Decision #57/10 - Type: Workers Compensation

Preamble

The worker has a 1982 Workers Compensation Board (“WCB”) claim related to a low back injury and a 1986 WCB claim related to his right arm. The worker complains of ongoing low back difficulties and feels they are related to the 1982 compensable injury. The WCB has determined that there is no relationship. A hearing was held on May 6, 2010 to consider the matter.

Issue

Whether or not the worker’s low back complaints are related to the 1982 compensable accident; and

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

Decision

That the worker’s low back complaints are not related to the 1982 compensable accident; and

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

Decision: Unanimous

Background

On August 17, 1982, the worker reported that he was loading railing forms when he twisted himself and hurt his low back and hip. The description and date of accident was confirmed by the accident employer on August 30, 1982.

A doctor’s first report showed that the worker attended for medical treatment on August 17, 1982. The examination findings revealed tenderness at L5-S1 with radiation to the right thigh, posterior aspect, spasm of the lumbar spine in all directions and no neurological signs. The diagnosis rendered was a strain to the lumbar spine. The claim for compensation was accepted and 8 days of time loss benefits were paid to the worker.

In October, 1984, the worker was involved in an automobile accident during the course of his employment as a construction worker. The worker elected to not claim workers compensation and instead filed a claim with the Manitoba Public Insurance Corporation (“MPIC”).

On October 17, 1986, the worker injured his right upper extremity during the course of his employment as a concrete finisher. His claim for compensation was accepted based on the diagnosis of a right lateral epicondylitis. In 1987, the worker’s file was referred to the WCB’s vocational rehabilitation branch with the goal to assist the worker in finding suitable employment in light manufacturing/assembly line work.

On January 17, 1991, the worker was assessed by a physiatrist at the request of the family physician. The physiatrist reported that the worker “…has had problems with neck and back pain for the past 6 or 7 years as well as right lateral epicondylitis since 1986. Regarding the neck pain, he tells me that it started in 1984 following a motor vehicle accident. It is present all the time, worse some days than others…The low back pain has also been present since the motor vehicle accident in 1984 and at present is constant, worse some days than others. It radiates into both legs especially to the knees…This gentleman has chronic neck pain and back pain as well as chronic right lateral epicondylitis. The neck and back pain seems to be musculoligamentous in origin with perhaps some underlying spondylitic changes which were apparent in x-rays of the C-spine in 1989.”

On March 17, 1993, the worker was advised of the WCB’s position that he had the ability to earn $5.50 per hour for a 40 hour work week.

On March 23, 1993, a WCB rehabilitation coordinator noted in a memorandum to file that “… the reasons that [the worker] felt that he could not seek and maintain employment were not related to the compensable injury and in fact included problems with his back, arthritis, and headaches and problems with his nerves.”

On March 21, 1995, a lawyer representing the worker appealed the March 17, 1993 decision to Review Office. The lawyer confirmed that the worker suffered from headaches, neck and back problems which interfered with his ability to study, work and attempt to learn English. It was the worker’s position that his symptoms were related to his compensable accident in 1982 (low back) and the October 1984 automobile accident in which he injured his neck and head.

On May 12, 1995, the solicitor was advised that Review Office was unable to consider the March 21, 1995 submission as primary adjudication had not dealt with several related issues.

In a WCB decision letter dated October 2, 1996, the worker’s lawyer was advised of the following:

  1. Regarding the worker’s October 1984 automobile accident, the WCB was not prepared to accept responsibility for further benefits and services as the worker elected to pursue a claim with MPIC; and
  2. The whole of the evidence did not support a relationship between the worker’s current low back difficulties and his compensable injury of October 17, 1986. This decision was based on an opinion provided by a WCB medical consultant.

On December 19, 1997, the worker’s lawyer wrote to Review Office with the argument that there was a clear relationship between the worker’s compensable injury of August 1982 and his current low back problems. To support his position, the solicitor made reference to a doctor’s first report dated September 8, 1982 which showed that the worker complained of tenderness at L5-S1, spasms, and reduced range of motion in all directions with the diagnosis of a strain to the lumbar spine. He also referenced a June 18, 1997 medical report where the treating physician noted that the worker was off work for a month following the 1982 injury and continued to have a history of low back pain subsequently. The physician stated, “In summary, this man has a chronic problem with his lower back starting from his injury in 1982, and exacerbated by the injury of 1984.”

