The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

Issue

Whether responsibility should be accepted for the claimant's current back difficulties including her time loss from work commencing September 1995.

Decision

That responsibility should not be accepted for the claimant's recurrent back difficulties including her time loss from work commencing September 1995.

Background

While employed as a line haul truck driver on November 8, 1994, the claimant was moving a box of meat weighing approximately 75 lbs. when she injured her left arm, neck, lower back and left leg. The diagnosis was a neck and low back strain. The claim was accepted as Workers Compensation Board (WCB) responsibility and following physiotherapy treatments the claimant was declared fit to return to full duties by her attending physician as of April 5, 1995.

On October 25, 1995, the claimant contacted the WCB indicating that she stopped work on September 29, 1995, due to ongoing pain complaints. The claimant indicated she did not sustain any new accidents or incidents but tried to avoid heavy lifting since returning to regular duties.

Medical information from the attending physician dated October 6, 1995, indicated subjective complaints of back pain, unable to drive or do any work. Objective findings were tenderness at the L3-4-5-S interspaces. Range of motion was minimal in all directions. The claimant was referred to an orthopaedic specialist for further management.

In a letter dated November 15, 1995, the orthopaedic specialist outlined his examination and x-ray findings. The specialist's clinical impression before x-ray was that the claimant had a chronic lumbosacral strain with some discogenic symptoms but no definitive evidence of nerve root compression. It was suggested that the claimant continue with back protection and make a determined effort to lose weight.

On February 6, 1996, primary adjudication determined that no further responsibility could be accepted for the claim. This decision was reached following consultation with a WCB medical advisor who was of the opinion that the claimant sustained a cervical/lumbar strain on November 8, 1994, and that her ongoing problems and time loss were related to pre-existing conditions and not to the compensable injury.

On June 10, 1996, a solicitor acting on the claimant's behalf, submitted a report from the attending physician dated May 8, 1996, which stated that the claimant's symptoms were directly related to the original compensable injury. The solicitor's position was that a difference of medical opinion existed between the attending physician and WCB medical advisor which warranted the convening of a Medical Review Panel (WCB) pursuant to Section 67(4) of the Workers Compensation Act (the Act). The request for a MRP was denied by the supervisor of Case Management on June 12, 1996, as it was considered that the May 8, 1996, report did not contain a full statement of the facts and reasons supporting that conclusion which was required under section 67(1) of the Act.

The solicitor submitted further documentation from the attending physician dated June 25, 1996, which he felt met the requirements for a MRP. On July 18, 1996, the supervisor of Case Management denied the request for a MRP as it was felt the additional report did not provide any new information that would cause a change in the previous decision. On July 26, 1996, the solicitor appealed the decision to the Review Office.

Prior to considering the appeal, the Review Office obtained a sworn statement from the claimant on October 2, 1996 which outlined details regarding her return to work in April 1995 and her subsequent complaints. Additional medical information was also requested and received from an orthopaedic specialist dated March 22, 1996, and a rheumatologist dated August 2, 1996. Briefly, the orthopaedic specialist thought that the claimant may have some rotator cuff tendonitis in the left shoulder and osteoarthritis in her back and likely had mechanical low back pain. The rheumatologist summarized that the claimant had fibromyalgia and was morbidly obese.

The Review Office obtained the opinion of a WCB orthopaedic specialist on January 9, 1997. The orthopaedic specialist was of the opinion that the most probable diagnosis of injury following the November 8, 1994, accident was soft tissue low back and possible neck strain. With regard to the recent medical reports, the orthopaedic specialist felt that fibromyalgia and rotator cuff tendonitis were not related to the compensable injury. The specialist further stated there was no cause and effect relationship between the current diagnosis and the injuries sustained on November 8, 1994.

On January 10, 1997, the Review Office determined that responsibility would not be accepted for the worker's claimed ongoing back difficulties including her time loss from work commencing September 29, 1995. The Review Office was of the opinion that the worker sustained soft tissue injuries to her low back and neck area after lifting on November 8, 1994 and that the present diagnoses of fibromyalgia and shoulder tendonitis were unrelated to the compensable injuries. The Review Office commented that a compounding factor noted by every physician who had seen the worker would be her state of obesity that could on its own cause and perpetuate the worker's symptomatology. The solicitor's request for a MRP was denied by Review Office as it was felt that the reports submitted by the attending physician did not qualify as an "opinion" as required under Section 67(1) of the Act.

