Decision #02/10 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a low back strain that occurred at work on July 27, 2006. At present, the worker’s employer is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker was entitled to wage loss benefits after September 4, 2006 and to medical aid benefits after August 13, 2006. A hearing was held on November 17, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after September 4, 2006; and

Whether or not the worker is entitled to medical aid benefits after August 13, 2006.

Decision

That the worker is not entitled to wage loss benefits after September 4, 2006; and

That the worker is entitled to medical aid benefits after August 13, 2006 up to October 22, 2006.

Decision: Unanimous

Background

On August 8, 2006, the worker filed a claim with the WCB for a low back and left shoulder injury that she related to an accident that occurred on July 27, 2006. The claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that a work related accident took place on July 27, 2006. The decision was appealed by the worker and an appeal panel hearing took place on May 28, 2008. Under appeal panel decision No. 126/08 dated September 26, 2008, the appeal panel accepted that the worker sustained a strain injury to her low back but did not find that the worker sustained an injury to her shoulder or neck. The case was then referred back to the WCB to determine the worker’s entitlement to compensation benefits.

On November 18, 2008, the worker was advised by primary adjudication that she was entitled to wage loss benefits for the period August 3 to August 8, 2006 inclusive and medical expenses to August 13, 2006 inclusive. The adjudicator was of the opinion that the worker’s compensable injury was a non-severe back contusion which should have resolved within 2 weeks of the date of the accident or by August 14, 2006. The adjudicator also outlined the opinion that the worker was capable of performing modified duty work at the time duties were offered to her on August 8, 2006 and therefore wage loss benefits after that date were not warranted.

On March 17, 2009, a worker advisor appealed the WCB’s decision dated November 18, 2008 to Review Office. The worker advisor submitted that the worker’s treating physician and physiotherapist supported that the worker sustained a strain as a result of her workplace accident and was unable to work in any capacity for a period beyond August 8, 2006.

In a decision dated March 25, 2009, Review Office found from the evidence that the worker had a loss of earning capacity after August 8, 2006 due to the effects of her workplace injury. In support of this finding, Review Office noted that the worker’s injury was an acute strain and she had only begun the necessary physiotherapy treatment on August 10, 2006. When examined on August 9, 2006, the treating physician reported that the worker was not capable of alternate or modified work and physiotherapy treatment was recommended which the worker had not yet started.

Review Office determined that the worker had not mitigated the effects of her injury by not attending for physiotherapy treatment which delayed her recovery from her workplace injury. The worker therefore was not entitled to wage loss benefits for the period August 8 to September 4, 2006.

Review Office indicated that the worker had a loss of earning capacity after September 4, 2006 given that she remained under the care of her treating practitioners for her back strain while undergoing physiotherapy treatment. The extent of her entitlement to benefits was to be determined by primary adjudication. (Primary adjudication subsequently determined that the worker’s compensable injury had resolved by September 21, 2006 and therefore she was entitled to wage loss benefits for the period September 5, 2006 to September 21, 2006 inclusive.)

Review Office concluded that the medical evidence supported that the worker continued to suffer from the effects of her strain injury on and after August 13, 2006 and therefore was entitled to medical aid benefits.

On April 8, 2009, a WCB medical advisor was asked to provide his medical opinion as to when the worker’s compensable injury, a low back strain, would have resolved. On April 8, 2009, the WCB medical advisor responded as follows:

“…In my opinion the mechanism of injury and the initial presentation are more consistent with a low impact trauma to the skin and subcutaneous tissues of the lower back rather than one involving a pulling or tearing of the muscles fibers (sic) of the lower back. I note that the Appeal Commission found that the injury to the low back was not significant.

…it appears that the diagnosis rather than the mechanism of injury and initial presentation is leading decision making in terms of recovery. Recovery from a strain is often as quick as a recovery from a contusion. In this case, where the mechanism of injury supports an insignificant trauma, recovery would be the same, whether the diagnosis is a strain or a contusion.

It is more likely that the initial findings of decreased lumbar mobility and tenderness as well as the ongoing complaints of low back pain in September 2006 were related more to the documented pre-existing condition as noted by the Appeal Commission.”

On April 30, 2009, the employer appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. This appeal by the employer concerns the length of the worker’s entitlement to benefits and services for the low back injury she sustained on July 27, 2006. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

WCB policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer, outlines when the WCB will become involved in discussions between the worker and employer involving modified or alternate work.

Employer’s Position

Two representatives from the employer appeared at the hearing. It was submitted that wage loss benefits after September 4, 2006 and medical benefits after August 13, 2006 should not be paid to the worker as it was clear from the evidence that the worker sustained an insignificant injury and should have recovered within 1-2 weeks. The worker also had not met her obligation to mitigate the effects of her injury by participating in a return to work program which should be considered as part of her rehabilitation. If the worker had participated in the modified duty program offered by her employer there would not have been any wage loss. The worker voluntarily removed herself from a wage earning scenario and thus wage loss benefits should be denied. It was also argued that if the worker remained unable to work after September 4, 2006, the medical evidence supported her pre-existing condition as the likely cause of her inability to work and not the minor injury sustained on July 26, 2006.

