The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 9, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being April 28, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits commencing September 8, 2002; and

Whether or not a Medical Review Panel should be convened.

Decision

That the worker is not entitled to wage loss benefits commencing September 8, 2002; and

That a Medical Review Panel will not be convened.

Decision: Unanimous

Background

During the course of his employment as a mail delivery clerk on October 6, 2000, the worker reported an injury to his right foot. The mechanics of injury were described as follows: The worker was pushing a heavy cart up a tiled incline and his foot slipped. His toes went under his foot and the top of his foot hit the floor.

On October 9, 2000, the worker sought medical attention and was diagnosed with an acute sprain of the right foot muscles. In a progress report of October 24, 2000, the physician outlined subjective complaints of "pain L hip, L low back down the L Lat. thigh - favoring R side, developing right foot drop". On October 31, 2000, a Workers Compensation Board (WCB) medical advisor found it difficult to relate the worker's left sided symptoms to his compensable injury.

Subsequent file records showed that the worker was treated by a number of physicians primarily for his foot condition. While receiving treatment, the accident employer accommodated the worker with sedentary duties on a number of occasions. In July 2001, the worker commenced a light duty position in operator services and an ergonomic assessment of the position was carried out on July 23, 2001. On August 9, 2001, the worker's benefits were suspended based on his failure to participate in the alternate duty position.

In December 2001, the worker was interviewed at the WCB's Pain Management Unit (PMU). It was later determined that he did not meet the diagnostic criteria for chronic pain syndrome. The worker was referred to a neuropsychologist for assistance in pain management.

On January 3, 2002, a sports medicine specialist said that the worker was capable of returning to a sedentary position with the accident employer starting at three hours per day with the ability to sit or stand as needed and to slowly increase his number of hours. The worker could use a cane as an alternative to a crutch which could improve his upper back symptoms.

The accident employer arranged for the worker to return to the operator services position once he increased his typing skills to 35 words per minute. Training was provided to the worker in this regard. On April 17, 2002, the WCB advised the worker that his eligibility for wage loss benefits would depend on his co-operation and participation in the training and return to work plan.

On May 23, 2002, the treating sports medicine specialist commented that the worker suffered from point tenderness and hyperaesthesia of the right forefoot, first MTP and toes of the right foot. He was awaiting an appointment at the Pain Clinic for a sympathetic block.

The worker was assessed on July 25, 2002 because of right groin pain as a result of carrying laundry at home on June 27, 2002. Physically, the worker had no groin hernia detected except right groin tenderness. The worker was instructed to stay off work for two weeks for his right groin strain.

On July 8, 2002, the WCB suspended the worker's wage loss benefits due to his non-compensable condition as the condition prevented the worker from participating in his job training and alternate duties with his employer.

In a letter dated August 14, 2002, primary adjudication outlined to the worker his return to work schedule from August 14 to August 20, 2002 at five hours per day. By September 4, 2002, it was anticipated that the worker would be back to a full eight hour work day and that he would be receiving regular wages from his employer.

On September 4, 2002, a WCB case manager advised the treating sports medicine specialist that the worker was in a graduated return to work program and that the position was sedentary and gave him the opportunity to sit or stand as needed and that he could elevate his leg as necessary. The specialist stated that this was fine and commented that the worker's foot appeared improved. With regard to the worker's back, the specialist stated the worker would benefit from 4-6 sessions of chiropractic care. The specialist felt that the worker's back pain was as a result of an awkward gait and wearing a walking boot for an extended period of time.

In a letter dated September 4, 2002, the WCB advised the worker that wage loss benefits would be paid to September 3, 2002 inclusive and final. Should he encounter problems in the future with his compensable injury, he was advised to inform his employer, seek medical attention and contact the WCB.

On September 13, 2002, the employer submitted an accident report stating "Employee claims sore back as a result of his initial foot injury of October 10, 2000."

On September 16, 2002, the worker advised the WCB that he had to stop work as he had not received chiropractic care for his back and that his back was disabling him. The case manager informed the worker that the WCB would authorize 4-6 sessions of chiropractic care until a decision was made with regard to the WCB's responsibility for his back condition. Wage loss benefits, however, would not be authorized until she received pertinent medical information.

