The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on June 19, 2006, at the request of legal counsel, acting on behalf of the worker. The panel discussed this appeal following the hearing on June 19, 2006.

Issue

Whether or not the worker is entitled to benefits and services beyond March 27, 2000; and

Whether or not the worker is entitled to preventive vocational rehabilitation.

Decision

That the worker is not entitled to benefits and services beyond March 27, 2000 except for preventive vocational rehabilitation benefits.

Decision: Unanimous

Background

The worker has two previous claims with the Workers Compensation Board (WCB) for back injuries that occurred in the workplace on December 12, 1982 and July 11, 1983.

On May 16, 1987, the worker injured his lower back during the course of his employment as a warehouse foreman. The diagnosis rendered at that time was an acute low back strain. The claim was accepted and benefits were paid accordingly. On October 19, 1987, the worker returned to his regular duties but had to discontinue because of ongoing back difficulties.

Following review of the file evidence on December 29, 1987, a WCB medical advisor stated that in view of the chronicity of the worker's back problems dating back to 1982 and his present ongoing back complaints, the worker, most likely, would never return to his pre-accident employment. He felt that the worker's back restrictions would likely be permanent and were related to his compensable injury of May 1987 with some pre-existing mild orthopaedic degenerative back changes. The final diagnosis outlined by the medical advisor was a chronic mechanical low back strain.

In February 1988, the worker started receiving vocational rehabilitation benefits while he participated in a skill upgrading program.

On August 24, 1988, it was determined by the WCB that the worker had recovered from the effects of his injury and that the need to avoid specific physical activities were related to his pre-existing degenerative changes. On September 29, 1989, the WCB's Rehabilitation Committee overturned the decision and reinstated the worker's benefits. The Rehabilitation Committee was unable to find evidence to support the position that the worker had recovered from the effects of his compensable injury. The WCB's vocational rehabilitation branch then continued to sponsor the worker with educational upgrading, training, etc.

In a registered psychologist's report dated February 23, 1987, it was indicated that the worker may be experiencing periods of depression resulting from his inability to manage his chronic pain and failure to successfully reintegrate into the work force. A pain management program was suggested to assist the worker with his pain management.

On February 25, 1997, the worker was assessed by a WCB medical advisor to determine his current status in terms of permanent restrictions and whether he was entitled to a permanent partial disability award. The medical advisor indicated "Today's examination did not reveal that there was any significance to the previously noted pre-existing lumbar spine condition. At this stage in any case, it would be difficult to make distinctions between the compensable injury and any pre-existing condition the claimant had." It was recommended that the worker be assessed by the WCB's Pain Management Unit (PMU) and for a physical medicine and rehabilitation consultant to review the clinical condition of the worker's left sacroiliac joint and the localized myofascial pain point tenderness and bands.

In or around March 1997, the file was reviewed by another WCB medical advisor. From reading the examination notes of February 25, 1997, the medical advisor believed there was only mild pre-existing degenerative disc disease which was just aggravated by the compensable injury. He stated "Previous restrictions is (sic) for preventive purpose."

A report was received from an orthopaedic specialist dated March 25, 1996 regarding the worker's lower back complaints. He indicated that the worker complained of recent numbness into the left lateral thigh and also weather ache. His examination revealed a fit appearing man with no lower extremity neurologic deficit nor nerve root tension signs. His lumbar flexion was fingertips to above knees, and his lumbar extension was 30 degrees. X-rays dated March 19, 1996 showed mild narrowing at the L4-5 level and degenerative spurring at the L5-S1 level with a rudimentary disc at S1-2. The orthopaedic specialist did not recommend any further investigations and was of the opinion that conservative treatment should continue.

The worker was interviewed by a medical advisor at the WCB's PMU on August 21, 1997. It was felt that the worker was suffering from chronic pain syndrome along with symptoms suggestive of a reactive depression. It was felt that the worker needed education in pain management and a referral to The Canmore Pain Clinic was suggested.

The case was reviewed by a WCB medical advisor on September 11, 1997 and it was opined that the worker's ongoing problems "relate to his pre-existing changes in his spine. Some congenital and other of a degenerative nature."

