Decision #80/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred at work on October 31, 2007. His claim for compensation was accepted and benefits were paid to January 30, 2009, when it was determined that the worker had no loss of earning capacity beyond that date. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on June 10, 2009 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond January 30, 2009.Decision
That the worker is entitled to wage loss benefits beyond January 30, 2009.Decision: Unanimous
Background
On October 31, 3007, the worker suffered a work related injury to his low back during the course of his employment as a long distance truck driver. He was turning a crank handle on a load when he felt a sharp pain in his back. The worker’s low back condition was diagnosed as mechanical low back pain with nerve root irritation. The claim for compensation was accepted and benefits were paid to the worker.
On January 7, 2008, an MRI report of the lumbar spine showed the following findings:
“…the L3-4 and L4-5 levels appear normal with no significant disc protrusion or herniation. The central canal and foramina are well maintained.
At the L5-S1 level, there is a shallow right foraminal protrusion and small annular tear. This just contacts the left exiting L5 root. The right neuro-foramina and central canal are well maintained.”
The worker was assessed by a neurosurgeon in early April 2008. The consultant reported that the worker’s clinical presentation was suggestive of some mechanical low back pain which accounted for the lumbosacral component. The occasional pain down the thigh and calf did not necessarily pose as radiculopathic. He stated there was no obvious radiological correlation for a left-sided radiculopathy. It was recommended that the worker continue with conservative treatment. If his pain persisted, the possibility of an infiltration should be entertained.
On May 7, 2008, a WCB physiotherapy advisor recommended a four week reconditioning program for the worker. This program ran between June 6 and July 4, 2008. In the final discharge report dated July 4, 2008, it was indicated that the worker had a few bad days and was feeling increased pain and “jolts” across his low back. He also reported intermittent left calf paraesthesia and continued interrupted sleep. The worker perceived his tolerance to sitting was 20 minutes and walking was 20 minutes.
A WCB medical advisor opined on July 28, 2008 that there was no evidence of a pre-existing condition that would be contributing to the duration of the worker’s reported low back symptoms.
On September 3, 2008, a physical medicine and rehabilitation specialist reported that he saw the worker for review of his left sided low back and buttock pain. He stated, “…this patient has symptoms consistent with left S1 radicular pain with a normal neurological examination. He has markedly blocked range of motion due to pain. While this presentation is consistent with the MRI demonstrated disc herniation, his recovery is significantly delayed. Perpetuating factors that were discussed with him include his smoking, his chronic usage of Tylenol #2 and his limited exercise program…I offered an epidural injection as a mechanism to improve his pain tolerance and allow him to proceed with a more aggressive exercise program. For now he wishes to do (sic) for this decision. I showed them (sic) a basic squat technique and recommended that he start doing this. Finally, I recommended smoking cessation.”
A WCB medical advisor commented on September 30, 2008 that the current compensable diagnosis was mechanical low back pain. He indicated that the worker failed reconditioning due to his perceived aggravation in his symptoms. “It is unlikely that he will be able to tolerate a work hardening program. Other than his perception of pain, there are no medical contraindications to resumption of some form of employment in a sedentary position if available. He should avoid repetitive bending, twisting and lifting more than 10 lbs. He should be allowed to change position every hour.”
On October 10, 2008, another WCB medical advisor reviewed the file. He indicated that before settling for sedentary work, the worker should be given the opportunity to participate in a work hardening program which could help to enable him to improve his level of function and possibly return to more active duties.
The worker commenced a 10 week reconditioning program starting November 3, 2008. The discharge report dated January 19, 2009 indicated that the worker’s “Demonstrated Strength Ability” was “Heavy strength level” at the end of the program and that his condition had improved.
On January 22, 2009, the case manager advised the worker that based on the weight of file information which included the opinion of the reconditioning program team of professionals, it was determined that he no longer required restrictions as a result of his workplace injury and no longer had a loss of earning capacity. Based on this determination, his WCB benefits would be paid to January 30, 2009 inclusive and final. On January 30, 2009, the worker appealed the decision to Review Office.
On February 11, 2009, Review Office confirmed the adjudicator’s decision that the worker was not entitled to wage loss benefits beyond January 30, 2009 as it was felt that he had no loss of earning capacity as of that date. Review Office indicated that there was no clinical objective medical evidence to substantiate the worker’s chronic subjective complaints of pain. It felt that whatever was causing the worker’s subjective presentation regarding his lumbar condition at this point in time, it did not have a relationship to the October 31, 2007 injury he incurred during the course of his employment. On March 5, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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.
