The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 14, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 28, 2002.

Decision

That the worker is entitled to wage loss benefits beyond May 28, 2002 to November 5, 2002 inclusive.

Decision: Unanimous

Background

On October 16, 2000, the claimant accidentally fell into a drainage trench which was covered by a board during the course of his employment as a millwright apprentice. The diagnosis rendered by the attending physician on October 17, 2000 was a strained lower back and neck. The claimant also sought treatment from a chiropractor on October 23, 2000 who rendered a diagnosis of “subacute, moderately painful lumbosacral strain w/associated upper thoracic strain and vertebral subluxation complexes.”

Between October 16, 2000 and November 28, 2000, the claimant worked in an alternate duty position but had to discontinue because of increasing discomfort. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing November 29, 2000.

On January 10, 2001, the claimant underwent a CT scan of the lumbosacral spine, which revealed a shallow posterior disc prominence at L4-L5 and there was no evidence of spinal stenosis or a significant facet arthropathy.

The case was reviewed by a WCB medical advisor on January 19, 2001, who was of the opinion that the CT scan findings were not in keeping with the claimant’s total disability. The medical advisor felt that the claimant could return to modified duties with certain restrictions.

The claimant was assessed by a physical medicine and rehabilitation specialist (physiatrist) on February 27, 2001. At the examination, the consultant noted that the claimant’s pain arose from the soft tissues around his spine. He felt that the claimant sprained his supra and interspinous ligaments. There were tender spots in the quadratus lumborum bilaterally as well as in the right periformis muscle. Treatment plans were suggested which included a trial of physiotherapy and needling.

On March 22, 2001, x-rays were taken of the cervical spine. These showed slight disc narrowing at C6-7 with degenerative changes in the facet joints.

A report was received from a specialist at the Pain and Injury Clinic dated April 26, 2001. He diagnosed the claimant with mechanical low back pain and sleep disturbance with depressive features. He thought that physiotherapy should focus on restoring the claimant’s range of motion at the lumbar spine and some reconditioning was required. Subsequently, the claimant underwent physiotherapy treatments related to stretching and stabilization exercises and self-management techniques.

On August 21, 2001, the specialist from the Pain and Injury Clinic reported that as of June 26, 2001, the claimant no longer required acupuncture treatments. The claimant said his condition was 60-70% normal.

A Functional Capacity Evaluation (FCE) took place on August 23, 2001. Briefly, it was reported that the claimant was able to attempt and complete all the test activities. The claimant did report symptoms in his lower back, mid back and into the right side of his neck. The claimant’s physical functioning criteria for lifting and positioning were considered to be inconsistent.

On August 23, 2001, a WCB medical advisor remarked that the FCE results “…basically supports paucity of objective evidence for ongoing subjective pain.”

In a letter from primary adjudication dated August 31, 2001, the claimant was advised that his wage loss benefits would be paid to September 7, 2001 inclusive and final, as it had been determined that there was no objective evidence to support ongoing time loss from work and that the claimant had recovered from his workplace injury and was able to return to full time duties.

On January 9, 2002, the claimant was assessed by a second physiatrist, who made the following comments in his report dated January 9, 2002:

“The patient’s subjective complaints and objective finding from the physical examination suggest that the patient has Myo-Mechanical low back pain of mild to moderate severity, and mild myofascial pain syndrome of the posterior cervical area.”

In a letter dated June 10, 2002, the claimant was advised that the above report had been reviewed by his case manager and by a WCB medical advisor and that no change would be made to the earlier decision that he had recovered from his compensable back strain injury of October 16, 2000.

On June 25, 2002, a solicitor, acting on behalf of the claimant, asked primary adjudication to reinstate the claimant’s benefits retroactively to September 7, 2001, based on a report from the treating physiatrist dated October 17, 2002, in which he stated, in part:

“At this point, I don’t feel that he is fit for any work for which he has previous training or experience. He has largely done construction and physical jobs and at the present time, this type of work would only serve to aggravate his pain problem.”

On September 16, 2002, the claimant’s solicitor provided primary adjudication with additional medical reports for consideration dated July 15 and 31, 2002 and August 9 and 28, 2002 from the treating physiatrist.

