Public Decisions | The Appeal Commission

Decision #77/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 30, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 30, 1999.

Issue

Whether the claimant has recovered from the effects of his compensable back injury of October 16, 1993; and

Whether the claimant is entitled to payment of compensation benefits beyond June 21, 1995.

Decision

That the claimant has recovered from the effects of his compensable back injury of October 16, 1993; and

That the claimant is not entitled to payment of compensation benefits beyond June 21, 1995.

Background

On October 16, 1993, the claimant was loading trays of bread onto a truck when he twisted and felt a twinge of pain in his lower back. The claimant indicated that he

continued working, however the pain in his back steadily became worse. On October 18, 1993, the attending physician diagnosed a first degree back strain. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid during the claimant's absences from work.

During the initial stages of the claim, file documentation revealed that the claimant underwent various medical investigations which included lumbosacral spine x-rays and C.T. scans. The claimant was enrolled in a work hardening program and was seen by a sports medicine specialist on June 7, 1994, who diagnosed lumbar facet sprain at L4-5. The claimant was also enrolled in a back stabilization program and was seen at a back institute where it was reported that the claimant was pain focused.

In a report dated October 25, 1994, a physiatrist concluded that symptoms and signs of the claimant's condition were consistent with myofascial pain syndrome involving the left and right quadratus lumborum muscles. There was no evidence noted of an underlying disc, nerve root or facet joint abnormality. The claimant subsequently underwent needling treatments and on March 17, 1995, the physiatrist suspected an underlying facet joint cause of the claimant's low back pain and noted that facet joint trauma or degenerative changes could cause the claimant's symptoms.

The claimant was examined by a WCB orthopaedic consultant on May 5, 1995. Based on the orthopaedic consultant's examination findings, primary adjudication determined that the claimant had recovered from the effects of the compensable accident and was capable of resuming his pre-accident duties. On June 14, 1995, the claimant was notified that temporary total disability benefits would be paid to June 21, 1995, inclusive and final.

On July 19, 1996, the case was considered by Review Office following receipt of an appeal submission from a worker advisor dated February 1, 1996. The appeal submission included medical reports from the attending physician dated September 15, 1995, and an orthopaedic specialist dated November 23, 1995. The worker advisor contended that there was no evidence showing that the claimant had recovered from the effects of his compensable injury and that rehabilitation benefits should be reinstated. A Medical Review Panel (MRP) was also requested as the worker advisor felt there was a clear difference of opinion between the WCB's orthopaedic consultant's opinion of May 5, 1995, and the attending physician's opinion dated September 15, 1995.

The Review Office sought the opinion of a WCB orthopaedic consultant on April l 4, 1996. Based on the orthopaedic consultant's comments, the Review Office ultimately determined that on a balance of probabilities, there was insufficient evidence to establish that the worker was still suffering from the effects of the compensable injury. The Review Office, however, concurred with the worker advisor that a difference of medical opinion existed and a MRP was later convened on November 4, 1996.

On December 6, 1996, the Review Office determined the claimant had recovered from the effects of the October 16, 1993, compensable back injury and that there was no basis for payment of compensation benefits beyond June 21, 1995. It was the Review Office's opinion that the weight of evidence established a diagnosis of musculo-ligamentous injury to the back as a result of the October 16, 1993, accident. Review Office further was of the opinion that the worker had sufficiently recovered from the effects of that injury by June 21, 1995. Based on subsection 39(2) of the Workers Compensation Act (the Act), Review Office stated there was no basis for payment of further benefits.

On October 26, 1998, solicitors acting on behalf of the claimant, submitted additional medical information from a physiatrist dated May 12, 1997, November 20, 1997, and October 15, 1998. The solicitor later requested an oral hearing in light of the additional medical information and the Review Office's decision of December 6, 1996.

Reasons

The issues in this appeal are whether or not the claimant has recovered from the effects of his compensable back injury of October 16, 1993; and whether or not the claimant is entitled to the payment of compensation benefits beyond June 21, 1995.

The relevant subsection of the Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

Subsection 39(2) states:

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

(b) the worker attains the age of 65 years.

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 the claimant has recovered from the effects of his compensable injury of October 16, 1993 and therefore is not entitled to the payment of compensation benefits and services after June 21, 1995. We noted the following evidence:

an initial medical report from the attending physician dated October 18, 1993 indicates that the claimant reported low back pain and a diagnosis of a strained back was made;
x-ray of the lumbosacral spine of October 18, 1993 was normal;
subsequently, on November 19, 1993, as the claimant reported pain radiating into his legs the attending physician ordered a CT scan to rule out disc herniation;
a C.T. scan of the lumbosacral spine performed November 27, 1993 showed no evidence of disc protrusion or spinal stenosis with the disc spaces at L3-4, L4-5 and L5-S1 being unremarkable;
in a report dated March 8, 1994 a physiotherapist involved with the claimant's gradual return to work program indicated that physical and functional improvement had occurred and following an extended gradual return to work the claimant would have improved to a level where he could return to full duties;
in a discharge summary from the claimant's work hardening program dated March 28, 1994 the physiotherapist and occupational therapist involved in the program recommended that the claimant return to full duties;
in a report dated April 21, 1994 the attending physician indicates that the claimant may have had a recurrence of his low back pain and that there may be a sciatica component which appeared to be later ruled out;
in a report dated June 7, 1994 a sports medicine specialist who examined the claimant diagnosed lumbar facet sprain at L4-5;
on June 22, 1994 a back stabilization program was recommended by a WCB medical advisor following the claimant's recurrence of symptoms;
in reports dated August 3, 15 and 22, 1994 from a Back Institute the therapists involved in the claimant's care report a lack of progress and that the claimant seemed to be somewhat pain focused;
in a report dated August 26, 1994 the therapists involved in the claimant's stabilization program indicate:
"Although he believes the program has not helped, Mr. [the claimant's] functional ability is significantly improved since the Functional Capacity Evaluation was performed, and in some cases he has met or surpassed work related duties."
in a report dated September 7, 1994 a WCB medical advisor who examined the claimant found the claimant fit for light duties with restrictions for a three month period;
in a report dated October 25, 1994 an attending physiatrist finds that the claimant has signs and symptoms consistent with myofascial pain syndrome involving the left and also right quadratus lumborum muscles with no evidence of underlying disc, nerve root or facet joint abnormality and proposes needling and treatment of the affected muscles with xylocaine;
on November 5, 1994 a WCB medical advisor indicates that the claimant's response to the above noted needling treatment should be assessed but that work restrictions and time frames for the restrictions should be as originally outlined;
in a report dated January 24, 1995 an attending physiatrist indicates that he had only seen the claimant twice since his last report for needling treatments but that his diagnosis remained myofascial pain syndrome involving the same muscles (right and left quadratus lumborum);
in a report dated March 17, 1995 the attending physiatrist indicates a lack of response by the claimant to the needling therapy for the regional myofascial pain. On the basis of this lack of response, the physiatrist indicates he now suspects an underlying facet joint cause of the claimant's low back pain and indicates that facet joint trauma or degenerative changes can cause the symptoms noted;
the claimant was examined by a WCB medical advisor on May 5, 1995. In his report the advisor indicates:

