Decision #59/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker was able to perform the duties provided by her employer. The worker injured her back while working as a cashier. She returned to work but had difficulties performing her duties and missed work as a result. The Workers Compensation Board (WCB) found that the worker had sufficiently recovered from the workplace injury and could return to her regular duties. The WCB found the worker was not entitled to wage loss benefits beyond November 26, 2005. The WCB’s Review Office agreed with this decision. The worker appealed to the Appeal Commission and a hearing was held on March 15, 2007. The panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to wage loss benefits beyond November 26, 2005.Decision
That the worker is entitled to wage loss benefits beyond November 26, 2005.Decision: Unanimous
Background
On June 7, 2004, the worker felt a sharp pain in her low back when she reached quickly to catch an item that had dropped. Following medical attention, the worker was diagnosed with a back strain and was referred to a physiotherapist for treatment. An x-ray of the lumbar spine dated June 29, 2004 revealed small osteophytes within several vertebral bodies. On August 27, 2004, a second physician diagnosed the worker with degenerative disc disease of the lumbar spine.
Based on the advice of her treating physician, the worker returned to modified duties which entailed four hour shifts with no lifting. As the modified duties seemed to aggravate the worker’s back condition, she was called in to the WCB offices for an assessment.
Following an examination that took place on September 30, 2004, a WCB medical advisor expressed the opinion that the worker sustained a low back strain on June 7, 2004 and that her ongoing symptoms were related to myofascial irritability in the left gluteal and piriformis musculature. There was no evidence of nerve root irritation. It was suggested that the worker gradually increase her hours of work while she attended physiotherapy treatment focusing on myofascial irritability.
The worker returned to physiotherapy treatment but continued to experience flare-ups with back pain. In February 2005, she was referred to a physical medicine and rehabilitation specialist who diagnosed the worker with a muscle strain injury to the left gluteus muscle. Treatment suggestions included dry needling and additional physiotherapy treatment.
Following an examination on March 21, 2005, the WCB medical advisor reported that the worker was still experiencing myofascial irritability involving the left gluteal and piriformis musculature despite physiotherapy treatment. He felt the worker should proceed with dry needling treatments as suggested by the physical medicine and rehabilitation specialist.
On September 30, 2005, the treating physician reported that the worker had not increased her shift hours and she continued to have left buttock pain especially with prolonged standing. He said the worker was not responding to treatment by the physical medicine and rehabilitation specialist.
A Functional Capacity Evaluation (FCE) was performed on October 4, 2005. The worker’s participation during the test was a full voluntary effort passing 3 of 5 validity checks. She demonstrated the ability to work at sedentary to light rated activities and needed to change postures frequently between sitting, standing and walking every 30 minutes.
On November 3, 2005, the worker was again examined by a WCB medical advisor who stated that his examination failed to reveal any evidence of nerve root involvement. The only finding was tenderness in the left buttock area and range of motion in the lumbar spine was normal. He said the worker’s lack of response to dry needling treatment brought that diagnosis into question. It was concluded that the diagnosis was non-specific left gluteal pain with no radiculopathic features and that the imposition of further workplace restrictions was not required.
On November 22, 2005, the above medical advisor reviewed a surveillance video of the worker’s activities on September 21 and 22, 2005. He stated, in part, that the video surveillance supported the recommendations made in his examination notes of November 3, 2005.
In a letter dated November 21, 2005, the worker was advised that based on a review of available documentation, she had sufficiently recovered from the effects of her workplace injury and was capable of returning to her regular part time cashier duties. In accordance with subsection 39(2) of The Workers Compensation Act (the Act), wage loss benefits would end on November 26, 2005.
A letter was received from the treating physician dated March 2, 2006. It stated that the worker tried a full 20 hour week last week and had an acute exacerbation of exactly the same symptoms of her initial injury. The physician stated that this was a muscular injury and was not a nerve root injury and that it was clearly work related.
In March 2006, the worker was advised by her case manager that after review of her file and based on a healthcare opinion, no change would be made to the decision of November 21, 2005. On April 25, 2006, the worker’s union representative appealed the decision to Review Office.
On May 5, 2006, Review Office confirmed that the worker was not entitled to wage loss benefits beyond November 26, 2005. Review Office noted that the worker underwent numerous and varied forms of treatment and that none of them had resulted in any substantive change in her subjective complaints or the resumption of her regular 16 hour work week. Review Office’s opinion was that the worker’s ongoing complaints could no longer be reasonably associated with the muscular injury sustained in June 2004 and that she had been adequately compensated for the effects of her injury. On November 29, 2006, the worker’s union representative appealed the decision and a hearing was arranged.
Prior to the hearing, additional medical information was submitted. In a report dated March 24, 2006, the treating physician noted that the diagnosis related to the June 7, 2004 injury was a left gluteal and piriformis muscular injury with recurrent exacerbations secondary to repetitive twisting and prolonged standing. He stated the worker’s symptoms have not changed since her initial injury. He noted that the worker’s job activities as a cashier directly involve the left gluteal musculature.
