Decision #63/01 - Type: Workers Compensation
Preamble
An A non-oral file review was held on April 4, 2001, at the request of a worker advisor, acting on behalf of the claimant.
Issue
Whether or not the claimant is entitled to wage loss benefits beyond January 3, 2000.
Decision
That the claimant is entitled to wage loss benefits beyond January 3, 2000.
Background
On November 26, 1999, the claimant was cleaning out dust and rocks that were in between lengths of rebar when he stood up and struck the corner of a concrete form with his back. Examination by his attending physician on November 26, 1999 diagnosed the claimant with a fracture of the thoracic spine. Analgesics and physiotherapy was the recommended form of treatment. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on November 29, 1999.
In a hand written memo dated December 7, 1999, a WCB adjudicator documented that he had contacted the attending physician by phone. The physician indicated that x-rays had been taken which showed compression and fracture of the vertebrae. The claimant was in a lot of pain and there was swelling. The physician stated that the claimant was seeing a physiotherapist and was advised to do home therapy every 2 hours, 5 times per day. The claimant was also advised to rest at home for at least two weeks.
On December 7, 1999, an advocate acting on behalf of the employer, indicated that a sedentary duty position was immediately made available for the claimant. The position entailed working inside the site trailer answering phones and performing some clerical-like duties. The claimant would be allowed to sit or stand as he felt was necessary. The advocate indicated that the position was extremely light and that it involved no manual labour.
X-rays taken of the thoracic spine on December 21, 1999 revealed a scoliosis convex to the right and loss of vertebral height to a slight degree of the left lateral aspects of T7 and T8, which could be due to previous trauma. There was slight loss of vertebral height of T12. X-rays of the lumbar spine revealed a certain degree of spinal stenosis at the L5 level.
On December 23, 1999, a WCB medical advisor contacted the attending physician who stated that the claimant's condition was improving. Both parties agreed that the claimant was capable of participating in a graduated return to work program with restrictions.
In a letter dated January 4, 2000, the claimant was provided with details regarding his graduated return to work program involving modified duties which was to begin on January 3, 2000. The following restrictions were outlined: No lifting greater than 20 pounds; no repetitive bending; no prolonged sitting or standing; and taking breaks as necessary.
On January 4, 2000, the claimant told a WCB adjudicator that he had not returned to work as he was "not able to". The claimant indicated he can't walk or ride in his vehicle and that his doctor did not feel he was capable of returning to work. On January 6, 2000, the WCB informed the claimant that his benefits would be suspended effective January 4, 2000, based on his failure to participate in the graduated return to work program.
In a progress report dated January 10, 2000, the attending physician stated that the claimant should avoid all activities and that he had tenderness over T12 and the lumbar spine. The claimant was scheduled to undergo a CT scan. Physiotherapy was stopped as the claimant complained of a lot of pain. The CT scan of the thoracolumbar spine dated January 19, 2000, identified no fracture.
In a memo dated January 24, 2000, a WCB medical advisor noted that the CT scan results showed no fracture, old or new. When speaking with the attending physician, it was confirmed that the site of tenderness was only at T12, not anywhere else (i.e. not at T7 or T8 - these must only be old compression fractures and not relevant to the compensable injury). The medical advisor indicated that since the CT scan did not show any fracture or deformity at T12, he did not feel a bone scan was required. Both the medical advisor and attending physician agreed that the diagnosis was likely soft tissue, and there was no reason why the claimant could not have gone back to work at the sedentary duties provided by his employer.
On February 2, 2000, primary adjudication advised the claimant that it was the opinion of a WCB medical advisor that there was no new objective evidence to support disability from sedentary work and that the decision of January 6, 2000, was thereby confirmed.
Following receipt of medical information dated January 28, 2000 and February 11, 2000 from a different physician, primary adjudication wrote to the claimant on March 23, 2000. The claimant was informed that his case had been discussed by a WCB medical advisor and his new physician and it was determined that there was no objective evidence to support ongoing disability as a result of the compensable injury. On September 28, 2000, a worker advisor appealed this decision to Review Office. Additional medical information was submitted from a physical medicine and rehabilitation specialist dated August 30, 2000.
