The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker was injured at work on December 15, 2004. An accident report was received by the Workers Compensation Board (WCB) on February 14, 2005. The worker's claim was initially denied but was ultimately accepted and benefits were paid to March 22, 2005. The worker sought benefits beyond March 22, 2005 and has appealed the WCB's decision.

An appeal panel hearing was held on July 26, 2006, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal following the hearing on July 26, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits after March 22, 2005.

Decision

That the worker is not entitled to wage loss benefits after March 22, 2005.

Decision: Unanimous

Background

In March 2005, the worker filed a claim with the WCB for lower and middle back pain that occurred from lifting items at work over a period of time. The date of accident was recorded as being December 15, 2004. The claim was initially denied by the WCB as it was determined that there was insufficient evidence to establish that the worker's back symptoms arose out of and in the course of her employment. The decision to deny the claim was overturned by Review Office on November 8, 2005. The file was then referred back to primary adjudication to determine the worker's entitlement to wage loss benefits.

Medical reports revealed that the worker attended a chiropractor for treatment on December 17, 2004. The diagnosis rendered was moderate to severe thoracic and lumbar strain/sprain with myofascial and joint related pain. The chiropractor reported that the worker was disabled from work but could return to alternate or modified duties by January 10, 2005 and was to avoid lifting and repetitive bending.

The worker sought medical treatment from a physician concerning her lower back pain on February 22, 2005. He documented that the worker's lower back pain stemmed from an injury that occurred in December 2004 and that she tried using lumbar support cushions with little relief. The diagnosis rendered was mechanical lumbar pain. The treatment plan included medication along with physiotherapy treatments.

The worker was initially assessed by a physiotherapist on February 28, 2005 for mechanical low back pain. In a memo dated March 2, 2006, it was recorded that the worker did not attend the physiotherapist again until February 1, 2006 as physiotherapy treatment had not been approved by the WCB. The worker was treated with physiotherapy on February 1, 8, 15, 21 and March 1, 2006 and had treatments scheduled until April 12, 2006.

A WCB medical advisor reviewed the file information at the request of primary adjudication. It was his opinion that the anatomical location of the worker's symptoms were more severe on December 17, 2004 than they were when examined by her physician on February 22, 2005. He indicated that the diagnosis appeared to be 'low back strain' and that the usual recovery for this type of injury would be 2 to 4 weeks. He commented that the worker's symptoms of low back pain approximately 8 weeks post injury represented a longer than expected period for recovery and that the findings on February 22, 2005 did not suggest a more sinister diagnosis to explain the worker's ongoing complaints. On January 20, 2006, a WCB adjudicator recorded that according to the medical advisor, the worker would be able to return to full duties with no restrictions on March 22, 2005 and there would be no long term effects from her injury.

In a decision dated January 20, 2006, the worker was informed of the WCB's position that she was recovered from the effects of her compensable injury and that the WCB could not relate any of her further back complaints to her December 15, 2004 injury. Based on these findings, wage loss benefits would be paid from December 16, 2004 to March 22, 2005 inclusive and final. On February 21, 2006, the worker appealed the adjudicator's decision to Review Office. It was her position that she was entitled to benefits to at least until May 10, 2005 when she finally found new employment.

On March 3, 2006, Review Office concluded that the worker's back problems after March 22, 2005 were not related to the December 15, 2004 compensable injury and that the worker was not entitled to wage loss benefits beyond March 22, 2005. Review Office noted that the worker failed to follow-up with her doctor after February 2005 for any continuing back problems. Without further medical evidence, Review Office could not corroborate or establish a connection between the worker's contention that her ongoing back problems after March 22, 2005 were related to her initial workplace injury. On March 31, 2006, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Worker's Position

The worker attended the hearing with an advocate. The advocate made a submission on behalf of the worker and posed questions to the worker. The panel also posed questions to the worker.

The worker's advocate questioned the WCB's decision that the worker was not entitled to benefits beyond March 22, 2005. He noted that the worker obtained employment on May 10, 2005 and submitted that wage loss benefits should be provided until this date. The advocate submitted that the worker did everything that she could do to return to the workforce but was not able to procure work until May 10, 2005.

