Decision #60/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on March 27, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 27, 2001.
Issue
Whether or not the claimant is entitled to wage loss benefits beyond July 3, 2000.
Decision
That the claimant is not entitled to wage loss benefits beyond July 3, 2000.
Background
On March 9, 2000, the claimant completed a Worker's Report of Injury or Occupational Disease with respect to an injury to her lower back which she sustained on March 1, 2000 while lifting a tray.
The claimant attended a local health facility on the day of accident and was diagnosed with mechanical back pain. The claimant saw her family physician the following day and was diagnosed with a strain of the lumbosacral spine. The physician prescribed medication and physiotherapy treatment and recommended the claimant refrain from working.
The claim was accepted by the Workers Compensation Board (WCB) on March 30, 2000.
The claimant sought regular follow up treatment from her physician and in the covering reports, the doctor reported continuing symptomotology as well as delayed recovery. On April 19, 2000, the WCB Adjudicator spoke with the attending physician. At that time, the physician indicated that the claimant was experiencing difficulty with respect to her injury and that she remain off work for another two weeks. The physician also advised that some of the claimant's difficulties may relate to her pregnancy and in light of the pregnancy, x-rays would not be performed.
On May 30, 2000, at the request of the family physician, the claimant was assessed by a WCB medical advisor. Based on the examination, the medical advisor expressed the opinion that the findings were suggestive of a sacroiliac joint strain which would be consistent with the mechanism of injury. He also indicated that the sacroiliac joint pain will be worsened somewhat as the pregnancy progresses. It was the medical advisor's opinion that the claimant was not totally disabled and would be capable of performing duties that would allow her to change position often, no lifting greater than 10 pounds and no excessive repetitive bending or twisting of the lower back. These restrictions should be in place for a period of two months and then reviewed. Subsequent to the examination at the WCB, the claimant continued to see her family physician for treatment of her back complaints.
The claimant telephoned her adjudicator on June 26, 2000. At that time, she advised her doctor had recommended that she not return to work as this would require stair climbing. The claimant explained that at her place of employment, there are a number of flights of stairs that she would be required to climb. As well, in light of her pregnancy, she required frequent access to washroom facilities.
The adjudicator advised that it is the opinion of the WCB that the restrictions would not be required in relation to the compensable injury but rather, in relation to the pregnancy. By letter dated June 30, 2000, primary adjudication wrote to the claimant to advise that responsibility for the claim including the payment of wage loss would end on July 3, 2000.
In late September, 2000, a union representative acting on behalf of the claimant, filed an appeal with the WCB's Review Office. Prior to rendering their decision, further information was requested from the employer. In its decision dated October 30, 2000, Review Office determined that the claimant did not have an entitlement to further benefits beyond July 3, 2000. In reaching this conclusion, Review Office indicated the following:
- "The employer has indicated they could accommodate the worker's restrictions and in their letter of October 18, 2000 to Review Office they have outlined the exact nature of these duties which are very light in nature and well within the stated restrictions. The worker however declined to attempt these duties stating she was unable to climb the three flights of stairs at the plant and that she was required to be near a washroom due to her pregnancy. It would seem to Review Office that the claimant's three story house contains a similar number of steps as there are in the company's plant. The modified duty location however was only 15 feet from a washroom with the worker not having to negotiate any stairs in order to get to the washroom. This in fact would be a more desirable situation for the worker"
On November 27, 2000, the union representative filed an application of appeal with the Appeal Commission requesting an oral hearing be convened to determine the claimant's entitlement to wage loss benefits beyond July 3, 2000.
Reasons
A WCB medical consultant examined the claimant on May 30th, 2000. We attached considerable weight to the following examination findings:
“The mechanism of injury and ongoing problems were reviewed today. Based on today’s examination there were no signs of radiculopathy and no signs of nerve root irritation. It is unlikely that there is significant disc disease here. The findings today were suggestive of sacroiliac joint strain, which would be consistent with the mechanism of injury.
On the basis of today’s examination, Ms. [the claimant] is not totally disabled and capable of work, which should allow her to change position often, no lifting greater than 10 pounds and no excessive repetitive bending or twisting of her lower back.”
The claimant acknowledged at the hearing that she was fully aware of the employer’s return to work program together with the modified or alternate duties, which were available. We note, in particular, that the claimant made no attempt to attend the workplace or more importantly to participate in the return to work program.
In light of the foregoing, we find that the claimant is not entitled to wage loss benefits beyond July 3rd, 2000. Accordingly, the claimant’s appeal is hereby dismissed.
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 7th day of May, 2001