In a letter dated October 9, 2002, the worker was advised by his case manager that the medical findings on file did not support that his current condition of his back was related to his foot injury or that he was totally disabled. This decision was based on 3 progress reports that were received from the worker's physician dated August 13, 2002, September 3, 2002 and October 2, 2002.

On October 9, 2002, the treating sports medicine specialist clarified that his report of October 2, 2002 noted tenderness in the worker's posterior superior iliac spine. The specialist stated that the pain had been prominent in this area since June 4, 2002. He felt that the worker's mechanical low back pain was secondary to his altered gait from his right foot injury and that it had been exacerbated by his requirement to sit for prolonged periods at work.

On October 16, 2002, the WCB case manager advised the worker that the report from his sports medicine specialist had been reviewed and that she was unable to alter her decision of October 9, 2002.

On March 13, 2003, a worker advisor asked the case manager to consider a February 28, 2003 narrative report received from the treating sports medicine specialist which outlined his opinion concerning the relationship between the worker's back condition and his compensable foot injury.

Following consultation with a WCB medical advisor in March 2003, the case manager wrote to the worker advisor on April 7, 2003, stating the following:

• As to whether the worker's back and sacroiliac joint could be related to the use of a crutch, walking boot or awkward gait, the medical advisor stated that while it was difficult to say for certain, the back complaints were recent and the diagnosis for the lower back pain remained unclear. Note was made of a CT scan that was forwarded to the WCB which noted a possible disc herniation. The medical advisor stated that the disc herniation would not be the result of the prolonged use of a crutch, walking boot or awkward gait.
  
  
• The severity of the worker's lumbosacral pain was said to have precluded him from being involved in light duties. The worker's physician referred to a number of other symptoms, i.e. viral illness, rash, nausea, etc. It is difficult to relate that only the severity of the worker's lumbosacral pain was preventing him from performing his alternate duties.
  
  
• Before June of 2002 there was no mention on file of low back or hip pain even though the worker regularly attended various physicians and specialists for treatment.

On August 5, 2003, the worker advised the WCB that he was terminated from his employment with the accident employer.

On August 5, 2003, the worker advisor provided the WCB with further medical information received from the treating sports medicine specialist dated May 15, 2003. In the event that the WCB continued to deny coverage for the worker's back condition, a Medical Review Panel (MRP) was requested based on the difference in medical opinion.

In a response dated August 18, 2003, the worker was advised by his case manager that the WCB was unable to reverse its earlier decision that his back condition was not related to his foot injury. It was also determined that an MRP would not be convened as it was the WCB's position that the treating sports medicine specialist "…did not provide a full statement of the facts and reasons supporting a different medical condition affecting entitlement…".

On September 29, 2003, the worker advisor requested Review Office to review the case and to consider a medical report received from the treating sports medicine specialist dated September 19, 2003. On December 18, 2003, the employer's advocate provided Review Office with a submission that supported the decision made by primary adjudication.

On June 4, 2004 Review Office determined the worker was not entitled to wage loss benefits commencing September 8, 2002. Review Office stated there was a lack of medical evidence to establish a continuity of the worker's lower back and left hip complaints and it could not reasonably associate these complaints to the effects of the October 2000 work accident.

With respect to the argument that the worker should be entitled to wage loss benefits effective the date of his termination on July 16, 2003, Review Office disagreed with the worker advisor citing that the worker's loss of employment was attributable to his failure to comply reasonably with the return to work programs established by the WCB and his employer.

Regarding the request for an MRP, Review Office stated there had been no evidence offered to explain the large gaps in medical documentation regarding the worker's lower back and hip complaints and how this could be explained in context with the compensable injury. Note was made that the worker contended that his back became sore after using a walking boot but there was no medical evidence to support ongoing back pain after the walking boot was prescribed in April 2001 until more than one year later.

On July 21, 2004, the worker advisor appealed Review Office's decisions and an oral hearing took place on November 9, 2004.

