Decision #01/09 - Type: Workers Compensation

Preamble

On June 21, 2006, the worker suffered an injury to his upper and middle back at work. The claim for compensation was accepted by the Workers Compensation Board (WCB) and the worker was paid benefits to January 19, 2007 when it was determined by primary adjudication and Review Office that the worker was fit to return to his truck driving duties. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on November 17, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 19, 2007.

Decision

That the worker is entitled to wage loss benefits beyond January 19, 2007 less earnings equal to provincial minimum wage based on a 40 hour work week.

Decision: Unanimous

Background

While in the course of his employment as a truck driver on June 21, 2006, the worker suffered a strain to his middle and upper back region after struggling to move a lever on the trailer of his transport truck. Based on a referral by the family physician, the worker was referred to a physiotherapist for treatment. The physiotherapist’s diagnosis of the worker’s condition was a mechanical thoracic dysfunction.

On October 31, 2006, the treating physiotherapist advised the WCB that physiotherapy treatments were not helping the worker. She noted that the worker had a thoracic strain with good range of motion. The worker’s main complaint was pain which moved sometimes to his low back, neck and shoulder. The worker could only sit for one to two hours at a time before his back would cramp up.

In response to the WCB’s request for medical information, a sports medicine specialist reported on November 1, 2006 that he assessed the worker on October 19, 2006 for back problems he experienced over the previous three weeks. The specialist opined that the worker’s symptoms were either the result of a disc abnormality and/or a muscular strain.

On November 21, 2006, a chiropractor reported that the worker experienced a gradual build up of thoracic spine pain after lifting a lever. His diagnosis of the worker’s condition was mechanical/myofascial thoracic spine pain.

The worker’s neck, both shoulders and low back were examined by a WCB medical advisor on November 28, 2006.

An MRI of the right shoulder was taken in early December, 2006. The radiological report indicated a high grade partial articular surface tear insertion supraspinatus and moderate AC arthrosis.

On December 6, 2006, a WCB adjudicator advised the worker that based on the WCB call in examination findings, restrictions were outlined for a 4 week period to avoid long distance truck driving and no lifting of weights greater than 30 pounds. The worker was further advised that based on the MRI findings of December 2006, he would be provided with a more aggressive chiropractic program for four more weeks and then would be fit to return to his full time regular duties by January 12, 2007.

On January 12, 2007, the WCB case manager advised the worker that his claim had been reviewed by a WCB medical advisor who found no objective clinical findings to suggest that he was unable to return to his full duties. As a result of this finding, wage loss benefits would be paid to January 19, 2007 inclusive and final.

On February 7, 2007, the worker appealed the WCB decision to terminate his benefits. He indicated that he still felt back pain which was amplified when his arms are held forward for an extended period of time or from sitting which created pressure on his back. He noted that his treating physicians advised him that he should not return to long distance truck driving at this time.

Arrangements were made for the worker to undergo a Functional Capacity Evaluation (FCE) on April 23, 2007. On May 9, 2007, the WCB case manager noted that the FCE results demonstrated the worker’s ability to lift isometrically bilaterally at a medium rate of work capacity and the ability to lift dynamically bilaterally at a heavy rate of work capacity. Given that the worker’s job duties consisted of 99% driving and very little physical activity, it was felt that the worker continued to be fit for his full time regular work duties.

In a submission to the WCB dated November 7, 2007, a worker advisor argued that the worker continued to experience a loss of earning capacity due to his ongoing symptoms and restrictions as a result of his compensable injury. He stated that the worker would be capable of returning to work in a modified capacity however his employer was unable to offer shorter trips. He stated that the worker’s recurring symptoms prevented him from returning to his pre-accident duties which required him to be seated while driving for up to 11 hours a day. Included with the submission were medical reports from an occupational health physician and the treating physician.

On January 29, 2008, a WCB case manager commented that a WCB medical advisor reviewed the new information and expressed the opinion that the occupational health physician made the same observations about the worker’s upper back as were reported in the November 2006 call in examination notes but in more detail; that the FCE findings indicated an exaggeration of self reporting; and in the medical advisor’s opinion, the worker’s statement of his ability to drive or not was not proven and was being taken and relied upon by his statement. Based on these findings, the case manager was unable to change the WCB decision of January 12, 2008.

In a report to the WCB that was received on April 24, 2008, the treating physiatrist noted that the worker, as of November 27, 2007, had evidence of soft tissue tension in the area of T5 and T8 with a relatively fixed spine through the region. He recommended myofascial trigger point needling as a form of treatment for the worker.

Following review of the physiatrist’s report, a WCB medical advisor opined that the diagnosis was chronic regional myofascial pain related to the compensable injury and that the proposed treatment was appropriate. He did not believe the new diagnosis altered his previous opinion concerning the worker’s ability to resume his employment as a truck driver.

On May 15, 2008, the worker was notified that the WCB would accept responsibility for the proposed myofascial trigger point needling but the decision to end wage loss benefits was being upheld.

