The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker injured his back in 1998 while working in Saskatchewan and was covered by the Saskatchewan WCB. On September 14, 2004 he injured his back again while moving pallets. The worker submitted an application to the Manitoba WCB. His claim was accepted and wage loss and medical aid benefits were provided. On December 23, 2004 the worker was involved in a non-work related motor vehicle accident (MVA) and sustained further injury. Subsequently, the WCB terminated the worker's benefits. The WCB Review Office found that the worker had recovered from the effects of the injury and was capable of returning to his regular duties as of March 2005. The worker disputed the WCB's decision and has appealed to the Appeal Commission. A hearing before an appeal panel was held on May 17, 2006 to address the following issue:

Issue

Whether or not the worker is entitled to additional wage loss benefits.

Decision

That the worker is not entitled to additional wage loss benefits.

Decision: Unanimous

Background

The worker injured his middle/lower back on September 14, 2004 during the course of his employment as a truck driver. The worker described the accident as follows:

"I was at the loading dock area of [name] in Brandon. I was pulling the top pallet which was on a stack of pallets about six feet high. As I was pulling it to bring it down, it tilted and came quickly and dropped right into my hands. Instead of it falling on me, I tried to catch it injuring my back. I could feel a sharp pain across the middle of my back into my lower back and it went down to the back of my legs."

File documentation shows that the worker has a claim with the Workers Compensation Board (WCB) of Saskatchewan for a work related low back injury that occurred in 1998. At this time he was diagnosed with a herniated lumbar disc. The worker has since experienced chronic low back pain as a result of this claim.

Following his September 14, 2004 accident, the worker attended a hospital emergency facility for treatment. The diagnosis rendered was radicular low back pain.

On October 13, 2004, the worker sought treatment from his family physician and was found to have a back muscle strain. He was treated with medication and was referred to physiotherapy.

The worker told his case manager on October 21, 2004, that his mid and low back pain was still symptomatic. He stated that he felt as though he had not recovered from his compensable neck and lower back injury that he had in Saskatchewan as his lower back was still hurting. He stated that he started working with the accident employer three months ago and that they offered him an automatic truck which made it easier for him to drive. The worker noted that he felt like he was right back to where he was from his last accident.

The worker underwent a CT scan of the lumbosacral spine on October 21, 2004 due to severe low back pain radiating into both legs. The radiological report indicated that there was no evidence of disc herniation, spinal stenosis or nerve root compression at the L2-3 and L5-S1 regions. At the L3-4 level, there was a very shallow broad based disc bulging without evidence of focal disc herniation, spinal stenosis or nerve root compression. The L4-5 level revealed shallow broad based disc bulging with moderate bilateral facet hypertrophy and mild hypertrophy of the ligamentum flavum which combined to produce very minimal central spinal stenosis.

On November 17, 2004, a sports medicine physician outlined restrictions for the worker to avoid lifting, carrying, pushing and no repetitive bending or twisting.

A return to work program was established for the worker on December 21, 2004.

On December 23, 2004, the worker was involved in an MVA and claimed injuries to his left lower back, neck and mid back regions with his auto insurer.

An MRI examination of the lumbosacral spine dated January 6, 2005 revealed multilevel degenerative changes involving the lumbar spine with no significant interval change.

On January 5, 2005, the worker informed his case manager that his low and mid back had returned to pre-MVA status. It was his neck injury that was disabling him and keeping him from returning to work. On January 7, 2005, the worker indicated that he was contacting his accident employer and would try modified duties to see how he does. On January 20, 2005, the worker indicated that he tried working a total of two days and was now completely off work again.

On January 19, 2005, a WCB medical advisor assessed the worker and stated that the method of injury and early physician reports suggest an injury to the mid-back region at the time of the current compensable injury. His recovery had been complicated by the MVA which aggravated his low back pain. The medical advisor recommended that the worker continue with his physiotherapy program until its completion and that he was capable of returning to modified duties with workplace restrictions. He stated that the worker would have some low back pain when he is back to baseline and possibly some radicular pain at the completion of this program, as he had a long history of discogenic and radicular pain preceding the compensable injury.

In a letter dated January 28, 2005, the worker was advised by his case manager to contact his accident employer to make appropriate arrangements for a return to work scheduled to begin no earlier than February 1, 2005 and to schedule his physiotherapy treatments outside of his working hours. The worker was advised that his failure to participate in the modified duty program would result in the suspension of his wage loss benefits.

On February 17, 2005, the case manager informed the worker that the WCB was accepting responsibility for his middle back, which was injured on September 14, 2004, and that wage loss benefits would end on February 3, 2005 as appropriate modified duties had been provided by his accident employer.

In a letter dated March 3, 2005, the case manager advised the worker that the WCB was closing his file due to failure to participate in his modified duty program and his lack of attendance at physiotherapy treatments.

The worker contacted the accident employer to return to his regular truck driving duties on March 10, 2005. He was terminated for reasons unrelated to his claim a few days later.

On April 6, 2005, the worker was advised by a sector manager that the WCB was extending him partial wage loss benefits to March 9, 2005 inclusive, as it was felt that his compensable injury would, with physiotherapy, have resolved in early March 2005. This decision was confirmed to the worker in a further letter dated April 21, 2005.

On June 17, 2005, the case was considered by Review Office and it was confirmed that the worker was not entitled to additional wage loss benefits. Review Office ultimately determined that the worker had recovered from the effects of his September 2004 back injury and that he was capable of returning to his regular work duties in March 2005.

On September 20, 2005, the worker disagreed with Review Office's decision and an oral hearing was arranged for January 18, 2006. The hearing was adjourned sine die. The hearing reconvened on May 17, 2006.

