Decision #40/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 29, 2003, at the claimant's request. The Panel discussed this appeal on January 29, 2003 and again on April 11, 2003.Issue
Whether or not the claimant is entitled to wage loss benefits effective June 16, 2002.Decision
That the claimant is entitled to wage loss benefits from June 16, 2002 to September 30, 2002 inclusive.Decision: Unanimous
Background
On December 28, 2001 the claimant jarred his right lower back when he struck a wall while carrying a bag of rice up a flight of stairs. On January 22, 2002, the claimant was diagnosed with a strain of the right sacroiliac joint and the attending physician felt that the claimant was disabled from work for a two week period.The claimant did not report the December 28th back injury to the Workers Compensation Board (WCB) until January 16, 2002, when he incurred a work related injury to his neck and shoulder area. The WCB accepted the neck and shoulder claim and benefits were paid to the worker until June 14, 2002, when it was determined by the attending physician that he had recovered from his injuries and was fit to return to work. The claim for the back injury was denied by the WCB because of the claimant's delay in reporting the accident and in seeking medical treatment. The decision to deny the back claim was overturned by an Appeal Panel on July 4, 2002 when it determined, based on the weight of evidence, that there was a compensable incident on December 28, 2001.
Following the Appeal Panel's decision, the claimant advised the WCB that he was claiming time loss benefits for his back injury as of June 14, 2002, the date that his WCB benefits ended with respect to his neck/shoulder claim. In order to determine whether or not the claimant was entitled to benefits effective June 2002, primary adjudication asked the claimant to seek medical attention as there were no reports on file regarding the status of his back condition subsequent to February 2002.
In a report dated August 22, 2002, a chiropractor noted that he assessed the claimant on August 12, 2002, complained of a steady ache with aggravation on prolonged sitting and lying. The pain was in the right lower back region. The chiropractor was of the opinion that the claimant was disabled from work and required chiropractic treatment.
In a memorandum dated August 30, 2002, a WCB chiropractic consultant recorded that he discussed the case with the attending chiropractor and with a WCB case manager. In part, the chiropractic consultant stated the following:
- there was no evidence that the claimant could not work between June 15, 2002 and when he was last seen by the treating chiropractor.
- the low back condition allowed the claimant to work until the time of his shoulder injury. During this time, the low back injury was at its most acute stage and was expected to be at its most disabling point. It was difficult to accept that the low back condition would have precluded the claimant from returning to work once the shoulder had recovered, five months later.
- the objective evidence noted on the August 12, 2002 report did not support the treating chiropractor's position that the claimant was unable to return to work.
- strain injuries were typically most disabling early in their history. The claimant worked for three weeks post injury. It was difficult to understand the need for time loss based on the expected natural history of low back sprain injuries.
- the claimant appeared to be suffering from a sequela of his low back injury. The claimant was entitled to a course of chiropractic treatment in an attempt to resolve the sequela.
On September 20, 2002, primary adjudication advised the claimant that it reviewed all of the file information such as the diagnosis, medical reports, the examination notes of September 13 and the normal recovery for a back strain. Based on this information, it was determined that although the claimant may have some residual effects from his back injury, he was not considered disabled from working and was not entitled to benefits effective June 16, 2002. This decision was upheld again by primary adjudication on September 27, 2002.
On November 15, 2002, Review Office considered an appeal submission by the claimant dated September 28, 2002. After paying particular consideration to a medical report from the treating physician dated May 14, 2002 and a chiropractic report of August 12, 2002, Review Office felt that the evidence did not support the claimant's contention that he was disabled from his regular pre-accident employment. It was determined by Review Office that wage loss benefits were not payable on the claim effective June 16, 2002. The claimant disagreed with Review Office's decision and an oral hearing was held on January 29, 2003.
Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's treating chiropractor prior to rendering a decision on the issue under appeal. A report from the chiropractor was later received dated February 12, 2003 and was forwarded to the interested parties for comment. On April 11, 2003, the Panel met to render its final decision with respect to the issue under appeal.
Reasons
This claim involves a worker who injured his back in a workplace incident on December 28, 2001. Initially, his claim for compensation was not accepted.As noted in the 'Background" section, about three weeks after this incident, he had another accident at work (with the same employer), in which he injured his neck and shoulder area. This claim was accepted as compensable and benefits were paid to June 14, 2002.
The Appeal Commission, in a decision by another Appeal Panel, overturned the board's decision to deny his claim for the back injury. Once this claim was accepted and benefits terminated for the neck/shoulder problem, he made a claim for benefits for the back injury. It was his claim that he was still unable to return to his employment. However, the board found that there was no loss of earning capacity for this injury. That decision was upheld on reconsideration by Review Office. He then appealed to this commission.
For his appeal to succeed, the Panel would have to determine that he did suffer a loss of earning capacity as a result of his back injury. We did 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. Subsequent to the hearing, we sought further information from his treating chiropractor.
We took note of the report of the WCB consulting chiropractor, which is summarized in the 'Background' section. He reviewed the file, as well as conducting an examination of the claimant. We would particularly note his finding that the claimant "appears to be suffering sequelae of his low back injury." He felt the claimant was entitled to a course of chiropractic treatment to deal with his back problem. However, it was also his opinion that the claimant was not precluded from work.
We also noted the comments of other physicians who expressed the opinion that, in most cases, a lumbar strain such as that suffered by the claimant should recover in a matter of weeks.
However, we were more persuaded by the opinion of his own chiropractor. In his response to our query, the treating chiropractor reported that the claimant presented to him in August with continuing back pain. He continued to treat the claimant for this problem until late October, when he was discharged, having shown considerable improvement.
The treating chiropractor reported that it was his opinion that the claimant "was considered to be unable to work during the intensive part of therapy from August 12 to September 30, 2002. September 30, he was considered to be capable of alternate or modified work." He also stated that he was unable to comment on his status for the period June 15 to August 12.
We base our decision on the following findings:
- The finding of the board chiropractic consultant that the claimant was suffering from a sequela of his lower back injury.
- The acceptance of this as related to his work place accident to the extent that he was provided with medical benefits.
- The opinion of his own chiropractor that he was incapable of work from August 12 to September 30.
- A report by the walk-in clinic physician that, while being treated for his neck/shoulder problem, he frequently complained of back pain.
- His testimony to us that his back pain continued after his neck/shoulder problem had recovered. He also testified that he did not seek treatment because, until the claim was accepted, he was unable to afford to pay for a chiropractor. Once the earlier Appeal Panel had accepted his claim, he made arrangements to see a chiropractor.
Based on the foregoing, we conclude that he is entitled to wage loss benefits effective June 16, 2002. We are also of the view that these benefits should end on September 30, 2002. Based on the report of his chiropractor, as noted above, we have concluded that his loss of earning capacity ended on that date.
Accordingly, the appeal is allowed as set out above.
Panel Members
T. Sargeant, Presiding OfficerP. Challoner, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of April, 2003