Decision #24/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 26, 2002, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on November 26, 2002 and again on January 21, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 19, 2001; and

Whether or not the worker is entitled to chiropractic treatment beyond September 13, 2001.

Decision

That the worker is entitled to wage loss benefits from August 19, 2001 up to and including September 13, 2001; and

That the worker is not entitled to chiropractic treatment beyond September 13, 2001.

Decision: Unanimous

Background

The claimant advised the Workers Compensation Board (WCB) that he strained his lower back and neck on June 5, 2001 from carrying a gas powered grass trimmer that weighted about 16 kg. a distance of 3 kilometers. When examined by a chiropractor on June 6, 2001, the diagnosis rendered was a cervical and lumbosacral strain/sprain type injury. The claim was accepted by the WCB and benefits commenced on June 11, 2001.

X-rays of the cervical spine that were taken on June 19, 2001 revealed the following: "There is multi-level disc space narrowing, extending from C3-C4 to C6-C7. There are small posterior osteophytes at C5-C6 and C6-C7. Secondary degenerative changes in the Luschka joints are present at C5-C6 and C6-C7. No acute abnormality is identified."

On June 26, 2001, the WCB advised the claimant that responsibility for chiropractic treatment was approved for a maximum period of 8 weeks or to August 2, 2001 inclusive.

On July 19, 2001, a WCB chiropractic advisor examined the claimant. He concluded that as a result of the June 5, 2001 accident, the claimant suffered from a cervicothoracic muscular ligamentous injury involving the right cervical spine and a mild strain/sprain of the lumbosacral region. The chiropractic advisor felt that the claimant was fit for modified work that did not involve flexing or extending his cervical spine extensively, lifting greater than 30 lbs. or lifting over his head for a 4 week period. The chiropractic advisor further stated that the claimant's current injury was an aggravation of a pre-existing condition.

In a letter dated July 31, 2001, the WCB case manager advised the claimant that the WCB had re-examined the number of weeks that it would cover his chiropractic treatment. It was determined that responsibility for chiropractic treatment would be accepted for a maximum period of 14 weeks, or to September 13, 2001 inclusive.

As the employer had been unable to accommodate the claimant with modified duties, a WCB case manager met with the WCB's chiropractic advisor on August 7, 2001 to set a return to work date for the claimant. It was concluded that the claimant could return to his regular duties by August 20, 2001. On August 8, 2001, the WCB advised the claimant that he would be considered capable of resuming regular duties as of August 20, 2001.

On August 15, 2001, the treating chiropractor voiced his concerns that if the claimant had returned to work using a weedeater, the vibration of the machine and the constant looking down may possibly aggravate the claimant's neck condition. This information was then passed on to the employer.

In a memo dated August 20, 2001, the employer advised the WCB that the claimant had reported for work on August 20, 2001, that he was concerned about being laid-off and that he had asked about working in a different department. The claimant was advised that he would be painting hockey rink boards with white paint and a brush. This activity was considered to be within his regular job duties, but the claimant refused to do the work and left. Subsequent file information revealed that the claimant returned to work on August 21, 2001.

On August 21, 2001, a WCB chiropractic consultant reviewed the file and commented that painting hockey rinks would be within the claimant's physical capabilities. He was also of the view that the claimant had recovered from the aggravation to his cervical spine and that chiropractic treatment up to September 13, 2001 would assist the claimant in his return to work.

On August 23, 2001, the claimant advised the WCB that he started work at 7:00 a.m. on August 21, 2001 and by 11:00 a.m. he began to develop pain in his neck and low back. The claimant attributed this pain to having his neck in a flexed position while painting hockey boards which had been lying on the ground. The claimant worked until 4:00 p.m. and had to leave work due to the pain.

In a report dated August 22, 2001, the treating chiropractor noted that the claimant aggravated his back and neck after one shift of light duties, i.e. painting plywood on the floor with a roller.