On February 27, 1998, Review Office determined that the worker’s deemed post accident earning capacity should be $220.00 per week and that the worker’s low back complaints were not related to any of his compensable accidents. With regard to the second decision, Review Office noted that the June 18, 1997 report from the treating physician stated that the worker’s “problem is due to a degree of spondylosis which renders his back unstable.” Review Office indicated that in its opinion, the evidence did not support the position that there was a relationship between the worker’s 1982 accident and his current low back complaints based on the following factors:

· The 1982 injury kept the worker away from his physically demanding job for eight days only;

· The report by the physiatrist dated January 17, 1991 which noted that the worker related his low back complaints to his 1984 non-compensable accident;

· The worker’s doctor related the worker’s current back complaints to spondylosis which would not be caused by or in any way permanently affected by the 1982 accident;

· Medical reports pertaining to the 1984 non-compensable accident made no reference to a chronic back problem and minimal reference to acute back complaints; and

· The evidence did not support any relationship between the worker’s 1986 right upper extremity and his current low back complaints in Review Office’s opinion.

On July 28, 1998, Review Office was asked by the worker’s lawyer to reconsider its decision of February 27, 1998. The lawyer provided Review Office with a letter from the treating physician dated April 7, 1998 which clarified his medical report of June 18, 1997. The treating physician stated, “X-rays of his [the worker’s] lumbar spine have shown degenerative spurring in the lower lumbar spine. I believe that the injuries he sustained, particularly, relating to accidents he was involved in, in 1982 and 1984, have contributed to accelerating this degenerative process.”

In a decision dated August 14, 1998, Review Office stated the worker’s treating physician’s conclusions that the worker’s 1982 compensable back injury played a part in the development of his current back complaints were not supported by any factors or reasons. Review Office therefore remained of the opinion that there was no evidence to support the view that there was any relationship between the worker’s 1982 back injury and his current back complaints.

On May 13, 1999, the worker’s solicitor requested that a Medical Review Panel (“MRP”) be convened based on the conflict between the medical opinion of the worker’s physician and that of the WCB.

On June 28, 1999, Review Office advised the solicitor that the decision it made on August 14, 1998 that there was no relationship between the worker’s current low back complaint and the injury sustained in 1982 was without consultation with a WCB healthcare medical advisor. As a WCB healthcare advisor had not provided an opinion for which Review Office rendered its decision on August 17, 1998, there was then no difference of medical opinion between the worker’s physician and that of the WCB.

On October 6, 1999, the solicitor requested Review Office to reconsider its decision to deny the convening of an MRP. On February 7, 2000, Review Office wrote the worker to advise that the opinion provided by his general practitioner did not meet the standard required by subsection 67(1) of The Workers Compensation Act (the “Act”). “It defines an opinion as a “full statement of the facts and reasons supporting a medical conclusion.” Although your general practitioner has provided a conclusion (that your current back complaints are a consequence of your 1982 compensable injury), he has not provided a “full statement of the facts and reasons” supporting it. It follows that there is no basis to convene a medical review panel.”

In August 2009, the worker filed an appeal with the Appeal Commission. On September 2, 2009, the worker confirmed that he was appealing the decision made by Review Office that his current low back complaints are not related to his 1982 compensable injury and the decision that there was no basis to convene an MRP. A hearing was arranged for May 6, 2010.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. As the worker’s accident occurred in 1982, his benefits are assessed under the Act as it existed at that time.

Under subsection 4(1) of the 1982 Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. According to subsection 4(2), a worker who suffers a personal injury by accident is entitled to compensation for so long as the injury disables the worker.

The worker has requested that an MRP be convened under the provisions of the Act. The Act provides that a worker is entitled to an MRP when the opinion of a medical officer of the board differs from the opinion of the worker’s physician. Subsection 67(1) defines opinion as “a full statement of the facts and reasons supporting a medical conclusion.”