The worker told the panel that she looked for employment. She stated "In this period from 22, March 22 to 10 May, I was trying to find job, any job, any kind job, any heavy lifting job, and I remember this period I had, I find myself in a very hard situation."

She described her job search. She advised that when interviewed by potential employers she did not initially disclose her injury, but that when asked she did disclose her injury and found that employers were unwilling to hire her.

Regarding her employment she advised that she found a new position on May 10, 2005. She denied working for the new employer before May 10, 2005.

The worker told the panel that she was still in pain on March 22, 2005. She advised that her back continued to be painful in May 2005 but that her new job "..is very comfortable for my physical condition…". In response to a question, the worker indicated that she could probably have worked at her new job in February 2005, if it had been available.

Regarding treatment for her injury she advised that she could not afford medical care and was not able to attend for chiropractic care or physiotherapy unless the WCB paid for the treatments.

Employer's Position

The employer was represented by its former and current owners. The representatives wished to address the issue of claim acceptance. It was explained that the issue of claim acceptance had not been appealed and was not before the panel. The representatives also spoke to the issue of entitlement to wage loss benefits after March 22, 2005.

Both representatives indicated that they had contact with the worker after December 15, 2004 and that the worker did not inform them that she was injured at work. Regarding the worker's ability to work, the current owner noted that in January 2005, the worker contacted her seeking work. She found this action to be inconsistent with the worker's position that she was not able to work until May 2005.

Analysis

The panel has reviewed the worker's file and considered the evidence and argument submitted at the hearing. The issue before the panel is whether the worker is entitled to wage loss benefits after March 22, 2005. At the hearing the worker's advocate advised that the worker started a new job on May 10, 2005 and that the worker was seeking wage loss benefits for the time between these dates. For the appeal to be successful the panel must find that the worker had a loss of earning capacity which was caused by the injury. In other words, the panel must find that the worker was not able to work between March 22 and May 10, 2005 due to her workplace injury. The panel was not able to make this finding.

The panel is not able to find that the worker could not work during the period from March 22, 2005 to May 10, 2005 due to the injury. The panel notes that the worker saw a chiropractor on December 17, 2004. The chiropractor indicated that the worker had a moderate to severe thoracic and lumbar spine strain/sprain with myofacial and joint related pain and that the worker would be fit for modified duties as of January 10, 2005. In a form completed for the worker on April 4, 2005, the chiropractor indicates that the worker's expected recovery date was January 10, 2005.

The panel also notes that the worker saw a physician on February 22, 2005. The physician diagnosed the worker's condition as "mechanical low back pain". The worker did not see the physician after this date. The worker saw a physiotherapist on February 28, 2005 who also diagnosed mechanical low back pain. The worker did not see the physiotherapist again until 2006.

The panel also notes that the file was reviewed by a WCB medical advisor who provided comments in a memo dated January 16, 2006. The medical advisor noted that "…the findings described on Dec 17, 2004 by the chiropractor are more severe than those noted by the examining physician on Feb 22, 2005." He also comments that "Diagnosis appears to be 'low back' strain. Usual recovery period would be 2-4 weeks." The medical advisor advised the case manager that the worker would be able to return to full duties with no restrictions on March 22, 2005.

The panel agrees with the analysis provided by the WCB medical advisor and finds that the medical evidence does not support a finding that the worker was not able to work after March 22, 2005 due to the workplace injury.

The panel accept the evidence that the worker contacted the current owner of the business seeking employment at her former position in January 2005 and did not disclose that she was injured. The panel also notes the worker's evidence that her job search commenced in March 2005. The panel notes the worker's evidence that she found a new job commencing May 10, 2005 and would probably have been able to do this job in February 2005 had it been available. The panel finds that the evidence regarding the worker's job search suggests that she was able to work between March 22, 2005 and May 10, 2005.

The panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity due to the injury beyond March 22, 2005 and that she is not entitled to wage loss benefits beyond March 22, 2005.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 15th day of September, 2006