Decision #09/10 - Type: Workers Compensation
Preamble
The worker had two claims for benefits with the Workers Compensation Board (“WCB”) related to difficulties he was experiencing in his neck/shoulders/upper back. The WCB determined that by October 28, 2007, the effects of his compensable neck and upper back injury did not prevent him from performing his regular duties. The worker disagreed. A hearing was held on October 29, 2009 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond October 28, 2007.Decision
That the worker is entitled to wage loss benefits from October 28, 2007 up to September 23, 2008.Decision: Unanimous
Background
The worker was a truck driver who reported injuries to his neck, upper/middle back and both shoulders which he related to a work-related motor vehicle accident on September 13, 2006. The worker was subsequently diagnosed with a sprain/strain to his neck, shoulders and arms. The claim for compensation was accepted and benefits were paid to the worker.
On September 28, 2006, a physiotherapist reported that the worker complained of constant pain to his neck, right trapezius/scapular area which got worse with increased physical activity or sustained sitting. The diagnosis rendered was musculo-ligamentous cervical/thoracic and right shoulder strain.
On November 1, 2006, a WCB chiropractic consultant reviewed the file information and concluded that the worker could start a graduated return to work program at four hours per day for two weeks. The work duties were to be sedentary in nature with the opportunity to change positions frequently, sitting/standing and some driving.
The worker commenced a graduated return to work on November 15, 2006. The treating chiropractor reported that the worker would like to attempt driving but was not allowed to “tarp”.
In early January 2007, the worker advised the WCB that he was having difficulties performing the light duties being provided to him by his employer as they were more difficult than his regular driving duties.
At a WCB call in examination on March 8, 2007, the worker indicated that he returned to light duties but the duties he performed increased the pain and he had been taken off work completely. The examining medical advisor indicated that the worker’s clinical findings and symptoms sounded like a whiplash type mechanism to his neck. A CT scan was recommended due to radicular pain, numbness, and tingling to the hand. In the meantime, the medical advisor felt that the worker could perform modified duty work and was fit to drive but would not be capable of tarp/shoveling activities, as these were considered to be outside of his restrictions.
On March 29, 2007, a WCB chiropractic consultant discussed the case with the treating chiropractor and WCB medical advisor and it was agreed that the worker was fit to return to his pre-injury job of driving a gravel truck along with cranking the tarp back and forth. The consultant indicated that the worker had not completely recovered and recommended that the worker continue with chiropractic treatment until the end of April 2007.
On March 30, 2007, the worker was advised that in the opinion of the WCB, he was fit to return to his regular duties and would be paid wage loss benefits to March 30, 2007.
A CT scan of the cervical spine was carried out on April 19, 2007. At the C3-C4 level, there was a minimal central disc protrusion without evidence of nerve root involvement. At C4-C5, there was a mild central disc protrusion without nerve root involvement. At C5-C6 there was a broad based left disc protrusion without definite evidence of nerve root involvement. There was no significant abnormality seen at the C6-C7 level.
A chiropractor’s progress report dated June 5, 2007 indicated that the worker was treated on several occasions in April and May 2007. On May 30, 2007, the worker reported a return of neck pain following one week of work but had been feeling better prior to his return to work. It was stated that the worker could return to his regular duties by May 21, 2007.
On June 13, 2007, the worker told his WCB case manager that he did not sustain any new injuries but had an increase in pain since his return to work and was requesting further chiropractic treatment. On June 27, 2007, the WCB chiropractic consultant indicated that the worker’s regular job of truck driving was less demanding than his modified duty work and there did not seem to be a satisfactory explanation for his increased symptoms. He thought the worker should continue with his regular job and work through the discomfort.
On September 27, 2007, the worker advised the WCB that he was off work again and that it was due to his compensable injury. The worker reported no new accidents. He indicated that he worked regular duties all summer, and that the pain was too much to handle and had never gone away. The pain was concentrated in his neck.
In a chiropractor’s first report dated October 2, 2007, it was indicated that the worker, on September 20, 2007, felt a crack in his “CTJ region” with sudden onset of pain. On October 25, 2007, a different chiropractor indicated that the worker was driving in a gravel pit on September 19, 2007 when he hit a pot hole and sustained a jarring motion injury to his neck.
