The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 5, 2001, at the request of a worker advisor acting on behalf of the claimant. The Panel discussed this appeal on March 6, 2001 and July 27, 2001.

Issue

Whether or not the claimant has restrictions relating to any or all of her three compensable accidents; and,

Whether or not the claimant is entitled to payment of wage loss benefits beyond August 25, 1998; and

Whether or not the claimant is entitled to Preventative Rehabilitation benefits and services.

Decision

That the claimant does not have restrictions relating to any or all of her three compensable accidents; and,

That the claimant is not entitled to payment of wage loss benefits beyond August 25, 1998; and,

That the claimant remains eligible for preventive vocational rehabilitation and that the matter of entitlement to this service be referred to the WCB for further consideration.

Background

The claimant has several work-related back claims with the Workers Compensation Board (WCB) dating back to 1991. The following is a brief summary of each claim:

• On January 17, 1991, the claimant was lifting a bale of peat moss, a bag of perilite and a bag of limestone onto a dolly when she experienced pain in the right side of her back. The diagnosis rendered was a mechanical back strain and the claimant was treated with medication and rest. By February 4, 1991, the claimant returned to regular, full time duties.

• While using a two-wheel dolly to take boxes down a flight of stairs weighing approximately 110 lbs. on August 5, 1992, the claimant injured the right side of her neck and shoulder. The diagnosis rendered was an upper back muscle strain and the claimant was treated with analgesics and rest. Compensation benefits were paid to August 24, 1992, inclusive and final.

• On October 14, 1994, the claimant was transporting and delivering 10 boxes of paper weighing approximately 300 pounds each with a dolly over a small door sill, when she developed lower back pain. A Chiropractor’s First Report dated November 2, 1994, diagnosed the claimant with an acute lumbosacral strain.

X-rays of the lumbosacral spine dated November 1, 1994, revealed the following: “Slightly short left leg and a mild lumbar convexity to the left. Probably early L5 discopathy.”

In a progress report dated December 3, 1994, the treating chiropractor noted that the claimant’s recovery had been slow and that her injury affected her L5 disc more severely than initially expected. The diagnosis rendered was acute lumbosacral strain with concomitant nerve root irritation.

A WCB chiropractic consultant assessed the claimant on January 5, 1995. It was the consultant’s opinion that the claimant’s injuries had improved quite a bit although she still had some mild residuals in the form of posterior joint facet pain. The consultant commented that the claimant’s job duties were quite heavy and that she was deconditioned since being off work for approximately 3 months. On February 20, 1995, the claimant commenced a 4 week work hardening program after which she returned to regular work duties on March 20, 1995.

In a progress report dated July 19, 1995, the treating chiropractor noted that the claimant had full range of motion, straight leg raising was 90 degrees bilaterally and her muscular strength had increased to normal. The claimant was considered discharged from treatment.

• On February 7, 1996, the claimant was loading a printer onto a truck when her left foot slipped causing pain in her lower back. When evaluated by a chiropractor on February 8, 1996, the claimant was diagnosed with an acute lumbosacral facet syndrome.

On June 17, 1996, the claimant was seen by a general practitioner who noted low back pain and numbness to the right lateral malleolus and right fourth toe. The claimant was diagnosed with acute recurrent nerve root irritation at the L5-S1 segment.

The claimant was assessed by a WCB chiropractic consultant on November 14, 1996, at the request of the treating chiropractor. It was the consultant’s opinion that the claimant had a chronic facet syndrome that was repeatedly aggravated by the nature of her work which required a lot of bending and lifting. “In my view, this will probably continue as long as she has this job.”

• On January 23, 1997, the claimant experienced pain in her left back region after unloading a quadriplegic individual in a motorized wheelchair off the lift of her truck. On January 24, 1997, the treating chiropractor diagnosed an acute lumbosacral strain and recommended 4 to 6 weeks of chiropractic treatment.

In a memo dated February 14, 1997, the Section Head Complex Claims performed an extensive review of both the 1994 and 1996 claims and in his opinion, felt that the claimant had recovered from the compensable injuries.

