The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s pre-existing degenerative problems in his lumbosacral spine contributed to his ongoing symptoms commencing May 14, 2009. The employer disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission. A file review was held on May 26, 2010, to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits commencing May 14, 2009.

Decision

That the worker is entitled to wage loss benefits commencing May 14, 2009.

Decision: Unanimous

Background

On February 17, 2009, the worker reported that he felt a sharp pain in his low back when lifting a suction pipe. He continued to work his regular duties until March 3, 2009. He first attended for medical treatment on March 4, 2009 and was diagnosed with a back strain and prescribed pain killers. He commenced physiotherapy on the same date.

On March 18, 2009 the worker’s physician indicated that the worker was capable of returning to modified duties commencing March 23, 2009 provided there was no lifting over 40 pounds and no frequent loading.

On March 31, 2009, the WCB accepted the worker’s claim based on a back strain and wage loss benefits were paid to the worker from March 4, 2009 to March 18, 2009. The worker returned to modified duties on March 24, 2009, although he reported that he was still experiencing pain and he was doing what he could at work. He was continuing physiotherapy which he found to be occasionally helpful.

Progress reports from the worker’s treating physician confirmed that his back pain continued; however, there was some improvement. As of May 4, 2009 his physician reported that the worker was 80% better and he recommended ongoing light work. The worker’s physiotherapy treatment was extended for an additional 8 weeks and a referral to an orthopaedic specialist was made. On May 6, 2009 his Case Manager confirmed that the worker’s restrictions had been increased to “no lifting greater than 50 lbs. and avoid sitting for more than 30 minutes without a chance to change position/stretch.”

On May 19, 2009, the worker advised the WCB that his employer had switched him to a job where he sat in front of a computer entering data. He did this for three days commencing May 11, 2009 and his back stiffened up. He was advised by his doctor to remain off work until he saw a specialist.

On May 25, 2009, the orthopaedic specialist reported that the worker had suffered from low back pain off and on for a number of years. He noted that the worker complained of pain in his back and that X-rays of the lumbar spine showed narrowing of the disc space at L3-4 level and was in keeping with degenerative disc disease. The worker was advised to refrain from bending and lifting and to consider an alternate job that did not involve heavy lifting for a few months.

On June 5, 2009 the physiotherapist confirmed that prolonged sitting had aggravated the worker’s symptoms and that he was not able to return to work. The specialist confirmed on June 9, 2009 that the worker was not able to return to the modified duties.

On July 8, 2009 the worker’s physician confirmed that the worker was capable of returning to modified duties, providing there was no lifting greater than 40 pounds, no excessive bending and no jumping. On July 13 the worker returned to full time light duties with restrictions. On July 22, 2009 he resumed his pre-accident full time duties with the employer.

On June 22, 2009, the WCB approved wage loss benefits for the worker from May 14, 2009 to June 12, 2009 as it was determined that the modified duties working on the computer had caused a significant flare up of the worker’s condition.

On June 23, 2009, the worker underwent a Functional Capacity Evaluation. It was determined from the assessment that the worker “demonstrated the ability to lift dynamically bilaterally at a ‘medium’ rate of work capacity.”

On July 14, 2009, the employer appealed the adjudicator’s decision of June 22, 2009 to Review Office on the grounds that the light duties assigned to the worker on May 11, 2009 were appropriate. The worker’s union representative submitted a response on September 11, 2009 and final arguments were submitted by the employer on September 23, 2009.

In a decision dated October 15, 2009, Review Office confirmed that the worker was entitled to wage loss benefits commencing May 14, 2009. Review Office concluded that given the worker’s significant history of prior low back complaints and the pre-existing degenerative problems in his lumbosacral spine, it was probable that the light duties assigned to the worker contributed to the worker’s ongoing symptoms. While Review Office agreed with the employer that the light duties provided to the worker were within his restrictions, it noted that for individuals suffering from degenerative disc disease, lower back pain can be made worse with sitting due to the increased load on the discs. It was the opinion of Review Office that the additional sitting required in the light duties provided on May 11, 2009 likely resulted in an exacerbation of the worker’s lower back symptoms.

On October 29, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

The employer in this case fully complied with its obligation to provide modified duties to the employee. It assigned light duties to the employee which allowed him to sit no longer than 30 minutes at a time. He was free to move around as he felt it necessary to do so. Notwithstanding this, the worker experienced increased pain upon assuming those light duties. The worker’s subjective complaints are, in our view, supported by the medical evidence.

On May 13, 2009 the worker reported to his physician that he “feels lower back pain while sitting in front of the computer.” His physician determined that he was unable to return to modified duties. On May 28, 2009 the physician again noted that his pain had increased over the previous two days. The physiotherapist reported on June 5, 2009 that “prolonged sitting associated with light/office duties aggravated symptoms” and that he was unable to return to work. The physiotherapist noted that the worker should be reassessed in mid-June and that he would then “plan modified duties/graduated return if/when appropriate”. The worker was then referred to the specialist who confirmed that “activities involving bending, lifting, turning and twisting still cause him pain. Sitting for too long bothers him.”

We are satisfied in all of the circumstances that the light duties assigned by the employer, although well within his restrictions, did in fact aggravate his pre-existing condition of degenerative disc disease. While the modified duties were in keeping with the restrictions, the restrictions themselves were ultimately not appropriate given the worker’s condition. As the compensable injury continued to cause a loss in earning capacity after May 14, 2009, this appeal is dismissed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 10th day of June, 2010