The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 8, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is entitled to wage loss benefits to January 27, 2004 inclusive and final.

Decision: Unanimous

Background

While employed as a healthcare aide on March 14, 2003, the worker injured her lower back region while assisting a co-worker to lift a patient. On August 27, 2003, a neurologist reported that the worker had mechanical back pain. By October 15, 2003, a Workers Compensation Board (WCB) case manager determined that the worker had recovered from the effects of her original injury and that following a four week graduated return to work program, she would be back to her regular work duties (i.e. November 15, 2003).

On October 29, 2003, the worker indicated that she suffered a recurrent lower lumbar back injury when she tried to stop a resident from falling on October 27, 2003. It is this incident that is the subject of this appeal.

Medical information consisted of a physiotherapy report dated November 13, 2003. The physiotherapist outlined the following objective findings: "Re-exacerbation of symptoms while trying to stop a resident from falling. R & L [right and left] sided back pain initially with pain down both legs, heels going numb."
On November 18, 2003, the treating physician indicated that he saw the worker on October 29, 2003 for complaints of severe lower back pain with pain spreading down both legs mostly to the posterior aspect of the thighs. The diagnosis rendered was an aggravation of mechanical back pain. The physician noted that the worker's symptoms differed in the sense that she had pain down the posterior part of both legs. He noted that this once again did not follow a dermotomal distribution. He noted that the worker had been referred to an orthopaedic specialist for further assessment and that the worker was temporarily disabled from work.

In a decision dated November 25, 2003, a WCB case manager determined that no further responsibility would be accepted for the worker's March 14, 2003 injury or for the incident that occurred on October 27, 2003. The case manager stated that he could not establish that either a new injury nor a recurrence occurred from the October 27, 2003 accident report. He indicated that the medical documentation and the worker's symptoms remained consistent pre and post October 27, 2003 and therefore it did not appear that a real change in the worker's situation had occurred.

On September 3, 2004, a worker advisor provided the WCB with a report from an orthopaedic specialist dated June 16, 2004 and a copy of an MRI report dated June 24, 2004. Based on these reports along with the other medical reports on file, the worker advisor contended the worker experienced an exacerbation of her compensable low back symptoms on October 27, 2003 based on a balance of probabilities. Policy 44.10.20.50, Recurring Effects of Injuries, was referenced in the appeal submission.

On September 8, 2004, a WCB case manager advised the worker that based on a review of the new medical information with the help of the WCB's healthcare branch, he did not see any information that changed her medical condition or fitness to return to work at that time (October 27, 2003) or now. He stated that he was willing to entertain a new claim because the worker claimed there was a new incident at work. He stated that he could not accept this as a recurrence as according to the worker, a new incident occurred. He stated that he would be happy to establish a no time loss claim regarding the incident of October 27, 2003.

In a September 17, 2004 submission, the worker advisor contended that the medical reports on file dated November 18, 2003 and June 16, 2004 supported the worker's inability to continue participating in the October 2003 return to work program following the October 27, 2003 incident and that there continued to be a cause/effect relationship between her ongoing restrictions and the October 2003 incident.

On October 18, 2004, a WCB manger accepted the October 27, 2003 incident as a no time loss claim.

Prior to considering the worker advisor's appeal, Review Office obtained a copy of the treating physiotherapist's chart notes for October 28 and 30, 2003. It also obtained the medical advice of a WCB orthopaedic surgeon with regard to the CT and MRI films of the worker's lumbar spine.

In a decision dated July 26, 2005, Review Office determined that the worker was not entitled to wage loss benefits with respect to her October 27, 2003 claim. Review Office outlined its opinion that there was insufficient evidence to establish, on a balance of probabilities, that the injury the worker sustained while at work on October 27, 2003 was severe enough to disable her from work. On August 9, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Panel was asked to determine whether the worker is entitled to wage loss benefits. For this appeal to succeed, the Panel must find that the worker suffered a loss of earning capacity after October 30, 2003 as a result of a workplace injury. The Panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of an aggravation of a pre-existing degenerative condition which occurred on October 27, 2003. The Panel also found, on a balance of probabilities, that the aggravation resolved by January 27, 2004. The Panel found that the worker is entitled to wage loss benefits to January 27, 2004.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the Panel. The employer was represented by an advocate who made a presentation on the employer's behalf.

The worker indicated that on October 27, 2003 while participating in a graduated return to work program with respect to a March 14, 2003 workplace injury, she injured her back at work. She was to return to her full regular duties by November 15, 2003 however was not able to do so because of the October 27, 2003 injury.

The worker described the October 27, 2003 accident. She stated that she continued to work until October 30, 2003 but in a lesser capacity. The worker testified that she reported the accident to her supervisor. She also testified that she attended for a physiotherapy appointment and told her physiotherapist about the incident. The worker described her symptoms after the October 27 accident.

The worker advised that she worked for a period in 2004 through her long term disability plan and that she was not reemployed by her employer until January 2005.

Regarding her current condition, the worker testified that her back was stronger in January 2005 than it was in October 2003. She attributed this to common sense and being careful. She also noted that she had done back strengthening exercises.

The worker's representative outlined the worker's position that she was not capable of participating in the gradual return to work program after October 30, 2003 and was not capable of performing her regular duties commencing November 16, 2003.

The employer's representative commented that there was no indication that the March 2003 accident and injury would cause permanent problems. He also commented that there is not a lot of evidence to suggest the October accident was significantly serious to cause long term or permanent problems.

Analysis:

The Panel finds that the worker has degenerative changes in her back. The Panel relies upon the comments of the WCB orthopaedic consultant in a report typed on July 22, 2005. The consultant comments "The imaging studies have confirmed degenerative changes in the facet joints and two spine specialty surgeons have supported a diagnosis of mechanical back pain, implying pre-existing degenerative disease…".

The Panel also finds, on a balance of probabilities, that the worker had a workplace accident on October 27, 2003 which aggravated her pre-existing degenerative back condition and as a result suffered a loss of earning capacity until January 27, 2004. The Panel accepts the worker's evidence regarding the accident which happened when she was assisting a patient who was falling from her wheelchair.

In arriving at this conclusion, the Panel relies upon the November 18, 2003 report by the worker's treating physician. The Panel notes that the worker was seen by her treating physician on October 29, 2003 and that he reports that the worker injured her back on October 27, 2003. The physician's findings on examination include decreased range of movement of the lumbar spine with flexion slightly reduced, straight leg raise is 10 degrees on the left and +-20 degrees on the right. The physician comments "…Diagnosis is aggravation of mechanical back pain. Her symptoms differ in the sense that has pain down the posterior part of both legs." The Panel accepts this diagnosis.

The Panel also notes the treating physiotherapist's report of November 13, 2003 in which the physiotherapist recorded changed symptoms at an assessment on November 4, 2003. While the physiotherapist refers to an October 29, 2003 incident, the Panel accepts the worker's evidence that these symptoms arise from the October 27, 2003 incident.

With respect to recovery from the aggravation, the Panel finds the worker recovered by January 27, 2004. In deciding upon this date the Panel notes the treating physiotherapist's report of January 27, 2004. The physiotherapist reports a reduction in pain (from 8/10 to 4/10), increased flexion and "full ROM SF and Rot." The Panel considers it likely that any remaining findings beyond January 27, 2004 are due to the worker's pre-existing condition. For the reasons noted above, the Panel finds that the worker recovered from her workplace injury by January 27, 2004, and is entitled to wage loss benefits to that date.

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of December, 2005