The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 13, 2001, at the request of a union representative acting on behalf of the claimant. The Panel discussed this appeal on November 13, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits beyond December 7, 2000.

Decision

That the worker is entitled to wage loss benefits from December 7, 2000 to January 8, 2001 inclusive.

Background

While employed as a customer service clerk on October 31, 2000, the claimant reported that she injured her lower back while bending over to count cartons of cigarettes. On November 1, 2000, the attending physician diagnosed the claimant with an acute lumbar strain and arrangements were made for her to undergo physiotherapy treatments. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits commenced.

On November 24, 2000, a WCB medical advisor reviewed the claim after it was determined that the employer had light duties available for the claimant. These duties involved PA announcements and greeter duties. The medical advisor felt that the claimant was capable of performing these duties and recommended that she avoid lifting over 20 lbs., no repetitive flexion or extension of the lumbar spine and that she has the opportunity to change positions often.

On November 28, 2000, the employer contacted the WCB indicating that the claimant refused to work the modified duties as she was advised by her physician that she was totally disabled and was to stay off work. A report received from the attending physician dated November 30, 2000 confirmed that the claimant was advised not to return to work "due to medical reasons."

Upon speaking with the claimant's husband on December 1, 2000, a WCB vocational rehabilitation consultant (VRC) noted that the claimant was overwhelmed and stressed to the point where her doctor recommended that she not return to work for the time being. The claimant's blood pressure was very high and her doctor attributed this increase to the employer/WCB being so aggressive in trying to get her back to work. In a memo dated December 1, 2000, a WCB adjudicator determined that a return to modified work duties would be postponed until after the claimant's next scheduled doctor's appointment on December 7, 2000.

A progress report was received from the attending physician following an examination of the claimant on December 7, 2000. Subjective findings revealed full range of motion in the lumbar spine. The physician felt that the claimant was suffering from stress and severe hypertension.

A Certificate of Illness was received from the attending physician dated December 13, 2000. The claimant was advised to stay off work for an additional four weeks.

During a telephone conversation on December 19, 2000, a WCB adjudicator advised the claimant that wage loss benefits would not be extended beyond December 7, 2000. The decision was based on the fact that the objective findings noted on the attending physician's progress report of December 7, 2000 did not furnish any objective medical evidence to support the claimant's inability to perform the modified duties offered by the employer. This decision was confirmed to the claimant by letter dated December 20, 2000.

In a report dated December 27, 2000, the attending physiotherapist reported that the claimant had responded well to the treatment regime, however her low back pain continued to limit her function. The therapist recommended that the claimant undergo further strengthening to prepare her for a return to work.

On February 2, 2001, Review Office considered the case following receipt of appeal submissions from the claimant dated December 26, 2000 and from her union representative dated January 23, 2001. Review Office determined that the claimant was not entitled to wage loss benefits after December 7, 2000 based on the following factors:

• the medical evidence confirmed that the injury had been soft tissue in nature and did not reveal objective clinical findings of any acute low back problem or of any unexpected complication in the treatment of the strain injury;
• Review Office did not accept that the claimant's stress and hypertension were directly related to the back injury but were rather related to the claimant's interactions with respect to her claim and the WCB's decision that she should return to suitable work;
• there was no evidence to show that the claimant's work related accident of October 31, 2000, reasonably contributed to any ongoing impairment of back function preventing a return to alternate employment effective December 7, 2000, which negates any loss of earning capacity.

On March 19, 2001, the claimant's union representative appealed the above decision and an oral hearing was arranged.

Reasons

As the background notes indicate the claimant sustained an acute lumbar strain as a result of her compensable accident. The preponderance of evidence confirms that the claimant continued to experience her back difficulties beyond December 7th, 2000. In this regard, we attached considerable weight to the following reports and opinions:

• Certificate of illness dated December 13th, 2000 - attending physician states, "Based on assessment today above patient was advised to stay home for additional 4 weeks."
• Doctor's progress report of December 13, 2000 - he recorded objective findings of decreased forward flexion and decreased side rotation bilaterally. Treatment plan included physiotherapy with an anticipated return to work in early January 2001.
• Therapist's application dated December 15th, 2000 requesting approval to provide the claimant with an additional 3 weeks of treatment. Physiotherapist advised, "Patient responds well to the treatment regime. Her low back pain continues to limit her function. She requires further strengthening to prepare for a return to work."

We accept the claimant's evidence that her treating physician did in fact inform a WCB medical advisor that the claimant was fit for a return to work, but not until early in January. In addition, it is important to note that no formally written return to work program was ever presented to the claimant until January 8th, 2001, at which time January 11th, 2001 was the suggested start date.

We find after a thorough review of the evidence that the claimant is entitled to wage loss benefits beyond December 7, 2000. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of December, 2001