Decision #11/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 22, 2003, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on January 22, 2003.Issue
Whether or not the claimant has recovered from the effects of the compensable injury.Decision
That the claimant has recovered from the effects of the compensable injury.Decision: Unanimous
Background
In January 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred on January 20, 2002 from lifting packages of soup cans onto a pallet.On January 22, 2002, the claimant sought medical treatment and was diagnosed with a paraspinal muscle strain. The claimant was considered fit to perform modified duties as of January 24, 2002, with restrictions of no heavy lifting, pulling, pushing or bending. In a progress report dated February 6, 2002, the physician advised the WCB that the claimant could return to regular duties by February 14, 2002.
In late February 2002, the claimant contacted the WCB to advise that he was still having problems with his back and that he had been suspended from work for a period of time due to his inability to keep up with his required pace of workload. The adjudicator advised the claimant that the WCB would not be able to assist him with his suspension situation and that he should discuss the matter with his union representative.
The WCB case manager then spoke with the accident employer. The employer indicated that the claimant was suspended due to his work performance and not maintaining his quota. The claimant was to return to work on March 15, 2002 and was offered light duties but he refused to go back to work. The light duties consisted of walking around with a clip board marking orders.
On April 12, 2002, a WCB medical advisor was asked by primary adjudication to review the medical information on file and to provide an opinion as to when the claimant was capable of resuming his full regular duties. The medical advisor responded to this request on April 18, 2002.
In a letter dated April 24, 2002, primary adjudication decided that the claimant was not entitled to wage loss benefits between March 15 to April 3, 2002 as it was determined that he had recovered from the effects of his compensable accident. On May 7th and June 10, 2002, the claimant appealed this decision to Review Office.
On August 2, 2002, Review Office confirmed that the claimant was not entitled to wage loss benefits between March 15, 2002 and April 3, 2002. Review Office noted that the claimant's physician cleared him to return to work by February 15, 2002 and that he performed his regular work until February 27, 2002 when he was suspended for missing his quota as he was found to be taking too long for breaks. Review Office could not accept that the claimant was unable to work in any capacity between March 15th and April 3, 2002 given that he had performed his regular duties for almost 2 weeks in February 2002 without any reported worsening of his condition.
Review Office further determined that the claimant had recovered from the effects of his muscular strain injury by April 24, 2002. Review Office indicated that it sought the opinion of a WCB orthopaedic consultant who felt that the claimant should have recovered from his at-work injury by April 24, 2002, and that any ongoing complaints were more likely attributable to the pre-existing degenerative changes in his lumbar spine.
On August 25, 2002, the claimant's advocate requested Review Office to reconsider its August 2, 2002 decision based on additional information from the attending physician dated August 15, 2002. In response to the advocate's submission, Review Office indicated the following on September 27, 2002:
- no wage loss benefits were payable to the claimant between March 15th and April 3, 2002 as the employer had suitable modified work available which the claimant would have been capable of performing;
- no benefits were payable to the claimant during his suspension as his loss of income was due to an internal disciplinary action;
- a report from the claimant's treating physiatrist would be reviewed before reconsidering the previous decision that the claimant had recovered form the effects of his compensable injury.
Reasons
This case involves a worker who sustained an injury to his back on January 20, 2002, while lifting and placing heavy boxes onto a pallet. His claim for compensation was accepted and benefits were paid accordingly.Wage loss benefits were paid for only one day, following which he was able to return to alternate/light duties. He later missed work from March 15 to April 3, which he maintains was due to the compensable injury. It is also his position that he continued to suffer from the injury beyond that period. The board determined that he was not entitled to wage loss benefits for the March/April period and that he had recovered from the effects of the compensable injury by April 24. Review Office, on reconsideration, upheld this decision. He then appealed to this Commission.
At issue in this appeal is whether or not he has recovered from the workplace injury. For his appeal to be successful, the Panel would have to determine that he continues to suffer from the effects of his workplace injury. We were not able to make that determination.
In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony from the claimant, his advocate and a representative of the accident employer.
The following facts were relevant in our consideration:
- The claimant was deemed capable of returning to alternate/light duties, with restrictions, within two days of his accident.
- His doctor ultimately deemed that he could return to full-time regular duties on February 14, 2002.
- He did return and do alternate work from January 24 to February 15, with no apparent negative effect on his injury.
- On February 15, he resumed regular duties.
- On February 27, he was suspended from work for reasons unrelated to his injury.
- On March 6, during the period of suspension, his doctor, who had previously cleared him for return to regular duties, reported that the worker was not capable of performing his regular duties, at least to the speed demanded by his employer.
- A CT scan performed on March 6 found that he had a retrolisthesis at L1/L2, likely related to degenerative facet changes.
- When his suspension ended on March 15, the claimant did not return to work, claiming he was not fit to do so.
- On April 3, his doctor cleared him to return to alternate duties.
We further noted that the specialist in physical medicine who examined the claimant did not find any reason that the claimant was unable to work. In fact, he wrote that "he should be encouraged to return to a modified/light duty work as soon as possible."
Granted this examination took place a number of months after the board determined he was sufficiently recovered to return to work, but as a board Orthopaedic Consultant noted, there was nothing in the file to support an inability to work in the interim.
In conclusion, we uphold the decision of Review Office. It is our view that, on a balance of probabilities, the claimant had recovered from his workplace injury by April 24, 2002.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of February, 2003