The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker sustained a compensable injury to his low back on July 13, 2000 during the course of his employment as a line haul driver. The Workers Compensation Board (“WCB”) paid the worker wage loss and other benefits up until February 11, 2005 when it was determined that he had recovered from the effects of his compensable injury.

On August 2, 2007, an advocate acting on the employer’s behalf, contended that the worker had recovered from the effects of his compensable injury as early as February 21, 2001 and asked that the WCB grant the employer additional cost relief. The request for further cost relief was denied by both primary adjudication and the Review Office. The employer’s advocate disagreed and filed an appeal with the Appeal Commission. An oral hearing was arranged and took place on March 13, 2008.

Issue

Whether or not the employer is entitled to further relief of claims costs.

Decision

That the employer is entitled to further relief of claims costs.

Decision: Unanimous

Background

An appeal panel hearing was previously held on August 23, 2006 to determine several issues related to the worker’s claim. A complete background of the claim leading up to the August 23, 2006 hearing can be found under Appeal Panel Decision No. 158/06 and will not be repeated in its entirety at this time.

As noted in the preamble, the worker sustained a compensable injury to his low back region on July 13, 2000. He subsequently underwent a number of medical investigations to determine the etiology of his low back condition and was provided with various benefits and services from the WCB. On February 11, 2005, initial adjudication made the determination that the worker had recovered from the effects of his compensable back injury and was not entitled to benefits beyond that date. This decision was confirmed by Review Office on June 17, 2005 and by the Appeal Commission on October 18, 2006.

File information also shows that the accident employer was granted cost relief on December 13, 2000 in recognition of the worker’s pre-existing condition which the WCB felt would likely prolong the worker’s recovery. On October 22, 2004, the employer was granted 50% cost relief for the period May 22, 2002 to November 1, 2002 related to the worker’s claim with Manitoba Public Insurance (“MPI”).

On August 2, 2007, the employer’s advocate argued that there was overwhelming objective medical evidence to show that the worker had recovered from the effects of his compensable injury as early as February 21, 2001. Her position was that the WCB was in error for not terminating benefits at numerous points in time prior to February 11, 2005 and that this created an overpayment. Based on WCB policy 35.40.50 on overpayment of benefits, the advocate requested that all costs subsequent to February 21, 2001 be removed from the employer’s account.

Medical history:

Following his accident, the worker was treated by a chiropractor based on the diagnosis of a strain/sprain of the lumbosacral spine with sciatica. Chiropractic x-rays of the lumbosacral spine taken July 18, 2000 revealed multiple discopathies with minor osteoarthritic changes. On December 13, 2000, the WCB determined that the employer was entitled to 50% cost relief because of the worker’s pre-existing condition which contributed to his time loss from work.

As the worker’s back discomfort continued despite chiropractic treatment, the worker underwent a number of laboratory investigations to determine the etiology of his back difficulties. A CT scan of the lumbar spine performed on November 16, 2000 noted degenerative disc disease at L4-L5 and L5-S1 accompanied by lower lumbar facet arthropathy. Also noted was a right posterior lateral osteophyte at L5-S1 which involves the right S1 nerve root. The report stated that an associated disc protrusion cannot entirely be excluded and recommended an MRI examination to clarify the matter.

An MRI of the lumbar spine was taken on February 23, 2001. The results showed, “In comparison to the patient’s CT examination of November 16, 2000, the L5-S1 right posterolateral disc herniation appears to have decreased in size. However the right S1 nerve root is slightly enlarged which could be secondary to edema related to previous compression.”

On March 22, 2001, the worker’s back condition was reassessed by a WCB chiropractic advisor and he confirmed that the worker suffered from a musculoligamentous strain/sprain injury involving the right lumbosacral region and the right sacroiliac joint and that there was involvement of the S1 nerve root. He said the worker also showed signs of a resolving S1 radiculopathy.

On March 27, 2001, a WCB case manager discussed the case with the examining WCB chiropractic advisor who provided the opinion that “The osteophyte is at the same level as the herniation, which complicates the recovery and determining recovery from the compensable injury.”

The worker continued chiropractic treatment on an as-needed basis and underwent physiotherapy treatments. By November 1, 2001, it was determined that the worker’s existing restrictions would remain in place and would likely become permanent.

In December 2001 the worker entered into a vocational rehabilitation plan that was amended in February 2002 to allow for a partial course load and increased physical activity, thereby extending the target date for completion to August 2005.

On June 6, 2002, the WCB case manager discussed the case with a senior WCB medical advisor. The medical advisor advised that it was likely that the worker’s ongoing problems were related to degenerative disc disease in the back rather than the compensable injury. Another MRI examination was suggested before determining whether the worker required permanent restrictions.

