Decision #82/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 25, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 25, 2003.

Issue

Whether or not the claimant has recovered from her March 9, 2001 compensable injury.

Decision

The claimant had recovered from her March 9, 2001 compensable injury.

Decision: Unanimous

Background

On March 9, 2001, the claimant felt a sharp pain in her lower back region when lifting a 50-60 pound banana box from a dolly onto a pallet. On the same day the claimant sought medical treatment and was diagnosed with an acute back strain.

The claimant was employed as a file maintenance clerk at the time of her injury, a position that was provided to her following a previous 1997 compensable back claim. The claimant has preventive restrictions arising from the 1997 claim which include no repetitive bending and stooping, no weights greater than 10 pounds and no prolonged stairs. The 2001 claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits commenced on March 10, 2001.

On May 7, 2001, the results of a CT scan revealed a shallow small central and left posterolateral L3-4 disc protrusion that just approached the thecal sac. At the L4-5 level, there was diffuse posterior and left posterolateral disc prominence without evidence of significant thecal sac or nerve root compression. The L5-S1 level was unremarkable and there was a mild degree of facet arthropathy at all levels.

Over the next year, the claimant was seen by a number of different doctors, including her family doctor, an orthopaedic surgeon, a specialist in physical medicine and rehabilitation, a neurosurgeon and a WCB medical advisor. (The reports of these doctors will be reviewed later in this decision.)

In a letter dated April 11, 2002, primary adjudication provided the claimant with the conditions of her graduated return to work program that was to commence on April 22, 2002 as a file maintenance clerk.

In a progress report dated April 24, 2002, the attending physician reported that the claimant was incapable of alternate or modified duties and he suggested a call-in examination at the WCB's offices. On May 6, 2002, a WCB medical advisor examined the claimant.

On May 31, 2002, the claimant was advised that, based on all the medical information on file, the board had determined that, on a balance of probabilities, she had recovered from the effects of her March 9, 2001 work injury and was capable of returning to her pre-accident duties and schedule as a part time file maintenance clerk. The claimant was therefore not entitled to further benefits.

On July 12, 2002, a union representative presented argument to the effect that the claimant had not recovered from the effects of her accident and that she was not fit to return to her pre-accident work duties as a file maintenance clerk. The union representative requested a re-evaluation of the file clerk position as it was felt that some of the work was beyond the claimant's restrictions.

On July 18, 2002, a WCB case manager denied the request for the work site assessment based on the following rationale:
  • the claimant had been accommodated in the file maintenance clerk position in March 2000. All parties which included the claimant, the employer and WCB representatives were in agreement that this position was within the claimant's preventive work restrictions outlined by the WCB. The only exception was the lifting of paper and it was agreed that the claimant was not expected to perform this activity.

  • the claimant continued in the file maintenance clerk position for a year until her March 9, 2001 injury. At that time, the claimant was lifting banana boxes weighting 50 to 60 lbs. which was not a requirement of the file maintenance clerk position. The claimant therefore chose to work outside of her work restrictions.
On January 10, 2003, Review Office considered the case based on an appeal submission from the union representative dated October 10, 2002. Review Office opined that the weight of evidence (i.e. various medical opinions on file by the claimant's treating specialists) supported the position that the claimant had recovered from the effects of her March 2001 injury.

The Review Office also determined that the claimant's entitlement to preventative vocational rehabilitation should be revisited. Review Office was not convinced that the suggested preventative restrictions were appropriate and that they should be revisited in light of the current medical findings.

In a letter dated February 26, 2003, primary adjudication advised the claimant that a WCB medical advisor confirmed that the previously outlined restrictions were appropriate. It was also the WCB's position that the duties of a file maintenance clerk respected her restrictions and that there was clear documentation and communication with the employer that the claimant was not expected to lift paper for the printer which could weigh up to 50 pounds. It was also the WCB's position that the claimant was not entitled to preventative rehabilitation under WCB policy 43.10.60.

On March 25, 2003, the union representative appealed the Review Office's decision of January 10, 2003 and an oral hearing was arranged.

Reasons

This case involves a worker who injured her back in a workplace accident in March 2001. Her claim for compensation was accepted and benefits paid accordingly.

In April 2002, the Board determined that she was fit to enter a graduated return to work program, commencing April 22 and concluding May 19, at which time she would have recovered from the effects of her injury and be able to return to her pre-accident duties as a part-time file clerk.

She felt she was not yet sufficiently recovered and appealed that decision to the Review Office, which upheld the case manager's decision. She then appealed to the Appeal Commission.