Following the oral hearing, the Appeal Panel arranged for the worker to be assessed by an independent orthopaedic specialist and also requested an update on the worker's right foot status from the Pain Clinic. On January 19, 2005, all interested parties were provided with the medical reports that were received by the Panel and were asked to provide comment.

On February 3 and 4, 2005, the Appeal Panel met to discuss the case further and requested additional information be obtained from the employer's advocate and from the worker's treating sports medicine specialist. On April 14, 2005, all interested parties were provided with copies of the information that were received by the Panel and were asked to provide final comments. On April 28, 2005, the Panel met to discuss the case further and to consider final submissions received from the worker, his worker advisor and the employer's advocate.

Reasons

Beginning in January 2002 the worker had been provided with work duties that were well within his physical restrictions. In early July of this same year, the worker was totally absent from the workplace for a one month period as a result of a non-compensable groin injury. According to the attending doctor's progress report of August 13, 2002, the worker presented with the following subjective complaints "in training R foot pain continues". The attending physician indicated that the worker was capable of alternate or modified work i.e., "re-training". Subsequent to this report, the worker developed low back complaints which prompted him to file a claim on September 13, 2002. He associated his sore back with his initial foot injury of October 10, 2000.

In September 2002, the case manager spoke with the treating physician concerning the worker's graduated return to work program. The case manager advised that the worker's position was sedentary and allowed him the opportunity to sit or stand as needed and that he could elevate his leg as necessary. This was quite acceptable to the treating physician. He later advised in response to a query posed by the Appeal Commission that the only limiting factor preventing the worker from continuing with his graduated return to work program was pain, "In September of 2002, Mr. [the worker's] main disabling conditions were his persistent right foot neuropathic pain, left sacroiliac joint dysfunction and mechanical low back pain".

We find based on the weight of evidence that throughout the period of September to December of 2002 that the worker was not totally disabled and that he could attempt/perform the graduated return to work program duties. We also note that from January 2003 to April 2003 it was the worker's non-compensable left inguinal pain which prevented his participation in the graduated return to work program. This fact was also confirmed by the treating physician, "From the time period of January to April of 2003 Mr. [the worker] was unable to work because of an unrelated medical condition".

With respect to the period of May 2003 and beyond, we find there is nothing to suggest that the worker could not attempt/perform the graduated return to work program duties. It is clear from the evidence that the employer has been proactive and considerate of ergonomic factors with the design of the workstation as well as the set up of job duties and shifts. There was never any sitting restriction imposed by the treating physician. He cleared the worker to return to the operator training position in April 2003. As to continuing restrictions, the treating physician had this to say:

“The restrictions which I suggested in April of 2003 was (sic) no lifting greater than five pounds, no bending, squatting, climbing or prolonged standing. These restrictions were in place in relationship to his right foot neuropathic pain and lumbar sacral disc pain. He did not have a specific restriction for sitting, as it was my understanding his position with [the employer] involved predominately sitting. By my recollection I suggested that he attempt to stand for short periods of time intermittently and it was not assumed that he would have to sit continuously.”

Once again, it is important to recall the workstation assessment carried out by the WCB’s occupational therapist. In addition, a CT scan taken of the worker’s lumbosacral spine on May 28, 2003 revealed “no evidence of focal disc herniation”. This diagnostic testing would seem to confirm no pathology with respect to the worker’s sore back. We further note that the worker’s loss of employment on July 16, 2003 was attributable to his failure to comply reasonably with the return to work programs established by the WCB and his employer.

After having considered all of the evidence, we find that the worker is not entitled to wage loss benefits commencing September 8, 2002. Accordingly the appeal of this issue is hereby dismissed.

Also, the appeal regarding the convening of an MRP is hereby dismissed. There is no clear disagreement between the worker’s treating physician and the WCB medical advisor regarding the worker’s back pain and his right foot problems. We note in particular a comment made by the treating physician in his correspondence dated May 15, 2003: “I do not take any specific issues with his opinions and with reference to No. 5, I would agree that a disc herniation would not be the result of altered gait or the use of a walking boot.” We find that there is no difference of medical opinion with respect to a medical matter as is contemplated by subsection 67(4) of The Workers Compensation Act.

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 10th day of June, 2005