Decision #70/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 2, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on December 2, 2003 and again on May 3, 2004.Issue
Whether or not the worker is entitled to wage loss benefits beyond August 15, 2001.Decision
That the worker is entitled to wage loss benefits beyond August 15, 2001.Background
On May 18, 2001, the claimant experienced pain to the left side of her back during the course of her employment as a meat processor. Her claim for compensation was initially denied by primary adjudication and the Review Office as both areas were unable to establish that an accident had occurred in the workplace. The decision to deny the claim was overturned by an Appeal Panel on April 12, 2002. For complete details leading up to the Appeal Panel’s decision, please refer to Decision No. 47/02.
Following acceptance of the claim, primary adjudication referred the case to the healthcare branch at the Workers Compensation Board (WCB) to review the medical information on file from the claimant’s family physician and a physical medicine and rehabilitation specialist and to comment on the status of the claimant’s back condition and its relationship to the compensable injury.
In a decision letter to the claimant dated May 13, 2002, primary adjudication stated the following:
“…In the opinion of the WCB Medical Advisor, the diagnosis most likely resulting from the mechanism of injury described would be consistent with a mechanical low back strain. The Medical Advisor added that the current findings of wide spread involvement of both the left and right sides of the low back and left hip were compared to the first visit with the treating specialist on May 31st which involved mainly the left hip and low back. He further commented that one would probably conclude that the prolotherapy treatment administered made the situation worse. The Medical Advisor indicated this experimental treatment is not authorized by the WCB.”
Based on the above rationale, it was determined that the claimant was entitled to wage loss benefits between May 23, 2001 and August 15, 2001, less time worked during this period. It was felt that although the claimant continued to express ongoing symptomatology and continued to receive treatment, her signs and symptoms attributable to the mechanism of injury would have resolved within a 3 month period following the accident.
On August 7, 2002, a worker advisor submitted a report by the claimant’s treating physical medicine and rehabilitation specialist dated July 19, 2002. It was contended that this report supported the position that the claimant had not recovered from the effects of her compensable injury by August 15, 2001 and that there was a cause and effect relationship between her low back and left hip conditions and the May 18, 2001 compensable injury.
Following consultation with a WCB healthcare advisor on August 19, 2002, primary adjudication wrote to the worker advisor on August 23, 2002 to state that no change would be made to the previous decision dated May 13, 2002. The case was then forwarded to Review Office for consideration.
On January 24, 2003, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond August 15, 2001. Review Office commented that when considering the worker’s appeal, entitlement to further benefits was contingent on what was the accepted diagnosis of injury occurring on May 18, 2001. Review Office stated that it was unsure what diagnosis was accepted by the Appeal Panel in approving the claim for compensation but believed that the most probable diagnosis was that of a muscular strain of the lower back and left sacroiliac joint. In accepting this diagnosis, Review Office believed that the decision to cease wage loss benefits effective August 15, 2001 was reasonable.
In a submission dated April 14, 2003, the worker advisor referred to new medical information from an occupational health physician dated March 27, 2003. The worker advisor contended that this report supported the position that there continued to be a cause and effect relationship between the claimant’s left low back and hip condition and the May 18, 2001 compensable injury beyond August 19, 2001. In a response to the claimant and worker advisor dated July 4, 2003, Review Office stated that the new information did not alter its previous ruling to deny wage loss benefits beyond August 15, 2001. In July 2003, the worker advisor appealed Review Office’s decision and an oral hearing was convened.
Following the hearing on December 2, 2003, the Appeal Panel met to discuss the case and it determined that additional information was required, prior to discussing the case further. Specifically, the Panel requested medical information from two treating physicians along with information concerning prolotherapy treatments. On April 8, 2004, all interested parties were provided with copies of the information that was received by the Appeal Panel and were invited to submit final comments. On May 3, 2004, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.
Reasons
Chairperson Sargeant and Commissioner Day:
This is a case of a worker who injured her lower back and received benefits as a result of a previous appeal panel decision from May 23, 2001 to August 15, 2001. Her benefits were discontinued August 15, 2001 as it was considered that her symptoms should have resolved within a three month period following her back injury. The claimant appealed that she had not recovered from her May 18, 2001 compensable injury by August 15, 2001 and that her ongoing difficulties were related to her initial injury and were preventing her from returning to work in any capacity. She was of the view that she was entitled to wage loss benefits until she was able to return to work in March 2002.
