Decision #176/06 - Type: Workers Compensation

Preamble

This appeal concerns the worker’s ability to return to work on a full time basis after a back injury. The worker injured his back in 1999. He maintains that he cannot return to full time work. The Workers Compensation Board (WCB) has determined that the worker can work full time. The worker appealed this determination to the Review Office which upheld the WCB’s decision. The worker then appealed to the Appeal Commission.

An appeal panel hearing was held on September 20, 2006, at the request of legal counsel, acting on behalf of the worker. The panel discussed this appeal following the hearing on September 20, 2006.

Issue

Whether or not the worker is capable of working full time hours insofar as the compensable injury is concerned.

Decision

That the worker is not capable of working full time hours insofar as the compensable injury is concerned.

Decision: Unanimous

Background

On February 10, 1999, the worker reported that he injured his back when the platform he was standing on fell to the floor and he landed onto his battery pack. The diagnosis rendered following the accident was a wedge fracture of L2. In March 1999, a CT scan revealed a compression fracture of the L1 vertebrae. The claim was accepted by the WCB and the worker was treated with physiotherapy, a work hardening program and trigger point needling.

In a May 25, 2000 report, a physical medicine and rehabilitation specialist (physiatrist) indicated that the worker had biomechanical abnormality arising from his fractures with chronic ligamentous strain and secondary myofascial pain.

On July 13, 2000, it was determined following a Functional Capacity Evaluation (FCE) that the worker should have restrictions for a one year period. These included no lifting over 40 lbs. and no excessive repetitive movement of the lumbosacral spine. As the accident employer was unable to accommodate the worker with a return to work program, vocational planning was initiated.

In April 2001, a general practitioner reported that the worker was taking long-acting Codeine preparations to control his pain and he was referred to the Pain Clinic for treatment.

On August 31, 2001, an MRI scan of the thoracic and lumbar spines was carried out. It revealed compression deformities of the L1 and L2 vertebral bodies with mild loss of height in the superior end-plates. There was a small area of increased signal intensity within a disc bulge at the L4-5 level consistent with an annular tear.

On September 4, 2001, an Individualized Written Rehabilitation Plan was prepared for the worker. The occupational goal was NOC 1453 – Customer Service, Information and Related Clerks (Courtesy Desk Clerk, Hotel). The duration of the plan was September 4, 2001 to August 9, 2002. The worker signed the plan on September 6, 2001 with the following note: “I would like WCB to address my ability to work on a full time basis. Also I would like to consider employment in the call centre industry along with hotel clerk.”

On January 29, 2002, a physician specializing in acupuncture noted that the worker complained of maximum pain at about the T7 paraspinal level. There was also some tenderness about the lumbar spinous processes and lumbar paraspinal musculature. The worse area of pain was the thoracic spine with radiation into the chest.

In a memo dated March 11, 2002, a vocational rehabilitation consultant (VRC) indicated that the worker had been involved in a work experience program at a desk clerk job but was unable to increase his hours to full time because pain precluded him from doing so.

On March 25, 2002, the WCB arranged for the worker to see a psychologist for pain management techniques.

On July 10, 2002, the duration of the worker’s vocational rehabilitation plan was extended to February 22, 2003 to allow him to complete his medical treatments and to accommodate his call centre training. The worker signed the amended plan and stated “I agree to this plan as I did the other, however I would still like WCB to address my ongoing chronic pain as nothing has changed.”

In a report dated August 12, 2002, an acupuncture specialist indicated that the worker was seen for the eighth time for acupuncture on July 22, 2002 and that his pain complaints were somewhat reduced but still persistent. Although the worker’s condition was improved overall he did not believe he had reached his maximum medical improvement at the present time. He said the worker was not capable of physical work nor prolonged sitting or standing. He did not think the worker was capable of putting in full days in the classroom.

On September 9, 2002, the worker told his VRC that working as a front desk clerk required him to be on his feet for long periods of time and that this exacerbated his back pain.

On October 10, 2002, the acupuncture specialist indicated that further needling treatment would not benefit the worker at the present time. He was hopeful that medications would have some effect on the worker’s pain complaints. He further noted that the worker should not sit or stand for longer than a half hour at a time.

In a report dated October 14, 2002, the treating psychologist indicated that the worker had been discharged from treatment. The worker appeared to be functioning well in spite of his pain and it was felt that his pain would not be a significant barrier to his participating in the vocational rehabilitation plan.