A worker advisor appealed the Review Office's decision regarding the claimant's recurrent back difficulties and time loss commencing September 1995. A non-oral file review later took place on April 16, 1999.

Reasons

Subsection 39(1) states:

Wage loss benefits for loss of earning capacity

39(1) Where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits shall be payable to the worker calculated in accordance with section 40 and equal to

a) of the loss of earning capacity for a maximum of 24 months; and

b) of the loss of earning capacity after the 24 months.

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.

The Panel has reviewed the file and concluded on a balance of probabilities, that the claimant's current difficulties are not the consequence of the November 1994 compensable injury. To support this decision, we relied on the following evidence:

• In the Doctor's First Report dated April 14, 1994, the family physician provided a history of injury where the claimant was turning a box of meat so that the label was facing out and in doing so, developed pain in the low back and cervical spine. A diagnosis of neck and lumbar strain was provided.
• A March 11, 1995 physiotherapy report states that the claimant's condition was continually progressing as a result of the physiotherapy treatment she was receiving and that treatment had concluded.
• A WCB medical advisor documents a telephone conversation with the claimant's treating physician on March 23, 1995 as follows:

  "I spoke with Dr. (doctor's name) at 2:15 pm. Ms (the claimant) is doing much better, she was in his office Monday. He is in favor of two weeks of light duties and if all goes well a return to he (sic) full work capacity as a long haul driver"

• April 3, 1995 - Doctor's Progress report stating the claimant was assessed by the treating physician on April 3, 1995 and presented with no subjective complaints nor any objective findings. The claimant's general prognosis was considered to be good with no permanent impairment anticipated. The claimant was no longer considered to be totally disabled and was reported to be able to return to work on April 5, 1995.
• On January 25, 1996, subsequent to the claimant contacting the WCB to file a claim for recurrent difficulties, the file was reviewed by a WCB medical advisor. The medical advisor noted that the claimant had sustained a cervical and lumbar strain in November 1994 and that this condition would have been expected to have resolved by this time. It was felt that the claimant's obesity, deconditioning and sacralization of L5-S1 on the left were likely be the cause of the claimant's current difficulties.
• In a report dated August 2, 1996, a rheumatologist reports assessing the claimant. The claimant was found to present with 18 out of a potential 18 fibromyalgia tender points. A diagnosis of fibromyalgia was made as well as a possible diagnosis of sleep apnea which the physician suggested may be related to the claimant's morbid obesity.

• In response to questions raised by a WCB Review Officer, a WCB consultant in orthopedics reviewed the file in January, 1997. Based on this file review, the orthopedic surgeon stated the claimant had sustained a soft tissue low back and possible neck strain as a result of the November 8, 1994 accident. With respect to the claimant's time loss from work effective September 1995, the surgeon was unclear what the current diagnosis would be but stated that the claimant had too many symptoms to be stemming from the compensable accident of November, 1994. It was further stated that the diagnosis of fibromyalgia as suggested by the rheumatologist and rotator cuff tendinitis as reported by an orthopeadic surgeon in a report dated March 22, 1996, were not related to the November 1994 accident. The consultant orthopeadic surgeon concluded by stating that in his opinion, a cause and effect relationship between the claimant's current complaints and the injuries sustained on November 8, 1994 has not been established.

In this case, the claimant employed as a truck driver sustained a soft tissue sprain injury to her lower back and neck on November 8, 1994 while attempting to turn a box of meat so that the label was facing out. Medical treatment and physiotherapy was sought and by early April, 1995, the claimant's treating physician found that the claimant was capable of returning to work. We note, when assessed by the treating physician on April 3, 1995, the physician reported the claimant to have no subjective complaints as well as no evidence of objective findings on examination.

In September 1995, the claimant reported that she found it necessary to stop working due to a number of continuing problems which she related to the November 1994 accident. A number of medical examinations were performed with a number of diagnoses provided including fibromyalgia, rotator cuff tendinitis of the left shoulder, and a possible sleep apnea due to the claimant's reported obesity.

Based on the evidence and on a balance of probabilities, we find that the claimant had recovered from the effects of her November 8, 1994 compensable accident by the time she was reported to be fit to return to work on April 5, 1995. The claimant's physical complaints which resulted in her having to cease employment in or about September, 1995, have not, on a balance of probabilities, been shown to have resulted from the November 1994 compensable accident. Accordingly, the claimant is not entitled to benefits for the recurrent back difficulties she is experiencing. The claimant's appeal is therefore dismissed.

Panel Members

W. McConnell, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

W. McConnell - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of May, 1999