The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 9, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on February 12, 1999, and April 28, 1999.

Issue

Whether the claimant is entitled to benefits beyond May 28, 1996; and

Whether there is basis to convene a Medical Review Panel.

Decision

That the claimant is not entitled to benefits beyond May 28, 1996; and

That there is no basis to convene a Medical Review Panel.

Background

The claimant injured his lower back while rolling truck tires during his employment activities as a long distance truck driver trainer on September 7, 1995. The diagnosis reported by the attending chiropractor was an acute lumbosacral strain and possible L5 disc injury. X-rays revealed early degenerative disc disease at L4-5 and L5-S1. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits commenced September 15, 1995.

The claimant was later examined by a WCB chiropractic consultant on November 24, 1995. The chiropractic consultant recommended the discontinuation of spinal manipulative therapy and felt that the focus of therapy should be reconditioning and general mobilization. Arrangements were made for a referral to a physiotherapy facility for a four to six week period and subsequent review. As there was some indication of L5-S1 disc involvement with S1 radiculopathy, the chiropractic consultant recommended a CT scan.

On December 20, 1995, the CT scan of the LS spine revealed a small central focal prominence of the L5-S1 disc.

The claimant was examined by a WCB medical advisor on February 5, 1996. The medical advisor noted that the claimant started a course of physiotherapy on December 4, 1995, however, he reported intense pain after receiving these treatments. Following examination, the medical advisor provided his opinion that the compensable condition was likely a low back strain/sprain which had likely resolved. He felt that the residual discomfort being experienced by the claimant was most likely on the basis of deconditioning with inadequate muscular support of the mid to lower lumbar segments. The findings were not indicative of a lumbar disc protrusion with nerve root compression. It was unlikely that the small focal disc protrusion noted on the CT scan of December 20, 1995 was the origin of the claimant's current symptom and sign complex.

The claimant was also examined by a WCB neurology consultant on February 5, 1996. The neurologist reported that there was no clinical evidence of any nerve root compression syndrome, central cord compression or peripheral neuropathy. He felt the claimant should be enrolled in an exercise program such as walking or swimming.

The claimant underwent a stabilization program between March 7, 1996, and April 4, 1996. The attending physician noted that the claimant had decreased range of motion in his back.

The case was reviewed by a WCB medical advisor on April 21, 1996, at the request of primary adjudication. It was the medical advisor's opinion that there was more than likely a cause and effect relationship between the compensable injury and the claimant's ongoing symptoms. The medical advisor felt there was no objective evidence to support the claimant's ongoing difficulties or to support further activity restrictions. It was also stated that the longer the claimant was away from work, the worse the prognosis would be.

On May 21, 1996, primary adjudication determined that the claimant had recovered from the effects of his compensable accident and that wage loss compensation would be paid to May 28, 1996, inclusive and final. The claimant appealed this decision to the Review Office in a letter, dated May 29, 1996.

On September 9, 1996, the claimant underwent a myelogram examination and the impression revealed minor posterior disc prominence of L4-5.

The Review Office, on September 27, 1996, determined, based on the weight of evidence, that there was no basis to extend compensation beyond May 28, 1996. The Review Office further concluded that the claimant was physically capable of returning to his pre-accident duties.

Subsequent medical reports were received from an external neurologist, dated January 3, 1997, and from an orthopaedic specialist, dated March 31, 1997. On April 15, 1997, the Review Office determined the reports contained no new clinical findings or recommendations which would change its previous opinion that the claimant was physically capable of returning to his pre-accident employment.

Additional medical reports were submitted from an external neurologist, dated April 11, 1997, the treating chiropractor, dated May 10, 1997, and from a physiatrist, dated May 20, 1997 and October 15, 1997. Based on these reports, the claimant's solicitor requested that a Medical Review Panel (MRP) be convened.

On November 7, 1997, the Review Office determined that the claimant was not entitled to benefits after May 28, 1996, and denied the request for an MRP. Review Office provided the following rationale for its decision:

• available evidence did not establish a clinical or medical explanation for the claimant's low back symptoms and/or contentions of disablement after May 28, 1996, although the attending physicians and WCB medical advisor appeared to agree there may be a problem of mechanical back pain.
• it was not satisfied there was evidence showing that mechanical low back pain was a reasonable and/or expected consequence of acute lumbosacral sprain/strain especially after several months of treatment. Review Office did not find there had been clinical evidence of a causal connection between this residual problem and the claimant's work-related accident in September 1995. There was no difference of opinion about this lack of clinical findings as between the claimant's attending doctors and a medical officer of the WCB.

On December 9, 1998, the solicitor appealed the Review Office's decision and an oral hearing was held at the Appeal Commission on February 9, 1999.

On March 4, 1999, the claimant was examined by a WCB orthopaedic consultant at the request of the Appeal Panel. The results of the examination were forwarded to all interested parties for comment on March 29, 1999.

The Panel met on April 28, 1999, to render its final decision and took into consideration a submission from the solicitor dated April 21, 1999.

Reasons

In our capacity as an enquiry model, we requested, following the hearing, that the claimant be examined by a WCB medical consultant. An examination, conducted by an orthopaedic specialist, took place on March 4th, 1999. Various diagnostic radiological techniques were also considered by the specialist when formulating his opinion. We note, in particular, the findings of two of these tests: September 9th, 1996- CT Lumbosacral Spine - "At the lumbosacral level, there is a minor central disc protrusion that just approaches the dural sac but does not cause significant nerve root compression." May 3rd, 1997- MRI Lumbar Spine - "At the L5-S1 level, there is mild degenerative narrowing and degenerative desiccation of the intervertebral disc. There is central disc bulging without evidence of disc herniation, spinal stenosis or nerve root compression. Mild degenerative changes are noted in the right facet joint. The lumbosacral spine is otherwise unremarkable. There has been no definite interval change since September 1996."

Certainly with respect to the historical evidence, there has been no positive neurological findings which confirm nerve root compression as the source of the claimant's lower back problems. In fact, there would appear to be non-compensable reasons for his current difficulties. In this regard, we attached considerable weight to the opinion rendered by the WCB's orthopaedic consultant. On page 3 of his March 4th report, he concludes his examination report by saying:

"The imaging studies show degenerative changes in the lumbar spine with osteophytes at L4-5 and L3-4. I suspect he may have had a growth plate disturbance or old injury at L4-5 although the radiologist didn't comment on this. I do not feel these findings are related to his injury of 1995. There are no objective findings of any other pathology. His history and physical findings are atypical. He has no significant positive neurological findings. He appears to have limited straight leg raising on the examining table but in the sitting position his straight leg raising is full without discomfort. I feel the diagnosis is degenerative changes at L4-5 and L3-4. These changes were reported on x-ray films done on June 17, 1992. I suspect that he had a pre-existing disturbance of the growth plate on L5. These findings, therefore, are not related to his injury of 1995. There are no positive neurological findings. I feel the prognosis is guarded. The condition is likely to be enhanced by his weight. I feel he should lose weight, do back exercises and try anti-inflammatory medications. I feel that his physical restrictions are related to the degenerative changes in his lumbar spine and, therefore, not specifically related to his injury of 1995."

Based on the preponderance of evidence, we have come to the conclusion that the claimant's lower back difficulties are not, on a balance of probabilities, related to his compensable injury. Therefore, the claimant is not entitled to the receipt of benefits beyond May 28th, 1996.

With respect to the second issue, we find that there is no difference of medical opinion, as is required by Section 67(4) of the Act, which would necessitate the convening of a Medical Review Panel.

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 3rd day of June, 1999