Decision #136/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing took place on July 7, 2005, at the worker's request. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to wage loss benefits beyond September 2, 2004.Decision
That the worker is not entitled to wage loss benefits beyond September 2, 2004.Decision: Unanimous
Background
The worker reported that she injured her back region on October 16, 2001 while performing the activities of a nurse's aide that involved continuous lifting and bending while getting residents dressed and into their wheelchairs. Initial medical reports diagnosed the worker with paraspinal musculoligamentous strain injuries. The worker subsequently underwent various laboratory investigations which included x-rays, bone and CT scans.On April 29, 2002, a medical advisor with the Workers Compensation Board (WCB) examined the worker. The medical advisor concluded that the worker's prolonged recovery was either due to a regional myofascial pain syndrome, localized on the lumbosacral spine, or a possible intervertebral disc disruption at L5-S1. Further tests were recommended.
A physical medicine and rehabilitation specialist (physiatrist) assessed the worker on May 10, and July 19, 2002. In his report to the WCB dated August 3, 2002, the physiatrist diagnosed the worker with mechanical and discogenic spinal pain. He also noted that the worker was pregnant and that an MRI examination was contraindicated at this time.
On April 4, 2003, an MRI examination of the worker's lumbar spine was carried out. The radiologist's impression was a small disc herniation at L5-S1.
A WCB medical advisor again examined the worker on June 23, 2003. The medical advisor determined that the worker's burning and pressure complaints in the paraspinal musculature in the lower lumbosacral area would be similar to those found in the April 2002 examination which was supportive of myofascial pain disorder. He presumed that the worker's reduced lumbar spine movements were due to mechanical back pain. The medical advisor recommended a number of treatment modalities that included medication, a follow-up appointment with her treating physiatrist and a trial of acupuncture needling. The worker was also encouraged to participate in a graduated return to work program once medications had been initiated.
Subsequent medical information included follow-up reports from the worker's family physician, treating physiatrist and physiotherapist. A hospital emergency report dated January 7, 2004 diagnosed the worker with "lower back pain, NYD [not yet diagnosed] musculoskeletal."
Imaging studies of the lumbar spine dated January 8, 2004 revealed "…straightening of the normal lumbar lordosis perhaps on the basis of muscular spasm. There is no degenerative lumbar interspace narrowing."
In a report to the WCB dated April 17, 2004, the treating physiatrist stated that the worker continued to experience sharp pain in the back and right leg and that the pain rated at 9/10 on the Visual Analog Scale. His impression of the worker's condition was outlined as follows: "Right S1 radiculitis due to right L5-S1 disc herniation. There has been mild improvement since the last assessment in my clinic."
A WCB physiatrist examined the worker on April 1, 2004. In brief, the physiatrist's examination revealed no evidence of any lumbosacral nerve root irritation or compression and there was no evidence of any lumbosacral nerve root involvement on the radiological investigations. The WCB physiatrist concluded that the worker appeared to display a significant fear of re-injury but that she could progress to the prior presented plan of a return to work, gradually increasing back to full regular duties.
On June 17, 2004, a WCB case manager provided the treating physiatrist with information concerning a graduated return to work program that was offered to the worker by the employer. The physiatrist was asked to review the job duties and to comment on whether or not the worker was capable of performing the light duties offered. In a response to the case manager dated June 27, 2004, the physiatrist stated, in part, that the worker should be encouraged to return to work on a graduated basis and that she should take analgesics to control the pain.
On July 14, 2004, the worker was provided with details of a work hardening program, which was to run for a 3 to 4 week period. The worker was advised that following completion of the program, she was expected to start a graduated return to work program and that if she failed to participate in the program, her benefits would be suspended.
On July 22, 2004, a Work Hardening Program Psychology Intake Report stated, in part, that the worker believed that she would not be capable of a return to work and that any activity would cause re-injury.
Subsequent file information revealed that the worker failed to attend the second appointment of her work hardening program and the WCB suspended her benefits. Her benefits were reinstated on August 6, 2004 as the worker agreed to continue with the program.
On August 12, 2004, the worker informed her case manager that she had severe pain in her lower back and that she would not participate in the work hardening program. Based on the worker's decision not to attend the work hardening program, the case manager ended the worker's wage loss benefits as of September 2, 2004 which was the date that the work hardening program would have ended.
