The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with whether the worker was functionally able to return to her regular job duties after July 7, 2006. Central to this determination is whether the worker’s regular job duties respected her compensable restrictions.

Background

The worker’s job duties

The worker has been employed in a clerical position with the same employer for over 20 years. Her regular work week is 30 hours, 7.5 hours per day, 4 days a week. Over the course of a year, the worker rotates between three departments; the duties performed are relatively similar in nature. Each rotation is considered a term position.

The worker’s job requires her to be seated most of the day. Her production rate and error rates are monitored and form part of her evaluation and ability to be re-hired for another term position.

The medical evidence

On May 12, 2004 the worker was leaving work when she slipped, twisted and jarred her back. The WCB accepted the worker’s claim based on the diagnosis of an acute lumbosacral strain. This diagnosis was later changed to a left-sided S1 radiculopathy secondary to a disc protrusion at L4-L5 and L5-S1.

The worker remained off work and underwent physiotherapy treatment. By August 2004 her treating sports medicine specialist thought she could begin a graduated return to work with restrictions of avoiding excessive lumbar flexion, prolonged sitting or standing and lifting greater than 15 pounds.

The graduated return to work did not progress well. She continued to experience numbness of her left leg and foot with prolonged walking and sitting and found she had to get up and walk after sitting for 10-15 minutes. Her sports medicine specialist thought that this was due to the pain levels that were not responding well to medication. He advised her to not increase her hours above 4 hours per day. The worker was not however able to work more than two 4 hour shifts per week.

The worker’s treating sports medicine specialist commented on the reasons for the worker’s inability to increase her work hours:

“As you know, the claimant has not been able to move past two to four hours a shift at a frequency of two per week for the past number of months. A full return-to-work, or graduated return-to-work would more likely than not result in increased pain complaints and difficulties at work. It is my hope that in sending the [worker] for an assessment and possible treatment with [a psychologist], that we can focus on the claimant’s insight to her medical problems. Discussion about the multi-factorial nature of her medical condition including hurt vs harm concepts in addition to cognitive and behavioural strategies to help deal with her pain and to improve her function. Any other factors such as external stress contributors, her personal experiences and fears related to her previous significant medical conditions and contribution from depression, may be evaluated and treated through counselling with [the psychologist]. Hopefully, with the [worker] given some tools to help to better independently manage her pain and increase her function, this would likely be an excellent opportunity to initiate a graduated return-to-work. I would estimate that the claimant would be able to start a graduated return-to-work in approximately one month of seeing [the psychologist] though this may also depend on his input following his clinical assessment and encounters with the [worker].”

The psychologist saw the worker in April 2005. He found the worker’s responses to be open, honest, valid and forthcoming, with no efforts noted at either symptom magnification or minimization. He thought that she had suffered an adjustment disorder with depressed mood as well as a pain disorder. He recommended several sessions to focus on concrete strategies to assist her in managing pain and relaxing her muscles. By June 21, 2005 however, the worker reported that her pain had remained relatively unchanged.

The treating sports medicine specialist did note that the worker had a better affect after the treatments with the psychologist. He therefore recommended a graduated return to work starting with 3 hours every second day, then 3 hours every day, then increasing the shift length by 2 hours every week until she reached her regular hours.

An ergonomic assessment of her work station by a WCB rehabilitation specialist occurred on August 16, 2005. Following this assessment, it was determined that the worker should take a walking stretch break after 20 minutes of work and to get up and walk when she had to retrieve more work. It was felt that her workstation set up was appropriate though the rehabilitation specialist did have some concern about keeping the worker at a 90 degree angle given her compensable condition. He suggested she continue her exercise program and find a quiet place in the workplace to do it when her work hours increased.

On August 22, 2005, the worker was informed of her new return to work schedule which would result in her getting back to her full regular duties by September 12, 2005 with the following restrictions: to avoid lumbar flexion, prolonged sitting/standing and lifting greater than 15 lbs.

Despite these accommodations, the worker continued to complain of back and leg pain at work with sitting. Her sports medicine specialist thought that the worker’s pain complaints were due to deconditioning as a result of her resolved radiculopathy.

The worker was then examined by a WCB medical advisor on October 13, 2005. The WCB medical advisor thought that the examination findings were equivocal for ongoing nerve impingement. However, a CT scan was done that essentially showed no change in her disc protrusions. The WCB medical advisor noted that most of the worker’s back pain came from sitting which was not uncommon for disc problems. She felt the worker should continue working with restrictions of no lifting greater than 20 lbs., no repeated or sustained bending or twisting and the ability to change positions as needed. She also recommended that the worker decrease her hours to half-time hours, 3 days a week. If tolerated, the hours could be gradually increased at a slow pace. Notwithstanding the worker’s presentation, the WCB medical advisor thought that the prognosis for the worker returning to full-time hours was good considering the CT findings and the nature of her job.