On September 7, 2006, an occupational health physician stated that in his view, the worker continued to have residual impairments dating back to her June 2004 work injury restricting her from prolonged standing and twisting motions intrinsic to the work of a cashier.
A chiropractor, in his report of November 27, 2006, stated that the worker was assessed on October 5, 2006. In his opinion, the worker was experiencing pain due to chronic adhesions in the left sacro-tuberous ligament and the left quadratus femoris muscle which lies deep to the piriformis muscle. He stated that shortening or lack of resiliency of these structures can lead to the symptom pattern that the worker was experiencing.
On August 7, 2006, the physical medicine and rehabilitation specialist stated that he was not sure of the current diagnosis of the worker’s condition but stated that cashier duties require a relatively fixed position when lifting heavier items from a shopping cart which duplicated the mechanism of the worker’s original strain. He felt that preventive restrictions were in order.
Reasons
Workers Position
The worker was represented by a union representative who made a submission on her behalf. The worker answered questions posed by her representative and the panel.
She described the accident which occurred while she was working as a cashier. She explained that since the accident, working at cashier duties has aggravated her injury and increased her symptoms. She stated that she needed increasingly more medication to get through a shift as a cashier.
With respect to medical treatment, the worker advised that she has not seen the physical medicine and rehabilitation specialist recently. She advised she is still receiving treatment from her chiropractor but has reduced the frequency of treatment to once per month. She said the chiropractor provided active release therapy which really helped. She advised that the chiropractor treated the same area of the back as the physical medicine and rehabilitation specialist. She also advised that she continues to see the treating physician approximately once per month. This physician prescribes her medication.
The worker advised that after November 26, 2005, she made various attempts to return to work. She tried to work in customer service but would end up performing cashier duties as there was a need for cashier services. This caused an exacerbation of her symptoms. She advised that it was not until she was provided employment in the deli area that she was able to successfully return to work. This occurred approximately in March 2006. Her return to work progressed to 15 hours per week and recently to 16 hours per week.
The worker’s representative submitted that the worker demonstrated a willingness to follow WCB directives and returned to the cashier’s job. He also submitted that she demonstrated a willingness to cooperate in receiving treatments. He said the only reason that the return to work plan was not successful was because it was a bad plan that returned her to the very duties that caused the injury. He submitted that it was not until the worker and employer arranged for the worker to work in the deli area that she was able to sustain a return to work. He noted that this position respected the restrictions recommended by her physicians.
The worker’s representative noted that the physical medicine and rehabilitation specialist described the cashier’s job as having an ergonomically poor workstation. He referred to this physician’s opinion that the worker would likely re-injure the same muscles and should be placed in a different position. The representative also noted the report of an occupational health physician who recommended that the worker continue to work in the deli area and not return to cashier work.
Employer’s Position
The employer was represented by an advocate and its rehabilitation claims specialist. The employer representative answered questions posed by the panel and assisted with the provision of information to the panel.
The advocate sought clarification that the only issue before the panel was entitlement to wage loss benefits beyond November 26, 2005. She indicated that medical aid coverage had not been adjudicated and was not before the panel. The parties agreed that the issue to be addressed was entitlement to wage loss benefits.
Regarding the issue, the advocate advised that the employer is not saying the worker is fit to return to a job as a cashier given the information provided by the worker’s attending practitioner. The advocate submitted that the worker is capable of returning to work within the capabilities identified by her attending practitioner. She stated that the worker “…shouldn’t be lifting and bending and reaching and doing those things that we know is required of a cashier…”
The advocate submitted that the medical information on file from the practitioners who have examined the worker demonstrates that she was capable of returning to suitable work within the identified restrictions, that she had no loss of earning capacity, and in accordance with subsection 39(2) is not entitled to further wage loss benefits
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond November 26, 2005. For the appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after this date as a result of the workplace injury. In other words, the panel must find that the worker was unable to work in the job duties assigned to her due to the workplace injury. The panel was able to make this finding.
The panel finds, on a balance of probabilities, that the worker has not recovered from her workplace injury and that the position provided to the worker for her return to work in November 2005 was outside her restrictions. The panel accepts the worker’s evidence that the position, although designated customer service, included significant cashier work which was outside her restrictions. The panel notes that both the worker and employer agree that she was not fit to perform cashier work. The panel finds that the position in the deli area which was later provided in 2006 is within the worker’s restrictions.
The panel notes the worker’s symptoms have been consistent since the injury and that treatments have involved the same anatomical area. The panel relies upon the opinion of the treating physical medicine and rehabilitation specialist in a report dated August 7, 2006 that the worker should avoid the cashing position. The panel also relies upon the opinion of the occupational health physician that the worker continues to have residual impairments restricting her from prolonged standing and twisting motions intrinsic to the work of cashiers. The panel also notes this opinion was shared by the chiropractor who commented that “Due to her injuries she should not return to a position which demands repetitive bending of (sic) lifting.”
The worker’s appeal is allowed and she is entitled to wage loss benefits less any periods she worked beyond November 26, 2005.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of May, 2007