An MRI of the lumbar spine dated August 23, 2002 showed a very tiny posterolateral disc herniation without spinal stenosis at L3-4. The disc material contacted the right L4 nerve root without definite evidence of displacement or compression of the right L4 nerve root. AT the L5-S1 level, there was very small right posterolateral disc herniation. The disc material contacted the right S1 nerve root and there may be very mild compression or irritation of the right S1 nerve root.

On December 11, 2002, a rheumatologist reported that his examination findings of the worker were atypical for ankylosing spondylitis. He strongly suspected that the diagnosis was mechanical back pain and noted that the MRI showed a possible right S1 nerve root impingement.

On December 27, 2002, the treating chiropractor provided a report which outlined treatment dates and described ongoing complaints of right side low back pain and occasionally on the left as well. Th MRI of August 23, 2002 was enclosed.

The worker was seen by a sports medicine specialist on January 24, 2003. He opined that the worker had chronic low back pain. He did not recommend an epidural injection as he found no signs of radiculopathy.

On February 20, 2003, the worker was examined by a WCB physiatrist and WCB chiropractic advisor. It was noted under impression that there were limited objective findings and subjective findings were only very mild mechanical low back symptoms. There was no evidence of any significant lumbosacral nerve root compression.

On July 6, 2004, the worker’s family physician reported that the worker complained of ongoing low back discomfort with exacerbation of back pain while at school caused by his seating arrangements. He noted that the worker’s ongoing pain had been prone to flare-ups and remissions during the past year with diminished range of movement in his back whenever he experienced a flare-up. He also noted that since May 12, 2004 the worker was experiencing worsening of his mastocytosis with significant symptomatic eruptions at the neck, shoulders, face and shortness of breath, which were related to increased stress the worker was experiencing. The physician indicated that it was unlikely that the worker “would feel capable of attending summer school or work during the summer. He appears to be quite easily prone to flare-ups of both his back pain and mastocytosis both of which can be quite distressing and both of which appear at the same time and usually as a result of [the worker] undergoing physical or emotional stress.”

On September 2, 2004, the worker was assessed at the WCB’s Pain Management Unit (PMU). The PMU medical and psychological advisors concluded that the worker did not meet the diagnostic criteria for chronic pain syndrome. They were of the opinion that there did not appear to be any mood disorder or any other psychological barriers to recovery or to the worker’s ability to participate in an appropriate vocational rehabilitation plan.

The worker was examined by a WCB physical medicine and rehabilitation consultant on November 16, 2004. The consultant noted that the early clinical file suggested that the work injury was likely a disc injury with root involvement and there appeared to be persisting evidence of the nerve injury, specifically the absent ankle reflex. He said the protracted course of recovery was likely related to the underlying systemic mastocytosis present. He was of the opinion that the worker was currently at the point of maximum medical improvement.

Initial adjudication advised the worker in a letter dated December 3, 2004 that, based on the opinion expressed by the WCB physiatrist, the worker was considered to have recovered from the effects of his compensable injury and that his WCB benefits would be paid to February 11, 2005 inclusive and final.

In a letter dated January 31, 2005 a worker advisor acting on behalf of the worker appealed the decision of December 3, 2004. The worker advisor argued that the worker had not recovered from the effect of his compensable injury pointing to the worker’s continued pain and stiffness in his low back and legs and evidence of continued nerve root involvement indicated by the absent right ankle reflex. The worker advisor also argued that if there was a pre-existing condition of mastocytosis that was having an affect on the worker’s compensable lower back and right sided symptoms, the worker’s ongoing loss of earning capacity is compensable.

On June 8, 2005 a WCB orthopaedic consultant reviewed the WCB physiatrist’s report, the neurologist’s report and the EMG and MRI results. The consultant was asked to explain the significance of the CT scan taken in 2000 showing an osteophyte at disc level L5-S1 involving the right S1 nerve root, while the MRI did not report such an osteophyte. The consultant explained that a CT scan is a more sensitive test than an MRI for hard bone structures like osteophytes and further, that the presence of the osteophyte is indicative of degenerative disc disease. The consultant was also asked to comment on the significance of the absent right ankle jerk in light of the EMG results and neurologist’s report indicating nerve conduction studies were normal and there were no other abnormalities. The consultant explained that the absent right ankle jerk could be indicative of previous or current nerve root pressure neuropathy involving the S1 root or a peripheral nerve.

On June 17, 2005, the Review Office concluded that the worker had recovered from his July 13, 2000 compensable injury to the point where it was no longer contributing to a material degree to a loss of earning capacity.