On June 17, 1998, another WCB medical advisor reviewed the file evidence and commented that:

"There is no evidence on file to suggest that any ongoing symptoms have a direct relationship to the now specific back ache developing in his back during 1987 and previously present intermittently since 1982."

The worker was assessed by a WCB psychological advisor on September 30, 1998. Based on the interview, it was determined that the worker continued to experience pain as his primary complaint and was feeling vocationally, socially and recreationally disabled. As well, the worker appeared to be experiencing a reduced level of functioning as a result of his pain related symptoms.

The worker was again interviewed at the WCB's PMU on October 8, 1998. The medical advisor concluded that the worker continued to suffer from chronic pain syndrome. He indicated that the worker's chronic pain syndrome was entrenched and that any attempt at rehabilitation or return to work must first be preceded by his participation in an interdisciplinary pain management program. The medical advisor also stated, "…while my opinion is that this man has recovered from the physical aspects of his injury of May 16, 1987 he has developed in the post-injury period, chronic pain syndrome which, in my opinion, was materially affected by his workplace injury."

On February 15, 1999, the worker was seen by a WCB medical advisor to assess his general physical status and conditioning. The medical advisor indicated that the worker's current complaints were similar to his complaints expressed in the examination of February 1997. He noted that the worker had Waddell's signs of 4/5 to 5/5 and that the examination revealed a worker who showed augmentation of symptoms and non-compliance with some of the examination modes. The examination did not show any evidence of radiculopathy or any bony abnormalities. The worker's muscular conditioning of both limbs looked healthy and there was no visible evidence of muscular atrophy. Both thighs and calves showed good muscle tone.

In a memo dated March 15, 1999, a WCB medical advisor stated, "the exams of 1997 and 1999 are unable to distinguish between the chronic pain behavior of this claimant and his pre-ex condition. Given that the diagnosis is a behavioral problem, there are no physical restrictions as such…restrictions would therefore be based on pre-ex and would be preventive."

In another memo dated April 1, 1999, the above WCB medical advisor stated, "No evidence on recent exam for restrictions. However based on pre-x anomaly of spine and likely DDD, the following are suggested as preventative (sic) restrictions - no repeated bending, stooping, crouching. No wts. over 20 lbs."

On April 22, 1999, it was determined that the worker's chronic pain syndrome was related to his compensable injury.

In a decision dated July 2, 1999, the worker was informed that there was no evidence to support the need for ongoing compensable restrictions. Based on the pre-existing anomaly of his spine and early degenerative disc disease, the need for restrictions was based solely on his pre-existing condition and preventive restrictions were suggested. The worker was informed that the WCB was arranging for him to attend a treatment program at The Canmore Pain Clinic to help him develop tools to cope with his chronic pain syndrome. His benefits would end twelve weeks from the completion of his treatment at Canmore. The rationale for terminating his benefits was based on the WCB's decision that he had recovered from the effects of his compensable injury.

Reports were submitted by The Canmore Pain Clinic concerning the worker's progress in its program. In a discharge report dated October 22, 1999, it was indicated that the worker had made significant gains in his pain management program, specifically with his overall functional abilities and decreased fear of re-injury while being active. It was indicated that the worker took advantage of his time at the clinic and had progressed in all disciplines.

The worker was interviewed by a WCB medical advisor at the PMU on November 17, 1999. It was indicated that the worker ambulated freely and with an erect posture. He did not demonstrate any abnormal pain behavior.

In a memo dated December 13, 1999, the Preventive Vocational Rehabilitation Committee indicated that the worker did not qualify for PVR assistance but should be provided with an extension of twelve weeks of benefits.

Based on the above decision, the worker was paid benefits to March 27, 2000 inclusive for the purposes of a job search.

A solicitor, acting on behalf of the worker, provided correspondence to the WCB which contended that the worker continued to suffer from chronic pain syndrome and that this condition prevented him from obtaining gainful employment. It was also argued that the decision rendered by the Rehabilitation Committee could not be over-ruled.

On September 12, 2003, a WCB case manager wrote to the solicitor and confirmed that the worker was not entitled to compensation beyond March 27, 2000. The case manager noted that the worker had been trained in appropriate pain management coping mechanisms through the pain management program at The Canmore Pain Clinic and therefore he was considered fully capable of working with his condition. She indicated that from the weight of medical evidence, the worker had recovered from the physical effects of his compensable injury and that his pre-existing condition would not preclude him from working on anything more than a preventive basis. There was no entitlement under the former or current legislation and policy. The current policy was applicable for decisions rendered on or after June 23, 1992.