On October 20, 2000, Review Office determined that the claimant was not entitled to wage loss benefits beyond January 3, 2000, and that he had recovered from the effects of the soft tissue trauma by March 23, 2000. Review Office was of the opinion that there was little evidence on file that the mechanics of injury would produce any injury other than a soft tissue injury and that the duties offered by the employer were not more physically demanding than those of everyday living. Review Office felt that the claimant was certainly fit for sedentary employment five weeks post soft tissue incident. Review Office noted that the attending physician had agreed with the return to work plan and it was after his agreement of the plan that the claimant chose a different physician for treatment.
With respect to the report from the physical medicine and rehabilitation specialist, Review Office noted that the report contained information regarding an examination of July 6, 2000, seven months post accident. Review Office indicated, "This physician indicates he feels the claimant has post-spinal trauma and had developed interspinus ligamental strain and mechanical spinal pain syndrome. No comment was made from this physician regarding the potential for such a diagnosis to result from the mechanics of the accident which occurred to the claimant on November 26, 1999. Review Office does not relate the findings of July 6, 2000 to the soft tissue trauma of November 26, 1999."
On April 4, 2001, a non-oral review took place at the Appeal Commission. The Appeal Panel considered all of the file evidence including the following submissions:
- Letter from the worker advisor received on January 17, 2001;
- Letter from the employer's advocate dated February 28, 2001;
- Letter from the claimant dated March 14, 2001; and
- Letter from the physical medicine and rehabilitation specialist dated March 23, 2001.
Reasons
As the background notes indicate, a graduated return to work schedule had been arranged for the claimant by his employer, his attending physician and the WCB. This program was to commence on January 4th, 2000. The claimant advised the Panel by letter dated March 14, 2001 that he had in fact attempted a return to work. "Jan 03 I returned to work. The offices were closed. No bosses around except for the laborer foreman [name]. This was the first time I attempted to drive for myself. This was like a job in itself. I stopped 3 times that day because of back spasms and twice just to rest my arms and back. The drive from Cranberry to Flin Flon is only hour, this took me over an hour. The drive home was much the same. I was in horrible pain by the time I was home.
Jan 04 the next day was unbearable. I could barely move. My body was confulsing (sic) uncontrollably. Every part of my body was sore my legs, arms and especially my back. I had back spasms all day long wich (sic) felt like someone was sticking a sharp object in my back and twisting. The pain was severe."
The claimant underwent a CT scan of his thoracolumbar spine on January 19th, 2000. The procedure confirmed that there had been no fracture sustained by him. The results were eventually communicated to both the attending physician and the WCB's medical services department.
We note with particular significance a WCB medical advisor's memorandum to file dated January 24th, 2000. The memorandum reads as follows:
"Copy of CT scan obtained Normal, no fracture - old or new. I spoke with AP [attending physician], Dr. [name] - he confirms that the site of tenderness is only T12, not anywhere else (ie not at T7,T8 these must only be old comp #'s [compound fractures] and not relevant to CI [compensable injury]. Because the CT scan doesn't show any fracture or deformity of T12, either old or new, I do not feel bone scan required at all. Dr. [attending physician] feels, and I agree, that the diagnosis is likely only soft tissue, and he sees no reason at all why clmt [claimant] couldn't have gone back to work at the sedentary duties employer was to provide."
We are in agreement with the WCB's determination that the claimant was only capable of sedentary duties as of January 4th, 2000, which was the proposed start date for the graduated return to work program. This fact confirms to us that the claimant had not, on a balance of probabilities, returned to his pre-accident status by this date. We also attached considerable weight to the claimant's comments regarding his difficulties in travelling to and from the work site on January 3rd, 2000. In addition, we took into account his description of the condition of the road on which he had to travel: "The road from Cranberry to Flin Flon is like a roller coaster with bump after bump, pot holes and windy, curve after curve. Every bump on the rode (sic) would jar my back and made the pain more intense." Under the circumstances, we find that the claimant's refusal to attend the work site to commence sedentary duties on January 4th, 2000 to be reasonable.
We further find based on a preponderance of evidence that the claimant was, in all likelihood, not in a position to attempt the sedentary duties until January 24th, 2000. Unfortunately by this time, the employer had dismissed the claimant. Accordingly, we find that the claimant is entitled to wage loss benefits beyond January 3, 2000.
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 14th day of May, 2001