The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 15, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 16, 1999.

Issue

Whether responsibility should be accepted for the worker's ongoing difficulties and subsequent wage loss from November 4, 1996; and

Whether a Medical Review Panel should be convened under Section 67(4) of the Workers Compensation Act.

Decision

That responsibility should not be accepted for the worker's ongoing difficulties and subsequent wage loss from November 4, 1996; and

That a Medical Review Panel should not be convened under Section 67(4) of The Workers Compensation Act.

Background

The claimant has several claims with the Workers Compensation Board (WCB) dating back to 1985 for lower back injuries which he sustained while employed as a school custodian.

On April 25, 1995, the claimant injured his mid low back region after lifting a 30-40 pound bucket of sand. The initial diagnosis was a lumbar strain with questionable sciatica. The claim was accepted by the WCB and benefits were paid to May 15, 1995, when the claimant returned to work.

Subsequent to his return to work the claimant exhibited continuing discomfort with his back region. Wage loss benefits were issued to the claimant between August 31 and September 1, 1995, November 20 and December 1, 1995, and from May 15 and May 25, 1996. During these periods of time loss the claimant was seen regularly by his attending physician and had undergone several investigations, including a CT of the lumbosacral spine which was taken on September 20, 1995. The report revealed a right lateral osteophyte with disc protrusion at L5-S1 just contacting the right S1 nerve root. The report also indicated that there had been no significant change since August 1990.

Between May and September 1996, the claimant continued working, however, he experienced pain and discomfort in his back. In this regard, the claimant was seen regularly by his attending physician and was assessed by a physical medicine and rehabilitation specialist on September 13, 1996. The claimant also commenced physiotherapy on September 23, 1996 (discharged November 4, 1996) and was seen on September 26, 1996, by the Director of the Pain Clinic.

On November 4, 1996, the claimant stated that he stepped off a concrete pad in the boiler room at work when his right heel got caught causing a sharp pain in his right leg and increasing pain in his left leg. The claimant sought treatment from his attending physician between November 4, 1996, and January 7, 1997, and was reassessed by the physical medicine and rehabilitation specialist on November 8, 1996. The claimant was also assessed by a WCB neurologist on January 3, 1997, and had undergone a MRI on January 17, 1997. On January 21, 1997, a WCB medical advisor responded to certain questions that were posed to him by primary adjudication.

In a decision letter dated February 11, 1997, primary adjudication advised the claimant that it could not accept responsibility for his current back difficulties related to any of his claims with the WCB. Primary adjudication stated that all reports and prior claims were reviewed in consultation with a WCB medical advisor, which included the results of a 1990 CT scan and MRI. In the medical advisor's opinion, the claimant had a pre-existing degenerative condition with no evidence of enhancement by any of the work place injuries. There was no evidence to relate his present condition to the effects of any work related injuries.

With regard to the new incident that occurred on November 4, 1996, primary adjudication considered the medical findings before and after November 4, 1996, and concluded they were essentially the same. In the opinion of primary adjudication, the findings did not support that a new injury occurred on November 4, 1996.

Primary adjudication further determined, based on the weight of evidence, that the claimant had recovered from the effects of his work related accidents, and that his current difficulties were not, on a balance of probabilities, related to the 1995 accident.

On February 24, 1997, the WCB received a letter from an orthopaedic specialist who had assessed the claimant on January 24, 1997, at the request of his attending physician. This report was subsequently reviewed by a WCB medical advisor at the request of primary adjudication. On April 29, 1997, primary adjudication stated there would be no change to its earlier decision of February 17, 1997, as in the opinion of the medical advisor, the orthopaedic specialist's report did not support the claimant 's contention that his back difficulties were related to the effects of his work place injuries.

In a memo to file dated March 18, 1997, a WCB adjudicator documented that she spoke with the claimant and he advised her that he was returning to modified duties as a caretaker on a graduated basis.

On August 11, 1998, a worker advisor submitted an appeal to the Review Office in which he argued that the preponderance of medical information contained on file supported the claimant's position that his time loss that commenced on November 5, 1996, was a result of exacerbations to his compensable April 25, 1995 work injury. In summary, the worker advisor requested benefits between November 5, 1996, to the date the claimant returned to work which was sometime in March 1997. As the claimant did not return to full days as of March 1997, the worker advisor requested wage loss benefits during the claimant's gradual return to work. In the event the Review Office did not agree with the above, a Medical Review Panel (MRP) was requested in accordance with Section 67(4) of the Workers Compensation Act (the Act).

The Review Office in turn referred the case back to primary adjudication to deal with the issue pertaining to a MRP as it had not been previously addressed. On September 4, 1998, primary adjudication denied the request for a MRP as it was of the opinion a difference of medical opinion did not exist between the WCB's medical advisors or the treating physicians including the report by the orthopaedic specialist.

On November 6, 1998, the Review Office determined that the claimant was not entitled to wage loss benefits beyond November 5, 1996. This decision was reached based on the following weight of evidence:

• the history of the worker's back difficulties prior to April 25, 1995;
• the degenerative changes in his spine;
• the mechanics of the incident of November 4, 1996;
• the findings submitted by the attending physician prior to and following the November 4, 1996, examination;
• expected symptom duration for the originally diagnosed injury of April 25, 1995; and
• subsequent investigation findings and clinical findings.

