Decision #75/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 30, 2003, at the request of the claimant. The Panel discussed this appeal on April 30, 2003, May 20, 2003 and again on June 13, 2003.Issue
Whether or not the claimant is entitled to wage loss benefits for the sporadic time loss from work to July 11, 2002; andWhether or not the claimant is entitled to wage loss and medical aid benefits beyond July 11, 2002.
Decision
That the claimant is entitled to wage loss benefits for January 21, 2002 and June 10, 2002 only; andThat the claimant is entitled to wage loss and medical aid benefits from July 11, 2002 to the week of October 14, 2002 when he returned to full regular duties.
Decision: Unanimous
Background
In July 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report an upper back injury that occurred on July 19, 2001. The claimant described his accident to the call centre as follows: "Me and two other guys were trying to push some pallet onto an elevator. It got stuck. We pushed harder and something popped in my upper back. It was a pallet of empty beer bottles. It weighed about 300 lbs." File information also revealed that the claimant had a previous 2000 WCB claim for his neck, shoulders and upper back.In a Doctor's First Report dated July 19, 2001, the attending physician noted that the claimant complained of upper and middle back pain, mostly on the left side. The diagnosis rendered was a muscular strain. In a progress report dated August 7, 2001, the diagnosis changed to muscle spasm neck and lower back. Arrangements were then made for the claimant to attend physiotherapy treatments.
On September 26, 2001, an orthopaedic specialist indicated that he saw the claimant in January 2001 with significant reactive spasm after a neck injury and some very minimal degenerative changes at C5-6. The claimant "apparently returned to work with no significant problems but was experiencing some mild discomfort in the para-dorsal and par-lumbar area that did not curtail his work. He also still had some periodic neck stiffness and discomfort restricting some range of motion." Following the incident of July 19th, the claimant developed "fairly significant spasm again in the par-dorsal area initially moving into both par-lumbar and a week later back into his par-cervical area." The claimant remained on modified duties and described some left lateral numbness which emanated from his left hip. The claimant had fairly good range of motion of his cervical dorsal lumbar spine. There was some discomfort in the extremes of flexion and extension both cervical and lumbar. Straight leg raising, hip movements and peripheral neurological examination was perfectly normal.
In a follow-up report of October 11, 2001, the orthopaedic specialist noted that the claimant showed some minor para-cervical and para-lumbar stiffness but was able to go freely through a full range of motion of both the cervical and lumbar spine. "The last x-ray that I had taken of him of his lumbar spine on his last visit showed some minor lipping at 2-3 which suggests the instability changes and the resulting spasm." The claimant was encouraged to carry on with his post cervical and lumbar range of motion exercises and was capable of gradually resuming normal functions.
In a November 19, 2001 memo to the WCB's healthcare services branch, a WCB case manager noted that the claimant experienced pain and stiffness to his neck and hip (although the injury was to his upper back) after returning to a combination of regular/alternate duties on October 11, 2001. The medical advisor was asked to provide an opinion as to the diagnosis of the original compensable injury. He responded "muscular strain neck and upper back, possible aggravation of mild pre-x spondylosis of spine". The medical advisor felt there was probably an on-going effect between the claimant's work injury and his current condition. He felt that the claimant could resume his old alternate duties with a gradual return to regular duties.
In a memo dated November 27, 2001, the WCB medical advisor indicated that he spoke with the treating orthopaedic specialist. The specialist indicated that the claimant had mild thoracic spine problems and that there was no serious pathology suspected.
In January 2002, the attending physician and orthopaedic specialist provided the WCB with progress reports concerning the claimant's neck and back difficulties.
On February 26, 2002, a WCB medical advisor examined the claimant and made the following conclusions following his assessment:
- The claimant likely had very mild osteoarthritic changes of his cervical and lumbar spine;
- The claimant likely had some minor degenerative change in his thoracic spine.
- It was likely that the claimant strained the intrascapular muscular area on occasion during work duties;
- Rhomboid testing was negative.
