Decision #09/99 - Type: Workers Compensation
An Appeal Panel hearing was held on November 26, 1998, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 26, 1998.
Whether the claimant is entitled to wage loss benefits and services beyond June 12, 1998; and
Whether a Medical Review Panel should be convened in accordance with Section 67(4) of the Act.
That the claimant is entitled to wage loss benefits and services beyond June 12, 1998; and
That a Medical Review Panel not be convened in accordance with Section 67(4) of the Act.
While employed as a rodman (iron worker) on November 28, 1996, the claimant fell while carrying rebar steel into a building. The initial diagnosis was reported as a muscle strain to the lower back. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.
The claimant underwent a CT scan of the lumbar spine in February 1997, and physiotherapy treatments until mid April 1997. The CT scan revealed a small posterior lateral disc protrusion on the left at L4-L5 which involved the left L5 nerve root. There was some minor secondary narrowing of the spinal canal.
At the request of the WCB, the claimant was assessed by a neurologist on June 9, 1997. The neurologist's diagnosis was a mild left S1 nerve root compression syndrome. The neurologist encouraged the claimant to increase his exercises on a regular basis with the idea of him returning to normal activities at the end of the month unless there was an exacerbation of symptoms.
On July 3, 1997, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor was of the opinion that, on a balance of probabilities, there was a direct cause-effect relationship between the claimant's current diagnosis and the work injury. The medical advisor offered the opinion that the claimant had a pre-existing condition in the form of a mild facet arthropathy but was unsure as to whether this was contributing to the claimant's current disability based on the SI nerve root findings.
In a report dated July 28, 1997, an orthopaedic specialist commented that the claimant's straight leg raising was normal and that the CT scan did show a disc but not of a large degree. He felt, however, that this may be irritating the L5 nerve root giving the claimant some of the pain in his left leg. The specialist suggested that conservative treatment was the best form of management along with anti-inflammatories.
The claimant was assessed at the Canadian Back Institute at the request of his family physician. In a report received at the WCB on September 24, 1997, the physiotherapist noted that the claimant had mechanical lumbar pain which appeared to be discogenic in nature and neurological weakness was also noted at the S1 myotome. The next report indicated that the claimant had undergone treatment from August 27th to September 18, 1997, and that his symptom resolution had plateaued. The claimant 's symptoms temporarily decreased with flexion rotation pain control positioning, however no permanent resolution had occurred.
On September 29, 1997, the orthopaedic specialist reported that he saw the claimant for follow-up of his left leg and back pain. The claimant felt he was no where close to going back to work. A work hardening program was recommended.
The case was reviewed by the WCB's Section Head, Complex Claims, on November 3, 1997. Following his review, the medical advisor concluded that the medical information on file supported resolution of the claimant's back strain and/or aggravation of his pre-existing condition.
The WCB's Claims Services department advised the claimant on November 19, 1997, that wage loss benefits would end at the completion of his current physiotherapy program. In the opinion of Claims Services, the claimant sustained a strain injury in November 1996, which had since resolved, and any ongoing problems were related to his pre-existing condition.
On November 19, 1997, the employer's advocate wrote to the Review Office appealing the duration of the claim. In a decision, dated December 19, 1997, the Review Office determined the following:
- "That the employer is entitled to 50% cost relief, as representing the part of the cost of this claim due to pre-existing or underlying conditions; and
That the claimant should be given some rehabilitation assistance under section 27(20), to help reduce the effect of an ongoing handicap resulting from the work-related accident; and
That rehabilitation assistance should involve 'short-term' (up to twelve weeks) collaboration with the claimant and his union to facilitate an initial return to modified employment, which considers that heavy manual labour ought to be avoided (at least until the claimant's overall physical condition has been further improved)."
From the medical evidence, the Review Office concluded the claimant was not totally disabled due to the effects of either his work-related accident or the pre-existing condition of his lower back as he contended. Review Office felt that the claimant continued to have some handicap for physically strenuous labour because of a back at risk. This handicap resulted, in part, from the disc protrusion which was likely caused by his work-related accident, as well as by his pre-existing condition. The medical evidence also revealed that the claimant's persistent low back symptoms and his handicap to heavy labour could likely be further reduced through increased physical activities and conditioning. The Review Office was satisfied that the claimant's pre-existing condition(s) had probably contributed to his loss of earning capacity since November 1996 through delayed stabilization of his disc injury.
On February 27, 1998, a WCB adjudicator clarified through Review Office that the claimant should avoid strenuous work due to his pre-existing condition and that the claimant did not have any restrictions due to the compensable injury. The 12 weeks of rehabilitation was more of a transitional period for the claimant and may include a job search or talking to the union to see if they could help him find work.
