The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 22, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on June 22, 2000.

Issue

Whether or not the claimant has recovered from the effects of his August 3, 1994, compensable injury; and

Whether or not the claimant is entitled to payment of wage loss benefits beyond March 19, 1999.

Decision

The claimant has not recovered from the effects of his August 3, 1994, compensable injury; and

The claimant is entitled to payment of wage loss benefits beyond March 19, 1999 up to and including February 4, 2000.

Background

On August 3, 1994, the claimant sustained a compensable lower back injury while performing his occupational duties as a dock worker. The diagnoses rendered by two attending physicians were a low back strain and a left lumbar myofascial strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were issued to the claimant.

Subsequent file records showed that in December 1994, a rehabilitation and physical medicine specialist (physiatrist) felt that the claimant’s symptoms were myofascial in origin involving the quadratus lumborum. Treatment consisted of physiotherapy, occupational therapy, work hardening, spray and stretch treatments, back strengthening classes and home exercises. On July 21, 1995, a WCB medical advisor commented that the probable diagnosis was myofascial pain.

On November 7, 1995, a WCB physiatrist assessed the claimant. The clinical examination suggested the presence of some early lumbosacral spondylosis, likely pre-existing. The examination also revealed that the low back symptomatology was primarily originating from the left lowest lumbosacral facet, and most likely related to some early degenerative changes in the facet joint, especially the mechanical pain. The current injury was probably an aggravation of some pre-existing degenerative changes and mechanical back pain.

A bone scan examination dated January 22, 1996, was reported as being normal. Lumbar and cervical spine x-rays dated December 7, 1994 were also considered to be normal.

On January 8, 1997, the claimant was assessed at the WCB’s pain management unit. The conclusion at this time was that the claimant did not qualify for a diagnosis of chronic pain syndrome. The claimant was, however, referred for therapy sessions to assist with pain management.

In March 1997, the claimant was referred to a physiotherapist as the claimant was considered deconditioned after being off work since August 1994.

On September 29, 1997, a WCB medical advisor examined the claimant. Under discussion and opinion, the medical advisor indicated that there were no definite Waddel signs and that the claimant was non-compliant during some areas of the examination. The impression of muscle power reduction was due to non-compliance and pain behavior on the part of the claimant. The imaging studies were reviewed. The medical advisor indicated these studies did not show any evidence of degenerative changes. The suggested treatment plan was for a trial injection of the left lower lumbosacral facet area.

On December 30, 1997, the claimant was assessed at the Pain Clinic. The physician indicated that the claimant’s symptoms might be suggestive of involvement of the lower lumbar facet joints in additional to a muscular component. Arrangements were made for the claimant to undergo a trial of facet joint blocks which were anticipated to be performed in about 3-4 months time due to a waiting list.

In a further report from the Pain Clinic dated January 22, 1999, it was noted that the claimant was again reviewed on October 30, 1998. He had a left L5-S1 facet block. On January 11, 1999, the claimant indicated that he had approximately one week of good relief and that he was continuing to have significant pain. In view of the response to the facet block, the physician indicated that the claimant might benefit from a facet rhizotomy. Responsibility for the proposed rhizotomy was denied by the WCB as it considered the worker’s low back symptoms which were primarily in the facet, pre-existed the compensable injury.

The case was reviewed by a WCB medical advisor on March 8, 1999. The medical advisor indicated that the claimant’s pre-existing degenerative changes, which had been aggravated by the compensable injury, ought to have resolved some time ago.

On March 12, 1999, primary adjudication wrote to the claimant indicating that his benefits would be paid to March 19, 1999, inclusive and that he was considered to have recovered from the effects of the 1994 compensable injury. In the opinion of primary adjudication, the difficulties experienced by the claimant were due to pre-existing changes which were aggravated by the work injury. On May 4, 1999, a worker advisor appealed this decision to Review Office and submitted a report dated April 15, 1999, from the Pain Clinic. This report concluded that the claimant’s pain arose from his facet joints and that the week of relief of his pain with the facet joint injections was indicative of this diagnosis and that it coincided historically with the 1994 injury.

Prior to rendering a decision, Review Office obtained the opinion of a WCB orthopaedic consultant on May 18, 1999.

On June 4, 1999, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond March 19, 1999 and that the worker was considered to have recovered from the effects of his 1994 injury. Review Office outlined the facts of the case and accepted the medical opinion of its orthopaedic consultant. In particular, Review Office relied upon the orthopaedic consultant’s opinion that “there is no evidence of any significant pre-existing pathology reported in the lumbosacral spine and significant degenerative changes in this young man without previous significant trauma to the back would be most unusual. He further stated there is no recorded evidence of any significant pre-existing condition affecting the lumbosacral spine”.

Review Office did not believe that the claimant was suffering from the 1994 injury given the initial diagnosis, the lack of response to numerous treatment modalities, and the length of time that had passed since the August 1994 incident. There was currently no medical evidence to support the contention that the claimant had not recovered from the effects of his compensable injury.

On April 4, 2000, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.

Reasons

We find that the claimant had a pre-existing condition which was aggravated on August 3, 1994, and a WCB medical advisor in his examination notes dated November 7th, 1995 has confirmed this fact. “The current clinical examination also suggests that the low back pain symptomatology is primarily originating from the left lowest lumbosacral facet, likely related to some early degenerative changes in the facet joint – specifically, a mechanical back pain related to the degenerative changes present. The current injury was likely an aggravation of some pre-existing degenerative changes and mechanical back pain. I am uncertain whether there is an additional contribution from the sacroiliac joint complex ligaments or whether this is largely on the basis of referral from the lower lumbosacral facet, which can occur.”

We also attached weight to the opinion expressed by the treating anesthesiologist in his letter to the claimant’s worker advisor on April 15^th, 1999. “Regarding the last paragraph of your letter I certainly do believe that Mr. [the claimant’s] pain does arise from his facet joints and that the week of relief of his pain with the facet joint injections was indicative of this diagnosis. It certainly seems to coincide historically with the injury in 1994. Which is what Mr. [the claimant] has indicated throughout. If he does respond well to the facet joint rhizotomy this may give him a significant amount of relief to allow him a very good prognosis. Patients tolerate this well and may have a day or two of discomfort in their lower back but usually are back to a normal lifestyle within a few days.”

The claimant underwent the rhizotomy at the L5-S1 level on January 28^th, 2000. He testified at the hearing that since having this procedure carried out he has been functioning at probably 95% and that he hasn’t had pain in his back once. We find based on the weight of evidence that the claimant’s surgery was on a balance of probabilities related to his compensable injury. The continuous pain that the claimant had been experiencing since the accident on August 3^rd, 1994 has now since disappeared. The claimant indicated that he had recovered within one week following the surgical procedure. Accordingly, the claimant is entitled to the payment of wage loss benefits beyond March 19^th, 1999 up to and including February 4^th, 2000.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of July, 2000