The worker advisor asked the Review Office to reconsider its decision based on new medical information. The worker advisor provided a report dated January 23, 2006 from the specialist who was treating the worker for mastocytosis. The specialist was of the opinion that the worker’s current low back condition was not due to systemic mastocytosis. The specialist indicated that she was unable to comment on the possibility of a relationship between the workplace injury and the worker’s current back pain or on the issue of whether the worker had recovered from the effects of the workplace injury. The worker advisor argued that given that the worker’s current problems were not related to his systemic mastocytosis, the evidence of a posterolateral disc herniation at the L5-S1 level with compression on the S1 nerve root supports a continued relationship between the worker’s current disability and his compensable injury.

On March 3, 2006, Review Office determined that the worker had recovered from the workplace injury to the point that it was no longer contributing to a material degree to a loss of earning capacity. The Review Office indicated, in part,

“…the CT scan of November 16, 2000 reported degenerative disc narrowing at L4-5 and L5-S1, and, ‘At L5-S1, a moderate right posterolateral osteophyte is present, which involves the right S1 nerve root. A small amount of disc material may be associated with the osteophyte.’ The osteophyte at the same level as the disc herniation, complicated the determination of recovery from the compensable injury.

The Review Office noted the worker reported difficulties with his low back and right leg prior to the compensable July 15, 2000 injury. In addition, he more recently reported difficulties on the left, as well as pain in his pelvis and mid back; and the most recent report from the (sic) his chiropractor stated, “segmental dysfunction C5C6, T10-12, L5S1, pelvic dysfunction – SI fixation bilat”. The compensable injury involved the L5-S1 disc level on the right side. The left side, mid back, neck, bilateral S1 fixation, and pelvis difficulties are not related to the 2000 compensable injury.”

In a decision dated August 13, 2007, a WCB sector manager advised the employer in writing that it was not entitled to further cost recovery or cost relief beyond what had already been granted on the claim. The manager indicated that after reviewing the file throughout its history, never did the WCB receive a definite opinion of the worker’s recovery until he was examined by a WCB physiatrist on November 16, 2004. The worker was then provided with a suitable period of adjustment thereafter in recognition of his current involvement in a vocational rehabilitation program, hence the end date of the claim being February 11, 2005. The manager was of the view that the WCB’s policies and legislation had been applied appropriately and that the employer had been given the appropriate cost relief and cost recovery on the claim. On September 11, 2007, the advocate appealed the manager’s decision to Review Office. The advocate requested that all costs of the claim beyond February 23, 2001 be considered an overpayment and be removed from the employer’s cost experience record consistent with policy 35.40.50.

On October 4, 2007, Review Office determined that the employer was not entitled to further relief of claim costs for the following periods of time:

· March 2001 – Review Office felt that the results of the February 23, 2001 MRI assessment and re-examination by a WCB chiropractic advisor on March 22, 2001 supported that the worker had a continuing loss of earning capacity beyond March 22, 2001 and that this supported the WCB decision to continue to pay wage loss benefits after this date.

· August 23, 2002 – Review Office noted the employer’s contention that the worker recovered from his compensable injury as of the date of his August 23, 2002 MRI. However, after considering the MRI results of August 23, 2002 and the comments made by the WCB senior medical advisor pertaining to the worker’s permanent restrictions, and the fact that the employer was unable to provide worker with employment respecting the restrictions, it found no evidence that there were administrative errors in the WCB decision to continue the worker’s benefits after August 23, 2002.

· February 2003 – Review Office stated the MVA of May 11, 2002 was accounted for in the cost recovery received from MPI. The other MVAs were not considered to be significant as they required minimal treatment and did not alter the worker’s participation in his vocational rehabilitation activities. It felt that there was no indication that the worker’s patterns of participation in vocational rehabilitation were significantly impacted by the MVA or that the MVA delayed the eventual outcome and determinations eventually reached by the WCB.

· November 2004 – Review Office said it was reasonable to provide the worker with 12 weeks of notice before ending his wage loss benefits as the worker was dependent on WCB wage loss and had been for more than four years. It stated that implementation of section 22 of the Act was at the discretion of the case manager.

Review Office concluded its decision by stating that it was unable to find any administrative errors or other reasons to grant further relief to the employer’s costs. The employer’s advocate disagreed with Review Office’s decision and filed an appeal with the Appeal Commission.

Reasons

On a balance of probabilities, the panel concludes that by February, 2003, approximately 2 ½ years after the workplace accident, the worker had recovered from the effects of the musculoligamentous strain/sprain injury that he had suffered in the accident and any ongoing residual back pain was related to his non-compensable conditions.

It is therefore the decision of this panel that by the time of the call-in examination on February 20, 2003, both the lumbosacral musculoligamentous strain/sprain injury and the neurological injury causing sciatica had resolved, and there was no longer any loss of earning capacity attributable to the compensable incident. The worker’s benefits ought to have ended as at that date and the employer is therefore entitled to relief of claim costs which may be associated with benefits paid from February 20, 2003 to February 11, 2005.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of April, 2008