Decision #112/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 11, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 11, 2003.Issue
Whether or not the worker is entitled to wage loss benefits beyond May 8, 2002.Decision
That the worker is entitled to wage loss benefits beyond May 8, 2002.Decision: Unanimous
Background
The claimant was lifting a battery from a floor-scrubbing machine into the trunk of her car on January 19, 2001, when she injured her back. The diagnosis rendered by the attending physician was a strain to the lower back and discogenic pain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits commenced on January 20, 2001.On March 12, 2001, the claimant underwent a CT scan which revealed minor disc bulging at L3-4 and L4-5. At L5-S1, no significant abnormality had been demonstrated. There was minor early facet arthropathy at L4-L5. The impression read "No disc protrusion has been demonstrated."
The claimant was assessed by neurologist on May 22, 2001. Following his assessment, the neurologist felt that the claimant was completely disabled from returning to her job and that in two to four months time, she would be able to go back to work.
The claimant was referred to a physical medicine and rehabilitation specialist (physiatrist) for treatment. In a report dated July 16, 2001, the physiatrist reported that the claimant was being treated to ease her myofascial pain.
On August 9, 2001, a MRI examination of the lumbar spine revealed a tiny central disc herniation at the L4-5 level without spinal stenosis or nerve root compression.
In a report dated August 28, 2001, the physiatrist provided his opinion that the claimant suffered a posterior ligament and muscle strain/sprain as a result of her work related incident in January 2001. The specialist felt that the claimant would benefit from needling/infiltration techniques, in the absence of any significant disc pathology. It was felt that the claimant required another month to six weeks before she could consider a return to work.
In a follow-up report dated October 1, 2001, the physiatrist indicated that the claimant had made significant progress in her pain management and the amount of pain that she was experiencing but she was not in physical condition to return to work. Suggestions were made for the claimant to attend physiotherapy and possibly work hardening at PARS therapy services.
Following consultation with the WCB's healthcare branch, the claimant's WCB case manager determined that a return to work with the accident employer would be more beneficial than a formal reconditioning program. The WCB then arranged for the claimant to commence a graduated return to work plan with the accident employer commencing November 29, 2001. On January 25, 2002, the accident employer terminated the claimant's employment as it felt that she was unreliable and that she was too great of a risk to keep on staff.
The claimant underwent a Functional Capacity Evaluation (FCE) at the WCB's offices on January 30, 2002 and a full report concerning this assessment is on file.
In a memo dated February 14, 2002, a WCB case manager reported that the FCE results were reviewed by a WCB medical advisor who found little subjective findings. A 4 week reconditioning program was recommended for the claimant after which she would be considered fit to return to work. In a letter dated March 25, 2002, the claimant was advised that the 4 week program would begin on April 1, 2002 and would conclude on April 26, 2002. File records revealed that the reconditioning program inadvertently went beyond the four weeks of treatment.
On May 1, 2002, the case manager advised the claimant that her wage loss benefits would end effective May 8, 2002 as it was felt that she was capable of returning to work and was no longer experiencing a loss of earning capacity and therefore under section 39(2) of The Workers Compensation Act (the Act) wage loss benefits were no longer payable.
On December 17, 2002, a worker advised made reference to a report from the claimant's treating physiatrist dated December 17, 2002. Based on this report, the worker advisor's position was that the claimant was still experiencing a loss of earning capacity. After reviewing the report and after consulting with a WCB medical advisor on January 14, 2003, the case manager wrote to the worker advisor on January 30, 2003 stating that no change would be made to his decision of May 1, 2002. On January 31, 2003, the worker advisor appealed this decision to the Review Office.
Following consultation with a WCB orthopaedic consultant on February 20, 2003, Review Office determined on March 15, 2003, that the worker was not entitled to wage loss benefits beyond May 8, 2002. Review Office accepted the opinion of the orthopaedic consultant that the worker was capable of performing the duties of a cleaning supervisor by the time benefits were stopped on May 8, 2002, almost 16 months after her injury at work. Review Office stated that it was unable to accept the assertion that the worker remained incapable of performing her regular work duties and that she was permanently restricted due to the sprain/strain injury sustained on January 19, 2001. On April 8, 2003, the worker advisor appealed Review Office's decision and an oral hearing was arranged. A report from the physiatrist dated August 14, 2003 was subsequently received and is on file for consideration.
Reasons
We are in agreement with the WCB's orthopaedic consultant's conclusion that the worker had not recovered from the effects of her compensable injury at the time her benefits were terminated in May 2002. The orthopaedic consultant stated in a memorandum dated February 20th, 2003 that the claimant "still had residual symptoms but this does not preclude all work."We do, however, disagree with the employer's contention that the duties of a cleaning supervisor were not overly strenuous. It is clear from the claimant's oral evidence, which was not challenged by the employer's solicitor, that her job duties regularly included:
- Acting as a cleaner on a back-up basis in order to fulfill the terms of the cleaning contracts with various large retail customers;
- Transporting, supplying and maintaining cleaning machinery, equipment, supplies and car size batteries;
- Training of new employees which required the demonstration of equipment together with working alongside these new employees;
- Unloading pallets of cleaning supplies and transporting same to cleaning contract locations throughout the city as well as out of province locations;
- Many of the claimant's day to day responsibilities were well beyond her physical restrictions. These restrictions were outlined by the claimant's treating physical medicine and rehabilitation specialist in a letter dated December 8th, 2002 to a worker advisor. "She is not able to lift more than 10 pounds on a regular basis. She is not able to repetitively bend, twist, pull, push, twist or reach. She has limits of standing, sitting and walking of under 30 minutes. Please see the FCE report. At this point, I feel she will have these as permanent restrictions."
We find based on the weight of evidence that the worker is entitled to wage loss benefits beyond May 8th, 2002. Accordingly, the claimant's appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of October, 2003