The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on March 16, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on March 16, 2006 and again on April 18, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 25, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond March 25, 2003.

Decision: Unanimous

Background

On December 9, 2002, the worker experienced a pop in his upper back when he turned to his right while carrying an area rug, weighing approximately 85 pounds, on his left shoulder. When seen at a hospital emergency facility following the accident, the diagnosis rendered was a musculoligamentous injury.

The worker attended his family physician for treatment on December 17, 2002. The diagnosis rendered was an upper back strain. The physician noted that the worker had a pre-existing compression fracture to T7-8. X-rays taken the same day revealed little degenerative spurring but no other bone or joint abnormality.

The claim for compensation was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid commencing December 11, 2002. On December 19, 2002, the worker commenced physiotherapy treatments.

On January 24, 2003, the family physician reported that the worker tried performing light duties but complained of persistent upper back pain. The worker was advised to stay off work and was referred to an orthopaedic specialist for an assessment.

In a report dated February 7, 2003, the orthopaedic specialist reported that the worker complained of pain between his shoulder blades and an occasional low backache. He also experienced difficulty with walking, bending, lifting and coughing. The specialist opined that the worker sustained soft tissue and ligamentous strains to his mid back and was making a satisfactory recovery. It was anticipated that the worker could return to work in a week or two and that he would require anti-inflammatory medication for his pre-existing condition.

On February 17, 2003, the treating physiotherapist indicated that the worker was not displaying any objective signs of improvement and was considered to be extremely pain focused.

The worker was examined by a WCB physiotherapy consultant on February 25, 2003 where it was concluded that the worker presented with a thoracic sprain/strain injury. It was felt that the worker would benefit from a course of chiropractic treatment and a referral was made in this regard.

On March 11, 2003, the family physician indicated that the worker continued to be disabled from pain in his upper back despite all treatment modalities. The worker was going to see the attending orthopaedic specialist again on March 24, 2003.

In a letter dated March 13, 2003, a case manager with the WCB advised the worker that there was no medical information to support his ongoing pain complaints and therefore a graduated return to work program would commence on March 19, 2003. Effective April 9, 2003, it was anticipated that the worker would return to his regular duties without restrictions.

On March 25, 2003, the worker told his case manager that he was advised by his doctor to stay off work until he saw an occupational therapist or a WCB doctor. The case manager informed the worker that his benefits were being suspended effective March 26, 2003 until she had medical information to support him being off work.

In a report dated March 24, 2003, the orthopaedic specialist reported that x-rays of the dorsal spine showed evidence of degenerative spurs on multiple dorsal vertebrae and very minimal scoliosis was present. There was degenerative change at the disc level at T7-8-9. The worker was advised to carry on with his work.

On April 9, 2003, a WCB medical advisor examined the worker's back and shoulders. The medical advisor stated, in part, that there were several elements of pain behavior and complaints throughout the examination that were not in keeping with anatomical or physiological parameters. It was suggested to the worker that he use his upper back and neck muscles to overcome his current pain complaints. The medical advisor was of the view that the worker could return to work in some capacity as had been recommended and outlined by his family physician and attending orthopaedic specialist.

On April 29, 2003, it was confirmed to the worker that the WCB had no new medical information to support that he could not have continued with his graduated return to work program after March 25, 2003 or that he could not have returned to his regular duties by April 9, 2003.

Medical information was then received from an occupational health physician dated June 11, 2003 and from the family physician dated July 14, 2003. This information was reviewed and commented on by two WCB medical advisors.

On July 28, 2003, a sector services manager informed the worker that there were no medical findings to support his inability to participate in the graduated return to work program established by his case manager and that he was not entitled to further wage loss benefits.

Further medical information was received from a physical medicine and rehabilitation specialist dated November 10, 2003. He noted that x-rays revealed compression fractures at T7 and T8 and that the worker had tenderness above these regions.

On January 12, 2004, the WCB case manager confirmed her earlier decision that the worker was capable of returning to work. The case manager noted that the physical medicine and rehabilitation specialist wrote his report as if the T7 and T8 fractures were related to the December 2003 compensable injury when in fact these fractures related to a motor vehicle accident that occurred approximately 10 years ago. On January 29, 2004, the worker appealed this decision to Review Office.

On March 12, 2004, Review Office agreed with the case manager that the worker was not entitled to wage loss benefits beyond March 25, 2003. Review Office concluded that the worker sustained a muscular strain injury to his upper back as a result of his compensable accident. Based on the preponderance of evidence, Review Office found no reason to conclude that the worker continued to suffer a loss of earning capacity due to the effects of his injury.

In a submission dated September 22, 2005, a worker advisor asked Review Office to reconsider its March 12, 2004 decision based on new medical information from the physical medicine and rehabilitation specialist dated August 26, 2005. The specialist opined that the worker's December 9, 2002 injury was a sprain/strain and that the worker continued to suffer from the effects of his compensable injury and was incapable of resuming his pre-accident work.

