Decision #36/10 - Type: Workers Compensation

Preamble

The employer is appealing two decisions that were made by Review Office of the Workers Compensation Board (“WCB”) which confirmed that the worker suffered personal injury by accident arising out of and in the course of her employment and that she was entitled to benefits up to August 8, 2008. A file review was held on March 17, 2010 to consider the employer’s appeal.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker was entitled to wage loss benefits until August 8, 2008.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits until August 8, 2008.

Decision: Unanimous

Background

On October 22, 2007, the worker reported that she was bending over a vehicle to obtain an identification number when she felt something like a pop or tear in her low back. She also felt pain in her left hip. Following the accident, the worker attended a hospital facility for treatment and provided an accident history of pulling her low back at work when bending forward to look under a trailer. The worker was diagnosed with muscular spasm and was advised to remain off work from October 22 to October 29, 2007.

Subsequent medical documentation showed that the attending physician arranged for the worker to attend physiotherapy treatments. The initial physiotherapy assessment dated November 6, 2007 outlined subjective complaints of constant pain and spasm to the left low back that was worse with bending and sitting. The worker had pain down the posterior left leg, pain with valsalva maneuver and transitional movements were difficult. The physiotherapist’s diagnosis was lumbar spine injury and possible discogenic involvement.

The WCB arranged for the worker to undergo an MRI examination on January 22, 2008. The MRI showed no significant disc protrusion. The central canal and neuro-foramina were well maintained.

At a WCB call in examination on March 12, 2008, the WCB medical advisor reported that the worker appeared to have ongoing low back pain secondary to chronic muscle strain. There were significant pain behaviours noted on the examination. Other investigations were reported as being negative for radiculopathy. The medical advisor felt that the worker was unable to return to her pre-accident work. He recommended that the worker be referred to a physical medicine and rehabilitation consultant (“physiatrist”) for dry needling and athletic therapy and to undergo a nuclear bone scan.

On March 14, 2008, the employer advised the WCB that modified duties were available for the worker that involved cleaning duties throughout the building which would not require heavy lifting or back strain. The employer had openings available at the service counter or in the front office.

On March 24, 2008, a bone scan was completed and it revealed no abnormalities.

A report received from the physiatrist dated March 26, 2008 assessed the worker with the following conditions:

  1. Mechanical back and hip pain.
  2. Sleep and mood disturbance secondary to number one.
  3. Rule out metabolic disorder.

A follow-up report from the physiatrist dated June 5, 2008, indicated that the worker’s pain complaints persisted but were somewhat improved with her athletic therapy program and medication. The worker’s mood also improved with medication. Her hip flexors were quite shortened and would benefit from a trial of acupuncture.

On July 17, 2008, the treating physician reported that the worker had limited range of motion and may be capable of sedentary work with the ability to change positions. He indicated that the treating physiatrist would be in a better position to comment on the worker’s capabilities.

On July 22, 2008, the worker advised the WCB that she was moving to British Columbia on August 6, 2008 and would be looking for a desk job that involved no physical activity.

A WCB medical advisor reviewed the file on July 25, 2008. In his medical opinion, the worker’s prognosis was good and the pain generators appeared to be soft tissue. He noted that imaging studies failed to reveal other significant pathology. The medical advisor concluded that the worker had not recovered from her compensable injury but was capable of work that did not involve lifting more than 10 to 15 lbs. and to avoid repetitive bending at the waist.

On July 25, 2008, the WCB wrote to the employer asking if they were able to accommodate the worker in a return to work plan that met her compensable restrictions, i.e. to avoid lifts of more than 10 to 15 lbs. and repetitive bending at the waist.

A report from the physiatrist and certified athletic therapist dated July 31, 2008 indicated that the worker demonstrated significant improvement in her lumbar spine and hip range of motion but that improvements in strength had not been pronounced. Work restrictions were outlined to avoid lifting and carrying greater than 10 lbs., no frequent bending and twisting at the lumbar spine, and to avoid climbing stairs and ladders.

On August 6, 2008, the employer advised the WCB that they were able to alter or modify the worker’s pre-accident position that would fit within her work restrictions.

On August 7, 2008, the worker was advised that the WCB agreed with the modified job position offered by the employer and therefore wage loss benefits would be paid to August 8, 2008 inclusive and final as there was no longer a loss of earning capacity. On August 8, 2008, the worker appealed the decision to Review Office as she felt that there was medical evidence to support that she required further rehabilitation as she could not push a broom, climb in and out of trailers or walk on uneven surfaces.

On September 18, 2008, Review Office determined that the worker was not entitled to wage loss benefits beyond August 8, 2008. Review Office accepted that the compensable diagnosis was a muscular strain injury and that the medical evidence did not support any disc injury or radicular complaints. It felt that the modified duties offered by the employer were reasonable. Review Office stated that the worker’s decision to move out of province prevented her from even considering a return to work with the accident employer irrespective of the nature of the modified duties made available. Review Office was satisfied that the worker’s ongoing loss of earning capacity was attributable to her decision to move and that she was not entitled to further benefits.

Medical information was later received from a B.C. physician dated September 22, 2008 which indicated that the worker complained of low back pain radiating to the left groin and lateral aspect of the left thigh. Core support compression shorts were recommended. He indicated that the worker was not capable of alternate or modified duties.