Worker’s Position

The worker appeared at the hearing on his own behalf and the services of a translator were provided.

When the issues under appeal were considered by Review Office, the worker was represented by legal counsel. With respect to the request for an MRP, it was submitted that an MRP is convened when the written medical opinion of the injured worker’s physician differs from the opinion of the WCB’s medical officer on a medical matter. This condition was satisfied in the instant case as the opinions expressed by the worker’s physician in his medical reports dated June 18, 1997 and April 7, 1998, clearly conflicted with the opinions expressed by the WCB medical officer in his memorandum dated May 14, 1996.

With respect to the compensability of his low back, the worker advised the panel that since the August 17, 1982 injury, he has always had pain and problems with his back. Some days he could not even stand up, but some days were okay. The pain was there all the time, but he was still able to work. When he was involved in the car accident in 1984, the pain became worse. Through the interpreter, the worker indicated that he worked really hard until he had the accidents. He and his wife tried to save money, but they had no luck with accidents, and ended up being unable to continue to work.

Analysis

There are two issues before the panel. They will be addressed separately.

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

To accept the worker’s appeal we must find on a balance of probabilities that the medical opinion of a medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of the Act. We are unable to make that finding.

In the panel’s view, the treating physician’s medical reports dated June 18, 1997 and April 7, 1998 do not satisfy the definition of an opinion under s.67(1). In neither report does the treating physician provide a full statement of facts and reasons as to why he believes that the worker’s chronic low back pain was caused by the accident of August 17, 1982. At best, all that the treating physician states is that the chronic low back pain started from the worker’s injury in 1982 and that his multiple accidents have contributed to his current complaints. No explanation is provided as to how or why this conclusion was reached. As a result, we find that the requirements of the Act are not met and the worker’s appeal on this issue is therefore dismissed.

2. Whether or not the worker’s low back complaints are related to the 1982 compensable accident.

The second issue before the panel is whether or not the worker’s current low back complaints are related to the 1982 compensable accident. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injury he sustained in the August 17, 1982 workplace accident. We are not able to make that finding.

At the hearing, the worker described the circumstances surrounding the accident and indicated that since that time, he has always had pain in his back. He went to a doctor the day after the accident and was prescribed some painkillers. After that, he thought that he may have gone to the doctor 2 or 3 more times, but he could not recall exactly. Given the passage of time, this is understandable. He did not receive any physiotherapy or other treatment. He was off approximately one week, then returned to the same job. There was no change in the general nature of his work, although his supervisor was aware of his injury and kept this in mind when assigning tasks to the worker. He did not miss any more time from work until October 1984, when he was involved in a serious motor vehicle accident.

Only one medical report was submitted by the doctor who provided treatment to the worker in 1982. The report dated September 8, 1982 diagnoses the injury as a strain to the lumbar spine and notes no neurological signs. There is no other medical information until following the motor vehicle accident in 1984.

The history provided by the treating physiatrist in the report dated January 17, 1991 only dates the chronic low back pain back to 1984. The report states: “The low back pain has also been present since the motor vehicle accident in 1984 and at present is constant, worse some days than others.”

The more recent medical information diagnoses the worker’s current condition as being related to degenerative processes. The treating physician’s report dated June 18, 1997 indicates: “his problem is due to a degree of spondylosis which renders his back unstable.” The report dated April 7, 1998 indicates: “x-rays of his lumbar spine have shown degenerative spurring in the lower lumbar spine. I believe that the injuries he sustained, particularly, related to accidents he was involved in 1982 and 1984 have contributed to accelerating this degenerative process.”

In the panel’s opinion, the lumbar strain which the worker was diagnosed with in 1982 would not have contributed to the degenerative spurring identified in x-rays taken in 1992. There is no medical evidence to support that the worker suffered any neurological or significant spinal injury in the 1982 workplace accident. In the panel’s opinion, the 1982 compensable injury was limited to a strain-type injury, which resolved completely, and in no way contributes to his current chronic low back condition. There is simply no support for the position that the worker suffered continuous ongoing effects from the 1982 accident. The worker’s appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of June, 2010

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