The Review Office was of the opinion that the claimant did sustain an accident at the workplace on November 4, 1996, however there were no findings to substantiate any wage loss. The November 4, 1996, incident did not contribute to a material degree to a loss of earning capacity beyond November 4, 1996.

With respect to convening a MRP, the Review Office stated there was no justification to do so as the requirements of Section 67(4) had not been fulfilled. The Review Office felt the report submitted by the attending orthopaedic specialist was not supportive of the facts and reasons supporting his medical conclusions but rather it was more based on speculative comment.

On December 17, 1998, the worker advisor appealed the Review Office's decision and an oral hearing was convened.

Reasons

The issues in this appeal are whether responsibility should be accepted for the worker's ongoing difficulties and subsequent wage loss from November 4, 1996 and whether a Medical Review Panel should be convened under subsection 67(4) of the Workers Compensation Act (the Act).

The relevant subsections of the Act are subsections 39(2) which provides for the continuation of wage loss benefits until the loss of earning capacity from personal injury sustained by an accident arising out of and in the course of employment ends; and subsection 67(4) which provides for the convening of a Medical Review Panel where there is a difference of medical opinion between a WCB medical advisor and a physician selected by the worker on a medical matter affecting entitlement.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

a) the loss of earning capacity ends, as determined by the board; or

b) the worker attains the age of 65 years.

Subsection 67(4) states:

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter or the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Issue 1: That responsibility should not be accepted for the worker's ongoing difficulties and subsequent wage loss from November 4, 1996; and

The evidence reveals that the claimant originally sustained an injury to his back on April 25, 1995 while lifting a bucket weighing 30 to 40 lbs. over his shoulder. The claimant initially returned to work in mid May 1995 however experienced several recurrences of symptoms which were accepted by the WCB as related to the original injury. Subsequently the worker reported on a Workers Report of Injury that on November 4, 1996 he was performing boiler tests when he stepped off a pad, caught his right heel which caused sharp pain in his right leg and increased pain in the left leg and a burning sensation in his spine. According to the Workers Report he was required to lose time from work effective November 5, 1996 and is claiming full wage loss benefits effective from that date to March 19, 1997 when the claimant started a graduated return to work program and partial wage loss benefits for the duration of the graduated return to work program.

We reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that there is no basis to extend benefits to the worker beyond November 4, 1996. In reaching this conclusion we placed weight on the following evidence:

• in a report dated September 13, 1996 a physical medicine and rehabilitation specialist indicates that the claimant has mechanical spondylotic and discogenic pain syndrome to be treated with epidural corticosteroids followed by a dynamic lumbar stabilization exercises program. At that time he finds the claimant capable of light duties avoiding lifting more than 25 lbs. and to avoid frequent bending and twisting activities;
• in a physiotherapy department progress note, the claimant was discharged from physiotherapy treatment on November 1, 1996 as he appeared objectively improved and it was felt that the claimant was ready to continue with stretches and lumbar stabilization exercises independently;
• the same report indicates that the claimant was doing well with lumbar stabilization exercises and demonstrated, on lumbar spine range of motion, that flexion was: fingertips to floor with no pain; and extension was half range with some pain; straight leg raising was negative and no tenderness was elicited on palpation. A discharge letter was sent to the claimant's physician;
• in a Worker's Report of Injury the claimant indicates there was an incident at work on November 4, 1996 when he stepped off a concrete pad in the boiler room at work when his right heel got caught causing a sharp pain in his right leg and increasing pain in his left leg;

• the claimant sought medical attention on November 4, 1996 from his attending physician who indicated in a report continued low back pain with radiation into the legs especially after increasing heavier work while moving desks the week before. He indicates in the report that the claimant could do light work which avoids bending and lifting;

• the claimant was seen by a physical medicine and rehabilitation specialist on November 8, 1996 four days after the incident at work on November 4, 1996 where no reference is made to any increase in back symptoms or further incident at work. In fact the specialist states:

  " Mr. L. (the claimant) has made a good recovery from radiculitis and discogenic pain syndrome. He does have mild restriction of the movements of the spine. He is experiencing rectal pain and burning sensations in the crotch and this should be investigated from a genitourinary and lower G.I pathology point of view. I have not made any follow-up arrangements but in case he develops any recurrence of radiculopathy or neuromuscular skeletal spinal problem, I would be pleased to review him in the clinic."

• the claimant was seen by his attending physician on November 29, 1996 and December 13, 1996 where improvement of back symptoms is noted with full range of motion of the back and the claimant is found to be fit for light work avoiding lifting and bending;
• the claimant was seen by his attending physician on December 16, 1996 for a flare of back pain with slight increase in activity at home over the weekend and increasing pain even with walking or slight bending;
• on December 23, 1996 the file was reviewed at the request of WCB and the medical advisor indicated that the current diagnosis was mechanical back strain with temporary aggravation by the compensable injury - muscle strain. When asked if there was a causal relationship between the current problems and the compensable injury, the medical advisor gave his opinion that there was not. He states:

  " He may have a back at risk which would make certain activities likely to exacerbate his symptoms. I do not feel he needs any restrictions directly related to C.I."

