The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 21, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 21, 1999 and May 6, 1999.

Issue

Whether the worker is entitled to payment of wage loss benefits beyond November 14, 1997.

Decision

That the claimant is entitled to payment of wage loss benefits beyond November 14, 1997.

Background

On August 12, 1997, the claimant stated that after moving a large planter her back became increasingly sore. The claimant did not report the accident to her employer until September 4, 1997, as she thought her back discomfort would go away. On the same day, the attending physician diagnosed the claimant with mechanical lower back pain and a degenerative lumbar spine. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid commencing September 1, 1997.

The claimant was examined by an orthopaedic specialist on September 10, 1997, at the request of the attending physician. Clinically, the orthopaedic specialist indicated that the claimant's symptoms seemed to be due to soft tissue strain and in time these symptoms should settle down. The claimant was advised to refrain from any bending or lifting and if possible to lose some weight.

In a progress report, dated October 3, 1997, the attending physician reported objective findings of 70 degrees flexion, 0 degrees extension, and 10 degrees lateral bending. Straight leg raising was 60 degrees on the right and 40 degrees on the left. The claimant was prescribed medication and referred for physiotherapy treatment.

Following a consultation with a WCB medical advisor on October 9, 1997, primary adjudication determined that the claimant had incurred a soft tissue injury as a result of the accident and on a balance of probabilities, had recovered from the effects of same. It felt that any residual effects were due to her pre-existing conditions. In accordance with section 39(2) of the Workers Compensation Act (the Act), the claimant's benefits were paid to October 16, 1997, inclusive and final.

As enclosures in a letter addressed to the Review Office, dated April 1, 1998, a union representative submitted additional medical information from the attending physician and from an orthopaedic specialist. The union representative presented argument that in the opinion of both of these physicians the claimant had not yet recovered from the compensable injury and as such the WCB had erred in terminating benefits.

The WCB orthopaedic consultant to the Review Office, reviewed the case and provided his opinion to Review Office in a written memo, dated June 16, 1998. The orthopaedic consultant commented that the claimant had been off work for an inordinate length of time with a musculoligamentous strain of the back superimposed on a spine with radiological evidence of degenerative disc disease and obesity possibly being a contributing factor. The consultant was of the view that the disability period with respect to the above would not exceed 3-4 months maximum. The orthopaedic consultant also noted the opinion expressed by the treating orthopaedic consultant on March 4, 1998, that the claimant did not seem to be fully recovered from the effects of her injuries on October 16, 1997 and February 24, 1998 as she had some residual symptoms. This was not to say, however, that the claimant had not recovered sufficiently to return to work as one would expect 3-4 months post compensable injury.

On June 19, 1998, the Review Office made reference to the various reports on file received from the treating orthopaedic specialist along with the opinion expressed by the WCB's orthopaedic consultant on June 16, 1998. Review Office concluded based on the evidence and on a balance of probabilities, that the claimant could have returned to work four weeks after her consulting with the treating orthopaedic specialist on October 16, 1997. Review Office stated, "Although the worker was seen by the orthopaedic specialist on February 28, 1998 there are no findings in the report which would indicate that the worker is disabled from employment." Review Office concluded the worker was entitled to payment of wage loss benefits to November 14, 1997. No benefits were payable beyond this date, however, as it was considered the claimant had recovered from the soft tissue injury suffered as a result of the compensable accident of August 12, 1997.

On November 5, 1998, the claimant's union representative appealed the Review Office's decision and an oral hearing was held on January 21, 1999. Following the hearing and discussion of the case, the Appeal Panel requested further medical information be obtained and arranged for the claimant to be assessed by a WCB medical advisor.

On April 15, 1999, all interested parties were provided with the examination findings of the WCB medical advisor, dated March 11, 1999, as well as a medical report, dated March 10, 1999. On May 6, 1999, the Panel met to render its final decision after taking into consideration submissions received from the claimant's union representative, dated April 22, 1999, and employer's representative, dated April 26, 1999.

Reasons

As a consequence of her compensable accident, the claimant suffered what was called a musculoligamentous strain of the back superimposed on a spine with radiological evidence of degenerative disc disease. Following the hearing, we requested that the claimant be examined by a WCB consultant. In his examination notes, dated March 11th, 1999, the WCB medical advisor recorded certain conclusions which bear repeating:

"However, the claimant also shows considerable evidence both in terms of non-organic signs and in the vegetative symptoms of severe chronic pain behaviour. When this was discussed with the claimant, she indicated that she had been examined independently by Dr. [name], a consulting psychiatrist on behalf of her employer for the same condition. Based on the history, examination, and particularly interview and findings today, it is the examiner's opinion that this claimant's overall presentation, including physical and non-organic elements and pain behaviour are related to the claimant's compensable injury."

In accordance with the weight of evidence, we find that the claimant has not, on a balance of probabilities, fully recovered from effects of her compensable injury. It necessarily follows, therefore, that the claimant is entitled to the payment of wage loss benefits beyond November 14th, 1997. In addition, we strongly endorse the recommendation of both the WCB medical advisor and the treating psychiatrist that the claimant undergo an intake interview at the WCB Chronic Pain Unit.

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