Reasons

Worker's Position

The worker participated in the hearing by speaker phone.

The worker advised that he injured his lower back in 1998. He told the panel that his lower back condition never went away but that he was able to manage the pain and learned to deal with it. He stated "…I think it's not as bad as it used to be."

Regarding the September 14, 2004 injury, the worker advised that he injured the middle of his back and all the way up his neck. He described his attempts to return to work and reasons for not continuing with physiotherapy treatments.

The worker described the December 2004 MVA as "…a very severe car accident" and that it is "…the worst of it all." He advised that he is currently being treated for vertigo and dizziness and that these symptoms did not arise until after the MVA. He also advised that his family doctor is focusing on his shoulders, neck and arms. He stated that the shoulder symptoms were from the MVA.

The worker listed the medications that he is currently using and acknowledged that the medications are being paid under his 1998 work injury.

The worker was critical of the WCB and auto insurer for failing to work together on his WCB and MVA claims.

Employer's Position

The employer was represented at the hearing by a staff person. The employer representative noted that modified duties were provided on several occasions and that the worker failed to participate in a graduated return to work program which was within his medical restrictions. He also noted that the worker missed physiotherapy appointments.

Applicable Legislation

The issue in this appeal is whether the worker is entitled to additional wage loss benefits. There are several provisions in The Workers Compensation Act (the Act) dealing with wage loss benefits, including the provisions set out in the following paragraph.

Subsection 4(2) provides that wage loss benefits are payable to an injured worker for loss of earning capacity resulting from an accident on any working day after the day of the accident. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the board. Subsection 40(1) provides a formula for determining the loss of earning capacity. Subsection 60(2) provides that the board has exclusive jurisdiction to determine the loss of earning capacity.

In determining a worker's loss of earning capacity, the WCB and this panel will generally consider medical information regarding the worker's injury and his ability to work.

Analysis

The panel has considered all the information on the worker's claim file and the information and argument provided at the hearing. The panel finds, on a balance of probabilities, that the worker is not entitled to additional wage loss benefits. The panel finds that the worker ceased to have a loss of earning capacity due to the work injury when his wage loss benefits were terminated as of March 9, 2005.

In arriving at this conclusion, the panel notes that the worker has a significant pre-existing condition affecting his back arising from a 1998 work injury and was injured in an MVA in December 2004.

The panel finds that the worker suffered a back strain in the September 2004 work injury. In his accident report the worker described his symptoms as "…a sharp pain across the middle of my back into my lower back and it went down to the back of my legs." His family physician's first report dated October 13, 2004 provides a diagnosis of "back muscle strain". A November 15, 2004 progress report from this physician notes no change in diagnosis and reports subjective symptoms of "central and lower back pain."

The worker was examined by a WCB medical advisor on January 19, 2005. The panel places significant weight on this examination and the medical advisor's opinion noted in the following paragraphs:

"The claimant reported mid-back pain after a workplace incident September 14, 2004. Some time later he stated the mid-back pain subsided and low back pain became more noticeable. He has been treated with analgesics and NSAID's with some improvement. His recovery was complicated by a motor vehicle accident December 23, 2004, resulting in an increase in the mid and low back pain and also neck pain. Also complicating the issue is a previous work-related injury to his low back in 1998 while in Saskatchewan which involved the WCB of Saskatchewan with a return to work to car sales. He has reported chronic low back pain since this injury in 1998 and has used Tylenol #3, Tylenol #1 and Codeine Contin on a chronic basis since…

Today's clinical examination demonstrated a decreased range of motion of the lumbosacral spine with positive dural tension tests on the left more than the right and neurosensory deficit and decreased left ankle deep tendon reflex, consistent with an left L5 or S1 radiculopathy. The examination also demonstrated some features of discogenic pain, muscle power is preserved. The method of injury and early physical reports suggests an injury to the mid-back injury at the time of the current compensable injury, in an individual with pre-existing L1-L2 and L4-L5 disc changes. The recovery has been complicated by an MVA in December of 2004, which aggravated the low back pain.

Based on today's examination findings, the claimant is now just returning to a physiotherapy program and should continue on with this program until completion. A return to work to modified duties is recommended with restrictions including, no lifting more than 20 lbs., avoid repetitive or sustained bending at the waist (those activities that would load the lumbar spine). He should have the opportunity to change positions and stretch when required. These restrictions will remain in place until completion of the physiotherapy program. It is expected that the claimant will have some low back pain when he is back to base line and possibly some radicular pain at the completion of this program, as he has a long history of discogenic and radicular pain, preceding the compensable injury."

The panel notes that the WCB medical advisor did not note any findings related to the worker's mid back when examined in February 2005.

The panel finds that by March 10, 2005, the worker ceased to have a loss of earning capacity due to his work injury. The panel notes that the worker returned to his regular duties on March 10, 2005 but was terminated by his employer shortly after his return to work.

At the hearing, the worker described his current symptoms and attributed most of the current symptoms to the December 2004 MVA. He advised the panel that "the car accident is the worst of it all" and described it as "a very severe car accident." This is consistent with the information that the worker gave to his case manager as is noted in a memo dated January 5, 2005. The memo notes the worker's opinion that his low and mid back have returned to pre-MVA status and that his neck injury is disabling and preventing a return to work.

The panel also notes that at the time of the September 2004 work injury, the worker was prescribed medications for his pre-existing back injury which suggests that his back was already symptomatic at that time.

The panel finds that any ongoing symptoms are not related to the worker's September 2004 work injury.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of June, 2006