Decision #91/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on August 13, 2003, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to receive wage loss benefits during the period in which he received Employment Insurance Benefits.

Decision

That the claimant was entitled to receive wage loss benefits during the period in which he received Employment Insurance Benefits.

Decision: Unanimous

Background

In September 2000, the claimant filed a claim with the Workers Compensation Board (WCB) for a back injury he sustained on August 24, 2000 when he slipped off the running board of his truck, landing on his right leg. Subsequent file information revealed that the claimant continued driving after the incident as he only felt a little pain in his hip area. He attended a chiropractor for treatment at the end of August 2000 as his back pain became more apparent when he was lying down or trying to rest.

A chiropractic report dated October 3, 2000 stated that the claimant was first treated on August 30, 2000. The diagnosis rendered was an acute, moderately severe lumbopelvic strain with associated vertebral subluxation complexes, complicated by moderate antalgia and abnormal gait dynamics. The claim was accepted by the WCB and wage loss benefits were paid to the claimant during his absences from work.

On November 6, 2000, the claimant advised his case manager that he was no longer able to work and found it difficult to sleep in the bunk of his truck. The claimant was uncomfortable when someone else was driving and he said that these feelings pre-dated his work injury. The case manager advised the claimant that he would request updated medical information to see whether his inability to sleep in the bunk of the semi had any relationship to his work injury.

Reports were received from the treating chiropractor dated November 16, 2000 and from the treating physician dated November 1, 2000. The chiropractor stated that the claimant's lack of sleep exacerbated his hip pain which increased his inability to sleep. The treating physician commented that the claimant was suffering from anxiety attacks, a racing heart, insomnia and tenderness in his right SI joint. He felt that the claimant should not drive truck. A referral was made to a mental health worker for stress management.

A WCB medical advisor reviewed the file information on November 30, 2000 at the request of primary adjudication. The medical advisor concluded that the claimant's back problems should have resolved long ago relevant to this claim and that the claimant's present psychological dilemma was not related to his compensable injury.

In a decision dated December 4, 2000, the claimant was informed by his case manager that it was the WCB's position that he had recovered from the muscular strain injury to his lower back. It was also the WCB's position that the claimant's inability to sleep in the truck was not related to his back injury. This decision was based on the comments expressed by the WCB medical advisor from the claimant's treating physician. In December 2000, the claimant appealed this decision to Review Office.

On January 21, 2001, Review Office determined that no responsibility could be accepted for the claimant's recurrent time loss from work commencing in November 2000. Review Office was unable to accept that a causal relationship existed between the claimant's low back injury of August 24, 2000 and his inability to continue to drive due to what had been diagnosed as anxiety attacks.

In February 2001, the claimant asked Review Office to reconsider its earlier decision based on new medical evidence from an orthopaedic specialist. In a letter dated March 21, 2001, the orthopaedic specialist reported that the claimant had a right S1 root compression arising out of a disc herniation which had resolved to a significant extent.

A WCB medical advisor reviewed the case at the request of Review Office on July 12, 2001. The medical advisor expressed his view that the claimant's back difficulties, on balance, related to his jarring injury of August 2000. He noted that there had generally been a continuity of complaints, aside from anxiety, which was documented on file.

In a decision dated July 20, 2001, Review Office rescinded its early decision based on the WCB medical advisor's opinion that the claimant sustained a disc injury in the August 24, 2000 accident. Review Office concluded that the claimant was entitled to wage loss benefits commencing the day after his Employment Insurance (EI) benefits ended in connection with his anxiety attacks. "The period for which wage loss benefits are payable is to be determined by Rehabilitation & Compensation Services…".

On January 25, 2002, a worker advisor asked Review Office to consider a report by the treating orthopaedic surgeon dated January 23, 2002 which clarified the claimant's condition. Based on this report, the worker advisor felt that the claimant was entitled to benefits for his back injury for the period he was off work, i.e. November 5, 2000 to March 20, 2001. In a response dated January 9, 2003, Review Office provided the following reasons to support its position that the claimant was not entitled to wage loss benefits during the period he received EI benefits:
  • according to a memo dated October 17, 2000, the claimant told his case manager that his back was almost 100% better and that he would be returning to work on October 19, 2000.

  • the comments which were made by the attending physician in his report of November 1, 2000.

  • on November 6, 2000, the claimant advised his case manager that he was no longer able to work as he was unable to sleep in the bunk with someone else driving. The claimant stated that this feeling pre-dated his injury and that he would be applying for EI benefits.

  • a report by the attending chiropractor dated November 16, 2000 in which he stated he was of the understanding that the claimant was off work on stress leave.

  • the claimant told his case manager on December 4, 2001 that he had received EI for 15 weeks for matters unrelated to his workplace injury.
On June 18, 2003, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

This case involves a trucker who injured his lower back in a workplace incident in August 2000. His claim for compensation was accepted and benefits were paid accordingly.

He returned to work about two months later, but lasted only a couple of weeks. However, benefits were not paid for this further time loss as it was determined that the reason he was unable to drive was no longer due to his compensable injury, but to other matters. This decision was upheld upon reconsideration by Review Office in January 2001.

Review Office reconsidered the case a second time, following receipt of new medical evidence and reversed its earlier decision, finding that the claimant's ongoing problems were related to his compensable injury. Review Office determined that benefits would not resume until the claimant's Employment Insurance benefits ran out. He appealed that decision to the Appeal Commission.

For the appeal to be successful, the Appeal Panel would have to determine that the claimant was entitled to receive benefits from the time he went off work in November 2000. We have so determined.

In coming to our decision, we conducted a thorough review of the claim file and met in a non-hearing setting to consider the matter before us.

We note that in its second reconsideration, Review Office relied on the evidence of an orthopaedic specialist who expressed the opinion that the worker had "a right-sided disc herniation" and that "he was presently unfit for long distance driving". After reviewing this report, a board medical advisor concluded that "on balance his back difficulties relate to his jarring injury of Aug 2000. I note that has generally been a continuity of complaints … which is documented on file."

We could find no authority - in statute or in policy - for denying benefits to the claimant, once responsibility for the claim had been accepted.

Subsection 39(1) of The Workers Compensation Act provides as follows:
"Where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits shall be payable to the worker …."
The claimant did have a loss of earning capacity, which began in November 2000 and continued until the spring of 2001. By its second decision, Review Office has accepted that this was as a result of his August 2000 workplace accident. Therefore, it follows that he is entitled to payment of wage loss benefits throughout this period.

The Panel was a bit uneasy with the framing of the issue, as it might lead one to believe that the claimant could "double dip", receiving benefits from both Workers Compensation and Employment Insurance. It is our understanding that this is not the case.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of September, 2003

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