In a decision dated October 30, 2007, the case manager confirmed to the worker that the WCB was unable to accept further responsibility for treatment or wage loss benefits based on the following rationale:
“…both chiropractor reports report two separate incidents which occurred on September 19 and September 20. Based on the chiro reports either of these incidents could have caused a new injury. The one report in fact indicates you have had a new injury to the same area as your old injury. As such I cannot show a direct cause effect relationship between your current symptoms and this claim. It appears you have suffered a new workplace injury.”
In correspondence to the WCB dated November 20, 2007, the worker indicated that he was driving on a bad road and had a relapse relating to his original injury. He indicated that his doctor felt that with proper chiropractic treatment he would be able to return to work.
In a decision dated November 28, 2007, the WCB case manager provided rationale to support the opinion that the worker had made a full recovery from his 2006 claim. The worker was advised to file a new claim if he felt that he suffered a new workplace injury.
The worker filed a new claim with the WCB on December 4, 2007. The worker reported that he was driving a truck on September 19, 2007 and made a turn and the truck went into a pot hole and he felt a shake in his body. A few minutes later he started to feel worse.
In a doctor’s progress report dated October 25, 2007, the treating physician reported that the worker’s pain persisted in the central aspect of his cervical spine that was made worse while driving. The physician indicated that the worker could return to work on October 29, 2007.
On April 18, 2008, the treating physician provided the WCB with his chart notes dated September 24, 2007 through to April 10, 2008.
On May 5, 2008, a WCB adjudicator recorded that the worker’s claim was accepted for a strain/sprain to the neck and upper back occurring September 19, 2007 and that wage loss benefits would be paid from the date of injury to October 28, 2007.
A decision letter was sent to the worker on May 12, 2008. The adjudicator stated that there was sufficient evidence to establish that the worker sustained a workplace injury on September 19, 2007 and that his claim was accepted. The adjudicator indicated that the file was currently being reviewed by a WCB medical advisor to determine whether his ongoing neck and back complaints were related to the injury of September 19, 2007.
On May 22, 2008, a worker advisor called the WCB indicating that the worker did not feel he explained his concerns to the WCB so she would be advocating on the worker’s behalf. The worker wanted to clarify that he spoke with his doctor around October 24 about a return to work. He then called his employer to discuss same. It was arranged that the worker would return to work on October 29, 2007. Just after that, the worker received a Record of Employment (“ROE”) indicating that he had been laid off. The worker’s lay off on the ROE was noted as October 17, 2007. The worker advisor commented that if no modified duties were available, the worker’s benefits should continue. The worker advisor referred to the treating physician’s chart notes dated October 24, 2007 which indicated that the worker was asking to go back to work and would return to work on October 29, 2007 with restrictions.
In a memo dated May 28, 2008, the adjudicator spoke with an employer representative who stated that the worker, along with others, would have been seasonally laid off in October/November depending on the weather.
A WCB medical advisor reviewed the file on May 28, 2008. Given the treating physician’s report of neck and upper back pain and reduced cervical range of motion, he felt the worker would likely have difficulties with lifting/pulling movements overhead and with climbing. The medical advisor noted that a CT scan of April 2007 showed pre-existing cervical spine osteoarthritis, degenerative disc disease, and a left sided disc herniation at C5-6. The medical advisor also noted that as of April 10, 2008, it was reported that the worker had a new symptom of numbness down the left arm. He stated that given the mild injury mechanism, the history of pre-existing osteoarthritis in his neck and left sided disc herniation, and the occurrence of arm paresthesia with a referral to neurosurgery, it was his opinion that the worker’s current condition was more related to the natural history of his pre-existing condition as opposed to the September 2007 compensable injury. It was the medical advisor’s opinion that the current medical treatment would be related to pre-exiting conditions as opposed to the September 2007 compensable injury.
In a letter dated May 29, 2008, the worker was advised of the WCB’s position that he was not entitled to wage loss benefits beyond October 28, 2007 and that on a balance of probabilities, his current medical treatment was not related to the injury of September 19, 2007 but rather to pre-existing conditions in his neck and back. The adjudicator noted that the treating physician provided a return to work date of October 29, 2007 with “restrictions” but did not outline what the restrictions were. A WCB medical advisor clarified that these restrictions were to limit overhead lifting and pulling, and to limit climbing. The adjudicator noted that the worker’s regular duties as a truck driver would have been within these restrictions. Given this evidence, it was felt that the worker was fit to resume his regular duties as of October 29, 2007 and no further wage loss benefits were due.
