Decision #34/08 - Type: Workers Compensation
Preamble
A hearing was held on November 6, 2007 at the request of an advocate, acting on behalf of the worker.Issue
Whether or not the worker is entitled to further treatment and wage loss benefits.Decision
That the worker is not entitled to further treatment and wage loss benefits.Decision: Unanimous
Background
While employed as a laundry aide on February 27, 2006, a load of damp sheets fell on top of the worker and she fell to the ground. The worker reported injuries to her head, neck, back and right leg. Subsequent to the accident, the worker sought treatment on a number of occasions and was diagnosed with the following conditions: a muscular neck strain, a strain to the cervical thoracic and lumbosacral areas, a left knee sprain, head contusion and a lumbo-pelvic, thoracic and cervical sprain/strain. On March 20, 2006, the worker returned to light duties with restrictions to avoid lifting for one week. The WCB accepted the claim for compensation on the basis of a neck injury and wage loss benefits were paid to the worker from February 28, 2006 to March 17, 2006 inclusive.
On March 29, 2006, a WCB adjudicator documented that the worker fell on ice on March 22, 2006 while on her way to church. On March 23, 2006, the worker had to leave work early because of the pain. On April 6, 2006, the worker contended that her ongoing back problems were related to her compensable injury.
In a report dated April 7, 2006, the treating chiropractor noted that the worker’s condition was improving when seen on March 20, 2006, although she was still experiencing the effects of the sprains/strains from her accident. When seen after her fall on March 22, 2006, the worker complained of low back pain, a burning and tingling feeling in her mid back and neck pain. She did not report any new symptoms attributed to her fall but that the fall aggravated her current symptoms. The chiropractor reported no change in diagnosis and said the worker should remain on light duty work instead of returning to her regular work duties. She felt the March 22, 2006 fall delayed the worker’s recovery by one to two weeks.
On April 13, 2006, it was determined by the WCB adjudicator that the worker’s present disability was the result of an accident which did not arise out of and in the course of her employment and therefore the WCB was not accepting responsibility for any time loss beyond March 17, 2006.
A doctor’s medical note dated August 25, 2006 indicated that the worker should do light duties for four more weeks.
On August 28, 2006, the treating chiropractor advised the WCB that the worker required physiotherapy/strengthening program. She stated that the worker’s pain had reduced substantially while under chiropractic care but once chiropractic treatments stopped, it returned. She said the worker complained of low back pain, difficulty walking, numbness in mid back and neck and mid back pain that was increasing in intensity.
On October 4, 2006, a WCB chiropractic consultant advised primary adjudication that the worker could return to her regular work duties and was to continue with an exercise program.
In a decision dated November 15, 2006, the WCB case manager determined that no further responsibility would be accepted for the worker’s injury as there was no medical to support a compensable injury. He noted that the worker had returned to her regular work duties and no longer had a loss of earning capacity related to her February 27, 2006 injury.
A report was received from the attending physician dated November 23, 2006. He stated the worker was symptomatic with cervicothoracic and lumbar strains. He advised that the worker’s neck and back pain was likely related to the accident of February 2006.
On March 14, 2007, the case was considered by Review Office as the worker appealed the WCB’s decision of November 15, 2006. Included with the worker’s appeal was additional information from the treating chiropractor which suggested that the worker had stress in her motor and anatomic nervous system which was probably related to her work injury.
After considering all file information, Review Office determined that the worker’s current physical difficulties were not related to the February 27, 2006 accident and therefore she was not entitled to further treatment or wage loss benefits. Review Office stated in part, that the worker suffered soft tissue injuries to her neck, lower and upper back, left knee and head when she was injured on February 27, 2006. There was no clinical or diagnostic evidence to suggest a more significant injury. Review Office accepted the opinion of the WCB chiropractic consultant dated October 4, 2006 that the worker had achieved maximum medical improvement and was capable of performing her regular duties. In August 2007, the worker appealed Review Office’s decision and the case was forwarded to the Appeal Commission. The worker’s representative later provided the Appeal Commission with additional medical information from the treating physician and an orthopaedic specialist.
A hearing was held on November 6, 2007. Prior to determining whether or not the worker was entitled to further treatment and wage loss benefits, the panel requested additional information from the worker’s treating physiotherapist. This information was later received and was forwarded to the interested parties for comment. On January 15, 2008, the panel met further to discuss the case and considered a final submission from the employer’s advocate dated January 8, 2008.
Reasons
THE HEARING:
The worker was represented by her union representative and the employer was represented by an advocate. The worker responded to questions posed by her advocate and the panel.
THE WORKER’S EVIDENCE:
The worker took the position that she was not fully recovered from her February 27, 2006 compensable injury and should receive ongoing wage loss retroactive to March 17, 2006 and medical aid benefits from May 5, 2006 to the date her physician authorized her to return to work.
The worker described her February 27, 2006 injury to the panel. She was hit on the head with a large load of damp laundry. She was diagnosed with cervical thoracic strain, lumbosacral strain, knee sprain and head contusion. She was able to return to work in early March 2006 and her treating practitioners prescribed alternate or modified work until March 20, 2006.
