Decision #115/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the with the Workers Compensation Board (WCB) for a low back injury that occurred on March 1, 2007. The claim for compensation was accepted and the worker was paid benefits to December 14, 2007 when it was determined by primary adjudication and Review Office that she had recovered from the effects of her compensable injury. The worker disagreed with the decision and an application to appeal was filed with the Appeal Commission. A hearing took place on July 30, 2008 to consider the matter.Issue
Whether or not the worker is entitled to full wage loss benefits beyond December 14, 2007.Decision
That the worker is entitled to full wage loss benefits from December 14, 2007 until she commenced her successful graduated return to work in March 2008.Decision: Unanimous
Background
On May 1, 2007, the worker reported an injury to her low back which occurred on March 1, 2007 from the following work related activity:
“I went to lift a bundle of chair frames and felt like I twisted something in my back and my legs felt sore.”
The worker indicated that her back was fine before she lifted the bundle of chair frames. She said she does a lot of heavy work and has had back problems in the past which would come and go. Before Christmas was the last time her back acted up. The worker advised that she continued doing her regular duties but took medication for the pain.
Medical information received from the family physician diagnosed the worker with a lumbar strain. The worker was also seen by a chiropractor and his diagnosis of the worker’s back condition was an L5-S1 strain.
On March 27, 2007, x-rays were taken of the lumbar spine. Early osteophyte formation was noted at multiple levels and minor facet joint arthropathy was suspected at multiple levels. No other abnormality was identified.
A WCB medical advisor reviewed the file on March 30, 2007. He confirmed the diagnosis of a lumbosacral strain and reported an aggravation of the worker’s pre-existing condition. Restrictions were outlined for a three week period.
In a report to the family physician dated August 7, 2007, a physical medicine and rehabilitation specialist reported that he saw the worker for low back and bilateral lower limb pain. He noted that disc bulges at L3-4, L4-5 and L5-S2 were identified in a CT scan examination of June 22, 2007. He opined that the worker had chronic non-specific spinal pain with no ominous or neurogenic features. The worker was pain limited rather than function limited. Recommendations were made for the worker to undergo a reconditioning exercise program to improve her tolerance. He noted that the worker may still have some discomfort but she still could gradually move towards a return to normal activity including work.
On October 2, 2007, the worker was seen for her initial assessment in regards to a reconditioning program. On October 3, 2007, it was reported that the worker presented with pain focus behavior as well as explicit expressions of inability to work due to previous workplace issues. On the assessment the worker was not open to any possible return to work if she still had pain. It was recommended that the worker undergo a 6 week reconditioning program to improve her impairment in mobility and improve her level of function. It was stated “…at this point she may have large psychosocial barriers that prevent her from RTW [return to work].”
The worker attended her reconditioning program in October, November and December, 2007. In the discharge report dated December 17, 2007, it was documented that the worker completed an 8 week program with full functional gains but with minimal subjective reports of improvement. It noted that the worker attempted and completed all activities required with full effort and with ease. On the contrary, the worker reported constant pain that she described as unchanged and with no improvement. It was concluded that the worker was capable of her regular duties with the accident employer however the worker had no plans of returning to this job.
In a decision dated December 19, 2007, the worker was advised that based on the results of her reconditioning program, it was the WCB’s position that she had essentially recovered from the effects of her March 1, 2007 compensable injury and that no further responsibility would be accepted on her claim.
On January 22, 2008, the family physician advised the WCB that the worker continued to experience severe low back pain despite therapy. He said it was unclear why her mechanical back pain had not improved but he did not believe that she was ready to return to her pre-accident employment.
On February 25, 2008, the worker was assessed by a physical medicine consultant. He diagnosed the worker with the following conditions: Mechanical low back pain syndrome, workplace disability and depression. He stated that he gave the worker a Level One Low Back Pain rehab video to help address her low back pain. It was recommended that the worker start a graduated return to work program in a few weeks’ time with the goal of returning back to her normal work duties over a four week period.
In a letter dated March 29, 2008, a WCB case manager advised the worker that since the physical medicine consultant was not able to provide any medical evidence to support any medical condition more than de-conditioning, it was the WCB’s position that the initial decision to deem her to be recovered in December 2007 was essentially correct. The worker was advised that the WCB agreed to a graduated return to work plan between March 24, 2008 and April 4, 2008 and at the completion of the plan, no further responsibility would be accepted for her claim.
On May 7, 2008, a worker advisor appealed the case manager’s decision that the worker had recovered and was capable of returning to her full time regular duties by December 14, 2007. The worker’s position was that she was not fit to return to work on December 14, 2007 but was able to return to a graduated return to work program by March 24, 2008 after she completed the exercise video. In support of her argument, reference was made to the family physician’s findings of January 22, 2008 and the report by the physical medicine specialist dated February 25, 2008.