The adjudicator also indicated that based on the available information, i.e. the mild mechanism of injury on September 19, 2007, the worker’s history of pre-existing neck osteoarthritis and left sided disc herniation, and the occurrence of new symptoms since September 2007, it was the opinion of the WCB that his current symptoms were the result of an underlying or pre-existing condition, the progression of which was not enhanced or accelerated by the injury of September 19, 2007.
On February 26, 2009, a worker advisor asked the WCB’s Review Office to reconsider the decisions made by the WCB on the worker’s 2006 and 2007 claims that he was not entitled to wage loss benefits beyond October 28, 2007. The worker advisor indicated that the worker’s regular work duties require him to climb in and out of the truck and cover loads with a tarp by pulling on the tarp to strap it down. It was submitted that the worker was therefore not capable of returning to his regular duties and that the worker did not receive an offer of modified duties either before or following his seasonal lay-off.
The worker advisor submitted that the worker had never fully recovered from the accident he sustained on September 13, 2006. It was submitted that the September 2007 incident did not constitute a new injury but was a recurrence of his prior injury which occurred as a result of performing his regular job duties. It was contended that the worker’s time loss beyond October 28, 2007 resulted from ongoing effects of his 2006 injury and should be covered for payment of wage loss benefits under the 2006 claim.
Under the worker’s 2006 claim, Review Office determined on March 25, 2009 that the worker was not entitled to wage loss benefits beyond October 28, 2007. Review Office concurred with the opinion expressed by the WCB’s healthcare department which stated that the worker was capable of performing his regular duties as of March 31, 2007. It noted that although the worker may have experienced pain or discomfort after returning to work, this would not have precluded him from performing his regular duties. Review Office found no medical evidence to support that the worker was unable to work beyond October 28, 2007 due to the effects of his September 13, 2006 compensable injury.
Under the worker’s 2007 claim, Review Office determined on March 25, 2009 that the worker was not entitled to wage loss benefits beyond October 28, 2007. Review Office felt that the September 19, 2007 accident did not result in changes to the worker’s pre-existing condition. It noted that the worker’s symptoms progressed to his left arm even though he was not working. Review Office found that the worker’s ongoing symptoms were related to his pre-existing condition.
Review Office was also of the opinion that the worker’s restrictions would not have precluded him from performing his regular work duties. It stated that the worker was not entitled to wage loss benefits beyond October 28, 2007 as the medical evidence did not support that the worker was not capable of performing his regular duties due to the effects of his compensable neck and back sprain/strain. On April 29, 2009, the worker advisor appealed both decisions made by Review Office to the Appeal Commission and a hearing was arranged.
Following the hearing held on October 29, 2009, the appeal panel requested additional information from a physiotherapy clinic prior to its further discussion of the case. On November 23, 2009, all interested parties were provided with a copy of the physiotherapist’s chart notes and were asked to provide comment. On December 10, 2009, the panel met further to discuss the case and render its final decision.
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. 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, or the worker attains the age of 65 years.
WCB policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The policy also outlines when a worker engaged in suitable work is laid off whether they are eligible for additional benefits.
Worker’s position
A worker advisor appeared at the hearing to assist the worker with his appeal. The worker participated in the hearing with the aid of an interpreter. It was submitted that the worker’s time loss after October 28, 2007 was compensable as a recurrence of the workplace injury the worker sustained in the September 13, 2006 motor vehicle accident. Alternatively, the time loss should be covered under the new claim the WCB established for the September 19, 2007 injury. It was the worker’s position that the evidence on file strongly supported that the time loss was related to the ongoing effects of one or both of the worker’s compensable injuries, rather than being related to pre-existing conditions. The worker disagreed with the WCB medical advisor’s opinion that the worker’s disability after October 28, 2007 was solely due to the natural course of his pre-existing conditions. If that were the case, the worker would not have had such a positive and relatively rapid response to physiotherapy treatment he received in 2008. With respect to modified duties, it was argued that the duties offered by the employer to the worker in 2006 actually increased his pain and symptomatology. It was noted that the worker was never fully cleared to return to work. He was only to return to work with restrictions, which indicated that there was not a full resolution of his symptoms. While the file noted times when the worker had some periods of improvement in his symptoms, this did not equal a full recovery or an ability to return to either the so-called light duties, or to his regular driving duties. It was submitted that if the panel accepted that the worker had restrictions related to one or both of his claims after October 28, 2007, then by extension, he had a compensable loss of earning capacity since the employer did not accommodate those restrictions.