The claimant was assessed by a WCB physiatrist on November 5, 2002. He reported limited findings on the clinical examination with an unremarkable screening examination of the musculoskeletal and peripheral neurologic systems. There was no evidence of any mechanical irritability suggesting that the prior mechanical low back pain had resolved. There was minimal soft tissue tenderness and no evidence of any further myofascial pain syndrome activity. The physiatrist concluded that there was no contraindication for the claimant not to progress back to his regular work duties.

On December 2, 2002, a discussion took place between a WCB case manager and the examining WCB physiatrist as to whether or not the claimant had recovered from his compensable injury when his benefits ended in September 2001. The physiatrist stated that the claimant’s compensable injury had resolved long before his benefits were terminated and there was nothing in his exam findings to suggest otherwise. On December 6, 2002, the claimant was advised in writing of the opinion expressed by the WCB physiatrist and that it was the WCB’s opinion that he had recovered from his compensable injury at time of the initial decision letter of August 31, 2001. On January 20, 2003, the claimant’s solicitor appealed this decision to Review Office.

Prior to considering the appeal, Review Office obtained a report from the claimant’s attending physician dated March 10, 2003. Since August 24, 2001, the physician noted that he had seen the claimant on three occasions, namely December 19, 2001, February 27, 2002 and May 28, 2002. The claimant subjectively complained of low back pain. Objective findings had been limited to decreased range of motion and tenderness over the LS spine and paraspinal muscles. As of May 28, 2002, the physician was of the opinion that the claimant could return to work as an industrial mechanic.

In a decision dated April 4, 2003 Review Office determined that the claimant was entitled to payment of wage loss benefits from September 7, 2001 to May 28, 2002. Review Office was of the opinion that the weight of medical evidence from the second physiatrist and the attending physician who had treated the claimant throughout his claim, indicated that the claimant was capable of unrestricted employment with respect to his compensable injuries by May 28, 2002. Review Office recognized that this determination was at odds with the first treating physiatrist but Review Office concurred with the medical advisor’s comments that it was difficult to reconcile this physician’s opinion with the other available evidence on the worker’s file.

On July 7, 2003 and October 3, 2003, the claimant’s solicitor asked Review Office to extend the claimant’s wage loss benefits to November 2002 based on new medical information received from the claimant’s first treating physiatrist. Following review of the new medical information along with all the other medical information on file, Review Office remained of the view that the claimant had sufficiently recovered from the effects of his accident to have resumed employment on May 28, 2002. On January 23, 2004, the claimant’s solicitor appealed Review Office’s decision and an oral hearing was arranged.

Reasons

After having thoroughly reviewed the evidence, we find that the worker is entitled to wage loss benefits beyond May 28, 2002 up to and including November 5, 2002. We further find that the claimant had, on a balance of probabilities, fully recovered from the effects of his compensable injury at this time. In making these determinations, we attached considerable weight to the following body of evidence.

• August 28, 2002 letter from the treating physical medicine and rehabilitation specialist to the claimant’s lawyer; “I feel there are myofascial trigger points in the muscles of the neck, parascapular region, extensors of the back and muscles of the buttock. There also (sic) pain generators in the posterior ligaments of the spine. I feel these were created by the fall the (sic) sustained in October 2000.”
• November 5, 2002 WCB medical advisor examination notes: “Although there was some sensitivity to pressure on palpating over the lumbosacral junction, there was no evidence of any mechanical irritability, suggesting that the prior mechanical low back pain has resolved. There was only very minimal soft tissue tenderness and no evidence of any further myofascial pain syndrome activity. I suspect that he has resolved as a result of the time and the prior treatments received. There does not currently appear to be any contraindication to further increasing his activity and progressing on a graduated return to work to his regular work duties. There does not appear to be any indication for any further specific treatments or investigations either.”
• August 14, 2003 letter from treating physical medicine and rehabilitation specialist to the claimant’s lawyer: “…I feel that the combination of treatments through November and December 2002 made a significant difference in his overall pain condition. In my opinion, he was not able to consider returning to work prior to November 2002.”

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of June, 2004