The case was considered by Review Office on February 27, 2004 and the following decisions were rendered:

• That the worker was not entitled to benefits beyond March 27, 2000 - Review Office was of the opinion that there was insufficient medical evidence to support that the worker had not recovered from his compensable back strain of May 16, 1987;
• That ongoing restrictions were not compensable - Review Office felt that the worker had recovered from his compensable injury of chronic mechanical low back strain and aggravation of his pre-existing condition. He was not entitled to further vocational rehabilitation assistance as there was no longer any physical condition requiring restrictions on his return to work. Due to his pre-existing condition he had a back at risk and may require limitations/restrictions on his return to work in order to prevent another back injury.
• That the worker was not entitled to preventive rehabilitation assistance - Review Office felt that the claim did not meet the WCB's policy relating to the provision of preventive vocational rehabilitation services or benefits.

In correspondence addressed to the worker's solicitor dated August 18, 2004, a physical medicine and rehabilitation specialist indicated that he first saw the worker in June 2002. Following his review of the worker's medical history, the specialist's position was that a recent CT scan of the lower back demonstrated degenerative changes and disc bulging which was in keeping with the type of work he was doing at the time of his back injuries. The specialist was of the view that the worker would experience an increase in the intensity of pain in his lower back and left leg as he aged and would not return to or endure heavy physical labor. In his view:

“It is highly improbable that he had a significantly active pre-existing condition of the lower back prior to his work related injuries. It is entirely within the realm of probability that the type of work he was doing during the time he was a freight handler caused repeated and ongoing insult to the muscles, ligaments and facet joints (posterior spinal elements) . . .”

On April 8, 2005, Review Office considered the case again at the solicitor’s request. Review Office determined that the worker was not entitled to benefits and services for chronic pain syndrome as he had successfully completed treatment for this condition based on the discharge report from The Canmore Pain Clinic and based the interview findings when the worker was seen at the WCB’s Pain Management Unit on November 17, 1999.

Review Office also indicated that it considered the new information from the physical medicine and rehabilitation specialist dated August 18, 2004. It found that the opinion expressed by the specialist was not based on the facts specific to this case. It noted that the specialist did not assess the worker until 15 years post injury. Therefore, Review Office indicated that it could not give due consideration to the expressed views of the specialist.

On March 10, 2006, the worker and his solicitor appealed Review Office’s decisions of February 27, 2004 and April 8, 2005 and an oral hearing was arranged.

Reasons

Question 1: Is the worker is entitled to benefits and services beyond March 27, 2000?

Overview

There is no dispute that the worker suffered an injury during the course of his employment on May 16, 1987 (the "accident"). There is also no doubt that the worker was disabled as a result of the accident.

The central issue before the panel is whether the worker continued to be disabled as a result of the accident beyond March 27, 2000. In essence, the panel must consider both whether the worker was disabled beyond March 27, 2000 and whether that disablement can be related to the compensable accident of May 16, 1987. In making its determination, the panel must ask itself whether the worker continues to be disabled as a result of either the physical or psychological consequences of his injury or some combination of the two.

Based on a balance of probabilities, the panel finds that:

• prior to the accident of May 16, 1987, the worker suffered from both a congenital anomaly and degenerative disc disease (the pre-existing condition);
  
  
• the worker suffered a lower back strain as a result of the accident of May 16, 1987;
  
  
• the compensable injury did not cause or enhance the pre-existing condition. The worker recovered from the physical aspects of his lower back strain of May 16, 1987 long before March, 2000.
  
  
• while the worker recovered from the effect of his lower back strain, he continued to have a "back at risk" due to his pre-existing condition. As the claimant has aged, his back has continued to deteriorate;
  
  
• by the late 1990s, pain was the primary complaint of the worker. He was vocationally, socially and recreationally disabled to a sufficient degree to meet the criteria for chronic pain syndrome;
  
  
• by late 1999 or early 2000, the patient no longer met the diagnostic criteria for chronic pain syndrome;
  
  
• the May 16, 1987 accident did not disable the worker beyond March 27, 2000.

