The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 15, 1998, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last date being March 11, 1999.

Issue

Whether the claimant is entitled to further benefits after March 12, 1997, due to the effects of any work-related accident experienced between January 1990 and March 1996.

Decision

That the claimant is entitled to benefits commencing on the date he contacts the WCB to initiate a return to work plan.

Background

While employed as a food processor the claimant injured his lower back region while lifting a mixer on March 6, 1996. Initial medical information diagnosed the claimant's injury as a sprain of the neck and back. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. It should also be noted that the claimant has had similar work related lower back claims, between January 16, 1990 and February 10, 1994.

On July 26, 1996, an orthopaedic specialist reported the claimant had a seven year history of progressively increasing lower lumbar back pain from heavy physical work. The specialist's opinion was that the claimant had mechanical lumbar back pain as a result of lumbar degenerative disc disease. The specialist further stated that the claimant had cervical degenerative disc disease and that x-rays showed narrowing at many levels. He stated that the claimant had a back at risk. There was no indication for any invasive treatment other than conditioning and exercising. He said the claimant should pursue lighter employment.

The claimant was examined by a WCB medical advisor on January 16, 1997, in order to assess his medical status and work capabilities. Following the examination, the medical advisor stated the following:

• the claimant was likely suffering from degenerative disc disease with probable aggravation from his work related activities and obesity resulting from his quitting smoking.
• the claimant was not totally disabled, however, he may have problems returning to his pre-injury duties. The claimant was considered fit for modified duties with restrictions to avoid repetitive bending and twisting along with heavy lifting of more than 20 pounds. The restrictions were to be in place for a duration of 6-8 weeks. It was also suggested that the claimant be referred to physiotherapy for a lumbar stabilization program and physical conditioning exercises.
• the claimant had a long history of chronic low back and neck pain which resulted in a lot of time loss from work. In the opinion of the medical advisor, it was unrealistic to expect the claimant to be pain free prior to his returning to work. On a balance of probabilities, the claimant had recovered to his pre-injury status and would be able to return to work by the end of his physiotherapy program. "Having stated that, I believe it is also true that the claimant has quite significant degenerative disc disease in his neck and back and that he has multiple previous work related injuries to those regions; therefore, in my opinion, there will likely be recurrence of his problem if he returns to work without some accommodation from his employer."

On February 14, 1997, a WCB adjudicator contacted the treating physiotherapist who advised that the claimant had commenced a six week physiotherapy course beginning January 29, 1997, and that he would be finished treatments by March 12, 1997.

On February 17, 1997, the claimant was advised by Claims Services that following physiotherapy he would be considered fit to return to work on March 13, 1997. Any ongoing symptoms or medical problems beyond this date would be considered due to his degenerative disc disease and not the March 6, 1996, work place injury.

A report received from the treating physiotherapist, dated February 26, 1997, indicated the claimant was not doing very well. The therapist stated the claimant was complaining of so much pain that he was unable to do much in the exercise sessions.

On April 15, 1997, the Review Office wrote to the claimant acknowledging receipt of his letter, dated April 9, 1997, requesting reconsideration of the adjudicator's February 17, 1997, decision. The reasons outlined by the claimant for appealing the decision were based on the facts that his back had not improved since July 11, 1996, and that his back pain became worse during the first two weeks of physiotherapy.

In a memo, dated May 27, 1997, the Review Office referred the case back to initial adjudication in order to obtain current medical information and to determine whether there was basis to consider vocational rehabilitation benefits and services on a preventative basis. In the interim, medical information was received from a physiatrist, dated July 10, 1997. The physiatrist had ordered a CT scan as well as a lumbar stabilization program, based on his diagnosis of lumbar spondylosis.

On November 17, 1997, a CT scan showed minor degenerative changes in the lumbar spine without disc herniation or spinal stenosis.

A follow-up report from the physiatrist, dated December 2, 1997, indicated that the claimant had lumbar spondylosis with mechanical back pain syndrome. He felt that the claimant could do light duties but should not lift more than 25 pounds and that the claimant should avoid repetitive bending, twisting and lifting.

On December 8, 1997, the family physician reported the claimant's back condition had not changed and that he required medication and therapy.

A report was received from a different orthopaedic surgeon who assessed the claimant in 1993. He reported the claimant had a low back pain off and on for four years and neck pain for about three years. X-rays taken at the time showed degenerative changes at L3-4, L4-5, C4-5, C5-6, and C6-7.

