The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 2, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on October 2, 2001.

Issue

Whether or not the claimant has recovered from the 1990 and 1995 compensable injuries;

Whether or not the claimant is entitled to wage loss benefits; and

Whether or not a Medical Review Panel should be convened pursuant to Section 67(4) of the Act.

Decision

That the claimant has recovered from the 1990 and 1995 compensable injuries;

That the claimant is not entitled to wage loss benefits; and

That a Medical Review Panel should not be convened pursuant to Section 67(4) of the Act.

Background

While employed as a custodian on November 28, 1990, the claimant reported injuries to her upper and lower back when she slipped and fell on cement stairs while taking out garbage. When seen by her attending physician on November 29, 1990 a diagnosis of low back and a rhomboid strain was made. The claim was accepted as Workers Compensation Board (WCB) responsibility and payment of temporary total disability benefits commenced.

On March 12, 1991, an orthopaedic specialist examined the claimant. The specialist was of the opinion that the claimant’s symptoms were in keeping with a soft tissue strain involving the lumbar and sacral spines. The specialist commented that the dorsal spine x-rays were normal except for scoliosis noted in the upper dorsal spine. Oblique views of the lumbar spine were all found to be normal in appearance.

A WCB medical advisor examined the claimant on June 13, 1991. The medical advisor summarized his opinion that the claimant, who slipped on steps and sprained her interscapular and lower back area, did, in fact, suffer a soft tissue muscle injury, but she was not considered to be disabled. The medical advisor was of the further opinion that the claimant was fit for work and that she was to avoid heavy lifting and undue twisting or bending for a three month period.

A follow-up report was received from the orthopaedic specialist dated October 29, 1991. He noted that the claimant returned to work in September 1991 for one week after which she experienced pain and difficulty with flexing her back. The specialist was of the view that there was no indication for further investigation except that the claimant should continue with pelvic flexion exercises of her lower back on a regular basis. He felt that the claimant should look for alternate work that did not involve as much heavy lifting as was required in her present job as a custodian.

In December 1991, the claimant was re-evaluated by a WCB medical advisor, who was of the opinion that there was insufficient objective findings to justify ongoing time loss. Primary adjudication therefore determined that the claimant had recovered from the effects of the compensable accident and that benefits would be paid to January 17, 1992 inclusive and final.

In October 1993, the claimant contacted the WCB to advise that she was off work effective September 30, 1993. The claimant stated that her back was not 100% when she returned to work in January 1992 and that she continued to have problems, which necessitated medical treatment. The claimant felt that her current problems were related to the November 28, 1990 work injury.

Subsequent file information consisted of two signed statements received from the claimant dated October 20, 1993 and November 22, 1993. The claimant provided a history of her ongoing difficulties since returning to work in January 1992. The claimant also gave particulars regarding a motor vehicle accident that occurred on September 1, 1993, an incident that occurred at home on September 28, 1993 when reaching for a pop bottle and an incident that occurred on September 28, 1992 when lifting a garbage pail at work. Medical information was also obtained from a local hospital where the claimant had attended for treatment on September 28, 1993 as well as from the claimant’s treating physician and orthopaedic specialist.

A WCB medical advisor reviewed the above documentation on November 23, 1993. The medical advisor saw no evidence relating the claimant’s current disabilities to her prior back injury. On November 30, 1993, the claimant was advised by Claims Services that her current back problems were considered to be unrelated to the November 28, 1990 compensable injury.

On March 31, 1994, the case was considered by Review Office following receipt of an appeal from the claimant in which she disagreed with the decision rendered on November 30, 1993. Review Office found based on the weight of evidence that the claimant had long since recovered from the effects of her November 1990 compensable accident and that any suggestion she seek restricted work activities was, on a balance of probabilities, related to her diminutive stature.

Review Office noted that the claimant experienced her symptoms while reaching for and lifting a pop bottle in her kitchen on September 28, 1993. She referenced a work related accident on the same day, however, the incident had not been confirmed and had not been mentioned as a cause of the claimant’s trouble when she sought treatment. Review Office therefore found no basis on which to extend further compensation benefits to the claimant.

While employed as a custodian on March 30, 1995, the claimant reported an injury to the right side of her lower back after washing floors in a bent and twisted position. The diagnosis rendered by the attending physician was mechanical back pain. The WCB accepted the claim and the payment of benefits commenced.

A report received from a physical medicine and rehabilitation specialist (physiatrist) indicated that he treated the claimant on March 31, 1995. The diagnosis rendered was an acute lumbar muscle strain and the claimant was referred for physiotherapy treatments. The physiatrist also indicated in his report that the claimant had pre-existing low back pain with myofascial trigger points and that she had responded to treatment. The claimant returned to work in December 1994. (File information showed that the claimant did not return to work following her 1993 injury until December 1994 and was paid long term disability benefits.)

In a follow-up report dated August 11, 1995, the physiatrist reported that since his July 7, 1995, trigger point needling and 1% Xylocaine injection of the right quadratus lumborum plus further stretching and strengthening exercises in PARS physiotherapy, the claimant had shown further improvement. He considered the claimant capable of returning to work on a graduated basis with no restrictions.