Subsequent file information noted that the claimant was referred to a resume writing workshop and that he had left resumes with a number of companies regarding employment. The Iron Workers Union was contacted by the Vocational Rehabilitation Consultant (VRC). The VRC was informed that there was no work available for the claimant as all work required heavy labour. In addition, the accident employer was unable to accommodate the claimant in any sort of alternate duties as he had not been directly employed through it.
The claimant was advised that effective June 13, 1998, he would no longer be eligible for vocational rehabilitation benefits or services in accordance with the Review Office's earlier decision.
On August 6, 1998, a worker advisor assisting the claimant presented argument to the Review Office that the claimant was entitled to benefits and services beyond June 13, 1998, and that a Medical Review Panel should be convened. Additional medical information from an occupational health physician dated July 31, 1998, was submitted in support.
In a decision letter dated September 9, 1998, the Review Office provided the following commentary:
- it did not find that the degree of pain complaints and/or functional disablement had been supported by objective clinical findings and also noted that the recent medical report was at significant variance with all other doctors who examined the claimant earlier.
- it was satisfied that the claimant's minor disc protrusion at L4-L5 had not resulted in significant impairment of the lower back and would not have affected the claimant's return to normal activities, if he had made reasonable efforts to improve his general conditioning and work tolerances.
- it did not believe there was objective clinical evidence to explain the claimant's persistent pain complaints and/or his contended functional impairment in the lower back.
- after taking into account the claimant's lack of objective clinical findings with his apparent failure to mitigate the effects of his work related injury, the Review Office was unable to conclude that his work related accident had continued to contribute materially to any loss of earning capacity after June 12, 1998;
- the decision was made in compliance with sections 39(2) and 22 of the Workers Compensation Act (the Act).
- the request for a Medical Review Panel was denied by Review Office as the predominant differences of medical opinion involved independent physicians rather than a WCB medical advisor. It was felt that the opinion of a medical panel was unlikely to alter its decision about the claimant's failure to mitigate the consequences of his accident.
On October 6, 1998, the worker advisor appealed the Review Office decisions and requested an oral hearing. The worker advisor later provided the Appeal Panel with additional medical information from the claimant's treating physicians. On November 26, 1998, an Appeal Panel hearing was conducted.
The preponderance of evidence confirms that the claimant continues to demonstrate nerve root irritation causing significant low back pain which is being referred down to his lower extremities. In particular, we took note of the following findings recorded by the various treating physicians and entities:
- June 9, 1997, letter from consulting neurologist to WCB.
- "His neurological examination does show some changes consistent with a left S1 nerve root compression syndrome. Straight leg raising to 90 on the left does cause some discomfort in the back of his left thigh and increased sensitivity or tingling in the sole of his left foot. The diagnosis then is of a mild left S1 nerve root compression syndrome. It does sound as though the symptoms were much more severe at the onset and have improved."
- July 28, 1997, letter from an orthopedic surgeon to the treating physician.
- "CT examination dated February of 1997 showed that he had a small left sided L4-5 disc herniation that may have affected the L5 nerve root on the left. It is rather small and probably not necessarily an operative lesion. This gentleman's straight leg raise is normal and the CT scan does show a disc but not of a large degree. It is likely however that this may be irritating his L5 nerve root giving him some of the pain that he is having in his left leg in the L5 nerve root distribution along with the numbness."
- September 10, 1997, letter from the Back Institute to the WCB.
- "Analysis of physiotherapy assessment. Mr.[the claimant] was assessed as having mechanical lumbar pain which appears to be discogenic in nature. Neurological weakness was noted at the S1 myotome."
- April 1, 1998, CT scan of the lumbosacral spine.
- "At L4-5, there is degenerative disc narrowing. There is a shallow broad based left posterior and foraminal disc herniation, which appears to extend minimally into the lateral recess of L5. Impression: Shallow broad based left posterior and foraminal L4-5 disc herniation."
- June 10, 1998, report from orthopedic surgeon.
- "Unfortunately this gentleman continues to have leg pain. His nerve conduction study tests do not show any abnormality. I do not think that there is any surgery that will benefit this gentleman so I have arranged to see him again in the future. He is waiting for a Pain Clinic consultation."
We found the claimant to be a very credible individual with a strong desire to return to gainful employment. At the hearing, we took note that the claimant had been referred to the Pain Clinic at Health Sciences for an appointment sometime in December 1998 or early 1999. We suggest that the WCB provide close medical supervision with respect to the treating of the claimant's symptomology. We further recommend and endorse a work hardening program, as suggested by the treating orthopedic surgeon, and implement same in conjunction with rehabilitation assistance to return the claimant to some form of gainful employment.
Based on the weight of evidence and based on a balance of probabilities, we are able to conclude that the claimant is entitled to wage loss benefits and services beyond June 12, 1998. Given this determination, it is not necessary to render a decision with respect to the second issue as to whether an MRP should be convened.
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 14th day of January, 1999