Decision #33/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on January 24, 2006, at the worker's request. The panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to payment of wage loss benefits after September 10, 2000.Decision
That the worker is not entitled to payment of wage loss benefits after September 10, 2000.Decision: Unanimous
Background
In July 2000, the worker filed a claim with the Workers Compensation Board (WCB) for lower back and pelvic problems that she related to repetitive body twisting and lifting motions during the course of her employment.On July 7, 2000, chiropractic lumbosacral spine x-rays revealed facet asymmetry and lumbar scoliosis.
On July 7, 2000, the treating chiropractor diagnosed the worker with an acute lumbo-pelvic injury with associated radiculalgia, effusion and myalgia. On August 10, 2000, the chiropractor changed the diagnosis to an L5 disc protrusion with S1 nerve root radiculalgia.
Following an examination on August 24, 2000, a WCB chiropractic consultant outlined his view that the worker sustained a muscular ligamentous sprain/strain type injury involving the lumbosacral spine with no nerve root tension and/or disc involvement. He believed that the worker displayed signs of pain magnification. The chiropractic consultant recommended that the worker undergo a short physiotherapy program and that an increase in activity would be the best approach. He found the worker fit for light duty work with restrictions starting at four hours per day for the first week and to gradually increase her hours until she was back at full time work.
On August 25, 2000, the worker saw a general practitioner for treatment and was diagnosed with a muscle strain of the lumbosacral area and to "rule out degenerative disc disease". Physiotherapy treatments were suggested.
During a telephone conversation on September 7, 2000, the worker advised a WCB staff representative that she was unable to return to light duty work as she was lying on the floor, was in pain and could not move. She said she saw her treating physician the day before and he told her to remain off work.
On September 12, 2000, the employer advised the WCB that they found light duties for the worker effective September 11, 2000 that were within her physical capabilities. It consisted of assembly line work or operating a machine.
On September 15, 2000, the worker described her June 26, 2000 accident in more detail to a WCB staff representative. The worker noted that she currently had right leg numbness from the buttock area down and that she had irritated her left leg from limping on her right leg.
On October 3, 2000, the WCB asked the attending physician to fill out a WCB questionnaire to clarify the worker's medical status.
On October 5, 2000, the worker advised her WCB case manager that she was totally disabled and that her attending physician advised her not to return to work.
A CT scan of the lumbar spine dated October 5, 2000 revealed a mild diffuse posterior disc bulging at L4-L5. Clinical correlation was required. The spinal canal was noted to be congenitally small at this level. Bone windows demonstrated moderate facet arthropathy at the L5-S1 level.
In a decision letter dated October 23, 2000, the worker was advised that wage loss benefits would be paid to September 10, 2000 as the accident employer was able to accommodate her with light duties that were in keeping with her restrictions.
On November 7, 2000, the worker advised her case manager that she was involved in a motor vehicle accident on November 1, 2000 while on her way to a physiotherapy appointment.
In a letter to Review Office dated November 28, 2000, the worker appealed the WCB's decision to deny wage loss benefits beyond September 10, 2000. The worker outlined her position that her doctor told her not to do anything until he knew exactly what her condition was as any unnecessary strain would further aggravate her condition. The worker noted there was no such thing as light duties when working at a factory as all the jobs, no matter how light they are, require sitting, standing or walking for long periods of time.
Prior to considering the worker's appeal, the Review Office asked the employer to provide documentation showing the type of light duties that were available for the worker. On December 21, 2000, the employer responded to Review Office's request. The job duties outlined were coil assembly, heater packaging, pin straightening, etc. The employer noted that ergonomic adjustable chairs were available with an option to sit or stand at most jobs.
On January 14, 2001, the attending physician responded to the WCB's questionnaire that was mailed to him on October 3, 2000. The physician reported that he saw the worker for treatment on September 6, 2000 and felt that she had an L4/5-S1 lesion. He noted that the worker first complained of pain in the right sacroiliac joint and that this resolved. The worker had recurrent pain in September 2000. The physician's diagnosis was "reality of small congenital canal related to present work/age, previous L-S strain improved." In terms of self-care and casual work, the physician stated that continuous movements and straining of the area was probably not advisable. Even on her own, the worker had pain in her right groin. He noted that the worker was seeing a specialist on January 11, 2001.
On January 16, 2001, a WCB Review Officer spoke with the treating physician directly. The doctor stated that the worker had a musculoskeletal tendonous injury and that she needed physiotherapy treatment. He stated that the muscle injury was probably old and recurred because of work. He stated that he left it up to the worker to decide on whether she wanted to return to work. The physician stated that he was more concerned with the worker's non-compensable health problem.