Employer’s position
The employer was represented by its safety officer and an advocate. It was submitted that the medical evidence was clear that the worker was not disabled beyond October 28, 2007 as a result of either the 2006 or 2007 claim. The worker was fit to resume his regular duties as a truck driver and although some minor restrictions to limit overhead lifting, pulling and climbing were proposed, this would not have precluded a return to work in his regular duties. Even if he could not go back to work as a truck driver, alternate duties could have been provided by the employer, thereby eliminating any loss in earning capacity. There was also medical evidence indicating that any ongoing problems the worker had were due to a pre-existing degenerative back and degenerative cervical problems. Finally, the employer advocate noted evidence regarding a dispute over pay which the worker had with the employer on September 21, 2007, the day before he went off work for the 2007 claim. It was questioned why the worker did not mention or report the difficulties he was having with work duties at that time. The worker was cleared by his physician to work on October 25, 2007, and it was submitted that there was no reason given as to why he did not return. He did not show up for work, nor did he contact the employer, and in fact, did not contact the employer at all in 2008. No word was heard from him until May 2009, following the denial of his appeal by the Review Office. The employer submitted that there was no loss in earning capacity due to a compensable injury and asked that the panel deny the appeal.
Analysis
In order for the worker’s appeal to be successful, the panel must find that by October 28, 2007, the worker had not recovered from the effects of the injuries he sustained in either the workplace accident of September 13, 2006 or September 19, 2007, and that his earning capacity could not be preserved by the performance of modified duties. On a balance of probabilities, we are able to make those findings.
In the accident of September 13, 2006, the worker was involved in a motor vehicle accident, from which he suffered a whiplash-type injury to his neck, upper/mid back, and shoulders. The worker gradually recovered from this injury and he was able to resume his regular duties as a gravel truck driver in May, 2007. Although the worker claimed that the pain from the September 2006 injury never resolved, he was able to maintain his employment on a steady basis until the second accident of September 19, 2007. The panel also notes that on July 31, 2007, the worker was discharged from his chiropractor’s care and from that time until the September 19, 2007 accident, the worker did not require any further medical attention. In view of the extended period of time where there was no wage loss and no medical aid required by the worker, the panel finds that the 2006 injury had stabilized to a point where it no longer caused a loss of earning capacity. We therefore find that the 2006 claim was not a factor in the worker’s wage loss beyond October 28, 2007 and any claim for further wage loss is attributable to the 2007 claim.
On September 19, 2007, the worker suffered a second injury to his cervical region when the truck he was driving struck a pot hole and he felt a shake to his body. It was confirmed by the employer that there was some damage to the vehicle the worker was driving. Although there is some discussion on the file as to the relatively minor nature of the workplace accident, the panel accepts that the worker had a “neck at risk” due to the earlier 2006 injury, in conjunction with some degenerative changes in his cervical spine, and that a relatively minor incident could cause injury to the region.
The worker’s evidence at the hearing was that after he hit the pot hole in September 2007, the pain became just too much and he was not able to continue to work. He remained off work and in fact did not return to the workforce until 2008. It should be noted that although the worker’s claim for injury arising from the September 2007 incident was accepted by the WCB, the claim was not approved until May 2008. This information becomes relevant later on in this decision.
After investigation, the WCB determined that the worker was fit to return to work by October 28, 2007. The WCB based this determination on the chart notes of the worker’s treating physician who noted “Asking to go back to work. Will return to work on October 29, 2007 with restrictions.”
At the hearing, the worker’s evidence was that he was still in significant pain in October, 2007 however, he had a family to support and knew that he did not have enough hours to qualify for Employment Insurance benefits. He therefore asked his doctor to clear him for work despite the fact that he was still having significant pain in his cervical region.