On October 15, 2008, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor indicated that compression shorts were sometimes used for sciatica but this was not the diagnosis here. The medical advisor stated,

“…The mechanism of injury was just bending down. There was no significant force involved. You would not expect this to cause any injury, but at most maybe a mild strain (recovery norm 4 weeks). There were some initial findings that suggested there could be a disc injury, but this was not supported by MRI findings. Her own physician dx’d [diagnosed] this as a strain, based on the negative MRI. Xray, MRI, and bone scan were all negative. The worker has had multiple treatment modalities that would have been expected to resolve the effects of a strain: medication, time off work, physiotherapy, and reconditioning. Her clinical findings are not consistent with a strain (with tenderness to light touch and very limited ROM: neither of which are objective). Based on this review, I cannot relate the current symptoms or findings to the dx of a strain that occurred almost a year ago. The effects of the strain have long since resolved.”

On March 27, 2009, the employer’s advocate appealed the overall acceptance of the claim and the duration of the worker’s wage loss benefits.

On April 23, 2009, Review Office denied the employer’s appeal on both issues. Review Office was satisfied that the worker sustained an injury by accident arising out of and in the course of her employment on October 22, 2007 when she felt a pop in her back when bending over to locate a vehicle identification number. It stated that the worker reported the accident promptly to her employer and attended for medical treatment.

Review Office disagreed with the employer’s contention that wage loss benefits should have been paid for a maximum of four weeks based on the WCB medical advisor’s comments of October 15, 2008.

Review Office noted that the worker displayed ongoing low back pain secondary to what had become a chronic muscle strain when seen by a WCB medical advisor on March 12, 2008. The medical advisor outlined the opinion that the worker was not yet capable of returning to work in her pre-accident capacity and further treatment was recommended. Review Office indicated that a return to work was suggested following the worker’s attendance at a physiotherapy program. It stated that the worker elected to relocate to another province rather than return to the modified duties. Based on this evidence, Review Office concluded that the worker was entitled to wage loss benefits to August 8, 2008 inclusive.

On August 13, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a file review 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.

The issues on appeal before the panel concern claim acceptability and the worker’s continuing entitlement to wage loss benefits until August 8, 2008. 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.

WCB Policy 43.20.25, Return to work with the Accident Employer (the “Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. It also provides guidance and interpretation of the re-employment obligations set out in the Act.

The employer’s position:

The appeal was submitted for review by an advocate acting on behalf of the employer. It was submitted that the worker’s wage loss should never have exceeded 4 weeks, as her claim was only accepted as a strain and this type of injury normally fully recovers within 4 weeks. At the latest, her wage loss should have been suspended as of the January 22, 2008 MRI which ruled out any other underlying or more serious pathology. In the alternative, the WCB should have concluded the worker’s wage loss benefits as of the March 27, 2008 meeting when the worker refused to sign off on an offer of modified duties by the employer, as the worker was capable of performing them at that time. It was submitted that her ability to work was supported by the March 24, 2008 bone scan, which was the final recommended diagnostic test and indicated completely normal findings. The employer’s position was that the claim ought to be denied as the objective evidence did not support a relationship between the worker’s subjective symptoms and a work related injury. Her symptoms did not correlate with the accepted diagnosis of a strain or chronic strain.

Analysis:

There are two issues before the panel. Each will be addressed separately.

1. Whether or not the claim is acceptable.

The first issue before the panel is whether or not the claim for benefits is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker did not suffer an accident arising out of and in the course of her employment on October 22, 2007. On a balance of probabilities, we are not able to make that finding.

In the panel’s opinion, most of the usual indicators associated with the occurrence of a workplace accident are present and there is no cause for suspicion in this case. There was no delay by the worker in reporting the accident to the employer, and the worker immediately sought medical treatment on that day. The worker’s account of the accident is largely consistent and the described mechanism of injury is consistent with the diagnosis of a low back strain. On a balance of probabilities, the panel finds no substantive evidence or a basis for challenging the acceptability of the claim, and the employer’s appeal on this issue is therefore denied.

  1. Whether or not the worker was entitled to wage loss benefits until August 8, 2008.

The second issue concerns the duration of the worker’s claim for wage loss benefits. In order for the employer’s appeal on this issue to be successful, the panel must find that the worker’s loss of earning capacity ended on a date earlier than August 8, 2008. We are unable to make that finding.

From a medical standpoint, the panel finds that by August 8, 2008, the worker continued to experience symptomatology from the compensable injury and physical workplace restrictions were required. We do not accept that a normal recovery norm of 4 weeks ought to have been imputed into the worker’s situation. The worker was in regular contact with her treating physician, who provided the WCB with updates as to the worker’s condition. The treating physician’s reports provide reliable medical evidence to support a finding of ongoing disability directly related to the compensable injury.

Given the fact that the worker was continuing to suffer from the effects of her compensable injury, her loss of earning capacity will only be found to have ended when the employer has provided suitable modified or alternate work which respects the worker’s restrictions. Although the employer’s submission argues that suitable modified duties were offered to the worker as of March 27, 2008, the panel does not agree. In our opinion, although there had been some discussion regarding suitable modified work, these arrangements were not in place until August 8, 2008. Prior to that date, no bona fide offer of modified work was provided to the worker by the employer. There was no meeting of the minds for a modified duties position which would meet the worker’s restrictions. It was not until August 8, 2008 that an appropriate modified duties position was offered to the worker, and it is only when she failed to accept this offer from the employer (by virtue of leaving the province and being unavailable to work) do we find her loss of earning capacity to be at an end.

For these reasons, we find that the worker is entitled to wage loss benefits up to August 8, 2008. The employer’s appeal on the second 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 27th day of April, 2010

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