Decision #128/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 24, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 24, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond September 22, 2002.

Decision

That the claimant is entitled to wage loss benefits beyond September 22, 2002.

Decision: Unanimous

Background

While placing commissary supplies down on January 13, 2002, the claimant felt a sharp pain in his lower back. The accident was reported to his employer on the same day. On January 14, 2002, the claimant attended a local hospital for treatment and was diagnosed with mechanical low back pain. This diagnosis was also confirmed by the family practitioner on January 16, 2002. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the worker commencing on January 14, 2002.

In a progress report dated January 30, 2002, the attending physician commented that the claimant would be able to return to work on February 12, 2002.

On February 1, 2002, a WCB adjudicator spoke with the claimant to advise him that the accident employer was able to accommodate him with very light duties which the claimant agreed to perform. In subsequent conversations with a WCB adjudicator, the claimant indicated that he was experiencing a sore back after two hours into his shift but would persevere until February 13, 2002 when he was to be seen by his physician. In a progress report of February 13, 2002, the attending physician noted that the claimant continued to have pain in his back and a further two weeks of light duties were warranted.

Arrangements were made for the claimant to attend physiotherapy sessions. On March 13, 2002, the therapist noted that the claimant had right sided low back pain for two months which was worse with any prolonged activity. The diagnosis rendered was discogenic low back pain at the L5 level.

A CT scan of the lumbosacral spine was performed on June 10, 2002 and it revealed the following: "…At the L5-S1 level there is some central and left posterolateral disc bulging and end plate degenerative spurring without convincing evidence of a disc herniation, spinal stenosis or nerve root compression."

In response to a memo written by primary adjudication dated August 8, 2002, a WCB medical advisor stated that he had spoken with the claimant's family physician. The family physician thought it was best that the claimant continue with his graduated return to work duties until he was back at his regular duties. The medical advisor suggested that the claimant balance his modified duties with his regular duties by 25% weekly increments.

In a letter to the claimant dated September 5, 2002, primary adjudication outlined the details of his graduated return to work program that was to begin on August 26, 2002. The claimant was advised that his wage loss benefits would continue while he participated in the program and that benefits would be paid to September 22, 2002, inclusive and final.

In a memo dated September 16, 2002, a WCB adjudicator stated that she had spoken with the attending physician on September 17, 2002 who indicated that the claimant continued to have pain in his back and down his leg and should remain on light duties. On September 18, 2002, the attending physician was called to ascertain whether or not the claimant's ongoing back pain was related to his obesity. On September 20, 2002, the physician told the adjudicator that he could not comment on this but, the claimant was in pain and his reflexes were depressed.

On April 18, 2003, the case was considered by Review Office based on an appeal submission by the claimant's union representative dated October 24, 2002. The Review Office also considered a submission by an advocate acting on behalf of the employer dated December 5, 2002, reports by an orthopaedic specialist dated December 10, 2002 and March 20, 2003, and MRI results of the lumbosacral spine dated March 5, 2003.

Review Office noted in its decision that the initial diagnosis of injury made by the attending physician was an acute mechanical lower back strain. An orthopaedic consultant recently indicated that diagnostic testing revealed no evidence of any disc herniation, only degenerative changes in the worker's lumbosacral spine. "As Review Office cannot associate the current diagnosis of multi-level disc degeneration to the muscular strain injury sustained on January 13, 2002, it is determined that the decision to end the worker's wage loss benefits effective September 22, 2002 be upheld. It is felt that the weight of medical evidence supports the decision that the worker had recovered from the effects of the muscular injury by the time his benefits were discontinued." On May 21, 2003, the claimant's union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who incurred an injury to his lower back as a result of a workplace accident in January 2002. His claim for compensation was accepted and benefits were paid accordingly.

By September 2002, it was determined that he had recovered from this injury to the point he could return to regular duties, as of September 22. This decision was upheld upon reconsideration by Review Office. He then appealed that decision to the Appeal Commission.

For his appeal to be successful, the Appeal Panel would have to determine that he continued to suffer a loss of earning capacity beyond that date as a result of the compensable injury. We did make such a determination, as set out below.

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, as well as argument from his union representative and a representative of the employer.

In our review of the file, we took particular note of the following:
  • The initial reports from his attending physician noted that a key objective finding was that his "straight leg raising" was restricted. While it did improve over the next few months, it was still shown as restricted on reports submitted in September 2002.

  • It was not until he was examined by an orthopaedic specialist on December 10, 2002, that he was able to raise his legs to 90 degrees. This specialist reported that an x-ray of the lumbar spine showed no abnormality, other than a possible slight tilt to the left, as well as normal sacroiliac joints. He diagnosed a strained lumbar spine.

  • The orthopaedic specialist referred the claimant for an MRI examination. This was conducted in March 2003. It showed some minor degenerative changes, one very small annular bulge, but no other significant disc herniations, spinal stenoses or thecal sac or nerve root compressions.

  • On August 26, 2002, the claimant commenced a "return-to-work" (RTW) program, in which he worked for abbreviated periods at his regular duties and longer periods at light duties. The amount of time on the regular duties was to increase weekly, until September 22, by which time he would have worked up to a full shift at regular duties.

    • It was on the basis of this RTW program that his benefits were terminated as of September 22.
  • On September 11 - about halfway through this program - his doctor reported that his symptoms had progressed, that he now had more significant pain.

  • On November 8, 2002, his doctor signed a "Sickness Certificate" stating that the claimant was unable to work from October 15 to December 20.
Our consideration of this evidence leads us to conclude that, by September 22, 2002, he was still disabled from work as a result of his workplace accident. His loss of earning capacity - due to the compensable injury of January 2002 - continued until December 10, 2002, at which time his objective signs were reported as being normal, by an orthopaedic specialist.

There was some discussion in the file, as well as at the hearing, which attributed the claimant's back problems to his excessive weight. A board medical advisor, in a memo, wrote that the claimant's doctor had stated that his "pre-existing body habitus" - i.e., his obesity - was responsible for his back problems. While the doctor did write that the claimant's weight did not help his recovery, when asked, he would not state that it was the cause of his problems.

The claimant's advocate expressed the view at the hearing that the board medical advisor's memo had led to the decision of the case manager to terminate benefits and the subsequent Review Office decision. She argued that there is no objective evidence to support the finding that his weight caused the problems. Our review of the file evidence leads us to the same conclusion, in respect of objective evidence, notwithstanding commentary to the contrary. We would note, though, that neither decision makes any reference to his weight being a factor.

We would also note that the claimant does have generalized back problems. Diagnostic tests, including a CT examination done in June 2002 and the MRI done in March 2003, showed some degenerative changes. These changes, by themselves, may well lead to ongoing back difficulties.

It is our view that the claimant did experience an exacerbation of his back problems during the period of the return to work program in August/September 2002. But, we conclude that - on a balance of probabilities - this exacerbation had resolved by December 10, 2002. Any ongoing problems with his back are not related to the compensable injury.

In conclusion, we would repeat our finding that the claimant is entitled to wage loss benefits beyond September 22, 2002, but that the loss of earning capacity continued only until December 10, 2002.

The appeal is allowed as set out above.

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 17th day of November, 2003

Back