• the claimant was examined by a WCB neurological medical advisor on January 3, 1997. Neurological examination including cranial nerve testing and examination of limbs was normal. Tone, power, co-ordination, reflexes and sensation in his limbs were normal with no radicular or peripheral nerve signs. The claimant had some discomfort on rotation of the spine as well as lateral flexion. No specific movements caused any radiating pain. An MRI was ordered in view of the report of pain radiating into the genital area. The neurologist indicated that the claimant should be encouraged to resume normal activities and if the MRI was normal he should exercise;
• a WCB memorandum to file dated January 6, 1997 recording a three way telephone conversation between the WCB and representatives of the employer indicates that the employer was aware of the claimant's continuous back problem and did recall the claimant mentioning an increase in back pain following an incident in the boiler room which may have been about two weeks prior to the claimant going off work;
• the claimant was seen by his attending physician on January 7, 1997, having been off work since November 4, 1996. The attending physician indicates continuing back pain which had been worse over the last three days;
• an MRI report of January 17, 1997 of the thoracic and lumbar spine indicated that at T7-8, there was a very tiny central disc herniation without evidence of spinal stenosis or nerve root compression with associated degenerative narrowing and dessication of the T7-8 intervertebral disc. At L4-5 level there was mild degenerative narrowing and dessication of the intervertebral disc with a very small central disc herniation. At the L5-S1 level there was mild degenerative narrowing and dessication of the intervertebral disc and a very small right posterolateral disc herniation without definite evidence of nerve root compression;
• the file was referred to a WCB medical advisor following receipt of the MRI report and the medical advisor gave his opinion that the current working diagnosis was pre-existing degenerative joint disease of the thoracolumbosacral spine with multi level intervertebral disc protrusion (mild) with no evidence of nerve root compression based upon both clinical and imaging studies;
• the medical advisor further gives his opinion that intervertebral disc narrowing, bulging and protrusion is part of the degenerative joint disease process and that the widespread changes seen on diagnostic testing probably account for the claimant's reported recurring symptoms with no evidence to support enhancement of the pre-existing condition due to compensable injuries;
• the medical advisor further indicates that the natural history of the pre-existing condition is one of spontaneous exacerbations and remissions with predictable waxing and waning of symptoms and during these periods the claimant would be advised to do only light duties.

Based on the weight of the evidence, on a balance of probabilities, we find that the claimant has widespread degenerative changes affecting his spine as demonstrated on diagnostic testing which are subject to exacerbation from activities both in the workplace and at home and from the activities of daily living. We find that these degenerative changes have not been enhanced by the compensable injuries. We are also of the opinion that the worker did sustain an accident at the workplace on November 4, 1996. However, on a balance of probabilities, the evidence does not support a claim for loss of earning capacity based on a condition of total disability beyond November 4, 1996. On the contrary, the evidence supports a finding that the claimant was capable of performing modified duties which were available from the employer. Therefore the claimant's appeal on this issue is denied.

It is clear due to the claimant's pre-existing degenerative changes and history of work related injuries that he has a back at risk of further injury and in this regard we make no ruling but would recommend the WCB investigate whether the claimant would be entitled to preventative rehabilitation services.

Issue 2: That a Medical Review Panel should not be convened under Section 67(4) of THe Workers Compensation Act.

Whether a Medical Review Panel (MRP) should be convened under subsection 67(4) of the Act.

Under this section of the Act a treating physician has to express their opinion in a certificate in writing. The Act defines an opinion to be a full statement of facts and reasons supporting a medical conclusion on a medical matter affecting entitlement to compensation.

In considering this issue the panel considered all the medical information on file and given at the hearing with respect to the claimant's back condition and, in particular, that of the attending orthopaedic consultant in his report dated February 21, 1997.

The panel is of the opinion that there is no difference of opinion between the WCB medical advisors and the claimant's treating physicians.

We find that the attending orthopaedic specialist does not provide a definitive diagnosis or articulate the facts and reasons to support a causal relationship between the claimant's current symptomatology and any work injury. He indicates that the claimant has chronic lumbar back pain with intermittent radiation of pain to the legs. He further indicates that the claimant has spinal degenerative changes and that the lower discs are dessicated and therefore losing their ability to absorb shocks.

We find that the WCB medical advisor does not appear to be in disagreement with this finding. We also find that the orthopaedic surgeon does not offer the facts and reasons supporting his conclusion. He states:

"Without other information it sounds as if the recurrent work injuries have contributed to his back problem."

The orthopaedic consultant provides comment on the WCB medical advisor's opinion of pre-existing widespread degenerative spinal disease yet does not indicate what way he would describe it or articulate any facts that would support an alternate conclusion. He states:

" I am not sure I would describe it that way."

In summary, we find that the evidence, on a balance of probabilities, does not support a conclusion that there exists a difference of opinion between the claimant's treating physicians and the WCB medical advisors as required by the Act. Therefore the claimant's appeal on this issue is also denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of March, 1999