For her appeal to succeed, the Appeal Panel would have to determine that she has not yet recovered from the effects of her workplace injury and, thus, unable to return to her pre-accident work. 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 a hearing, at which we heard testimony from the claimant, he advocate and a representative of the employer.

Our decision was greatly influenced by the medical evidence on file, which did not support her position that she was still suffering from the effects of the March 2001 accident. We took particular note of the following:
  • Upon referral by her family physician, she was seen in April and May 2001 by an orthopaedic surgeon, who expressed the opinion that her symptoms "may be part of a diffuse degenerative change, although they may also be related to the recent lifting strain …. that her pain arises out of osteoarthritic lower posterior articulations…."

    He felt that physiotherapy would not help at that time.

  • A Board medical advisor, in a memo dated June 11, 2001, noted that the CT scan had shown some disc protrusions, greater on the left side. But, the claimant's symptoms were greater on the right side.

  • In a letter of referral to a physiatrist, the orthopaedic surgeon wrote that his "initial impression was an episode of acute mechanical back pain arising out of degenerative posterior articulations, but in [his] experience it is unusual for the gross tilt to persist this long and to see no improvement in the pain."

  • Following his examination, the physiatrist wrote: "this patient has signs of dural irritation and decreased spinal range of motion that is consistent with a lumbosacral disc herniation. She has a neurologic deficit that would correspond best to a left L4 radiculopathy. … There are also chronic signs of left S1 radiculopathy."

  • The orthopaedic surgeon, in a July 27, 2001 letter, stated that he felt her prognosis for returning to her pre-accident position was reasonable. However, at the time of that visit, she was not yet ready to return.

  • In October 2001, her family physician reported that she had good objective strength improvement and still had symptoms in the L4 distribution. He recommended that she increase her activity, attend for further physiotherapy treatment and undergo a repeat epidural injection.

  • She was seen by a neurosurgeon on November 6, 2001. He reported that "the range of motion of the L spine is extremely reduced. The dorsal flexion is particularly painful. There is a left convex scoliosis. From a neurological stand point I could not detect any sensory or motor abnormality of the lower extremities.

    "The submitted CT scans …. Do not show any evidence of spinal stenosis. At the L4-5 level there is a slight bulge without any evidence of significant thecal compression.

    "From a clinical as well as a radiological standpoint I could not detect any instance of radicular irritation. On the contrary I think most of the symptoms the patient is experiencing are pseudo radicular irritation …"

    He recommended intense protracted physiotherapy.

  • In a November 28, 2001 memo, the Board medical advisor recommended physiotherapy and, ultimately a graduated return to work program. She also recommended that restrictions be put in place - to be the same as preventive restrictions already in place from a previous back injury.

  • On January 18, 2002, the physiatrist reported that her pain was getting worse. He stated a new diagnosis of "Chronic Pain Disorder with a general medical condition." He recommended she see the orthopaedic surgeon again. While he felt she was capable of performing alternative duties, he was not able to outline any restrictions based on his current assessment.

  • On March 25, 2002, the orthopaedic surgeon stated, in part, that the claimant was demonstrating significant pain behavior and symptom amplification and he could not see any pathology which would require narcotic analgesia. The surgeon commented that the neurosurgeon could not find any evidence of radiculopathy and he felt that the claimant's symptoms might relate to her facet joints. The surgeon advised the claimant that there was serious inconsistency in her symptoms and signs and that she should consider returning to her regular duties in the near future on a graduated basis.

  • The claimant was examined by the WCB medical advisor on May 6, 2002. It was her opinion that the examination failed "to objectively demonstrate any neurological deficit … [and] was limited by subjective complaints of pain with some significant inconsistencies …. Non-anatomic findings and inconsistencies have been noted … [in] the most recent reports from the physiatrist and orthopaedic surgeon."

    She also wrote that she was "in agreement with the recommendations from her orthopaedic surgeon and the neurosurgeon, who would suggest that the claimant must become more active despite pain complaints. … It is somewhat difficult to reconcile the claimant's pain complaints and reported level of dysfunction with lack of objective findings."

    The medical advisor felt that the previously outlined graduated return to work program was reasonable.
We note that the claimant's family physician continues to be of the opinion that she has not yet recovered from the effects of the March 2001 injury and remains incapable of returning to her pre-accident duties. He is of the view that her restrictions need to be reviewed and that she needs to be retrained into a new career.

While we do not deny that the claimant may well continue to suffer pain in her lower back, we are unable, based on the medical evidence, to conclude that it is related to her workplace injury of March 9, 2001. Therefore, we conclude that - on a balance of probabilities - she has recovered from the effects of the injury she incurred on that day.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of July, 2003

Back