The review by the WCB medical advisor on May 28, 2008 acknowledged: “…Probable evidence of partial work disability given the treating MD’s report of neck and upper back pain, and reduced cervical ROM. These signs and symptoms would likely lead to difficulties with lifting/pulling movements overhead and with climbing.” The WCB medical advisor went on to conclude that on a balance of probabilities, the worker’s current condition was more related to the natural history of his pre-existing condition as opposed to the September 2007 injury.
Since the time of the assessment by the WCB medical advisor, the worker has attended a course of physiotherapy to which he was referred by his treating physician on April 24, 2008. The worker’s evidence was that after participating in a 3 month course of physiotherapy, he experienced vast improvement in his condition and by the time he was discharged, he had regained considerable movement and ability in his neck and shoulders and his physician had cleared him for a full return to work.
After the hearing, the panel requested further medical information from the treating physiotherapist. Chart notes from the physiotherapist indicate that the worker was first assessed on June 11, 2008 for neck pain. He attended physiotherapy twice per week and experienced improvement in neck pain and headaches. The referral was later extended in August, 2008 to include treatment for the low back. The physiotherapy progress note for September 23, 2008 indicated that the worker was reporting that his neck felt better and that physiotherapy for the neck was considered completed. The worker continued to attend physiotherapy for the more recent referral for his low back.
In the panel’s opinion, the marked improvement the worker gained from physiotherapy would suggest that there was an ongoing muscular injury from the September 2007 accident which responded favorably once the worker received proper treatment. We note that he never received much in the way of treatment after the injury was sustained. If a pre-existing degenerative condition was responsible for his ongoing symptoms, we would not expect the worker to have improved so rapidly and to have sustained those improvements. The panel is therefore satisfied on a balance of probabilities that the worker continued until September 23, 2008 (date of completion of physiotherapy) to suffer from the effects of the injury he suffered on September 19, 2007.
The question then becomes whether or not the worker had a loss of earning capacity beyond October 28, 2007. In order to answer this question, the panel must consider the availability of modified work.
We know that in 2006, modified duties were made available to the worker by the accident employer. The duties involved shop work and there was complaint by the worker that the modified duties were actually more difficult than his regular driving duties. At the hearing, the employer advocate indicated that the employer’s return to work program allowed light duties to be tailored to an individual’s needs. The worker is an extra, can work at his own pace, and if there are problems with the work, the worker should tell the employer and the employer can adjust the duties. Based on this evidence, the panel accepts that suitable modified duties could have been available with the employer.
The timing of the availability of modified duties, however, is problematic. There is discrepancy in the evidence as to the reasons why the worker did not report for work in October, 2007. We note that on October 17, 2007, the worker received a lay-off notice. There is a question as to whether or not modified duties would be offered to a worker who was on lay-off status. We know from the 2006 experience that if an employee was already in an existing modified duty position, the employer would continue to offer these duties into the lay-off period. It was not clear, however, whether or not a new modified duty position would be offered to an employee while in a lay-off period.
More importantly, however, was the employer’s evidence that the accident employer’s return to work program was only offered to employees who were in claim with the WCB. As noted earlier, the worker’s claim for his September 2007 injury was not accepted by the WCB until May 2008. Therefore, the worker would not have been eligible to participate in the employer’s return to work program on October 28, 2007 and modified duties were therefore not available to him at that time.
The panel did not consider WCB policy 43.20.25 to be applicable as the worker was not engaged in modified or alternate work at the time he was laid off.
The panel considered whether or not the worker ought to have sought modified work with another employer. We note a memorandum of a telephone conversation which the case manager had with the worker on May 23, 2008, shortly after his 2007 claim for benefits was approved. With respect to return to work, the notes indicate that: “He states he has not RTW since his accident of September 19, 2007. He was laid off as of October 17, 2007. He states he has not been looking for other employment because he is on medication and his doctor does not feel he is capable of working.” The memo notes that the worker was taking prescription painkillers, arthritis medication, and anti-inflammatories. At this time, the worker had been referred by his physician (on April 25, 2008) for physiotherapy and he was awaiting admittance into the program.
In the panel’s opinion, it was reasonable for the worker to rely on his doctor’s opinion that he was not capable of working and therefore we find that the worker was not obliged to seek out modified duties from another employer at this time. We accept that he had a loss of earning capacity beyond October 28, 2007 and accordingly, he is entitled to further wage loss benefits, which we establish are from October 28, 2007 until his discharge from physiotherapy on September 23, 2008. 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 27th day of January, 2010