"the clinical picture does not suggest a specific diagnosis. He has pre-existing scoliosis. His left leg is slightly shorter and smaller in circumference on the right. I don't feel this is related to his compensable injury.
Neurological symptoms are largely absent. Also the neurological examination reveals only pain on straight leg raising and some reduction of the straight leg raising on the left.
Radiological studies, likewise, don't show any definite abnormalities, although I wonder if the facet joints may be slightly enlarged on the CT scan. I would have expected any facet joint symptoms would have responded to exercises and medications. His investigations have not shown a definite cause for his symptoms that we can attribute to his compensable injury."

following the above noted report the WCB ended benefits to the claimant effective June 21, 1995;
the claimant was subsequently seen by an attending orthopaedic consultant who indicated in a report dated November 23, 1995 that physical examination showed no sciatic nerve root irritation, no lower extremity neurological deficit, normal chest expansion, and tender points in the lumbosacral region and left buttock. He further notes a little over-reaction to pain and some non-anatomic findings which were not striking. The orthopaedic consultant indicated:
"He [the claimant] is in the WCB appeal process and hopefully he will qualify for some help towards retraining, but with the lack of objective findings, the outside support he gets may be limited."
in response to questions from a WCB adjudicator, a WCB medical advisor indicates on April 4, 1996 that the original mechanism of injury was consistent with an acute low back strain and that on a balance of probabilities the claimant had recovered from the effects of the compensable accident;
a Medical Review Panel (MRP) was convened on November 4, 1996 based on a difference of medical opinion between one of the claimant's treating physicians and a WCB medical advisor. The MRP found that:
"There is no evidence of disc herniation, spinal stenosis or nerve root compression at any of the image levels. There is no evidence of facet arthropathy or facet degenerative change.
The paraspinal muscles are normal in size and symmetric in appearance. No abnormalities are identified."
The MRP panellists also agreed unanimously as follows:
since the MRP, reports have been received from the claimant's attending physiatrist dated May 12, 1997, November 20, 1997 and October 15, 1998;
in a report dated May 12, 1997 the physiatrist indicates that his examination revealed that the claimant was acutely tender directly over, and that his symptoms were likely originating from, the interspinous ligaments and indicated that the claimant had no relief from the steroid injections into the facet joints. He further indicates that trigger points in the interspinous and sacro-tuberous ligaments can be associated with musculoligamentous injury;
in a subsequent report dated November 20, 1997 the physiatrist indicated that the claimant had not had any significant improvement following a series of interspinous ligament injections and that he could not exclude a facet joint origin of pain;
at the hearing the claimant testified that he was regularly involved in an exercise program involving weight lifting and isometric exercises at the gym for one and a half hour sessions on a regular basis; that he had not taken anti-inflammatories or analgesic medication since 1997 and that he had also not been seen by his attending physiatrist or other health care professionals for active treatment since 1997;
the claimant further indicated that while his wife was full-time employed he had remained at home to care for his young children and had not actively pursued other employment. As of September 1998 the claimant enrolled in an Arts program at the University of Manitoba.

We find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant sustained a musculoligamentous low back strain injury on October 16, 1993 and that he had recovered from the effects of this injury by June 21, 1995. We find that any on-going symptoms, on a balance of probabilities, are not related to the compensable event. We find the evidence supports a finding that the claimant is pain focused and that this has impacted on attempts to support his rehabilitation and return to gainful employment. We note that WCB has made every attempt to assist this claimant and that the claim has been well managed.

We note that both prior and subsequent to the MRP report an attending physiatrist has suggested various diagnoses to account for the claimant's symptoms which in each case, in his opinion, are related to the compensable event. We further note that these conditions have failed to respond to suggested treatments. We find this evidence to be inconsistent between reports and also fails to establish a definitive diagnosis which would satisfactorily account for the claimant's problems. Therefore we place greater weight on the opinions of the WCB medical advisors and the independent MRP specialists which suggest the claimant sustained a musculoligamentous injury to the lower back which had resolved by June 21, 1995.

We also accept the findings of the MRP that the claimant has no work restrictions arising from the compensable event. Accordingly we find there is no loss of earning capacity after June 21, 1995 and no entitlement to benefits and services after that date. Therefore the claimant's appeal on both issues is 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 25th day of May, 1999

Back