Decision #97/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 3, 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 beyond November 2, 2003.Decision
That the worker is entitled to wage loss benefits from November 2, 2003 to March 22, 2004 inclusive.Decision: Unanimous
Background
On April 14, 2003, the worker injured his lower back during the course of his employment as a meat cutter. The worker was initially diagnosed with a back sprain by his attending physician. On April 14, 2003, the treating chiropractor noted that the worker complained of sharp low back pain with left leg radiation. The diagnosis rendered was an L5 disc prolapse. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing April 15, 2003.On June 17, 2003, the worker was examined by a WCB chiropractic consultant to determine the need for ongoing time loss and further chiropractic therapy. Following the assessment, it was determined that the worker probably suffered from a muscular ligamentous strain/sprain type of injury involving the lumbosacral spine. It was felt that the worker was somewhat pain focused and was overly protective with activities involving his lower back.
The worker underwent a CT scan of the lumbar spine on July 8, 2003. The impression read "Degenerative disc narrowing at L4-L5 which is associated with mild to moderate diffuse posterior disc bulging which approaches the adjacent dural sac and L5 nerve roots. Clinical correlation required. No focal disc protrusion has been demonstrated."
In July 2003, the WCB arranged for the worker to undergo physiotherapy treatments. On August 15, 2003, the treating physiotherapist advised the WCB that the worker made minimal progress due to pain complaints and "drop attacks". A work hardening program was suggested. On August 21, 2003, the WCB denied the request for additional physiotherapy as it was felt that the treatment was not benefiting the worker.
On September 8, 2003, the worker was assessed by a WCB physiotherapy consultant. A WCB medical advisor was also in attendance at the assessment. Following the examination, it was determined that the worker presented with non-specific back pain. Neurological testing was normal. Inconsistencies were noted in straight leg raise and hip testing and an MRI was ordered to look for nerve root compression.
In early October 2003, the worker was examined by an orthopaedic specialist. The specialist outlined his examination findings and commented on the October 2, 2003 x-rays and July 8, 2003 CT scan findings. He stated that it was difficult to tell if there was any nerve root impingement but there was no specific neurological evidence. He felt there might be some psychogenic overlay. It was recommended that conservative measures continue and that the worker was not a candidate for surgery.
On October 8, 2003, primary adjudication asked a WCB medical advisor to review the orthopaedic specialist's report and to comment on whether or not the worker was capable of returning to modified duties. In a response dated October 22, 2003, the medical advisor felt that the worker could return to his regular work duties with no restrictions.
On October 27, 2003, a WCB adjudicator discussed the case with the WCB medical advisor. The medical advisor concluded that since the report from the orthopaedic specialist did not provide any nerve root impingement and no neurological evidence, there was no basis to support the need for the MRI assessment. The MRI assessment was then cancelled by the WCB.
On October 30, 2003, the WCB determined that the worker had recovered from the effects of his compensable injury and was capable of returning to his pre-accident duties and schedule. In accordance with subsection 39(2) of The Workers Compensation Act (the Act), the worker was advised that wage loss benefits would be paid to November 2, 2003 inclusive and final.
In a telephone conversation with a WCB adjudicator on November 4, 2003, the worker stated that he returned to work on November 3, 2003 and that his back went out six times in front of other co-workers. He stated that he saw his doctor that day and was told not to return to work. On November 5, 2003, the worker advised the WCB that his employer sent him home after two hours, due to his back complaints.
Subsequent file records consisted of reports by the treating physician, chiropractor and the orthopaedic specialist.
In November 2003, the worker appealed primary adjudication's decision of October 30, 2003 to the Review Office. Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. The consultant's response to questions posed by Review Office is dated February 17, 2004. The consultant opined that the worker may have had a temporary aggravation of his pre-existing condition which he should have recovered from.
In a decision dated February 20, 2004, Review Office confirmed that the worker was not entitled to further wage loss benefits after November 2, 2003. Following a review of subsection 39(2) of the Act, the WCB's policy on pre-existing conditions and all the medical information on file, Review Office determined that the weight of evidence did not support a relationship between the worker's loss of earning capacity after November 2, 2003 and his compensable injury.
Subsequent to Review Office's decision, the WCB received a report from an orthopaedic surgeon dated January 22, 2004. The diagnosis rendered by the surgeon was "degenerative lumbar disc disease L4-5." The surgeon stated that the worker was neurologically normal but he still had a fair amount of symptomatology and some of it may be exaggerated. An MRI investigation was ordered to rule out nerve root entrapment at L4-5.