Analysis

There are two issues appealed by the employer. We will address each issue separately.

The first issue before the panel is whether or not the worker is entitled to wage loss benefits after September 4, 2006. In order to determine the appeal, the panel must consider whether there was a loss of earning capacity resulting from the accident after September 4, 2006. On a balance of probabilities, the panel finds that the worker did not have a loss of earning capacity after September 4, 2006 and therefore she was not entitled to wage loss benefits after that date.

At the hearing, the employer’s representatives gave evidence regarding the return to work program offered by the accident employer to its employees. They described numerous light duties which are available to injured workers and indicated that employees are paid their full wages while performing modified duties. The panel is satisfied that a comprehensive return to work program is provided by the employer and that this return to work program offered modified duties which could accommodate a wide range of restrictions. The panel is also satisfied that the employer made the worker aware of the modified duties that were available.

The attending physician’s letter dated September 6, 2006 stated that the worker was assessed on that day and was found to still be disabled due to her workplace injury. He stated that she was not able to resume modified duties at that time. Unfortunately, the attending physician did not outline the basis for his conclusion. He did not even list the conditions which, in his opinion, were causing the worker to be disabled. The panel also notes that in the Doctor First Report completed by the attending physician on September 19, 2006, he wrote: “no light duties available.” This is clearly erroneous and indicates that the attending physician was not aware of the type of modified work which could have been available to the worker. The panel therefore does not accept the attending physician’s opinion that the worker was not able to perform modified duties as at September 6, 2006.

In the panel’s opinion, the worker would have been able to perform modified duties after September 4, 2006 and therefore did not suffer a loss of earning capacity after that date. In coming to that conclusion, we rely on the following:

  • After the injury on July 27, 2006, the worker was still able to perform her full regular duties on July 29, 30 and August 2, 2006. This indicates that even during the acute period immediately following the incident, she was not totally disabled;
  • September 4, 2006 is over one month after the injury was sustained and given the mechanism of injury, it would be expected that the condition would have improved during that period of time;
  • The types of complaints reported by the worker to the physiotherapist were described as: “left-sided neck pain which was worse with flexion of the neck, as well as central low back pain which was aggravated with sitting.” The nature of these complaints does not suggest total disability;
  • As noted earlier, the employer had a comprehensive return to work program which could accommodate a wide range of restrictions.

Based on the above, the panel finds that the compensable low back injury suffered by the worker would not have prevented the worker from participating in the modified duties which were available from the employer. As such, there was no loss of earning capacity and the worker is therefore not entitled to wage loss benefits after September 4, 2006. The employer’s appeal on this issue is allowed.

The panel considered WCB policy 43.20.20 but determined it was not applicable as it provides the WCB would only become involved if:

  1. Either the worker or employer requires financial or technical support to help the worker return to work; or
  2. The worker and the employer disagree about whether the modified work placement is appropriate.

As neither of these situations applies the policy is not applicable.

The second issue before the panel is whether or not the worker is entitled to medical aid benefits after August 13, 2006. In order for the appeal to be successful, the panel must find that the worker did not require medical aid to provide relief from her low back injury sustained in the workplace incident after August 13, 2006. We are not able to make that finding.

A previous Appeal Commission panel found that the worker sustained an injury to her low back and that it was not significant. The appeal panel specifically rejected the finding that the worker suffered injury to her neck or shoulder. This panel is bound by the determinations of the earlier appeal panel. We are therefore limited to considering whether the worker required medical aid for her low back injury after August 13, 2006.

It would appear from the file that the treatment received by the worker after August 13, 2006 consisted primarily of physiotherapy. She may also have received a prescription for anti-inflammatories. The report dated May 5, 2009 from the physiotherapist indicates that the worker began treatment on August 11, 2006, then returned again on September 5, 2006. She continued treatment until October 24, 2006. The conditions for which she received treatment were decreased range of motion in both her neck and back with tightness in the paraspinal muscles in both regions. Although responsibility for the worker’s neck condition was not accepted, the physiotherapy treatment did also focus on the low back. On that basis, we find that there is entitlement to medical aid. The medical file references pre-existing degenerative changes to the worker’s low back which were periodically symptomatic, however it is difficult to discern whether the physiotherapy treatment received by the worker in September and October 2006 was required for treatment of the compensable injury or for the pre-existing changes. Given that the worker did not receive any other treatment for her low back injury and the relatively close temporal relationship between the physiotherapy and the workplace incident, the panel is prepared to find that the treatment was related to the compensable injury. Given the “not significant” nature of the injury, we also find that the compensable low back injury had completely resolved by the time that physiotherapy was discontinued on October 24, 2006.

For the foregoing reasons, we conclude that the worker is entitled to medical aid benefits after August 13, 2006. The employer’s appeal on this issue is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of January, 2010

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