The case was considered by Review Office on July 30, 2008, at the worker advisor’s request. Review Office confirmed the decision that the worker was not entitled to further wage loss benefits based on the following factors:

  • The worker had a history of back pain off and on for a number of years prior to the compensable injury;
  • As early as October 6, 2006, the worker was found to have a full and pain free range of motion in his back and the orthopaedic specialist who examined him in January 2007 found no contraindication to a return to work;
  • The attending doctor and occupational health physician were supporting the worker and a physiatrist was providing myofascial trigger point needling;
  • An opinion solicited by Review Office from a WCB medical advisor was that the most probable diagnosis for the compensable injury was chronic benign thoracic back pain. She found no significant objective medical evidence to suggest that the worker would have been incapable of returning to work as a truck driver;
  • The weight of medical evidence did not support the worker’s contention that he continued to be unable to return to work due to the effects of his compensable injury sustained over two years ago.

On August 7, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

This panel and the Appeal Commission are bound by The Workers Compensation Act (the Act), regulations and policies made by the WCB’s Board of Directors.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Section 22 of the Act places a positive obligation on an injured worker to mitigate the consequences of a workplace accident, including the financial costs such as wage loss benefits. Workers who are not fully recovered but are capable of employment may have their wage loss benefits adjusted on the basis that they could have earned employment income had they mitigated the consequences of the injury.

Worker’s Position

The worker attended the hearing with a worker advisor who made a submission on his behalf. The worker’s representative submitted that the medical evidence on file and the worker’s evidence confirm an ongoing dysfunction which has not been adequately treated and has not resolved to enable the worker to return to work eleven hour days on the road.

The worker described his duties as a long haul truck driver. He said his usual trips were five or six days. He was not responsible for loading or unloading the truck, except in rare circumstances. He said his usual day consisted of fourteen hours of work with eleven hours of actual driving.

He explained that he injured his back while trying to adjust the weight on the tandem trailers. He went to lift up the lever at the back of the trailer, expecting it would come up but, at this time it did not come up. He described the pain as right in between the shoulder blades, right down, right in the centre. He said the original pain is different from the pain that he has now. He described the current pain as “doing things or putting pressure on the back over time is what causes the pain to increase.” He said that he can lift but if he does a lot of lifting it would flare up. He also said that sitting too long causes pressure on the back which results in soreness.

The worker noted that he was enrolled in a yoga program and that the treatments lasted longer than other programs, so that he would begin to feel pain while he was still participating in the treatment. This differed from other treatments where the pain was not evident until he got home.

Regarding activities, he advised that he completed a contract to build wooden boxes used by archaeologists. He worked on this contract from June 2008 to about October 2008. In working on this contract he could work at his own pace in his garage. He also routinely drove his wife to the airport and would visit and assist his daughter. He said that he has maintained contact with his employer and that there is no light duty work available. His driving position is available when he is able to return to work. He confirmed that he has not attempted to return to work as a truck driver. He indicated that he has not sought other employment.

The worker’s representative reviewed the medical information on the file and noted that the worker’s physicians are supportive of his claim. He expressed concern that the WCB is not willing to accept the worker’s evidence on his inability to sit for prolonged time periods. He submitted that the worker had a strain and that it resolved and the worker is left with myofascial pain that came out of it as a residual dysfunction.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond January 19, 2007. For the appeal to be approved the panel must find that the worker’s loss of earning capacity is caused by his workplace injury. In other words that the worker’s inability to work is due to the workplace injury.

The panel finds that as of January 19, 2007 the worker was capable of working, albeit; not as a long haul truck driver. The panel finds that the worker was capable of working at full time minimum wage employment as of January 19, 2007 and accordingly his wage loss benefits are reduced by an amount equivalent to full time minimum wage.

In arriving at the decision that the worker was capable of working as of January 19, 2007, the panel notes that the worker’s treating chiropractor indicated in a report dated November 21, 2006 that the worker was capable of alternate or modified work. The panel also notes that a WCB medical advisor examined the worker on November 28, 2006 and recommended discussions with the worker’s chiropractor regarding increasing the active range of movement, strengthening exercises for shoulder girdles with a plan for a possible return to work within the next four weeks. On January 11, 2007, the medical advisor stated he had reviewed recent reports and noted that the plan for some finishing treatment by the physiotherapist was complete. He stated there is no objective clinical evidence that the worker is unable to return to work. The panel also notes that the worker’s treating family physician indicated in a report dated February 15, 2007 that the worker was capable of alternate or modified work. The physician who previously saw the worker on January 18, 2007 noted there was no change in subjective complaints.

As well as the above noted medical, the panel relies upon the worker’s evidence that he is able to do many things, and specifically upon his evidence that he completed a contract for construction of wooden boxes for use by archeologists. The panel considers this to be an appropriate case for the reduction in benefits in accordance with section 22 of the Act as the worker acknowledged and demonstrated his ability to perform various tasks, yet did not make any attempt to find employment, other than the completion of the wooden box contract in June 2008.

The worker’s appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
J. Gervino, Commissioner
M. Day, Commissioner

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of January, 2009

Back