On May 1, 1997, the WCB’s Claims Services branch advised the claimant that the file information did not support an ongoing cause and effect relationship between the 1994 and 1996 work injuries and her ongoing difficulties. Hence, the WCB would not cover further chiropractic treatments. It was determined that the claimant did not require restrictions on her work capabilities as a result of her work injuries. The claimant appealed these decisions to Review Office on May 30, 1997.

On July 25, 1997, Review Office determined that financial responsibility would be accepted for ongoing chiropractic treatment as long as it continued to be of a supportive nature and was not preventative or maintenance treatment. The case was referred to the WCB’s committee on preventative vocational rehabilitation to determine the claimant’s eligibility for benefits. On October 15, 1997, the claimant was notified that she was not eligible for benefits under the Preventative Vocational Rehabilitation Policy.

In a memo dated November 5, 1997, a WCB adjudicator documented that the claimant had been off work as of November 5, 1997 due to increasing back pain. In a progress report dated November 7, 1997, the treating chiropractor stated that the claimant’s condition continued to deteriorate where she couldn’t work more than ½ hour per day. He stated the claimant was incapable of lifting over 15 to 20 pounds without considerable pain in her low back and left leg. There were no light duties in her line of work and thus she had been rendered disabled until further notice. The chiropractor indicated that the claimant’s symptomatology continued to point more towards an L5 disc injury without apparent prolapse.

On March 31, 1999, the claimant was examined by both a WCB medical advisor and a chiropractic consultant. The chiropractic consultant stated that the claimant still had pain at the lumbosacral level and the left sacroiliac articulation, which was provoked by the stress of several tests. It was the chiropractic consultant’s opinion that the claimant would probably recover completely if she was able to avoid a lot of lifting and bending. If the claimant returned to her previous job, she would continually aggravate her back problem.

The examining medical advisor stated that the claimant presented a chronic picture of mechanical low back pain/possible left L5 facet and sacroiliac irritation. He stated that the claimant’s condition had most likely been aggravated by continuing the medium to heavy work tasks required in her full time position. The medical advisor commented that a cause and effect was at play with regard to the initial workplace compensable injury, with return to full duties presenting an aggravating mechanism. The WCB accepted the claimant’s time loss from work as a recurrence and benefits commenced on November 4, 1997.

On July 7, 1998, a Vocational Rehabilitation Consultant (VRC) notified the claimant that she did not qualify for vocational rehabilitation benefits under the preventative vocational rehabilitation policy. He could not find a scenario that would recoup the claimant’s full pre-accident salary within the funding provision of the policy. Considering this information, wage loss benefits would end July 18, 1998.

On July 28, 1998, the claimant was advised that the three month restrictions that were placed on her claim would not be extended. The claimant was further advised that the WCB was authorizing a 4 week physical reconditioning program starting July 28, 1998 and that benefits would be paid up to the completion of the program on August 25, 1998, inclusive and final.

The claimant underwent a CT of the lumbar spine on August 20, 1998. Minor degenerative changes were noted in the lumbar spine. No disc herniation were identified at the L3-L4 level. At the L4-L5 level there was mild bulging of the disc annulus, however no disc herniation was seen.

On August 29, 1998, the physiotherapist reported that the claimant demonstrated improvement in her strength, endurance and ability to lift following therapy. He did not consider the claimant to have returned to her pre-accident physical level and that the claimant still had pain and sciatica. On September 15, 1998, the claimant wrote to Review Office appealing the decision rendered on July 28, 1998.

In a decision dated October 2, 1998, Review Office determined that arrangements were to be made for the claimant to be examined by a WCB medical advisor. A WCB physical medicine and rehabilitation specialist assessed the claimant on October 29, 1998.

On November 20, 1998, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond August 25, 1998. Review Office noted that the recent WCB examination produced extremely limited physical findings. Based on the available evidence, the claimant had achieved recovery from the effects of her most recent accident.

