From the testing and observation of Mr. [the claimant], he did appear to be slightly more capable than his last job would suggest. From the previous listed capacities [the claimant] is quite limited and it will be difficult to place him. However, there seems to be some potential for slight improvement and [the claimant] may be able to be placed in a job that is slightly above his current functional level."

Prior to the convening of a Medical Review Panel (MRP), the claimant had lumbosacral spine x-rays taken on November 19, 1998, which showed no abnormalities. A CT of the lumbosacral spine was carried out on January 4, 1999, and it revealed no evidence of a disc herniation, spinal stenosis or nerve root compression at any of the image levels. The paraspinal soft tissues were not remarkable.

The MRP which was held on January 29, 1999, made the following statements in response to the questions posed by the Appeal Panel:

“Question #1: What was the claimant’s diagnosis in 1982 following the compensable injury?

Answer: After reviewing supplied notes, examining the

x-rays and CT scan and, after interviewing and examining [the claimant], the Panellists agree unanimously that the diagnosis in 1982 was Mid-back Strain.

Question #2: What is the claimant’s current diagnosis?

Answer: The Panellists agree that the current diagnosis is Chronic Pain Syndrome.

Question #3 Is the current diagnosis causally related to the compensable injury? Please explain.

Answer: The Panellists agree that it is. The Panellists agree that the current diagnosis is causally related to the compensable injury, to the subsequent treatment and to the subsequent Workers Compensation Board advice assigning permanent restrictions, compensable accident related.

Treatment offered has been largely ineffective. Despite numerous consultations and investigations no firm diagnosis, that can be referred to an injury, has been supplied.

Approximately two years after the reported injury, a Workers Compensation Board Medical Advisor, specialist in Orthopaedics, gave the opinion that Mr. [the claimant] was permanently disabled as a result of his injuries and gave him severe restrictions which Mr. [the claimant] follows to this day. These restrictions were “no forward bending, lifting, twisting or turning movements related to his job activities.”

These restrictions were noted to be “directly related to his work injury even although a diagnosis cannot be affixed to his problem and it has to be looked upon as a “facet syndrome”.

Question #4: What restrictions, if any, apply and of what duration?

Answer: The Panellists agree that after the imposition of restrictions which have been adhered to for more than 14 years, it is unlikely that Mr. [the claimant] will be able to change his attitude towards his condition.

The Panellists then agree that the above restrictions are, practically speaking, permanent.

Question #5: Are these restrictions related to the compensable injury?

Answer: There is no evidence of an accident related back injury at this time. The restrictions apply to the developed Chronic Pain Syndrome with a consequent non-functioning spine.

The Panellists state that in their opinion, the Chronic Pain Syndrome resulted from the treatment following the accident and the subsequent advice given by a Workers Compensation Board Medical Advisor.”

On February 10, 1999, all concerned parties were provided with the results of the MRP along with the FCE report, x-rays and CT scan findings, and were asked to submit rebuttal arguments to the Appeal Panel. Responses were received from both the employer’s advocate and the claimant’s legal representative dated February 25, 1999, and were considered by the Panel.

On March 5, 1999, the Panel met to render its final decision.

Reasons

The Panel heard this case on September 2, 1998. As a result of the evidence provided from the file and at the hearing and questions arising therefrom, the Panel determined that a Medical Review Panel (MRP) should be struck under the authority of section 67(3) of the Workers Compensation Act (the Act). This section reads:

67(3) Where in any claim or application by a worker for compensation a medical matter arises in which the board desires a further opinion, the board may refer the matter to a panel for its opinion in respect of the matter.

The Panel established questions to be put to the MRP. The Panel also requested a copy of a Functional Capacity Evaluation (FCE) of the claimant which had been undertaken by the employer in May 1996.

On receipt of the MRP's responses and the FCE, both documents were provided to the Panel and the interested parties. The employer's advocate expressed concern over the findings of the MRP and suggested that the file be returned to the WCB so that the matter of chronic pain syndrome could be adjudicated by WCB staff. The advocate did not feel it was appropriate for the Appeal Panel to deal with this issue.

The Panel is of the opinion that they do have the jurisdiction to make a decision on this claim. The issue before the panel is whether there is basis on which to extend compensation to the claimant beyond November 28, 1996. The evidence on file and the presentations made at the hearing dealt with the permanent restrictions placed on the claimant in 1984, and whether those physical restrictions were justified beyond November 28, 1996. The Panel then exercised its discretion to convene a MRP in order to clarify the claimant's condition and its relationship to the compensable injury, what restrictions apply to the claimant, and the relationship of those restrictions to the compensable injury. The Panel notes that copies of these questions were provided to both the worker, employer and their respective advocates, and that no concerns were expressed in regard to the questions.

The Panel is of the opinion that the questions put to the MRP are within the scope of the issue as set out in this appeal and as argued by the respective advocates at the appeal, and that the answers provided by the MRP to each question were within the scope of the questions put before them. The specific findings provided by the MRP are a "further opinion", as described in Subsection 67(3) of the Act, that is considered and weighed by the panel in concert with all evidence on file and presented at the hearing. Accordingly, the Panel is of the opinion that there is no new issue before it, and that it has the jurisdiction to deal with the issue as stated.

In dealing with the issue at hand, namely whether there is basis to extend compensation beyond November 28, 1996, the Appeal Panel gives considerable weight to the comments of the MRP, as set out in the background above. The MRP clearly related the claimant's current condition to the compensable injury and the consequences which were under the WCB's control. Questions 4 & 5 inquire about restrictions and establish their relationship to the compensable injury. The responses as noted in the background establish that full recovery had not occurred.

We find that the permanent restrictions applied by a WCB medical advisor over a decade ago have been adhered to by the claimant and are considered by the MRP to be "practically speaking permanent" and a consequence of the compensable injury. The FCE undertaken by the employer clearly outlines the limitations on the claimant's physical capabilities and this along with the MRP results have demonstrated to the Appeal Panel that the claimant has not recovered from the compensable injury and its effects.

The Appeal Panel consequently determines, on a balance of probabilities, that the claimant continues to be eligible for compensation (wage loss benefits, vocational rehabilitation services, medical aid) beyond November 28, 1996. The claimant's appeal is therefore granted.

Panel Members

R. Cathcart, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 31st day of March, 1999