The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position

The worker was represented by a worker advisor who made a submission on his behalf. An interpreter assisted the worker. The worker answered questions posed by the worker advisor and the panel.

The worker advisor identified three areas that he wished to address in support of the worker’s appeal. Firstly, he addressed the nature of the worker’s compensable restrictions. He noted that when the worker returned to work in November 2004 the restrictions were considered to be no lifting greater than ten pounds, no pushing or pulling and no repetitive low back movements. In January the treating chiropractor outlined similar restrictions and added that the worker should have the opportunity to sit and stand when needed. In October 2005, a WCB medical advisor provided the opinion that the restrictions were no lifting, no bending, no crouching and no rotation of the spine.

The worker advisor submitted that when the worker returned to work, he had compensable restrictions which remained in effect even after he was laid off. He submitted that the restrictions remained relatively consistent.

The second area the worker advisor addressed was the worker’s return to work. The worker advisor submitted that the duties performed by the worker when he returned to work were outside his restrictions. He referred to information on the claim file and the worker’s evidence to support this position.

The third area addressed by the worker advisor was the worker’s medical symptoms during the return to work and following the worker’s lay off in April 2005. He reviewed medical information on the claim file, including:

• a November 23, 2004 report from the treating chiropractor which noted that the work was aggravating the worker’s low back.
• a January 25, 2005 report from the treating chiropractor which refers to the worker’s pain being constant.
• a May 2005 report from an orthopedic specialist which noted worsening pain with lifting, twisting or remaining in the same place for some time.
• an October 2005 memo from a WCB medical advisor which identified medical restrictions, long after the worker was laid off.
• a February 2006 memo from the orthopedic consultant to Review Office which comments that the longevity of the residual symptoms suggests a disc injury.

The worker advisor submitted that the worker still has the disc problem and still has compensable restrictions related to the disc problem. He submitted that because the worker has restrictions and because he was laid off, he was at a competitive disadvantage in the general labour market and should be entitled to wage loss benefits beyond April 8, 2005 in accordance with WCB Policy 43.20.20. He acknowledged that this situation is different than the type considered in the policy. He stated that this case concerns a worker who tried doing some work that he shouldn’t have been doing, and it eventually resulted in him not being able to secure any other work, even after his lay off. He asked the panel to find that the worker is competitively disadvantaged due to an ongoing compensable medical condition and is therefore entitled to wage loss benefits.

The worker provided information on his return to work. The worker told the panel that the employer did not have light or modified duties although on occasion he worked in an area with lighter lifting duties. Generally he was required to perform his regular duties. He performed these duties up to the date that he was laid off. He also advised that after his return to work he did not miss work due to his symptoms.

The worker told the panel that he was laid off due to his medical condition. He stated that his supervisor confirmed that it was because he was sick. He advised that he understands the employer has hired other workers since he was laid off.

The worker provided information on recent medical treatments including injections he received to his back.

In answer to a question regarding symptoms affecting the worker’s thoracic spine, the worker advisor advised that his submission is based on the worker’s low back injury and specifically the disc injury at the L4-5 level and the related restrictions. He stated that the low back injury is still present and is “at least part of the reason why he is unable to return and be competitively employed.” He referred to the February 2006 memo from the Review Office’s orthopedic consultant which noted the L4-5 disc injury. He advised that he has no information relating the thoracic spine complaints to the workplace injury.

As noted in the background, the panel obtained additional information on the medical consultations and treatments received by the worker in 2005 and 2006. The worker advisor was provided with copies of this information and provided a written response.

The worker advisor submitted that it remains the worker’s position that the worker was never medically cleared for regular duties due to his low back injury and because of his limited skill set and language barrier, he was competitively disadvantaged in finding alternate employment. He asked the panel to consider the worker’s claim in the context of WCB policy 43.20.20, under Section 5.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond April 8, 2005. For the appeal to succeed the panel must find that the worker’s loss of earning capacity as of that date was due to his workplace injury. The panel was not able to make this finding.

At the outset the panel notes that the worker’s claim was originally accepted by the WCB for a low back injury (the lumbar spine) and that other medical issues in play, such as the neck or thoracic spine, are not compensable conditions within this claim. As to the progress of the low back injury, the panel notes that the worker’s treating chiropractor reported in January 2005 that there is a significant reduction in low back pain and indicated that the worker could work part time at his regular duties.

The panel also notes the January 28, 2005 report from the treating physiotherapist identifies complaints of neck, mid and low back pain, with the neck and upper back pain being the worst.

File information indicates the worker returned to work on November 22, 2004. The worker had medical restrictions at that time which limited him to light duties employment. At the hearing, the worker advised there were no light duties and that he primarily worked at his regular duties. He advised that he worked at his regular duties up until the date he was laid off. He also advised that he did not miss time from work after his return to work due to his workplace injury. This evidence suggests that the worker was capable of working at his regular duties up to the time of the lay off.

The worker advisor related the loss of earning capacity to the worker’s L4-5 disc injury. The panel notes the opinion of the Review Office orthopedic consultant that there is no evidence of significant neurological compromise. The panel concludes that the lack of neurological signs does not support a finding that the low back injury is the cause of the loss of earning capacity. These comments are consistent with the improvements noted in medical reports in January 2005, as noted above.

Subsequent to the hearing the panel sought information from the worker’s treating physician regarding his medical condition. The information suggests that the worker’s current difficulties are due to thoracic spine complaints. Indeed the injections which the worker described at the hearing were for his thoracic spine complaints. The panel notes that the worker advisor indicated at the hearing that there is no evidence relating the thoracic spine complaints to the workplace injury. The panel concurs, and notes that the recent medical reports do not support a finding that the worker’s compensable low back condition is the cause of his loss of earning capacity.

The worker advisor asked that the panel consider this claim in the context of WCB Policy 43.20.20. The panel finds that the policy is not applicable to this claim. The policy applies to situations where a worker is performing modified or alternate duties at the time of a change in employment conditions such as a lay-off. In this case the worker was performing his regular duties at the time of the lay-off. Medical reports near the time of the lay-off indicated a significant improvement in the worker’s low back and the lack of neurological signs suggests that the low back injury is not clinically significant.