Review Office concurred that the claimant may well require preventative restrictions based on her history of past and recurring episodes of low back symptoms. The restrictions were imposed on a strictly preventative basis and not because of the extremely limited pathology found during the recent exam. Review Office noted that the case had already received consideration for preventative rehabilitation and the worker had been deemed ineligible under the WCB’s policy.

On June 9, 2000, Review Office considered the case again to determine whether the claimant had restrictions as a result of any or all of her three compensable accidents. Based on the total weight of medical evidence, Review Office was satisfied that the claimant did not require physical restrictions as a result of any or all of her compensable claims.

At the request of a worker advisor, an oral hearing was convened on March 5, 2001. Subsequent to the hearing, the Appeal Panel determined that further medical information was required prior to rendering a decision on this case. The requested information was received on June 15, 2001, and copies were distributed to the interested parties for comment. The Appeal Panel then met on July 27, 2001 to decide the issues under appeal.

Reasons

The claimant has had a number of compensable injuries between 1991 and 1996, with a recurrence in January 1997, and while she continues to work with the same employer, she is no longer working in her previous position as a courier-driver. Her advocate has asked the panel to address three issues.

In reaching our decision, we have had the opportunity to review the extensive file documentation dealing with the claimant’s three compensable injuries, and to hear from both the claimant and advocate as to the circumstances of her injuries, and subsequent treatment, her medical status, and her job history. Based on evidence provided at the hearing, we also obtained and reviewed medical information regarding back difficulties suffered by the claimant in March 2000 that was provided to the claimant for comment.

Issues #1 and #2

The first issue deals with whether or not the claimant has compensable restrictions relating to any or all of her three compensable accidents. For the claimant to be successful, we must find that the claimant’s current medical difficulties are causally related to any or all of the three compensable injuries in 1991, 1994, or 1996, and have left her with compensable medical restrictions that make her unable to perform some or all of her pre-accident job duties.

WCB Policy 43.00 deals with Vocational Rehabilitation – the circumstances under which the WCB may provide academic, vocational, or rehabilitative assistance to an eligible worker, to reduce the human and financial effects of a work-related accident. Section II of the policy deals with eligibility. It states in part that a worker may access benefits if he/she has a long term loss of earning capacity, and is unable to perform the pre-injury employment, that is, a handicap has resulted from the compensable condition. This last phrase is what we have been asked to deal with in Issue #1, namely, does the claimant have compensable medical restrictions from any or all of her compensable workplace accidents.

The second issue deals with whether or not the claimant is entitled to payment of wage loss benefits beyond August 25, 1998. For the claimant to be successful on this issue, we must find that the claimant was not fully recovered from the effects of an or all of the three compensable injuries in 1991, 1994, and 1996 at the date of termination of her benefits, and has suffered a loss of earning capacity after August 25, 1998 that is causally related to a compensable incident.

Section 39(2) of The Workers Compensation Act (“the Act”) deals with the claimant’s entitlement to the payment of wage loss benefits, which is the basis of Issue #2. It states that a worker is entitled to wage loss benefits where an injury results in a loss of earning capacity, until such time as that loss of earning capacity ends.

We note that the first two issues are both grounded on the medical evidence that is available to us, and accordingly, we have chosen to group these two issues together for the purposes of our analysis.

We have examined all the file evidence and reviewed applicable WCB policy to determine whether medical evidence supports a continued loss of earning capacity after August 25, 1998. We find that the evidence supports the conclusion, on a balance of probabilities, that the claimant had recovered from her compensable injuries by August 25, 1998. We also find that the claimant does not have compensable restrictions arising out of any or all of the three compensable injuries suffered by her in 1991, 1994, and 1996 as of or after that date. We therefore find that the claimant has not suffered a loss of earning capacity after August 25, 1998, related to her compensable incidents, and thus is not entitled to further wage loss benefits after that date.

In reaching these conclusions, we have relied on the following evidence.

The injuries suffered by the claimant in 1991 and 1994 were soft tissue injuries from which the claimant could be expected to make full recovery. The claimant did in fact recover from those injuries and returned to her previous job as a courier-driver.