In a report dated December 9, 2002, a psychiatrist diagnosed the worker with mild to moderate depression and pain disorder.

On January 2, 2003, the worker underwent a FCE to determine his capabilities.

A report form the acupuncture specialist dated February 6, 2003 indicated that the worker could sit for only an hour or less depending on the day.

On February 11, 2003, a WCB medical advisor outlined permanent restrictions for the worker which consisted of no heavy lifting over 20 lbs. and no repetitive twisting and bending of the low back. The medical advisor also believed that the worker should be able to work within the stated restrictions on a full time basis.

On March 14, 2003, the treating psychiatrist noted that the worker’s mood and pain continued to be disruptive and would not allow the worker to return to full time employment.

On May 20, 2003, the worker was assessed by a WCB psychiatric consultant who opined that there was a causal relationship between the worker’s current psychiatric symptoms and the compensable injury. The consultant considered the worker’s psychiatric condition to be in partial remission and that a return to work at full time hours was not precluded. However it was further indicated that an increase in the worker’s pain would quite likely lead to an increase in the depressive symptoms.

In June 2003, the worker advised his VRC and an employment specialist that he was unable to work on a full time basis because of his medical appointments, exercise routine and being in constant pain.

In July 2003, the worker was advised that the WCB was reinstating his rehabilitation benefits with the understanding that he participate in a job search targeting the Winnipeg labour market.

In August 2003, the worker accepted a job at a customer call centre. In September 2003, the worker quit the position claiming that the four hour drive to and from Winnipeg was hurting his back. Despite being able to sit and stand at the customer call centre, the worker indicated he was in constant pain due to the drive. He also expressed concerns that he could only work part time hours.

On September 17, 2003, the treating psychiatrist outlined his opinion that the demand of a 12 hour work day which included traveling time intensified the worker’s pain and depressive syndrome.

In a September 22, 2003 report, the attending physician noted that the worker quit his job at the call centre because it was increasing his back pain, this particularly due to the travel involved.

On October 3, 2003, a WCB medical advisor reviewed the file information and stated that he saw no reason why the worker could not return to full time work at the job he was trained.

In a letter from his case manager dated October 3, 2003, the worker was informed that he was considered capable of working at full time employment within his functional capabilities. On November 3, 2003, the worker appealed this decision to Review Office.

Prior to considering the worker’s appeal, Review Office asked a WCB orthopaedic consultant to comment on whether the worker’s compensable injury would cause him to have physical limitations. In response, the orthopaedic specialist indicated that the worker’s compression fracture sustained in his compensable accident would have healed in a period of four months and that it would not have necessitated the imposition of any particular restrictions after a period of six months.

On February 13, 2004, Review Office found that the worker was capable of working full time hours insofar as his compensable injury was concerned. Review Office considered the opinions expressed by the WCB medical advisor and the WCB orthopaedic consultant to be valid. Review Office did not relate the worker’s subjective complaints of pain and disability nor any of his present psychological difficulties to the compensable injury. It saw no reason to limit the work hours or impose any work related restrictions on the worker.

The worker disagreed with Review Office’s decision and requested an oral hearing be convened. The worker pointed out that significant weight was not given to the opinion of his physicians that he suffered a permanent partial disability arising from his work related accident.

Reasons

Worker’s Position

The worker attended the hearing with his wife and legal counsel. The worker answered questions posed by legal counsel and the panel. The worker’s wife assisted the worker in answering certain questions. Legal counsel called three witnesses in support of the worker’s position.

The first witness called to give evidence was the worker’s treating general practitioner. In answer to questions, he advised the panel that:

  • the worker has been his patient for about 20 years
  • he currently sees the worker three to four times per year
  • the worker sustained a compression fracture of the upper lumbar vertebrae, at L1-L2, a fracture where the bones were broken then compressed
  • the worker has suffered the long term consequences of the fracture over the years
  • the worker continues to have pain in the area of the fracture, as well as nerve involvement, nerve pain in that area, that has been resistant to all medical intervention
  • the worker did not have psychiatric difficulties before the accident
  • the worker is capable of light duty work with minimal lifting, restricted number of hours, not able to stand on hard surfaces
  • no medical interventions are planned for the worker
  • the worker does not have the stamina to work full time. At best the worker can work one to three or four hours, and must then stop and rest.

