The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 16, 1998, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision made by the Review Office of the Workers Compensation Board that he was not entitled to payment of compensation benefits after January 20, 1998, as a consequence of his work-related accident in October, 1992. Following the hearing, the Appeal Panel discussed the case and requested a Medical Review Panel to assist with the deliberations of the case. A Medical Review Panel later took place on February 12, 1999, and the results were distributed to the interested parties for comment. On April 29, 1999, the Appeal Panel met to render its final decision.

Issue

Whether the claimant is entitled to payment of compensation benefits after January 20, 1998, as a consequence of his work-related accident in October, 1992.

Decision

That the claimant is entitled to appropriate benefits and services from the date he contacts the WCB, after receipt of this decision, and is willing to co-operate in a vocational rehabilitation plan. He is not entitled to retroactive benefits.

Background

While employed as a transport truck driver on October 15, 1992, the claimant suffered a compensable lower back injury from shoveling copper concentrate. A Medical Review Panel (MRP) held on October 27, 1995, diagnosed mechanical lumbar back strain which was probably due to aggravation of the claimant's pre-existing spondylolysis and early degenerative changes of the lumbosacral spine. The MRP outlined permanent restrictions to avoid prolonged sitting and standing. The case was then referred to a Vocational Rehabilitation Consultant in order to assist the claimant with returning to work. The claimant was awarded an 8.7% impairment award for his back condition.

Subsequent file records show that the claimant was assessed by a rheumatologist in November 1996, at the request of the family physician. The rheumatologist noted that the claimant had a long standing history of mechanical lower back pain with a recent onset of ankylosing spondylitis which was confirmed by radiographic changes and HLA B27 markers.

On June 2, 1997, a WCB medical advisor reviewed the case and provided the following opinions:

• a relationship had not been established between the occurrence of trauma and the onset of ankylosing spondylitis or its development.
• on a balance, ongoing symptoms and signs were related to the ankylosing spondylitis.
• there was evidence on lumbosacral spine films dated May 3, 1995, of early sacroilitis of the right SI joint which meant that at the time of the MRP on October 27, 1995, the symptoms and clinical findings of ankylosing spondylitis were already present.
• there was insufficient medical evidence to establish that ankylosing spondylitis had an early role in the claim.

On October 29, 1997, the claimant was advised by letter that the WCB was unable to accept further responsibilities for his back condition beyond January 20, 1998. Primary adjudication obtained an opinion from a WCB orthopaedic consultant that the compensable injury did not precipitate or enhance the ankylosing spondylitis. It was therefore determined that the claimant's current difficulties were related to the non-compensable condition, namely ankylosing spondylitis.

A worker advisor, assisting the claimant, appealed primary adjudication's decision dated October 29, 1997. The worker advisor provided new medical information from a second rheumatologist dated January 13, 1998 and March 9, 1998. It was the rheumatologist's opinion that the claimant had back pain and that his symptoms were not consistent with ankylosing spondylitis. It was suggested that non-restorative sleep and poor aerobic conditioning was the cause of the claimant's ongoing back pain. Based on these reports, the worker advisor requested wage loss benefits retroactively from January 20, 1998, and approval for the claimant to undergo a functional capacity evaluation.

The above medical reports were reviewed by a WCB medical advisor on March 27, 1998, at the request of primary adjudication. The medical advisor commented that the opinions expressed by the treating rheumatologists were contrary to each other. The medical advisor stated there was evidence of ongoing inflammation that would be compatible with a diagnosis of ankylosing spondylitis. There was radiological evidence which supported the diagnosis in terms of a progression radiologically. It was further stated that the minor injury that the claimant sustained on October 15, 1992, would not be responsible for the present clinical presentation.

Based on the above opinion, primary adjudication advised the claimant that no change would be made to its earlier decision. The case was then referred to the Review Office for consideration.

On April 17, 1998, the Review Office summarized that it was unable to find significant evidence to show that the claimant's symptoms and or disablement after January 20, 1998, had any cause and effect connection to his work-related accident in October 1992. The Review Office therefore concluded that the claimant was not entitled to benefits after January 20, 1998 in compliance with Section 4(1) of the Workers Compensation Act (the Act).

On September 16, 1998, an Appeal Panel hearing was conducted at the request of the claimant and worker advisor. Following the hearing and discussion of the case, the Appeal Panel requested a Medical Review Panel (MRP) in accordance with Section 67(3) of the Act which was later held on February 12, 1999. On April 7, 1999, all parties were provided with a copy of the MRP's findings and were asked to provide rebuttal arguments. Responses were received from the worker advisor and from an advocate representing the employer. On April 29, 1999, the Panel met to render its final decisi

Reasons

The Appeal Panel is in agreement with the position of the claimant that the predominant reason why he was discontinued benefits by Claims Services on January 20, 1998, was based upon the conclusion that his symptoms were related to ankylosing spondylitis. This was also acknowledged by the Review Officer in his decision of April 17, 1998. This has now proven to be an incorrect assumption in light of the decision of the Medical Review Panel (MRP) dated February 12, 1999, which affirmatively concluded the following:

"The claimant has spondylolisthesis and spondylolysis. This was first evident on the 1989 x-ray and has not changed on current x-rays. Some degenerative apophyseal joint changes are seen as well."

"The claimant's degenerative changes are not thought to be related to the accident as they have not shown any progression on the x-ray films."

"There was some aggravation of symptoms related to his pre-existing problems... However, no permanent enhancement has been detected. There has been no change in the x-ray picture to indicate further injury."

"The Panel agrees that there is no evidence to support a diagnosis of ankylosing spondylitis."

Accordingly, this Panel has concluded that his ongoing difficulties are not related to a pre-existing condition. The more difficult question is, then, if his ongoing difficulties cannot be explained by a pre-existing condition what are they related to? This question is even more difficult to answer in light of the February 12, 1999, MRP's ruling out of the diagnosis of ankylosing spondylitis, their conclusion that no permanent enhancement of his pre-existing condition took place and that "... No specific underlying pathology to explain the symptoms has been identified..."

The current diagnosis of the claimant as confirmed by the February 12, 1999 MRP is that he has spondylolisthesis and spondylolysis which are not thought to be related to the accident. In addition, the claimant suffers from chronic pain syndrome.

Is there a causal connection between the chronic pain syndrome and the compensable injury? The February 12, 1999, MRP stated that the chronic pain syndrome was "temporally related" to the compensable injury in that it "seemed to begin after the accident." Contrary to the position of the claimant, the MRP did not confirm directly that there was a causal connection between the onset of the chronic pain syndrome and the compensable injury.

Nevertheless, this Panel is prepared to find that the evidence supports on a balance of probabilities, that the claimant is partially disabled by reason of his chronic pain, and that the claimant's CPS is causally related to the compensable accident. We do not, however, find that the claimant's CPS is totally disabling. There are minimal physical findings on medical examination and there is no evidence that his current psychiatric condition is totally disabling or would result in a total loss of earning capacity. In particular, the Panel has noted that the claimant has not been under regular care for his chronic pain issues.

Accordingly, the Panel is prepared to award the claimant benefits to assist him in returning to the workforce but not on a retroactive basis. These benefits will commence upon the claimant contacting the WCB to meet with the vocational rehabilitation department to discuss plans for re-entering the workforce. These benefits will continue so long as the claimant participates fully and cooperatively in any plan outlined for him by the vocational rehabilitation department.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of June, 1999