In making its determination the panel has considered the entire record including the medical reports, written material and oral evidence. The panel has also considered both the oral and written arguments presented by counsel for the worker.

The Pre-Existing Condition

Based upon a balance of probabilities, the panel finds that prior to the accident of May 16, 1987, the claimant suffered from a pre-existing condition related to a congenital anomaly and degenerative disc disease. While the degenerative changes may have been relatively moderate at the time of the worker's accident in May 1987, the stage was set for further deterioration.

In essence, the worker had a back at risk which was likely to deteriorate in the future. This reality is confirmed by a simple chronology of the deterioration of the worker's back:

• during the 1980's, there was some evidence of slight degenerative changes at L5 and partial lumbarization of S1;
• by 1996, there was mild narrowing of the L5, degenerative spurring of the L5-S1 and rudimentary disc at S1-S2;
• by 2004, there was "degenerative disc disease and borderline spinal stenosis at L2-3 and L3-4".

In making this finding, the panel would observe that the existence of a pre-existing degenerative condition has been identified in a number of reports including:

• medical advisor (Dec 1987);
• orthopaedic specialist and x-ray (1996);
• medical advisor (March 1997);
• medical advisor (September 1997);
• medical advisor (June 1998);
• medical advisor (April 1999);
• CT Scan (circa. 2004).

WCB medical advisors also identified a congenital anomaly with the workers' back (September 11, 1997, June 17, 1998, April 1, 1999 reports).

The existence of degenerative disc disease was also observed by the physical medicine and rehabilitation specialist who was treating the worker during much of the time period between 2002 and 2004. During oral evidence, the worker confirmed that the physical medicine and rehabilitation specialist "was dealing more with issues surrounding disc bulging and the muscles surrounding that area." The worker noted "the padding between the discs is wearing away" and "the spine doesn't line up properly, so it kind of pops out to the side and I get bulging."

The Accident and Recovery from the Physical Aspects of the Injury

Based upon a balance of probabilities, the panel finds that the worker suffered a lower back strain as a result of the accident of May 16, 1987. The panel also finds, based upon a balance of probabilities, the compensable injury did not cause or permanently enhance the pre-existing condition.

There is no dispute that the injury of May 16, 1987 was a strain. There is no suggestion that the worker fell nor is there any radiological evidence suggesting a bulging disc at the time.

In 1987, the medical advisor had some difficulties in disentangling the degree to which the back strain versus the pre-existing condition was contributing to the worker's disability. However, the nature of the injury suffered in May, 1987 coupled with the medical evidence available by the mid to late 1990's leads the panel to conclude, based upon a balance of probabilities, that the worker had recovered from the physical aspects of the lower back strain of May 1987.

In making this finding, the panel notes that one would not expect the effects of a back strain to endure for close to a decade. While recovery times may differ, without other factors in play, a back strain would not be expected to last for anywhere near that period of time.

In drawing this conclusion, the panel would note that by the mid-1990s, there was ample medical evidence that to the degree the worker was continuing to suffer from back pain, it was the pre-existing condition rather than the temporary effects of a back strain that was in play. Based upon a balance of probabilities, the panel accepts the following opinions:

• the worker's ongoing problems "relate to his pre-existing changes in his spine. Some congenital and other of a degenerative nature." (WCB medical advisor, September 1997)
  
  
• "no specific C.I. [compensable injury] - just repetitive work. Hx [history] of back complaints since 1982. X-ray shows congenital anomaly. DDD [degenerative disc disease] and osteophytes. None of these relate to 1987 incident. . . . There is no evidence on file to suggest that any ongoing symptoms have a direct relationship to the now specific back ache developing in his back during 1987 and previously present intermittently since 1982." (another WCB medical advisor, June 17, 1998)
  
  
• "this man has recovered from the physical aspects of his injury of May 16, 1987" (WCB medical advisor, October 8, 1998)

The report of the physical medicine and rehabilitation specialist in 2004 might be seen as offering some support for a causal relationship between the May 17, 1987 injury and the ongoing complaint of the worker. However, it should be noted that the specialist does not deny the existence of a pre-existing condition. He merely suggests that it was not "significantly active" prior to the work related injury. The conclusion is not inconsistent with the panel's finding that the worker's back has deteriorated over time.