The worker was however never able to work more than three 4 hour shifts per week. The sports medicine specialist thought that the worker had achieved maximum medical improvement. He recommended that a Functional Capacity Evaluation (“FCE”) be carried out to determine her current capacities. This was done on February 22, 2006. The FCE results were identified as being a full voluntary effort and an ability to work at a “sedentary” rate of work. The FCE results were reviewed by the WCB medical advisor on June 28, 2006. She commented as follows:

“It’s been [more than] 2 [years] since injury. Although there are no objective findings (clinical or CT) to suggest enhancement, subjectively she continues to have pain & decreased function. It is unlikely there will be significant improvement, so we should consider the [degenerative disc disease] to be symptomatically enhanced.

Previously set out restrictions should be considered permanent.

There should be no restriction in hours provided the work is within the physical restrictions.

Needs to remain active with light aerobic activity, back exercises, etc…”

In a letter dated June 28, 2006, the worker was advised by her case manager that she would be paid partial wage loss benefits to July 7, 2006 as it was determined that her pre-accident work duties fell within her permanent restrictions and that she was capable of working her pre-accident level of work hours.

In a medical certificate dated July 19, 2006, the treating physician noted that the worker was restricted from sitting for any longer than 20 minutes at a time and that she needed to stand, stretch and walk when required due to her medical condition.

On August 4, 2006, the employer advised the WCB that the worker was saying that she could not work for an entire 20 minutes of each hour as she needed to be walking around and not working. This was creating problems in the workplace.

The case was reviewed by the WCB medical advisor on September 21, 2006. She found no new medical information to suggest the need to change the previously outlined restrictions. She indicated that from her review of the worker’s job duties with the case manager and rehabilitation specialist, the worker’s regular duties fell within her permanent restrictions. It was also indicated that the worker would not be required to have a 20 minute break every hour. She thought that the worker would only require a 3-4 minute break every 20 minutes; the break could be part of her normal duties, such as for example, when she needed to leave her desk to get a file.

In a letter to the family physician dated November 12, 2006, the treating physical medicine and rehabilitation specialist commented on the worker’s condition:

“…She continues to be quite limited due to her pain secondary [to] the lumbar disc herniation. Although some individuals do have a self-limited course and improve after lumbar disc herniation, there are individuals who go on to have chronic symptoms…Overall her function continues to be significantly limited due to these symptoms. Prognosis is somewhat guarded due to the chronicity of the back and leg symptoms…”

On November 25, 2006, the family physician indicated that the worker continued to be disabled due to discogenic back pain. Her prognosis remained guarded due to the chronic nature of the worker’s symptoms over the past 2.5 years despite aggressive management and good patient compliance. He stated that restrictions remained as no lifting greater than 10-20 pounds, no repetitive bending or twisting, no sitting longer than 20 minutes at a time and the ability to stretch, stand and walk when required. He stated the worker aggravated her condition with working 3 hours 3 times per week despite numerous attempts to increase the number of hours employed.

In response to questions posed by the appeal panel on February 2, 2007, the physical medicine and rehabilitation stated on February 28, 2007 that the worker’s restriction to avoid sitting more than 20 minutes at a time seemed reasonable. In terms of the length of her working day, he did not have any specific objective findings to apply to that issue. He said it was common for individuals with disc herniation to have sitting intolerance and therefore it might be more difficult for some individuals to return to sedentary tasks as opposed to tasks that involve some activity. He said the worker’s ability/success at returning to work 7.5 hours per day for four days per week would depend on how that affected her symptoms.

Worker’s Position

The worker says that she should be entitled to wage loss benefits after July 7, 2006 as she has still not recovered from the effects of her compensable injury and still requires accommodation in her work duties. She says that she is unable to work her full-time regular duties due to her continued symptoms and the nature of her job that does not allow her to take breaks as required. In support of this allegation, the worker provided evidence about the production and accuracy demands placed on her by her employer, as well as the employer’s unwillingness to accommodate her compensable restrictions.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that as of July 7, 2006 the worker had still not recovered from the effects of her compensable injury and that she was unable to work her regular full-time duties. We are able to make those findings.

The evidence before us is that the worker suffered a compensable disc injury which continues to this day to be symptomatic and functionally limits her sitting abilities. The medical evidence before us suggests that this limited sitting ability is consistent with her type of injury. It has also been accepted by all the medical practitioners that the worker should avoid prolonged sitting, and moving as required (in principle every 20 minutes).

Though the worker’s sitting restriction is in principle compatible with a sedentary job as most sedentary positions allow a worker to get up and move around, this worker’s particular job (and employer) does not accommodate frequent rest breaks; this is due to the high production and accuracy demands. The worker’s evidence at the hearing was that the longer she stayed sitting and the more the day went by, the more she became symptomatic and was unable to relieve her back symptoms. She was therefore unable to increase her work week beyond 9 hours per week.

Given this evidence, we find that as of July 7, 2006 the worker’s job did not respect her physical restrictions and that as a result the worker required a restriction in hours. She is therefore entitled to wage loss benefits beyond that date.

Accordingly, the worker’s appeal is allowed.