Decision #99/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 2, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 2, 2004 and again on July 8, 2004.

Issue

Whether or not there is entitlement to an extension of physiotherapy treatment; and

Whether or not the claimant is entitled to payment of full wage loss benefits effective August 27, 2003.

Decision

That there is no entitlement to an extension of physiotherapy treatment; and

That the claimant is entitled to payment of full wage loss benefits effective August 27, 2003.

Decision: Unanimous

Background

During the course of his employment as a jaw breaker operator on October 17, 2002, the claimant injured his back. Following the accident, the claimant sought treatment from his attending physician and received physiotherapy treatments. On November 29, 2002, a CT scan of the lumbar spine revealed "spondylosis and disc protrusion at L4, 5 and small disc fragment posterior to L5 in the midline as described." The claimant also has prior back claims with the Workers Compensation Board (WCB) dating back to 1982.

In a report to the WCB dated January 17, 2003, the treating physiotherapist noted that the claimant continued to show slow improvement in his leg and back pain together with neurological signs. A consult with a neurosurgeon was pending.

The claimant was assessed at the WCB's offices on March 3, 2003. The medical advisor found that the claimant presented with evidence of nerve root compression and irritation involving the S1 dermatome on the left. This condition had been worsened by a fall off of a chair in February 2003. He suggested that the claimant continue with physiotherapy treatments for at least another four weeks and then move onto a home exercise program.

The claimant was assessed by a neurosurgeon on June 23, 2003. The diagnosis rendered was a disc prolapse and degenerative disc disease. The neurosurgeon felt the claimant should continue with his rehabilitation program and to restrain his working activity with no movement throughout standing and no bending and twisting.

On July 2, 2003, the treating physiotherapist requested additional funding as the claimant "continues to slowly improve and neurologist recommended continuing with physio. At last lapse of traction (d/t funding) objective findings worsened."

On July 25, 2003, a WCB medical advisor reviewed the report from the neurosurgeon dated June 23, 2003 and stated, "Dr. (neurosurgeon) note reviewed. No neuro findings, suggests to continue with permanent restrictions. In regards to physio, there is little evidence of benefit (after 66 Rx). Should continue with home program." Based on this opinion, primary adjudication wrote to the claimant on July 25, 2003 and advised that the WCB would not be authorizing ongoing physiotherapy treatment given the nature of his injury, the treatment administered and primarily the lack of response to treatment.

On August 25, 2003, the claimant commenced a graduated return to work program with the goal of eventually resuming full time regular employment.

While performing work duties on August 25, 2003 and August 26, 2003, the claimant experienced back spasms. In the morning of August 27, 2003, he was driving to work and returned home because of ongoing muscle spasms in his back.

In a progress report of August 27, 2003, the attending physician stated the following, "This morning on way to work he had to slam on breaks (sic) to avoid 2 deer on road and didn't hit deer but after incident experienced acute pain in lower back finding it very hard to move around." The physician authorized the claimant to be off work from August 27 to September 1, 2003. The claimant was assessed with "acute back musc spasm".

Following consultation with a WCB medical advisor on two occasions, primary adjudication advised the claimant in a letter dated September 17, 2003 that the WCB was unable to extend wage loss benefits effective August 27, 2003 as "…there was little medical evidence to support time loss…". The claimant appealed this decision to Review Office.

In a decision dated December 5, 2003, Review Office rendered two decisions. The first decision was with respect to the claimant's entitlement to an extension of physiotherapy treatment. Review Office noted that the claimant received 66 physiotherapy treatments with minimal gain and that he had been educated on a home exercise program. Review Office believed that the claimant had a responsibility in continuing the home exercise program on a daily basis aimed towards recovery from his back injury. Therefore, he was not entitled to an extension of physiotherapy treatment.

The second decision involved whether or not the claimant was entitled to payment of wage loss benefits from August 27, 2003. In this regard, Review Office determined that the clamant was not entitled to full wage loss benefits from August 27, 2003 as part of his loss of earning capacity was related to the non-compensable incident of August 27, 2003 when the claimant slammed on his brakes to avoid hitting deer. Review Office felt that the claimant was entitled to partial wage loss benefits from August 27, 2003 as if he had continued to participate in the graduated return to work program (the claimant did in fact return to work on or about September 22, 2003). On January 13, 2004, a union representative, acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and after discussing the appeal on June 2, 2004, the Panel requested additional information be obtained from the accident employer's company health nurse regarding any communications that she might have had with the claimant on August 26 and 27, 2003. On June 18, 2004, the claimant and his union representative were provided with a copy of the information that was submitted by the employer's advocate and were asked to provide comment. On July 8, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

WCB policy 44.120.10 deals with medical aid. According to the policy’s purpose, “the provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible”. Several WCB medical advisors have suggested that the claimant’s condition has plateaued and therefore further physiotherapy would be of little use or benefit. In addition, we note that the claimant has been back to work full-time at alternate duties since September 22, 2003. We see no medical reason for the claimant to have an extension of physiotherapy treatments. Therefore, there is no entitlement to an extension of physiotherapy treatment.

On August 13, 2003, a WCB medical advisor recommended work place restrictions of avoiding lifting weights greater than 25 pounds, avoid repetitive or sustained bending, avoid twisting at the waist and stooping of the low back. According to the graduated return to work program established for the claimant, he was to start at two hours per day and increase by two hours every two weeks until he reached a full compliment of hours. It was anticipated that the claimant’s graduated return to work program, which was scheduled to commence on August 25, would be a difficult process.

The claimant only attended the first two days of the program. He testified that his back went into spasms on both days and that on each occasion he sought treatment from the employer’s occupational health nurse.

“I was in trouble probably an hour and a half into it, but I managed to finish my two hours out and headed straight for the nursing station, and which they iced my back for the next hour…”.

“On the second day, about an hour in my back went into such bad spasms, I had to be pretty near carried out of there on the back of another guy to get to the nursing station, and they wanted me to just stay still and be iced down…”.

The claimant further testified that while driving in to work on the third day he narrowly missed hitting a deer. His back went into spasm and this prompted a visit to his attending physician. We find based on a balance of probabilities that the intervening non-compensable event of almost hitting the deer had little impact with respect to the claimant’s ongoing back difficulties. The attending physician’s progress notes confirm three more office visits prior to the claimant’s returning to full time modified duties on September 22, 2003. A WCB medical advisor reviewed the claimant’s file on September 17, 2003 and recommended that the previous restrictions be continued and that avoidance of stair climbing be added.

The weight of evidence establishes that the claimant continued to experience back difficulties beyond August 27, 2003 as a consequence of his compensable injury. We therefore find on a balance of probabilities that the claimant is entitled to payment of full wage loss benefits effective August 27, 2003. In this regard, we note that the claimant returned to full modified duties on September 22, 2003. The claimant’s appeal with respect to this issue is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of July, 2004

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