For this appeal to be successful, the panel would have to determine that her ongoing back difficulties after August 15, 2001 were related to her compensable injury and that she was precluded from returning to work. The majority of the panel found that the claimant was entitled to wage loss benefits after August 15, 2001 as her ongoing back difficulties were causally connected to her May 18, 2001 compensable injury.
EVIDENCE
At the hearing, the claimant reported that following her injury she regularly attended her treating physicians, attempted a course of physiotherapy that proved to be unsuccessful, and contacted her employer with information on her treatments.
A WCB Medical Advisor, following his review of the previous Appeal Panel decision, suggested that the claimant’s most probable diagnosis was mechanical back pain and that recovery would be expected in two or three months. The claimant testified that her recovery took longer than this. She advised that her pain was too severe to return to modified duties. Her evidence was that it was not the requirement to perform the light cafeteria duties that prevented a successful return to work, but rather it was walking the long distance from the parking lot into the workplace, up a flight of stairs, as well as the requirement to walk lengthy distances in order to use the washroom facilities and change areas that exacerbated her symptoms rendering her unable to be at work. This was supported by her treating physician who advised her not to attempt to try returning to work.
In September 2001, the claimant attempted alternate work with the accident employer. She managed to get through two days and then discontinued. Her evidence was that “By the end of day two, the pain was the same degree as it had been the day it happened. This is when I realized that at this point in my recovery it was a mistake in trying to return to work.”
Her physician also notes in his report of September 21, 2001 that “Unfortunately, her return to work was premature. Going up the stairs after two days flared her pain immensely. She was quite sore and had to stop work.”
From June 2001 until April 2002 the claimant was seen regularly by a physician who specialized in physical medicine and rehabilitation. Each examination by this physician revealed tenderness in the lower back. The diagnosis consistently remained low back pain. Throughout this period, the claimant was receiving prolotherapy treatments and the physician’s progress reports noted improvement in her mobility.
By March 2002 the claimant felt she was able to return to modified work with the accident employer. Her evidence was that her mobility had increased to the point where she could get to work and function while at work. This was a change and an improvement for her since her attempted return to work in September 2001. While her recovery was perhaps slower than expected, the prolotherapy treatment allowed movement in her left leg and made walking easier.
While the panel recognizes the controversy with respect to the acceptance of prolotherapy as an effective form of treatment, in this case, the majority is of the view and accepts the evidence of the claimant and her specialist that the treatment did contribute to the claimant’s partial recovery thus allowing her to return to work albeit to a modified capacity.
The panel received a report from a second specialist in physical medicine and rehabilitation who reported in February 2004 “I feel that the problem [the claimant] was treated for are (sic) directly related to her workplace injury of May 22, 2001. The pain came on gradually but once present remained without letting up. My findings were consistent with a ligament sprain of the posterior spinal ligaments as well as myofascial pain arising from tender taut bands in her left hip abductors and external rotators.”
Evidence was also presented on the issue of whether the claimant was able to perform the modified duties offered to her by the employer. Her evidence was that her treating physician advised against attempting any duties. After a period of treatments with clearance from her physician, she did attempt modified duties in September 2001 and her evidence was that she could not continue as she was in extreme pain. She was not able to perform any employment until her return in March 2002.
FINDINGS
The majority finds the following:
- The claimant had not recovered from her May 2001 compensable injury within three months as had been estimated by the Board.
- The claimant was experiencing a loss of earning capacity after August 15, 2001.
- The loss of earning capacity relates to her original compensable back injury.
- Her ongoing back difficulties prevented her from performing the alternate duties that she attempted in September 2001. Her loss of earning capacity continued until her return to full time modified duties in March 2002.
In coming to our decision we placed considerable weight on the following:
- The claimant’s evidence on her inability to maintain modified duties in September 2001 as her pain level did not permit her to walk the long distances required to fulfill her duties.
- The claimant’s evidence regarding the improvement in her physical condition following the prolotherapy treatments administered by her physical medicine and rehabilitation specialist.
- The claimant’s attempt to mitigate her situation by paying for the prolotherapy treatment herself which contributed to the claimant’s rehabilitation to the point where she was able to return to gainful employment.
- The medical reports in September and October 2001, June and July 2002, March 27, 2003, and February 14, 2004 that consistently detail the continuity of liagamentous back complaints beyond August of 2001.
In conclusion the majority finds the claimant continued to suffer a loss of earning capacity after August 15, 2001 due to the effects of her compensable injury. She is therefore entitled to wage loss benefits beyond this date. Accordingly, her appeal is allowed.
Panel Members
T. Sargeant, Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of May, 2004