The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 14, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on April 14, 2005.

Issue

Whether or not the worker is entitled to benefits beyond June 8, 2003.

Decision

That the worker is entitled to benefits beyond June 8, 2003.

Decision: Unanimous

Background

During the course of her employment as a unit assistant on February 4, 2003, the worker felt a sharp achy pain in her lower back after preventing a patient from falling. A Doctor's First Report dated February 4, 2003 diagnosed the worker with lumbar back pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid accordingly. The worker was subsequently treated by a chiropractor and with physiotherapy.

In a letter to the WCB dated March 25, 2003, an occupational health physician reported that the worker sustained a strain injury to her lower back in the lifting exertion of February 4, 2003. He stated that chiropractic treatment provided the worker with little improvement. He noted that the chiropractor had raised concerns about a possible disc herniation and that a CT scan was ordered. Based on his assessment, the occupational health physician determined that the worker had widespread hypertonic muscles with associated tenderness and guarding.

On April 2, 2003, a CT scan of the lumbar spine revealed minor degenerative changes. There was no suggestion of disc herniation or spinal stenosis.

On April 16, 2003, the worker commenced a graduated return to work program with the accident employer in anticipation that she would be resuming full regular duties by June 8, 2003.

In a progress report dated May 15, 2003, the treating physician commented that the worker fell at work last week and twisted her back. In a further report dated May 29, 2003, the physician commented that the worker's back was improving.

On May 21, 2003, the employer advised the WCB that the worker had not participated appropriately in the return to work program. The WCB then discontinued the return to work program and the worker was advised to concentrate on physiotherapy and home exercises. Wage loss benefits were paid to the worker to June 8, 2003 inclusive and final.

On June 20, 2003, a WCB case manager recorded that the worker was requesting additional chiropractic intervention. After consulting with a WCB chiropractic consultant, it was determined that the worker had a back strain and that she needed to focus on getting into shape and losing weight. On June 20, 2003, the case manager advised the worker that the WCB would not reinstate wage loss benefits as a cause and effect relationship could no longer be demonstrated between her ongoing difficulties and the February 3, 2003 accident.

In a memo to file dated June 24, 2003, the WCB case manager indicated that she discussed the case with a WCB physical medicine and rehabilitation consultant (physiatrist) as the treating physiotherapist had indicated that the worker had myofascial pain. Following the discussion, it was determined that the worker's continuing back problems were related to her pre-existing status and not the accident of February 3, 2003.

In a memo to file dated July 9, 2003, a WCB manager noted that she had spoken with the treating physician concerning his examination of the worker on June 16, 2003. The physician stated that the worker had ongoing lumbar symptoms with restricted range of motion and limited flexion. The diagnosis was mechanical low back pain. He stated that the worker's back was not permitting her to lift, do patient transfers or bend. The worker could handle an 8 hour shift with no prolonged sitting.

In a report to the treating physician dated July 30, 2003, the treating physiatrist stated the following:

"By history, this patient's symptoms are most compatible with internal disc disruption. This would be supported by the increased incidence of discopathy in patients of her age."

In a further report to the WCB dated August 13, 2003, the treating physiatrist stated, in part, "In the absence of any pre-existing medical information showing pre-existing low back complaints or evidence of a low back injury subsequent to her work-related injury of February 2003, it is my opinion that, on the balance of probabilities, her ongoing symptoms are related to her work-related injury of February 2003."

On September 9, 2003, a WCB medical advisor reviewed the file information. He stated that there was no evidence to suggest an internal disc disruption and there were no current objective findings to support ongoing disability. The medical advisor indicated that the worker was capable of performing her regular duties as of June 9, 2003.

In a decision dated September 16, 2003, the WCB confirmed to the worker that her ongoing back complaints were not considered to be related to her work and that wage loss benefits would not be extended past June 8, 2003.

On July 6, 2004, a worker advisor presented argument that there was medical evidence to support that the worker's not returning to her pre-accident status by June 8, 2003 and her ongoing symptoms were related to the compensable accident. In support of her position, reference was made to a June 15, 2004 report by the attending physician. In a response dated September 20, 2004, the WCB determined that the new evidence did not alter its decision of June 20, 2003. On October 8, 2004, the worker advisor appealed this decision to Review Office.

In a decision dated November 15, 2004, Review Office confirmed that no responsibility would be accepted after June 8, 2003. Review Office did not consider that the current medical findings were related to the compensable accident. It was of the view that the worker's symptoms and need for work restrictions beyond June 8, 2003 were more likely attributable to mechanical back pain. On December 22, 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

In April 2003, the worker returned to work on a graduated return to work program (GRTWP). However, the employer advised the WCB several weeks later that the GRTWP was not effective and for whatever reason the GRTWP was discontinued. No alternate plan was made available to the worker.

On May 29, 2003, the worker's treating physician authored the following note: "May resume 8 hour shifts with no patient transfers (transfers less than 20 lbs.) or prolonged sitting effective June 9/03." We note that the employer could not accommodate the worker with work duties, which would honour the foregoing restrictions.

After considering all of the evidence, we find that the worker is entitled to benefits subsequent to June 8, 2003 as she still had restrictions relating to the compensable injury. To be more specific, the worker is seeking wage loss and medical aid benefits from June 9, 2003 up to and including July 10, 2003 only. As of July 11, 2003 she was unable to work because of surgery relating to another claim. She returned to full time work in September 2003.

Accordingly, the worker's claim is allowed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of June, 2005