Moreover, the physical medicine and rehabilitation specialist's report also identifies the existence of a "degenerative changes in the lower back with disc bulging". This is consistent with the findings of other medical practitioners in that it points to a deterioration in the back's condition over time.

Finally, the specialist does not identify any acute or sudden injury in the time period of the 1987 accident to which disc bulging could be attributed. In the panel's view, based upon a balance of probabilities, if the patient had suffered a damaged disc at the time of his May, 1987 injury, it would have been identified in the radiological evidence at a much earlier point in time.

Considering the medical evidence as a whole, the nature of the May 17, 1987 accident and the nature of the ongoing complaints of the worker, the panel finds, based upon a balance of probabilities that the worker had recovered from the physical aspects of his lower back strain of May 16, 1987 long before March, 2000.

Chronic Pain Syndrome (CPS)

There is no dispute that the worker met the WCB diagnostic criteria for CPS and that the existence of the pain syndrome was related to the workplace injury.

However, there is ample evidence that by March, 2000, the worker was no longer suffering from CPS. In drawing this conclusion, the panel primarily relies upon three pieces of evidence:

• the discharge report of The Canmore Pain Clinic dated October 22, 1999, which found that the worker had made significant gains in his pain management program, specifically with his overall functional abilities and decreased fear of re-injury while being active;
  
  
• the worker's interview by a WCB medical advisor at the PMU on November 17, 1999 where it was indicated that the worker ambulated freely and with an erect posture. It was also noted that the worker did not demonstrate any abnormal pain behavior;
  
  
• the worker's evidence that he was continuing to perform well in his training course.

Clearly, by this point in time, the worker was not vocationally, socially and recreationally disabled as a consequence of his pain. He was able to perform relatively well academically; he showed a significant increase in his functional ability at Canmore and, in social settings, he was not displaying abnormal pain behaviour.

Conclusion on Question 1

Based upon a balance of probabilities, the worker was no longer disabled as a result of the accident of May, 1987.

Question 2: Is the worker is entitled to preventive vocational rehabilitation?

The WCB's vocational rehabilitation criteria can be found in Policy 43.10.60. In considering whether an individual is an appropriate candidate for vocational rehabilitation, reference is made to four criteria:

1. Is the return to a previous occupation likely to cause a further compensable disability?
2. Is there a reasonable expectation of success in preparing for alternative employment?
3. Will there be savings at least equal to the projected costs?
4. Are comparable services available from some other service at no cost to WCB?

The worker is approximately 47 years of age. For many years, efforts to engage him in vocational rehabilitation were unsuccessful. However, at the time his vocational rehabilitation benefits were cut, the worker was approximately seventy five percent of the way through a training course which offered some prospects of returning him to a supervisory position in the transportation industry. The worker was enjoying the course; he had not failed a single subject and he was feeling relatively confident about his prospects. Moreover, the evening course format enabled him to take the course without suffering undue pain.

No concern was raised by the WCB in terms of criteria one, three or four. The WCB's sole reason for rejecting the worker's continued participation in vocational rehabilitation was criteria two.

"It was the committee's consensus opinion that Mr. [the worker] has limited (not reasonable) prospects, at best, for success in preparing for alternate employment; this view is based on his inability to capitalize on the VR plans/return-to-work strategies (to secure competitive employment) over the past nine-ten years, all of which factored in his low back limitations."

This opinion appears to be based upon the worker's prior circumstances rather than the facts of the year 2000. It did not appear to take into account the fact that the worker had successfully completed his treatment program at Canmore. Nor does it appear to consider his successful participation in the training course he was taking at that time. In the panel's view, based upon the evidence on file and the worker's responses and demeanor at the oral hearing, there was and is a reasonable expectation of success in preparing for alternative employment. Therefore, the worker should be afforded the opportunity to conclude his training courses.

In the panel's view based upon a balance of probabilities, the worker meets the criteria for preventive vocational rehabilitation.

Conclusion

The Panel finds that the worker is not entitled to benefits and services beyond March 27, 2000 except for preventive vocational rehabilitation benefits.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of August, 2006