At the request of primary adjudication, the file was reviewed by a WCB medical advisor on May 12, 2008. He was asked to comment on whether the worker had a significant pre-existing condition which prolonged her recovery from the compensable injury. Of interest was the worker’s pre-existing diagnosis of sarcoidosis. After review of all file information and a review of the worker’s previous claim for low back pain, the medical advisor indicated “…there does not seem to be a pre-existing condition of significance in prolonging [the worker’s] recovery from the back injury she sustained in March, 2007. Specifically, it is unlikely that [the worker’s] sarcoidosis is a factor in her recovery from the compensable injury.”
On May 15, 2008, Review Office determined that wage loss benefits, other than those payable through the graduated return to work plan, are not payable beyond December 14, 2007. Review Office was ultimately of the opinion that there were psychosocial factors involved in this claim and that it agreed with the position taken by the case manager that by December 14, 2007, the worker had recovered from the effects of her March 1, 2007 lumbar strain. On June 6, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of wage loss benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker answered questions posed by her representative and the panel. She was assisted by a translator and her husband.
In answer to questions, the worker provided information regarding her injury, job duties, treatment and recovery. She advised that she was unable to return to work on December 14, 2007 as she was still in pain. She explained that at the time of the accident her primary job was on the table line. She said this job involved heavy labour. She did not feel she could perform this heavy job in December and followed the family physician’s instructions to remain off work. On her graduated return to work in March she was provided a lighter job involving sewing.
She advised that the physiotherapy treatment did not resolve her symptoms. She said that she had difficulty performing the exercises recommended by the physiotherapist during the reconditioning program. These were described on a paper handout which she did not understand. In contrast, she advised that she was able to complete the exercises recommended by the physical medicine specialist which were demonstrated on a video. These latter exercises helped resolve her symptoms.
The worker advised that she returned to work on graduated return to work program in March 2008 and has worked since this date. She advised that she no longer has pain.
The worker’s husband expressed the opinion that the exercises recommended by the physiotherapist were aimed more at the upper body than at the worker’s lower back. He also commented that it was difficult to understand the exercises recommended by the physiotherapist. He said he feels the WCB misunderstood when he reported the worker could not perform the exercises, he believes the WCB interpreted this as a refusal by the worker to perform the exercises. The husband noted that the worker did not exercise after seeing her family physician because her family physician advised her to wait till she saw the specialist. He commented that her condition possibly deteriorated because of this.
He also said there appeared to be a misunderstanding about the worker’s willingness to work. He said that she had intended to say that she could not return to work the way she was, but the WCB appeared to interpret her position as not wanting to work.
The worker’s representative noted that the family physician provided reports indicating that the worker was not fit to return to work in December 2007. The physician referred the worker to a physical medicine specialist who prescribed exercise and medication, and found the worker was capable of resuming a gradual return to work in a few weeks’ time. The representative noted the worker’s position that the specialist’s exercise program focused more on her back muscles and was easier to follow than the reconditioning program exercises. She submitted that once the worker got the proper treatment for her condition, she was able to recover and therefore should be paid benefits for the period of her recovery.
Analysis
Before addressing the issue, the panel notes that the worker had significant difficulty explaining her case at the hearing, even with assistance from a translator and her husband. Upon its review of the file, the panel finds that misunderstandings and miscommunications caused by language difficulties complicated the handling of this case. The panel finds this resulted in misunderstandings including the worker’s attitude and willingness to return to work, and willingness to perform the exercise program during the reconditioning program.
The issue before the panel is whether the worker is entitled to full wage loss benefits beyond December 14, 2007. For the appeal to be successful the panel must find that the worker’s loss of earning capacity after this date is a result of her workplace injury or in other words, that the worker’s ongoing inability to work was caused by her workplace injury.
The panel finds, on a balance of probabilities, that the worker’s loss of earning capacity after December 14, 2007 was caused by her workplace injury. Accordingly, the panel finds that the worker is entitled to full wage loss benefits from December 14, 2007 until she commenced her successful graduated return to work in March 2008. In making this decision, the panel relies upon the family physician’s reports and findings including her report of January 22, 2008.
The panel also relies upon the report of the physical medicine specialist dated February 25, 2008 and notes that the worker was able to commence a graduated return to work after seeing this specialist and receiving a new exercise program and change in medications. In this regard, the panel accepts the worker’s explanation that she was able to follow the exercises demonstrated in the video provided by the physical medicine specialist and that this facilitated her recovery.
The appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of September, 2008