On September 29, 2005, Review Office determined that the new medical evidence dated August 26, 2005 did not alter its previous decision of March 12, 2004. Review Office was satisfied that the worker had been reasonably compensated for the effects of his strain injury sustained on December 9, 2002. On January 4, 2006, the worker advisor appealed this decision and a hearing took place on March 16, 2006.

Following the hearing, the appeal panel decided to obtain additional information from the worker's family physician. On March 29, 2006, the interested parties were provided with copies of the information that the family physician had provided to the Appeal Commission. On April 18, 2006, the panel met to discuss the case and rendered its final decision.

Reasons

The issue before the panel was whether the worker is entitled to wage loss benefits beyond March 25, 2003. For the appeal to be successful, the panel must find that the worker was unable to work after March 25, 2003 as a result of the workplace accident. The panel was not able to reach this conclusion. The panel finds, on a balance of probabilities, that the worker was able to work after March 25, 2003 and that his loss of earning capacity was not due to the workplace injury.

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by the representative and the panel. The employer did not participate in the hearing.

The worker advised that he did not have problems with his back before the injury. He advised that currently his upper back tightens up when he lifts, bends or twists. He also advised that he gets numbness down his right arm with physical activity and that this fingers tingle. He described the treatments he has received for the injury. He said that he could likely work at something less physical than his pre-accident job.

The worker provided a history of his employment before and after the accident. He confirmed that he was terminated by his employer and found a new job in April 2004 which he was employed at for approximately three months. He advised that he has not worked since July 2004.

The worker's representative submitted that the weight of evidence supports that the worker had not returned to his pre-accident state. She submitted that the worker sustained a muscular ligamentous injury and not a simple muscular strain. She reviewed medical information on file in support of this conclusion. The representative disagreed with the denial of benefits by Review Office on the basis that the worker had been reasonably compensated. The representative submitted that wage loss benefits are payable so long as a loss of earning capacity exists as a result of the compensable injury.

Analysis

The panel has considered the information on the claim file, the information provided at the hearing and acquired after the hearing and the arguments made on behalf of the worker at the hearing. The panel has not been able to find that the worker's loss of earning capacity after March 25, 2003 was caused by the December 2002 workplace injury.

In arriving at this conclusion the Panel relies upon the reports of the orthopaedic specialist who examined the worker on February 7, 2003 and March 24, 2003. In a report dated February 7, 2003 the orthopaedic specialist comments that the worker should be able to return to work in a week or two. He notes that the worker may need some anti-inflammatory medications for his pre-existing condition of degenerative changes in his spine. On March 24, 2003, the orthopaedic specialist referred to x-ray and notes "Degenerative spurs are present on multiple dorsal vertebrae. Very minimal scoliosis is present. There is degenerative change at the disc level T7-8-9." The orthopaedic specialist notes "I advised him to take Tylenol and carry on with his work."

The panel also relies on the examination and report by a WCB medical advisor dated April 9, 2003. The medical advisor commented that he was "…unable to see why the claimant can not return to work in some capacity as has been recommended and outlined by his treating and attending orthopaedic surgeon."

The panel notes that the employer had agreed to a graduated return to work program which commenced on March 19, 2003 but was discontinued by the worker on March 25, 2003. The panel is aware that the worker's treating physician supported the worker's withdrawal from the return to work program until the worker was assessed by the WCB. The panel is unable to find support for this position in the physician's progress report of March 25, 2003, and in any case notes that the worker was assessed by a WCB medical advisor on April 9, 2003 who recommended that he return to work. The worker did not proceed with the graduated return to work program and never returned to work for this employer.

The panel finds that the worker's loss of earning capacity after March 25, 2003 is, on a balance of probabilities, not related to the worker's workplace injury.

Although there is information on the file subsequent to March 25, 2003 regarding ongoing symptoms and restrictions, the panel finds that these would not have prevented the worker from returning to work and notes that approximately one year later, in April 2004, the worker did return to the workforce in a position with a furniture and merchandise retailer. The worker acknowledged that this involved the same kind of job as his pre-accident employment but that he worked with another staff person who assisted with heavy lifting. The worker was employed at this position until he injured a different part of his back while carrying a recliner up three flights of stairs. The worker's ability to perform this position confirms that the worker was able to return to work.

At the hearing the worker indicated that he continues to have symptoms from the December 2002 workplace injury. The panel notes the worker has undergone subsequent medical testing and examination but that recent investigations are not aimed at the worker's original injury site. The panel notes that the injury was originally identified as involving the upper back. In August 2005 a history of numbness involving the fourth and fifth digits of the right hand for the past year was noted in a report on neurodiagnostics. Also in August 2005 an orthopaedic surgeon reports that EMG and nerve conduction studies suggest ulnar nerve entrapment neuropathy as well as median nerve neuropathy. Accordingly, there is no basis upon which these current medical problems can be related to his original compensable injury to his upper back.

The worker's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of June, 2006