• The claimant’s November 1, 1994, injury was diagnosed as an acute lumbosacral strain, for which the claimant was off work for nearly five months, until her return to work on March 20, 1995. She reported having some symptomatology in her left leg and numbness and burning into the toes of her left foot. The claimant’s condition improved, and she received a four week job hardening program in order deal with deconditioning that had arisen because of her time off work. After her return to work, she was fully discharged by her chiropractor in July 1995, with his report that she had full range of motion in her lower back, had a straight leg raise of 90 degrees bilaterally, and normal muscle power.

The claimant’s February 1996 injury was a result of a slip while carrying a printer. She immediately felt back pain, left leg pain, and left lower back pain, in the area of the left sacroiliac joint. She missed a few weeks of work. In January 1997, she suffered a recurrence of pain to her left sacroiliac area and missed two days of work, and was diagnosed at that time with an acute lumbosacral strain. In July 1997, a WCB chiropractic consultant who had previously examined the claimant reported that “based on previous exams it is my opinion that this claimant has a chronic facet syndrome which is related to her previous injuries and repeated aggravations due to work related activities.” On July 11, 1997, a WCB medical advisor reviewed the file and notes “in view of clmt’s course, prospect of reinjury is high – I believe that a referral to P.V.R (Preventative V.R.) committee would be reasonable at this time. Dr. [WCB chiropractic consultant] in agreement.”

She then continued to work until November 1997, when her attending chiropractor took her off work due to her deteriorating condition. He reports on January 5, 1998, that the claimant had 30% of range of motion in her lower back, L5 facet irritation, and increased weakness in her left leg. He also notes continued L5 nerve root irritation and sciatic pain irritation. The claimant continued under treatment, and we place particular weight on the following findings, as to the claimant’s progress in 1998:

• The claimant was examined by a WCB medical advisor and chiropractic consultant on March 31, 1998. They found that the claimant had normal flexion, extension, lateral flexion, and rotation of the lower back with pain at the end of ranges. Straight leg raising tests were negative bilaterally, and muscle power and reflexes in both lower extremities were normal. The chiropractic consultant concludes, “in my opinion, if she is able to continue to avoid a lot of lifting and bending, she will probably recover completely. I do feel that if she returns to her previous job, she will continue to aggravate her back problem as I feel that she has a back at jeopardy.”

• The WCB medical advisor notes the need for an adequate home stabilization program to augment her chiropractic treatment, in order to establish further gains in her condition. Temporary restrictions were also established for a three month period. On July 20, 1998, the WCB’s medical advisor declined to extend the restrictions, but recommended a four week physical reconditioning program for her back prior to returning to work. This program was completed by the claimant from July 28, 1998 to August 25, 1998.

• Because of concerns regarding ongoing sciatic complaints, a CT scan was undertaken on August 20, 1998 which noted, “at L4-L5 there is mild bulging of the disc annulus, however no disc herniation is seen. At L5-S1 there is mild bulging of the disc annulus however o no disc herniation is seen.”

• On October 29, 1998, the claimant was examined by a second WCB medical advisor specializing in physical medicine. We place particular weight on his observations and findings, since they are the best indicator of the claimant’s condition at the time her benefits were terminated. His report states,

“Based on the current clinical examination, there was little to find with only a localized area of some minor tenderness just to the left of the lumbosacral junction and only minimal symptomatology produced with extension maneuvers in the same area with no evidence of any sacroiliac-joint complex involvement on the basis of the current clinical examination. There was no area of any apparent muscular symptomatology or no evidence of any muscle pain syndrome. There was no evidence on the current clinical examination of any lumbosacral root involvement or of an irritative basis. There was no evidence of any neurological abnormalities in the lower extremity and no evidence of any lumbosacral root or peripheral never-entrapment syndrome present.

