Decision #115/00 - Type: Workers Compensation
An Appeal Panel hearing was held on October 11, 2000, at the request of the employer. The Panel discussed this appeal on October 11, 2000.
Whether or not the claimant is entitled to wage loss benefits subsequent to September 10, 1999.
That the claimant is entitled to wage loss benefits subsequent to September 10, 1999.
On June 29, 1999, the claimant and a co-worker were carrying a 200 pound concrete form from one side of the street to another, when the co-worker dropped his end of the form leaving the claimant to bear all the weight. The claimant stated that shortly after the incident he felt pain in his lower back.
A Chiropractor's First Report dated July 8, 1999, showed that the claimant was examined on July 2, 1999, and was diagnosed with a L4 facet strain. The treatment plan consisted of ultrasound and chiropractic adjustments with range of motion exercises/stretching. It was felt that the claimant was totally disabled for 4 to 6 weeks.
A Doctor's First Report dated July 6, 1999, noted that the claimant's lower back pain was becoming worse. The diagnosis rendered by the attending physician was a lower back strain. Ice and medication were prescribed for the claimant.
A second Doctor's First Report dated July 9, 1999, indicated that the claimant's low back pain was now into the thoracic spine. The diagnosis rendered was "lumbar facet sprain". On July 30, 1999, this physician referred the claimant for physiotherapy sessions.
On September 3, 1999, the attending physician stated that the claimant's back condition was improving and that he could return to full duties on September 7, 1999. Wage loss benefits were paid up to September 7, 1999 inclusive.
On September 21, 1999, the claimant contacted the Workers Compensation Board (WCB) indicating that he was having further back problems and that he had been laid off by the accident employer as of September 10th. During a telephone conversation on October 7, 1999, the claimant advised a WCB adjudicator that he sustained no new injuries, just ongoing difficulties. The claimant indicated that after his returning to work he performed light duties, which did not involve physical work. The claimant said that his foreman was aware of his ongoing difficulties and that he was laid off due to lack of work.
When assessed on September 20, 1999, the attending physician noted that the claimant had tenderness at the L4-5 area and in the lumbosacral spine. There was a decrease in range of motion and knee flexion and tenderness in the upper SI joints. The diagnosis rendered was mechanical low back pain. The claimant's benefits were reinstated effective September 10, 1999 and were paid to December 8, 1999, when it was determined that the claimant had fully recovered from the effects of his work related back strain injury.
On January 24, 2000, an advocate for the accident employer appealed the decision to provide the claimant with wage loss benefits following his lay off on September 10, 1999. The advocate stated that the claimant had submitted medical authorization indicating that he was fit for full duties effective September 7, 1999. The claimant returned to work and his foreman confirmed that the claimant had worked with no problem until the layoff on September 10, 1999. The advocate also referred to a letter dated October 29, 1999, in which the employer stated that the claimant had admitted he injured his back while playing with his child following the layoff on September 10, 1999. Based on this information and the fact that the claimant did not attend medical treatment until 10 days after his layoff, the advocate believed that the claimant was not entitled to further benefits.
Prior to considering the appeal, Review Office obtained statements from the claimant, the employer's safety officer and a co-worker. On April 7, 2000, Review Office denied the employer's appeal and confirmed that the claimant was entitled to wage loss benefits subsequent to September 10, 1999. Review Office reached its decision based on the following evidence:
- the case had been reviewed by a WCB medical advisor who indicated that the claimant's problems were related to the June 29, 1999, accident;
- the medical certificate provided to the employer showed that the claimant was capable of full duties but needed further physiotherapy treatment. Review Office felt that this proved that the claimant's symptoms in his back had not totally subsided and that he required continuing treatment.
- the employer's advocate contended that the claimant injured his back subsequent to September 10, 1999, while he was playing with his child. Review Office noted however, that the incident occurred a few days prior to the claimant's attending at the employer's premises in October of 1999. Information confirmed that the claimant was seeking medical treatment prior to that date.
Based on the above factors, Review Office was satisfied that the claimant's continuing back problems were related to the compensable accident of June 29, 1999.
On April 27, 2000, the employer's advocate appealed Review Office's decision and an oral hearing was convened.
We agree with Review Office's decision that the claimant is entitled to wage loss benefits subsequent to September 10th, 1999. Although the claimant was given medical clearance to return to work on September 7th 1999, we find based on the weight of evidence that the claimant had not, on a balance of probabilities, fully recovered from his compensable lower back strain. In coming to this conclusion, we gave serious consideration to the following pertinent facts:
- The claimant, who we found to be a credible witness, testified that his back was still tender when he returned to work on September 7th, 1999.
- During his visit to the doctor's office on September 3rd, 1999, the claimant advised the doctor that he needed to work more hours before he would be eligible for employment insurance benefits at the time of his seasonal layoff. According to the claimant, the doctor responded by saying: "Well, okay, well, if you need hours, then go do it if you want."
- The treating physician's medical certificate of September 3rd, 1999 stated that the claimant's back injury has improved and that it was recommended the claimant continue with more physiotherapy sessions.
- The foreman testified that when the claimant returned to work he did not assign the claimant heavy duty work, "Because of the fact that he was injured, and I didn't want to take a chance of him being injured again."
- September 20, 1999 medical assessment noting the claimant's tenderness at the L4-5 area, decrease in range of motion and knee flexion and tenderness in the upper SI joints.
- The claimant testified that he did not reinjure his back playing with his child and that he did not tell his supervisor that he had.
The employer's appeal is hereby dismissed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of November, 2000