In a report dated March 15, 2002, a sports medicine specialist reported that the claimant presented with pain mainly in his neck and upper trapeziae bilaterally. He still complained of intrascapular pain but the neck and upper shoulder pain was more prominent at this time. The specialist had concerns that the intrascapular pain actually represented cervical regional pain with radiation into the thoracic spine. Based on the history of the development of pain as well as prolonged symptoms, the specialist wondered about the possibility of a cervical disc herniation accounting for the claimant's symptoms.
On May 27, 2002, the claimant underwent a CT scan of the cervical spine which revealed C6-7 central disc bulging versus small central disc herniation without spinal stenosis or nerve root compression.
The claimant sought treatment from a sports medicine specialist on June 18, 2002. The claimant complained of pain to his neck, thoracic spine, right arm and left leg. The specialist recommended that the WCB provide the claimant with a limited number of physiotherapy visits to develop a home program of cervicothoracic stabilization exercises.
In a memo to file dated June 21, 2002, a WCB case manager recorded a telephone conversation that she had had with the claimant. The claimant advised that over the past few months he had missed 10 to 12 days of work sporadically when he could not work because of pain. The claimant indicated that he had already used a week of his holiday time to cover these days. He said he missed days to attend for the CT scan and appointments with the sports medicine specialist. The case manager indicated to the claimant that the WCB would only cover 4 hours of time loss for each appointment.
In another memo to file dated July 11, 2002, a WCB case manager indicated that she spoke with the examining WCB medical advisor in regard to the claim. The WCB medical advisor had a conversation with the sports medicine specialist. They both concurred that the claimant's current condition was not the result of his work injury but was the result of a pre-existing condition. The CT scan and x-rays show degenerative changes at different levels (arthritis).
On July 11, 2002, the case manager advised the claimant that it was the WCB's position that his current condition was not the result of his work place accident but was the result of a pre-existing condition. It was determined that the claimant had recovered from his work place injury. The claimant was advised that the WCB could not provide benefits for disablement resulting from the effects of a worker's pre-existing condition as a pre-existing condition was not a personal injury which arose out of or in the course his employment. The WCB was therefore unable to issue wage loss benefits for the sporadic time loss that the claimant experienced.
In a letter dated July 12, 2002, the claimant was informed that the WCB was issuing wage loss benefits for May 6, 2002 (CT scan appointment) and June 18 and July 5, 2002 (appointments with the sports medicine specialist). Wage loss benefits would not be issued for June 10, 2002 with his general practitioner as the claimant had not been examined on this particular day and the physician's report did not record any findings.
On September 25, 2002, a union representative provided the WCB with a report from the sports medicine specialist dated September 6, 2002. The union representative noted that the specialist did not agree that the claimant's ongoing problems were related to a pre-existing condition.
In a response dated October 7, 2002, the case manager noted that she erred in her understanding what the sports medicine specialist's final diagnosis was but she was still unable, on the basis of the information submitted, to change her decision that the claimant had recovered from his injury. The case manager pointed out in her letter that she asked a WCB healthcare consultant "Are there any findings in either of Dr. [sports medicine specialist's] reports or the CT scan that would indicate an ongoing relationship between the claimant's current condition and the workplace accident of July 19, 2001? His response was "No longer at 1 year post mechanical back pain as per discussion with Dr. [sports medicine specialist]." The case was then referred to Review Office for consideration.
On November 15, 2002, Review Office stated that it was of the opinion that "taking into consideration the passing of one year in time as well as the multitude of complaints which over the months became more and more noticeable, as well as the inconsistencies in the severity of the conditions being found upon examination as the months went by, Review Office does not feel there is a cause and effect relationship between the claimant's presentation of subjective complaints of pain beyond July 11, 2002 with the original injury of July 19, 2001."
Review Office indicated that whatever was producing the multitude of subjective complaints throughout the claimant's body as of July 11, 2002, the cause of such multitude complaints would not be related to the described mechanism of injury occurring on July 19, 2001. On December 17, 2002, the union representative appealed Review Office's decision and an oral hearing was arranged.