On September 9, 2004, the worker appealed the WCB's decision to suspend her benefits from July 23, 2004 to August 5, 2004 and to end her benefits as of September 2, 2004. The worker contended that her case manager did not follow medical advice before putting her through excruciating pain at the Work Hardening Program and that her benefits were suspended unjustly given that she was in too much pain to drive across the city.
In the interim, the WCB received a copy of a CT scan report dated October 25, 2004 of the worker's lumbar spine. On November 24, 2004, a senior WCB medical advisor advised case management to have a WCB orthopaedic consultant compare the October 25, 2004 CT scan with the previous CT scan of June 18, 2002 and the MRI scan of April 4, 2003.
On December 10, 2004, case management advised the worker that no change would be to the decision of August 20, 2004. The letter stated, "Your October 25, 2004 and January 18, 2002 CT Scan images were reviewed by a WCB Medical Specialist. He has compared the images and has offered an opinion that there is not too much difference between the two. He has also commented that your MRI results were astonishing (sic) normal."
On January 18, 2005, Review Office posed several questions to a WCB orthopaedic consultant concerning the case. His response to Review Office is dated January 21, 2005.
In a decision dated January 21, 2005, Review Office indicated that it was clear from the medical evidence that the worker was fit to participate in the work hardening program and that she failed to mitigate the effects of her work injury by not doing so. Based on this determination, Review Office confirmed that the worker was not entitled to wage loss benefits for the period July 23 to August 5, 2004 or beyond September 2, 2004. On March 6, 2005, the worker appealed Review Office's decision regarding wage loss benefits beyond September 2, 2004 and an oral hearing was scheduled.
Reasons
As the background notes indicate, the worker was diagnosed as having sustained an acute mechanical low back strain following her compensable accident on October 16, 2001. The worker testified at the hearing that her present condition was the same now as when her benefits were terminated.However, the preponderance of evidence clearly establishes that the worker was physically capable of undergoing a work hardening program prior to her being enrolled in a graduated return to work program. In arriving at this conclusion, we attached considerable weight to the following body of evidence.
- April 1, 2004 - WCB medical advisor's examination notes: "There was no pathoanatomic diagnosis identified on the current examination to explain the symptoms. There were some limitations for accurate evaluation related to the pain-limiting behaviour and guarding range of movement. There was no evidence on the current clinical examination of any lumbosacral nerve-root irritative or compression. There was also no evidence of any lumbosacral nerve root involvement on the radiologic investigations.
There does not appear to be any physical contraindication to the planned graded increase in her activity level and fitness activity despite any symptoms produced or aggravated. The claimant appears to have significant fear of re-injury. She appears to limiting (sic) reactivation and mobilization. There, however, would not appear to be any structural contraindication for reactivating and remobilizing. She should progress on the prior presented plan of a return-to-work process, likely initially through a supernumerary position, increasing to full hours followed by full hours light duties and then progress to return to work at her full regular work duties.
She should increase her general activities and day-to-day activities and physical fitness demands in an attempt to resume the maintenance of her own activities of daily living. She should be doing some regular general fitness activities on a regular basis."
- June 27, 2004 - letter from the treating physical medicine and rehabilitation specialist to the WCB, in which he states in part, "I think she should be encouraged to return to work on a graduated basis . She should be encouraged to return to light duty work and take analgesics and inflammatory medications for pain control. This should be followed by a dynamic lumbar stabilization exercise program to restore the muscle strength and endurance of the weak muscles of the spine and hip girdle region. This will also improve her endurance and functional level."
- July 22, 2004 - letter from the Wellness Institute to the WCB, "This is a very difficult situation involving significant difference between Ms. [the worker's] beliefs about the severity of her injury and information contained in medical reports on file indicating the lack of a structural basis for her pain reports. Ms. [the worker] presented with a strong belief that vocational rehabilitation would be both unsuccessful and inappropriate for her, while medical reports indicate that she should be capable of engaging in a Graduated Return to Work."
There is no medical information on file to account for the worker's alleged deterioration of her condition. In addition, there is no medical evidence to support the worker's contention that she could not return to work to full time light duties. We find that the worker has failed to mitigate the consequences of her accident by not attempting to return to work. Therefore, we further find that the worker is not entitled to wage loss benefits beyond September 2, 2004. Accordingly, the worker's appeal is hereby dismissed.
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 17th day of August, 2005