Worker’s Position
The worker was self represented at the hearing. He submitted that the basis of his appeal was that since the time of injury, he has continued to experience unresolved pain in his back. His accepted diagnosis was mechanical low back pain. Regardless of the recovery norm for this type of injury, he continues to suffer from low back pain. The effectiveness of the work hardening program was questioned by the worker and rather than improving, he claimed to have experienced an increase in pain as a result of the program. The worker noted that his claim for injury to his back was accepted by the WCB, yet when the pain increased after participating in the work hardening program, he was then considered able to return to work. This seemed contradictory and made no sense. The worker submitted and relied upon a series of medical reports from his treating physician ranging from February to May, 2009, which indicated that he was totally disabled on November 7, 2007 and his estimated time for return to work was indefinite.
Employer’s Position
A representative from the employer was present at the hearing. It was submitted that the medical reports indicate no neurological findings and that the worker was diagnosed with mechanical low back pain. He had participated in a work hardening program and after ten weeks of rehabilitation, the final discharge report stated that the worker could function in a heavy capacity category and that he had demonstrated that he could return to work. It was submitted that there was no new objective medical information to contradict this assessment. The updated medical reports submitted by the worker were confusing and provided no substantiation of the opinion with regard to the lower back issue. Overall, there did not seem to be any medical reason why the worker could not have been capable of a return to work and it was therefore submitted that wage loss benefits were correctly terminated with no wage loss benefits payable beyond January 30, 2009.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond January 30, 2009. In order for the worker’s appeal to be successful, the panel must find that at that time, the worker continued to have a loss of earning capacity as a result of the workplace accident. We are able to make that finding.
In making our decision, the panel stresses that we do not find that the worker is totally disabled. On the contrary, the evidence would suggest that he is capable of engaging in some form of full time 40 hour per week employment. His evidence at the hearing was that he was able to participate in the work hardening program for a full 8 hour day. Although the program did not push participants to do more than they felt they were able to do, the worker was able to engage in the various exercises throughout the day and he completed his required repetitions. At the end of the program, the discharge report indicated that the worker achieved a functional strength demand of heavy. In the circumstances, the panel is of the view that the worker is capable of returning to some form of full time employment.
We do not, however, believe that the worker is yet capable of returning to his pre-accident employment as a long distance truck driver. The worker’s pre-accident employment required him to be able to drive for an 11 hour shift, then take a rest break in the cab while his team partner drove for the next 11 hours. The work hardening program discharge report does not indicate that the worker had achieved a level of recovery which would allow him to return to this type of work. The work hardening program’s discharge report identified decreased sitting tolerance as one of the problems which they sought to address. The outcome with respect to increasing sitting tolerance was described as: “the claimant participated in a number of sitting tolerance activities for increasing periods of time during his program, including sitting on a stability ball and completing the driving simulator daily.” At page 12 of the discharge report, it was reported that at the end of the work hardening program, the worker had progressed to 30 minutes seated ball bounce, 78 minutes seated tolerance, and 75 minutes driving simulator. The panel acknowledges the worker’s evidence at the hearing that these totals were not all in one sitting, but rather were cumulative of the sitting performed throughout the entire day. Based on the foregoing, we find that while positive improvements in function were gained from the work hardening program (notwithstanding the worker’s assertions at the hearing to the contrary), we do not feel that these gains in function were sufficient to allow the worker to return to his previous work as a long distance truck driver.
At the hearing, the worker submitted a series of one page medical reports from his treating physician dated February 20, 2009, March 25, 2009, April 22, 2009 and May 21, 2009. Each report is virtually identical and simply indicates that the worker was examined on the respective date, that he was totally disabled on November 7, 2007, and that his estimated time until return to work was indefinite. The panel places minimal weight on these reports as they provide almost no information as to the level of disability and the opinion is not supported by any clinical findings. Indeed, the reports do not even state whether it was the compensable back injury or the worker’s other non-compensable medical condition which was causing the disability at the relevant time. Nevertheless, we do still accept that the worker continues to experience some limitation resulting from his compensable mechanical low back pain which prevents him from returning to his pre-accident employment. As such, he is entitled to wage loss benefits beyond January 30, 2009.
We note that the question of what the worker is capable of doing remains unanswered. As noted earlier, the panel specifically does not accept that the worker is totally disabled from any kind of employment and we believe that he is capable of performing duties on a full time basis, just not the duties of his pre-accident employment. The issue of ongoing wage loss benefits is a matter to be referred to the WCB for further adjudication, both with respect to the length of benefits and amount.
For the foregoing reasons, the worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 21st day of July, 2009