In a memo dated August 30, 2001, a WCB chiropractic advisor stated the following:
"Mr. [the claimant] injured his cervical spine and lower back June 5, 2001. I examined the claimant July 19, 2001. At that time, it was my opinion he was fit for light duty. The chiro, reports on August 22, 2001, a re-injury to Mr. [the claimant]. The objective findings are similar to the July 4, 2001 report, which is prior to my exam July 19, 2001. In my opinion, the duty provided by his employer would be within Mr. [the claimant's] ability. Chiro. therapy as per guidelines to September 13, 2001. This time frame of treatment, in my opinion, is sufficient to resolve the irritation of his pre-existing condition for the reported work injury."
In a further memo dated August 30, 2001, the WCB chiropractic advisor stated that the claimant's ongoing symptoms were due to his pre-existing issues noted on x-rays. On September 7, 2001 the claimant was advised by primary adjudication that there was no basis on which to pay wage loss benefits beyond August 19, 2001. It determined that he had essentially recovered from the effects of his compensable injury.

In a submission received from a union representative dated March 12, 2002, it was argued that the claimant's pre-existing degenerative changes in his neck would significantly extend the recovery period from the effects of his compensable injury. "It is reasonable then that on August 20, 2001, Mr. [the claimant] was still suffering from the effects of his compensable injury." The union representative felt that the WCB should accept responsibility for the claimant's wage loss until he was laid off on August 30, 2001 and that chiropractic treatment should be covered until December 31, 2001.

On May 3, 2002, Review Office considered the above appeal as well as a submission from the employer dated April 5, 2002. Review Office determined the following:
  • that the claimant had not made a full recovery from his compensable injury by August 20, 2001. Review Office believed that recovery from the injury was likely complicated by the claimant's degenerative changes.

  • that the claimant was not entitled to payment of wage loss benefits after August 19, 2001 as there was no loss of earning capacity attributable to the compensable injury. Review Office felt that the loss of earning capacity beginning August 20, 2001 was due to other factors unrelated to the compensable injury, i.e. the claimant's dislike of the assigned job duties, a pending lay-off, the desire to work in another department.

    Review Office also was of the opinion that the duties provided by the employer were suitable as the claimant did not have to flex his neck extensively forward and he was able to move his neck as needed. Review Office did not believe the claimant's neck would be in a position that would aggravate his injury to a point of being unable to perform the assigned duties.

  • there was no entitlement to chiropractic treatment after September 13, 2001. Review Office felt that there was no convincing information to indicate that the claimant required chiropractor treatment beyond September 13, 2001 in relation to his work injury. Review Office believed that the claimant essentially had recovered from his work injuries by September 13, 2001.
An oral hearing was held at the Appeal Commission on November 26, 2002. The claimant's advocate disagreed with Review Office's decisions and following the hearing and discussion of the case, the Panel requested additional medical information be obtained from the claimant's treating orthopaedic specialist and from the claimant's disability benefits provider. On January 7, 2003, all interested parties were provided with the information that was received by the Panel and were asked to provide comment. On January 23, 2003, the Panel met to render its decisions as to the issues under appeal. It took into consideration a submission by the employer dated January 14, 2003 as well as a submission from the claimant's advocate dated January 14, 2003.

Reasons

As summarized in the background notes, the claimant injured his back while trimming grass on June 5th, 2001. Shortly following this event, the evidence confirms that the claimant's work related injury had been resolving and to such an extent that the treating chiropractor approved the claimant's performing light/modified duties within certain defined restrictions.

Unfortunately on August 21st, 2001, the claimant temporarily aggravated his resolving back condition while performing modified duties on his first shift. As a consequence, he sustained a mild exacerbation of his compensable condition. The treating chiropractor in his August 22nd, 2001 progress report recommended continued restrictions for a further 2-3 week period.

On August 30th, 2001, a WCB chiropractic consultant reviewed the claimant's case and provided the following comments in a memorandum to file. "Treatment is to end Sept 13/01. In my opinion there has been sufficient therapy/treatment to resolve Mr. [the claimant's] work related injury. Ongoing symptoms at this time [Sept13/01] in my opinion would relate to his pre-existing issues noted in x-ray report."

After carefully considering all of the evidence, we find that the claimant's compensable injury had, on a balance of probabilities, resolved by September 13th, 2001 and any further difficulties would be related to his non-compensable degenerative condition. Accordingly, we further find that the claimant is entitled to wage loss benefits beyond August 19th, 2001 up to and including September 13th, 2001. In addition, he is not entitled to chiropractic treatment beyond this date.

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 20th day of February, 2003

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