The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on November 30, 1999, at the request of the employer.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits for the period July 30, 1998 to August 30, 1998.

Decision

That the claimant is entitled to payment of wage loss benefits for the period July 30, 1998 to August 30, 1998.

Background

On April 28, 1998, the claimant bent over to pick up two garbage bags, one in each hand, filed with parking tag files weighing approximately 40 pounds each. As he lifted the bags he felt a sharp pain in his lower back and found that he could not move from his position. The initial diagnosis was an acute low back strain and possible disc protrusion at L3-L4.

A physical medicine and rehabilitation specialist (physiatrist) examined the claimant on April 30, 1998. In a report, dated May 19, 1998, the specialist was of the clinical impression that the claimant had suffered acute left S1 radiculopathy due to L5-S1 disc herniation. To confirm his diagnosis, the physiatrist ordered a CT scan along with steroid injections and a dynamic lumbar stabilization exercise program.

X-rays of the lumbosacral spine, dated April 28, 1998, revealed minimal left sided spurring at L3-L4, unchanged from May 1995. No acute abnormality was identified.

In a report, dated June 11, 1998, the physiatrist indicated that his examination on May 27, 1998, showed that the claimant made improvement in the left S1 radiculopathy. He noted that the claimant was sent to physiotherapy to start on the dynamic lumbar stabilization exercise program. The specialist was hopeful that by the second week in June 1998, the claimant would be able to perform modified duties.

On July 22, 1998, the case was reviewed by a WCB medical advisor who stated that the current diagnosis was a "? Disc at L5/S1 on left side." Before commenting on whether there was evidence to support an ongoing disability, the medical advisor indicated that he needed an update beyond the last report of June 11 before addressing this issue. On July 29, 1998, the medical advisor commented that, based on the report, dated June 11, 1998, the claimant was fit for sedentary duties. Restrictions were to avoid prolonged standing, no stairs and no prolonged walking or bending, or stooping for 6 weeks.

On July 31, 1998, primary adjudication advised the claimant of the medical advisor's comments that he was capable of performing sedentary work with restrictions for six weeks. The claimant was also advised that his employer was notified of the restrictions and was currently trying to arrange a modified duty position. Subsequent file information showed that a WCB adjudicator spoke with the claimant. The claimant advised that he was not returning to work based on his doctor's advice.

The next report from the physiatrist was, dated August 21, 1998. The physiatrist reported his examination findings of June 25th and July 16, 1998. By July 16, 1998, the claimant's radiculitis had completely resolved and he had residual mechanical spinal pain and L4-L5 and L5-S1 ligamentous strain. On August 31, 1998, a WCB medical advisor commented that the claimant was fit for medium level duties with some restrictions.

On September 29, 1998, the claimant was informed that it was the opinion of primary adjudication that he was capable of performing modified duties beginning July 30, 1998. "As your employer had duties available for you within the restrictions outlined and you refused the modified duties, the WCB of Manitoba is unable to accept any responsibility for your time loss after July 29, 1998." (The claimant eventually returned to modified duties on August 31, 1998.)

In a submission, dated April 22, 1999, a solicitor acting on behalf of the worker, contended that the claimant was only following his doctor's orders when he returned to modified duties on August 31, 1998 as opposed to July 30, 1998. In support of his position, the solicitor referred to Return to Work forms completed by the treating physician, dated June 25, 1998, July 16, 1998, and August 20, 1998, which indicated the following:

June 25, 1998 - the physiatrist stated that the claimant should be able to resume modified regular duties by August 1, 1998. Physical restrictions were outlined.

July 16, 1998 - the physiatrist indicated that the claimant continued to experience lumbosacral pain that was discogenic and mechanical in nature. The physiatrist further stated, "at present he is not fit to return to work. I am awaiting C.T. scan - which is booked on August 12, 1998. Until that time he is advised to continue therapy and stay off work."

August 20, 1998 - the physiatrist indicated the claimant made significant improvement and was advised to return to work from August 31, 1998. Restrictions were outlined.

On June 25, 1999, the employer prepared a submission to Review Office indicating that it was aware of the fact that the claimant was advised to remain off work during the period in question, however, there were no objective physical findings to support this conclusion. The employer concluded there was no compelling evidence to disturb the September 28, 1998, adjudicative decision.

On September 3, 1999, Review Office determined there was entitlement to payment of wage loss benefits for the period July 30 to August 30, 1998. Review Office referred to the WCB medical advisor's comments, dated June 25, 1998 and July 29, 1998. Review Office indicated that the medical advisor was unable to comment on whether the claimant was totally disabled following his review of the file information on June 25th. Then, after becoming aware that the claimant had no further medical appointments with the physiatrist until after the CT scan, he changed his opinion on July 29, 1998, stating that the claimant could return to sedentary work. The change in the medical advisor's opinion was not based on new information.

Review Office was of the view that the claimant had remained under his doctor's care, underwent further medical investigation (CT scan) and received treatment between July 30th to August 30, 1998. The claimant was following the instructions of his doctor by remaining off work until August 31, 1998. Review Office found that the claimant was entitled to wage loss benefits after July 29, 1998, up to the date he was instructed by his care provider to return to work, which he did on August 31, 1998.

Review Office's decision was appealed by the employer's representative and a non-oral file review was held on November 30, 1999.

Reasons

We find that the evidence clearly supports the claimant's entitlement to wage loss benefits for the period of July 30th, 1998 to August 30th, 1998. In arriving at this decision, we attached considerable weight to the comments, expressed by a WCB medical advisor, in a memorandum to file, dated August 12th, 1999. He stated as follows:

"The claimant followed the attending physician - physiatrist's recommendation not to RTW [return to work] until August 31/98. It is noted he was still undergoing investigation (CT scan) and treatment - receiving steroid injections on Aug 21/98 ten days before returning to modified duties. It is therefore not unreasonable that he did not RTW until Aug 31/98."

The employer's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of December, 1999