…the last CT scan done, that dated August 20, 1998, suggests only very minor degenerative changes present. Comparing the current examination to the prior medical advisor’s and chiropractic consultant’s examinations, there appears to have been an improvement in the symptomatology. There was minimal current symptomatology produced with attempts at stress testing – improved as compared to the prior evaluation and improvement and in range of movement. As expected on the medical advisor’s and chiropractic consultant’s comments on the prior examinations, there has been further apparent improvement. Complete recovery was expected; I would as well suspect that further improvement will occur and resolution of the most recent flare.

I would agree with the prior chiropractic consultant’s comments that she appears to require preventative restrictions, this based on her history of recurring episodes of low back symptomatology with the lifting demands of her prior occupation as a campus courier and the ongoing report of symptomatology aggravated with any significant lifting or repetitive bending, twisting and lifting of lighter weights.”

At the hearing, the claimant referred to a serious incident involving a disc herniation in her lower back in March 2000, which resulted in her being hospitalized. We obtained hospital records regarding this incident, which included reports by the hospital house physician a neurologist, and three CT examinations. We note that the claimant reported having awakened with serious right buttock and right leg difficulties. A CT lumbar myelogram done at the hospital on March 10, 2000 notes “there is a large area of disc protrusion on the right side at L5-S1 causing marked compression of the thecal sac posteriorly as well as laterally within the spinal canal.”

We further note that the claimant reported that there was no specific trauma or event that precipitated the problem, that she had been asymptomatic in terms of right-sided symptoms prior to awakening that morning, that her earlier compensable injuries dealt with left back and left leg difficulties, and that she had not been working since November 1997. Based on this evidence, we find that the March 2000 lower back difficulty on a balance of probabilities arose spontaneously, was idiopathic in nature, and was not causally related to the claimant’s earlier compensable injuries.

Based on the evidence noted above, we find on a balance of probabilities that the medical evidence does not support the imposition of compensable medical restrictions on the claimant after August 25, 1998. As such, there is no barrier (other than the potential for reinjury) preventing the claimant from a return to her pre-accident employment as of that date, and thus no loss of earning capacity as required by section 39(2) of the Act, to support ongoing wage loss benefits after that date. Our findings that there are no compensable restrictions and no loss of earning capacity also preclude the claimant from accessing vocational rehabilitation benefits and services, as requested by the claimant’s advocate. Accordingly, the claimant’s appeals are denied in respect of Issues #1 and #2.

Issue #3

The third issue deals with whether or not the claimant is entitled to preventative vocational rehabilitation benefits and services. This is an alternative approach put forth by the claimant, to access vocational rehabilitation benefits. For the claimant to be successful on this issue, we must find that the claimant has recovered from the effects of her compensable injuries, but is at risk of further injury if she returns to her pre-accident employment. We would further need to assess the Workers Compensation Board’s (WCB) policy on preventative rehabilitation (Policy No. 43.10.60), and to determine whether it has been properly applied to the claimant’s circumstances.

As noted above, we have found that the claimant has recovered from the effects of her compensable injuries.

As to the claimant’s potential access to preventative vocational rehabilitation (PVR), we find that the medical evidence on file clearly indicates that the claimant has a back at risk and is eligible for consideration by the WCB for PVR, as she meets the criteria laid out in the policy, and was in fact considered for PVR in 1998. Regarding the claimant’s susceptibility to further injury, we accept the comments noted earlier by her chiropractor, and by the WCB medical advisors and chiropractic consultant.

We note that the claimant, while eligible for PVR in 1998, did not receive benefit at that time, as an appropriate scenario could not be established that would meet the cost-benefit tests that are set out in WCB policy 43.10.60. We do not, however, view the PVR policy as establishing a “one time” assessment process for entitlement. We note that since the 1998 entitlement assessment, the claimant has changed jobs with her pre-accident employer since she returned to work in 2001, and also suffered other non-compensable back difficulties in March 2000, which may affect the likelihood of reinjury. These factors lead us to refer the matter of entitlement back to the WCB, for further consideration of the claimant’s potential entitlement to a preventative rehabilitation program.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Finkel, Commissioner - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of August, 2001