The worker experienced a non-compensable fall on March 22, 2006. She said the fall aggravated the mid low back area and may have delayed her recovery for a few weeks. Her evidence was that upon her return to work following the fall her duties alternated between modified and regular. She experienced a number of absences due to her symptoms and treatment during the remainder of 2006. The worker confirmed she had no medical treatments between the fall of 2006 and February 2007.
She eventually left work in early April 2007 citing difficulties with obtaining treatment and experiencing many work absences. She attended four or five physiotherapy treatment sessions at Health Sciences Centre along with visits to her family physician and eventually a visit to an orthopedic specialist. Her evidence was that there was no overall relief from physio and or pain medications. Respecting reports of her not being compliant with prescribed physio exercises; her evidence was that she was doing the exercises.
As of the hearing date, the worker felt she was in a position to return to work and her physician has provided documentation to that effect. When asked if she felt she was able to perform full time, regular duties the worker replied that she wanted to work and felt she could do the laundry service work.
THE EMPLOYER’S EVIDENCE:
The employer noted the file evidence showing the worker suffered a compensable injury, was recovering well, had been accommodated with light duties and then suffered a non compensable fall on March 22, 2006 that exacerbated her problem for a short period.
It was their position that with appropriate treatment and previously accommodated duties and ongoing rotation of jobs there was no reason the worker could not perform her duties as of May 2006. The employer noted the worker was discharged from physiotherapy for non-compliant attendance issues and that the worker had limited medical interventions from 2006 to 2007. Her visit to an orthopedic specialist in July 2007 showed “full ROM of cervical spine, good motion in the lumbar spine, shoulder joint, and hip joints and no muscle weakness or wasting in her upper or lower limbs.” The employer noted this orthopedic specialist along with other treating professionals recommended physiotherapy and the worker had failed to follow through with physio appointments and prescribed home exercises.
In summary, the employer felt they had properly accommodated with light/ alternate duties, that appropriate chiropractic and physiotherapy treatments had been provided, and the worker had not met her obligation to attend appointments in order to make a full recovery to her regular employment. They disagreed with the provision of further wage loss and medical aid benefits.
ANALYSIS:
For this appeal to be successful, the panel must find the worker’s symptoms after she left work in April 2007 are related to her compensable injury of February 27, 2006. The panel was not able to make this finding.
The panel, on a balance of probabilities, finds her ongoing symptoms after April 2007 are not related to her original compensable injury and she is not entitled to further benefits and treatments. The panel has reviewed the entire file and taken into consideration the submissions of the parties at the hearing in arriving at our decision.
The panel has reviewed the entire medical file and places weight on the following evidence in finding the worker is no longer entitled to further treatment and wage loss benefits.
- March 9, 2006 the family physician clears the worker to return to work with some restrictions.
- April 2006, the treating chiropractor notes that the worker’s March 22, 2006 fall would result in a minimal delay in recovery and her progress is good.
- May 31, 2006 chiropractor discharges from her care as she notes “further improved.”
- October 2006 and July 2007 the worker is discharged from physiotherapy for non attendance.
- October 4, 2006 the WCB chiropractic consultant says the worker has reached MMI (maximum medical improvement) and is capable of regular duties.
- On July 11, 2007 the family physician notes the worker is capable of sedentary duties with allowances for postural changes. In September 2007 he notes the worker should return to work doing modified duties.
- X-rays of the cervical, thoracic and lumbar spine in March 2006 and July 2007 are normal.
- An orthopedic specialist on July 25, 2007 notes significant subjective complaints but finds full range of motion in cervical spine and good motion in the lumbar spine.
The panel notes that this worker in early 2006 had a number of medical interventions along with a return to modified work with the accident employer. She experienced a non compensable fall on March 22, 2006 and returned to her full duties by the end of March. The evidence on file and by the worker at the hearing confirms this fall was not a long kept factor in her recovery and delayed it by a few weeks.
The worker had difficulty in attending medical appointments as well as work in 2006 and through 2007. The panel found that overall these absences are not related to her compensable injury but instead to personal circumstances along with labour relations matters, and do not entitle her to ongoing wage loss benefits or other medical treatments.
The worker’s evidence was that the majority of the medical treatments had limited lasting benefits or no therapeutic benefit at all. She confirmed she had no medical interventions between the late fall of 2006 and early 2007. She felt her condition was not responding to treatment even when she was off work. The panel finds her condition is about the same today as it was when her medical aid benefits were terminated. The panel therefore finds there would be no additional benefit in granting further treatments. Further, the panel finds that the nature of the worker’s injury, her return to work in late March 2006 and the lack of significant findings from that point forward do not establish a causal relationship between her current symptoms and her original injury.
We also find that the worker would have been able to return to her employment as the recommended physiotherapy treatment of education and posture movement dealt mainly with stretching and exercises to improve strength, increase ROM, and postural deviations. This treatment would have allowed a return to employment both in accommodated and regular duties.
For the above reasons, the panel finds on a balance of probabilities that the worker is not entitled to further treatments and additional wage loss benefits.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 4th day of March, 2008