The second witness called to give evidence was a physical medicine and rehabilitation specialist who treated the worker. In answer to questions, he advised the panel that:

  • he treated the worker in 2000
  • the worker presented with back pain in the upper lumbar regions of his spine
  • treatments included acupuncture, spinal injections, nerve blocks, myofascial trigger point injections, and medications
  • the treatment he provided to the worker did not make a difference for him
  • the worker’s problem is caused by abnormal biomechanics at the level where the worker had his spinal fractures. This results in pain and spasm. It can also result in bone pain and aggravation of small joints in the spine.
  • the worker has muscular pain
  • the worker has reduced spinal motion, as a direct observable result of the injury, and also reduced capacity to handle bending, carrying, standing for prolonged periods of time, prolonged postures
  • the worker’s condition may affect his ability to work full time
  • the worker’s problems are likely lifelong
  • WCB physicians are correct to say the fractures have healed but the fracture may result in abnormality of the shape and functions of that bone and the bones that interact with the fractured area, so there is ultra biomechanics which are dependant upon the bone structure and the fracture
  • the main factor affecting the worker’s ability to increase his work level in 2000 was pain

The worker’s treating psychiatrist also provided evidence at the hearing. In answer to questions he advised the panel that:

  • he has treated the worker since November 2002
  • the worker did not have a pre-morbid psychiatric diagnosis
  • the onset of symptoms can be directly linked to the injury
  • he initially diagnosed the worker’s condition as a pain syndrome and depression
  • he observed the worker attempt full time work and noted the worker sustained increased pain, impaired sleep and could not function
  • the worker can work part time, but not full time given his co-morbidity of pain and depression
  • the worker may be able to graduate to full time hours
  • he considers that the worker’s medications should not be a barrier to full time work but that pain is a barrier
  • the worker’s upper limit is six hours of work, but this is not continuous
  • he is uncertain if the worker could work five days a week and suggested that this would have to be tested

The worker’s legal counsel also provided a copy of a report dated August 17, 2004 from the acupuncture specialist who treated the worker. The report notes:

  • the worker suffers from sleep disturbance with some depressive features and a soft tissue pain syndrome involving the paraspinal musculature and abdominal musculature, and past history of lumbar compression fractures
  • the worker’s problems are due to his work related injury
  • the worker reports that his pain interferes with his ability to sit, stand, and bend, to do any work which might involve any of these actions
  • the worker seems to have developed depression as a result of his pain, and this interferes with his movement and ability to concentrate

The worker described his job at the time of the injury and his workplace accident. He described the medical treatments that he has received.

The worker advised that he found a full time position at a call centre in Winnipeg, but was not able to continue to work at this position. With driving to and from Winnipeg, his work days were approximately 12 hours long. He advised that he would lay down in his car when he had an opportunity. He would also leave work early on occasion. He was unable to concentrate enough to do the job and started having anxiety attacks.

The worker advised that recently he completed a healthcare aide course and has found part time employment with a local health authority. He works in both institutions and clients’ homes. His duties are mainly respite. There is no physical work. He works approximately 15 hours per week. He has not limited his hours but feels the maximum number of hours he can work is 20 hours per week. He works split shifts which allow him to rest between duties.

The worker’s legal counsel reviewed the medical evidence presented at the hearing and submitted that it establishes the worker cannot work full time now and that its not likely he will be working full time in the future. He noted the worker’s willingness to see what limits he can reach.

In terms of benefits, legal counsel advised that the worker is seeking reinstatement of benefits back to the fall of 2003 when they were terminated.

Analysis

The issue in this claim is whether the worker is capable of working full time hours in relation to his compensable injury. For the appeal to be successful the panel must find that the worker is not able to work full time because of his workplace injury. The panel did make this finding.

In making this decision, the panel has considered the opinions of the WCB medical consultants noted in the background to this decision, but prefer the opinions of the physicians who treated the worker and testified at the hearing. The general practitioner and psychiatrist, who continue to treat the worker, have provided the opinion that the worker is not able to work full time. They have linked the worker’s condition of pain and depression to the workplace injury and to his inability to work full time hours. The physical medicine and rehabilitation specialist who treated the worker in 2000 also linked the worker’s symptoms to the workplace injury and acknowledged that the worker’s condition may affect his ability to work full time. The panel accepts this evidence that the worker’s psychological condition is a sequela to his workplace injury. The panel also notes that the worker has attempted to work full time but that this resulted in an increase in his symptoms such that he could not continue to work full time.

The panel finds that at present the worker is not able to work full time hours insofar as his compensable injury is concerned. The appeal is allowed.

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 14th day of November, 2006

Back