On February 11, 1998, Claims Services wrote to the claimant to advise that a WCB medical advisor had reviewed the additional reports. In the medical advisor's opinion, the claimant was suffering from pre-existing degenerative disc disease. In view of the medical advisor's comments no change would be made to the decision of February 17, 1997.

On March 11, 1998, a Vocational Rehabilitation Consultant (VRC) produced a file work up to determine the cost effectiveness of preventive vocational rehabilitation benefits and services. On April 9, 1998, the VRC determined that the claimant was not entitled to vocational benefits and services in light of the WCB's decision that he had recovered from the effects of his workplace injury. The VRC indicated in her letter that the claimant had made it quite clear that he was physically incapable of returning to work with his employer at either his old job or the position on the production line. The claimant indicated that he was not seeking employment of any kind and that he had applied for disability benefits through his employer. As the claimant had no plans to return to work, there was little chance he would be at risk for further injuries. Because there was no potential injury to prevent, the provision of benefits and services by the WCB was not warranted.

With the assistance of a union representative, the claimant appealed the WCB's decision that his ongoing disability was due to pre-existing degenerative disc disease and not due to his numerous workplace accidents. It was the union representative's position that the claimant did not suffer from a non-work related pre-existing condition. He stated that the claimant's latest accident of March 1996 had further exacerbated his condition. A condition caused by his work related activities and previous injuries dating back to 1990. The claimant was at the point that he was now unable to return to his pre-accident employment.

On September 18, 1998, the Review Office determined the claimant was not entitled to benefits after March 12, 1997. In the Review Office's opinion, the claimant's ongoing back symptoms and/or disablement after March 12, 1997, was the result of degenerative disc disease at multiple levels of the lumbar and cervical spine. Review Office stated there was no medical evidence supported by a statement of facts and reasons, or clinical findings to indicate there had been any residual impairment caused by the claimant's various localized low back injuries occurring between January 1990 and March 1996.

Further, the Review Office did not believe there was evidence to show that degenerative lumbar and cervical disc disease was a condition which was peculiar to or characteristic of the claimant's trade, occupation or employment or that it was a common increased risk among workers who regularly performed heavy lifting and strenuous activities. Degenerative disc disease was quite prominent in the general population and the nature of employment activities seemed to have little bearing on the incidence of this condition.

On September 30, 1998, the union representative appealed the Review Office's decision and an oral hearing took place on December 15, 1998. Following the hearing, the Appeal Panel decided to arrange for the claimant to be examined by a WCB medical advisor to determine his current medical status. The claimant was then examined by a WCB orthopaedic consultant on January 21, 1999. Copies of the examination results were forwarded to the interested parties for comment on February 23, 1999. On March 11, 1999, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The evidence clearly establishes that the claimant is not totally disabled and has not recovered from his compensable injury. In this regard, we refer to a portion of the examination notes of a WCB medical advisor who examined the claimant on January 16th, 1997, which states:

"Regarding current work capabilities, I believe the claimant is not totally disabled, however, he may have problems returning to his pre-injury duties considering the problems mentioned above. I believe the claimant should be able to perform modified duties with the avoidance of repetitive bending and twisting. The claimant should also avoid heavy lifting of more than 20 pounds. I believe these restrictions should be in place for a duration of 6-8 weeks. At the same time I believe the claimant should be referred to physiotherapy for a lumbar stabilization program and physical conditioning exercises."

It is acknowledged by all of the parties that the claimant has a back at risk as a consequence of his various workplace accidents which have in all probability aggravated his pre-existing condition. However, the evidence confirms that there was no activefacilitation among the claimant, the employer and the WCB's vocational rehabilitation services to attempt to get the claimant back to work at suitable modified duties. The claimant testified that he had requested the vocational rehabilitation consultant to make arrangements with the employer to view certain modifications made to the production line. The employer confirmed that no such meeting was ever arranged.

There is an indication that the employer, since relocating to newer premises, may have suitable alternate duties available which could possibly accommodate the claimant together with his restrictions. We feel that this possibility should be explored. We further recommend that a return to work plan, as envisaged by the WCB's medical advisor in January 1997, be developed and implemented either with the current employer or with an alternate employer. We note that the claimant has made no attempt to seek alternate employment since his benefits were terminated. For this reason, we will not reinstate benefits on a retroactive basis. Instead, we suggest the payment of benefits becomes effective on the date that the claimant contacts the WCB to initiate the process of developing a return to work program. The continuation of the payment of benefits, of course, pre-supposes the claimant's full co-operation with the WCB.

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 12th day of April, 1999