On April 30, 2003 and May 20, 2003, the Panel met to discuss the case and it required additional information prior to discussing the case further. Specifically, the Panel requested and obtained a report from the claimant's treating chiropractor dated May 26, 2003. The report was forwarded to the interested parties for comment. On June 13, 2003, the Panel met to render its final decision with respect to the issue under appeal.
Reasons
This case involves a worker who incurred an injury to his upper back and neck region in a workplace accident in July 2001. His claim for compensation was accepted and benefits were paid accordingly. Benefits were terminated as of July 11, 2002, as it was determined that he should have recovered from what initially diagnosed as a sprain/strain by that time. In addition, he had been denied wage loss benefits for a few days on which he missed work prior to that date.Review Office upheld these decisions on reconsideration. He then appealed to this Commission.
For his appeal to succeed, the Appeal Panel would have to determine that his time loss prior and subsequent to July 11, as well as some medical treatment after July 11, was causally related to his compensable injury. We did make that determination, in part.
In coming to our decision, we conducted a thorough review of the claim file and held a hearing at which we heard testimony and argument from the claimant, his representative and representatives of the employer.
In considering the first issue before us as to whether he is entitled to wage loss benefits for sporadic time loss up to July, 11, 2002, we note that the claimant missed very little time due to his injury, as his employer was able to accommodate him with other duties. The time he did miss was generally due to medical appointments or, according to his testimony, when he was in pain due to having attempted to perform some of his regular duties. The board paid him wage loss benefits for some of these days, but not others.
In a letter to the claimant, dated July 11, 2002, the board wrote that benefits could not be paid, as it had been determined that his ongoing problems were due to a pre-existing condition. The letter also stated that he had recovered from his workplace injury.
As well as denying future benefits, the claimant was denied wage loss benefits for a few days missed over the previous few months. In respect of these days, the logic for denying benefits does not follow, as he was paid wage loss for other days in the same period. We have concluded that he is entitled to wage loss benefits for some of those days, as follows:
- November 23, 2001 - No. On November 22, his doctor cleared him to return to work the next day, but he did not return until the 24th.
- January 21, 2002 - Yes. He missed this day as he awoke in the night with pains so severe he had to go to the emergency ward at Concordia Hospital.
- February 26, 2002 - No. He was paid benefits for 5 1/2 hours for a WCB call-in examination, but did not attend at work for the remaining time, prior to the call-in.
- June 10, 2002 - Yes. He had an appointment with his doctor in respect of this claim, but benefits were denied, because the doctor had written "didn't examine him" on the Progress Report. He may not have examined for any changes in objective signs, but nonetheless did consider the claimant's subjective complaints and referred him to a specialist.
When this error was pointed out, the board did not change its decision, on the basis that, after a period of one year, a muscular strain should have healed. While we understand that, in most instances, certain injuries will heal within certain periods of time, we are sometimes uneasy when this is the primary purpose for terminating a claim. This is such a time. We have concluded that he had not recovered from his compensable injury by July 11, 2002.
In coming to this conclusion, we had the benefit of hindsight. We know that the management of his problems by the sports medicine specialist was successful to the point that he was able to return to his pre-injury employment by mid-October. This specialist referred him for acupuncture and chiropractic treatment, as well as putting him on a work-conditioning program that commenced in early September and concluded in mid-October.
He had been referred to this specialist a few months before the termination of his claim. It appears to us that the specialists' treatment plan continued post-termination, with ultimate success. The claimant had seen this doctor for problems related to his compensable injury; was treated for those problems; and recovered from them. This chain leads us to the conclusion that he continued to suffer from problems related to his compensable injury until mid-October 2002. As a result, he is entitled to benefits - both wage loss and medical aid - until at least that time.
Conclusions:
Issue #1 - The claimant is entitled to wage loss benefits for January 21 and June 10, 2002.
Issue #2 - That the claimant is entitled to wage loss and medical aid benefits from July 11, 2002 to the week of October 14, 2002 when he returned to full regular duties.
The appeal is allowed as set out above.
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 8th day of July, 2003