On September 1, 1995, a WCB adjudicator confirmed that a graduated return to work program would begin on September 5, 1995 and by September 15, 1995, it was expected that the claimant would be able to resume her full-time regular duties. WCB benefits would therefore end on September 15, 1995.

In August 1996, the claimant attended the WCB’s offices to advise that she had been involved in a motor vehicle accident on November 1, 1995. The claimant provided a letter from Manitoba Public Insurance (MPI) dated August 2, 1996 which indicated that her inability to work “is not related to symptoms arising from the motor vehicle accident but is a continuation of a work related injury.” In view of this information, primary adjudication obtained medical reports from MPI concerning the November 1995 motor vehicle accident which was later reviewed by a WCB medical advisor on September 6, 1996. On September 4, 1996, the claimant was advised that based upon review of her case, the WCB was unable to extend further benefits as there was no evidence to support an ongoing cause and effect relationship between either the 1990 or 1995 workplace accidents and her current difficulties.

On February 29, 2000, a solicitor, acting on behalf of the claimant, submitted a MRI report dated August 27, 1999, which revealed, “Minor multilevel lumbar degenerative disc disease.” The solicitor requested the WCB to re-open the claim relating to the 1990 accident. On March 21, 2000, the Director of Service Quality wrote to the solicitor indicating that there was nothing in the medical report which would cause Review Office to reconsider its March 31, 1994 decision.

On June 6, 2000, the claimant’s solicitor submitted a report from a physiatrist dated June 1, 2000. The physiatrist commented that the claimant’s chronic lumbosacral strain and right piriformis muscle trigger points most likely resulted from the November 28, 1990 work injury. Based on this report, the solicitor felt there was enough new medical opinion for a Medical Review Panel (MRP) to be convened. On June 20, 2000, Rehabilitation and Compensation Services determined that an MRP would not be convened pursuant to section 67(4) of the Workers Compensation Act (the Act) as there was no clear indication of a difference in medical opinion between a WCB medical advisor and the claimant’s treating physician.

In December 2000, the issue regarding the solicitor’s request for an MRP was considered by Review Office. Review Office concluded that the requirements of section 67(4) of the Act had not been met and that an MRP should not be convened under section 67(4) of the Act.

On April 12, 2001, the solicitor requested Review Office to reconsider its 1994 decision based on medical reports dated August 27, 1999, June 1, 2000, June 12, 2000 and December 8, 2000. He indicated that the claimant was seeking ongoing loss of income, loss of earning capacity, lump sum compensation for a permanent partial disability, academic and vocational rehabilitation assistance, loss of pension and reinstatement of benefits pursuant to section 43 of the Act.

In a decision dated April 27, 2001, Review Office determined the claimant was not entitled to wage loss benefits beyond January 17, 1992. Review Office indicated the medical reports submitted in both the 1990 and 1995 claims had again been reviewed. Review Office was of the opinion that there was no compelling reason to alter its decision of 1994. Review Office was of the view that the claimant had fully recovered from the effects of both accidents and was not entitled to further benefits. On May 11, 2001, the solicitor appealed Review Office’s decisions of January 5, 2001 and April 27, 2001. On October 2, 2001, an Appeal Panel hearing was convened.

Reasons

The evidence clearly establishes that the claimant had fully recovered from the effects of her 1990 and 1995 compensable injuries. After each occasion, the claimant was given medical clearance to return to work without restrictions:

“This is to certify that [the claimant] is under my medical care. She is now fit to return to work full-time with no restrictions.”

• March 14, 1997 – letter from treating orthopaedic surgeon to claimant’s union representative- “On March 4, 1997, there was no measurable physical impairment related to this woman’s lumbar spine or lower extremities. There were no physical findings to suggest that she was not fit to resume her previous custodial duties. There was no indication for other specific investigation, therapy or treatment. There was no indication for any surgical invasive treatment.

Dr. [treating physiatrist’s] medical report of October 30, 1996 was reviewed. Dr. [physiatrist] records dramatic improvement in neck and lumbar back symptomatology with needling techniques, spray and stretch, and physiotherapy treatments. He diagnosed her as having multiple muscle myofascial pain syndrome. He also thought she would be fit to return to work with no restrictions as of December 1, 1996.

I would agree with this opinion, and her physical status has been maintained even on review March 4, 1997. Unless symptomatology changes, there are no specific restrictions for Mrs. [the claimant]. Therefore her overall prognosis for the future is good.”

In light of our determination that the claimant has recovered from the effects of both the 1990 and 1995 compensable injuries, it necessarily follows, therefore, that the claimant is not entitled to wage loss benefits.

Section 67(4) of the Act outlines the circumstances in which an injured worker may request that a medical review panel (MRP) be convened:

“Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.”

After having carefully reviewed all of the medical evidence, we find that a medical review panel (MRP) should not be convened pursuant to the above referenced section of the Act. Counsel acting on behalf of the claimant was unable to refer the members of the Appeal Panel to an opinion authored by a WCB medical advisor, which differed from that of the worker’s treating physician with respect to a medical matter.

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 2nd day of November, 2001