On July 6, 2004, Review Office referred the case back to the WCB's orthopaedic consultant to determine whether or not the new medical information changed his opinion that was outlined on February 17, 2004. His response to Review Office is dated July 6, 2004.
On July 8, 2004, Review Office concluded that the recent medical report did not provide a basis to change its previous decision of February 20, 2004. On February 8, 2005, a worker advisor appealed Review Office’s decision on behalf of the worker and an oral hearing was arranged.
Reasons
The Panel was asked to determine whether the worker is entitled to wage loss benefits beyond November 2, 2003. For this appeal to succeed, we must find that worker suffered a loss of earning capacity after November 2, 2003 due to his workplace injury. In other words we must find that the worker was unable to work after this date because of his workplace injury. We did find that the worker was unable to work after this date and remained unable to work until March 22, 2004 because of his workplace injury.Arguments and Evidence at Hearing
The worker was represented at the hearing by a worker advisor. The employer was represented by an advocate and by its manager.
With the agreement of the employer's advocate and Panel, the worker advisor provided a report of an MRI conducted on September 20, 2004. The MRI found degenerative disc changes at the L4-S1 level with no definite evidence of nerve root compression. It also found that the S1 nerve root was enlarged.
The worker advisor expressed the view that evidence on file supports a continued relationship between the worker's compensable accident and pre-existing condition. She noted the opinion of the WCB medical advisor that the worker had pre-existing degenerative disc disease which was a probable factor in the worker's delayed recovery.
The worker stated that when he returned to work in November 2003, he could not perform the assigned duties. He did not consider the job duties to be light duties. He stated that his physician told him he was not fit to return to work. After November 2003, he continued to receive treatment from a chiropractor who indicated that he could try to return to work in March 2004. He contacted his employer about returning to work but was advised that he no longer had a job. He then sought and found employment in a position with similar duties.
The employer's advocate noted that the worker's condition has been diagnosed as mechanical back pain and was an aggravation of his pre-existing degenerative disc disease. She noted that the pre-existing condition was not enhanced. She also noted that the employer offered modified duties and took reasonable steps to accommodate the worker. The advocate stated that the overwhelming evidence on file suggests that the loss of earning capacity beyond November 2, 2003 was the result of pain behaviours that were not the responsibility of the WCB.
Analysis
After considering all the evidence, including the evidence provided at the hearing, the Panel found, on a balance of probabilities, that the worker's loss of earning capacity due to the workplace accident continued beyond November 2, 2003 up to March 22, 2004. In arriving at this decision the Panel placed significant weight upon the following evidence:
- file documentation and hearing testimony which confirmed that the worker attempted to return to work on November 3 and 4, but was not able to perform the assigned duties.
- the worker's physician's medical note dated November 4, 2003 indicating that the worker "…is unfit to return to work at this time." This physician also completed an Occupational Health Fitness Assessment Form on November 7, 2003. In this form he advises that the worker is not able to return to regular duties. He outlines restrictions and comments "Due to sudden onset of back pain, with no prior warning, knees gave way and patient fell to the ground. It happens when standing, even when he does not lift anything."
- the worker's chiropractor's opinion set out in an Occupational Health Fitness Assessment Form dated November 17, 2003 which indicated that "this patient is clearly still experiencing relapse/re-injury with his disc condition. I recommend extreme light duties or further time off."
- the worker remained off work until his chiropractor advised him that he could attempt a return to work on or about March 22, 2004. Between November 5, 2003 and March 22, 2004 the worker received approximately 20 treatments from his chiropractor.
- a report of an MRI performed on the worker's lumbar spine dated September 20, 2004 noted degenerative disc changes at the L4 to S1 level with no definite evidence of nerve root compression. These degenerative changes are in the same area that has been symptomatic since the compensable injury and we find, on a balance of probabilities, this condition was aggravated by the worker's compensable injury causing the worker's loss of earning capacity.
We find it is reasonable that the worker be paid wage loss benefits up to March 22, 2004 as this is the date that the worker was told that he could attempt a return to work and contacted his employer about returning to work. Unfortunately, his employer did not have a position available so he promptly looked for and found new employment. We are satisfied that on a balance of probabilities the worker's loss of earning capacity extended to this date. We note the worker's evidence that since his return to work he has not had any significant symptoms.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of June, 2005