In a report to the treating physician dated January 11, 2001, the treating orthopaedic specialist stated that the worker had mild degenerative changes which probably produced some of her back complaints. He felt the worker's condition should be managed conservatively. He stated there was no specific neurological or radiological evidence of nerve root impingement. The specialist thought there was a slight psychogenic element as the worker's decreased sensation was not likely caused by an organic disease.
On February 9, 2001, Review Office upheld the decision that the worker was capable of returning to light duty work by September 11, 2000 and that she was not entitled to payment of wage loss benefits after September 10, 2000. In reaching its decision, Review Office noted that the worker's physician did not provide any clinical evidence to support that the worker was totally disabled after September 10, 2000 and there was no evidence to support that the worker was unable to perform the light duty work.
On March 8, 2001, the worker was advised by the WCB that any ongoing difficulties experienced by the worker were no longer related to her compensable injury. It was felt that the worker's ongoing difficulties may be the result of an underlying or pre-existing condition.
On March 30, 2001, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged to take place on September 20, 2001. On August 31, 2001, the worker's legal representative asked to adjourn the hearing sine die as the worker was in the process of compiling medical evidence for consideration. In September 2005, the worker requested that her case proceed to an oral hearing.
Reasons
The panel was asked to determine whether the worker is entitled to payment of wage loss benefits after September 10, 2000. Under The Workers Compensation Act (the Act) the worker is entitled to receive wage loss benefits where the compensable injury causes a loss of earning capacity. Subsection 39(1) of the Act provides that where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits are payable to the worker. In other words, to be eligible for wage loss benefits the worker must have been unable to work after September 10, 2000 because of the compensable injury. The panel found that the worker was fit to perform light duties as of September 11, 2000 and that light duties were available. Accordingly the worker is not entitled to wage loss benefits after this date.Evidence and Argument at Hearing
The worker attended the hearing and was assisted by an interpreter. As the worker had not prepared a presentation, the panel asked the worker questions to determine her position. The employer was represented by an advocate and its plant manager. The advocate made a presentation on behalf of the employer. The plant manager answered questions posed by the panel.
In answer to a question about a return to work, the worker advised that since September 2000 she has returned to work for varying periods and performed a variety of duties at the plant. The worker indicated that she worked in pain much of the time and was involved in other workplace accidents. The worker provided information on the physicians she has seen and the treatments she received. The worker acknowledged receiving disability benefits from an insurance carrier after September 2000. The worker has recently returned to work.
The employer advocate provided a chronological summary of the worker's work and claim history since May 10, 2000. The worker was provided an opportunity to review the summary and to comment on any concerns she might have regarding the content of the summary. This summary confirmed information provided by the worker.
The employer advocate reviewed the claim and noted that modified duties were offered to the worker effective September 11, 2000. The advocate advised that most tasks at the employer's facility are light in terms of physical demands. The advocate noted that if the presence of non-compensable medical issues were the reason for not returning to work in September 2000, the WCB is not responsible for paying benefits. The advocate also noted that the worker received benefits from a disability insurer and automobile accident insurer.
Analysis
The panel has concluded, on a balance of probabilities, that the worker was fit to return to light duties employment effective September 11, 2000 and is not entitled to payment of wage loss benefits after this date.
The panel finds that the worker sustained a muscular strain at work on June 26, 2000. The panel relies upon the opinion of a WCB chiropractic consultant who examined the worker on August 24, 2000 and commented that:
"…she has suffered a muscular ligamentous sprain/strain type injury involving the lumbosacral spine. It is my opinion there is involvement of the right gluteal musculature. At this time, it is my opinion there is no nerve root tension and/or disc involvement."The panel also notes that the worker's treating chiropractor in a report dated August 31, 2000 agreed with the WCB chiropractic consultant. As well, the worker saw a general practitioner on August 25, 2000 who diagnosed a muscle strain of the lumbar area.
Regarding the worker's ability to return to light duties employment, the panel also relies on the opinion of the WCB chiropractic consultant and the worker's treating chiropractor who agreed the worker was fit for light duty employment. Restrictions were recommended which included no lifting greater than 10-15 lbs, and the ability to move from a sitting to a standing position when required. The panel finds that employer would have been able to accommodate the worker in suitable light duties employment on September 11, 2000 in a position that would have paid the worker her pre-accident wages. Accordingly, there would be no loss of earning capacity as of that date, and no further responsibility on the part of the WCB to pay wage loss benefits to the worker.
The panel has not been able to attribute the worker's time loss after September 11, 2000 to the June 2000 workplace injury.
The worker's appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of March, 2006