Decision #18/11 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for injuries to his back, neck and both hands that he related to his work duties on October 24, 2007. In February 2008, the worker was to commence a graduated return to work program but chose not to participate as he contended that the return to work program was not appropriate based on the results of a Functional Capacity Evaluation ("FCE"). On January 6, 2009, Review Office confirmed that the worker was capable of returning to modified duties on a graduated basis in February 2008 and that he was not entitled to further benefits. The worker's union representative appealed this decision and a hearing was held on June 11, 2009 to consider the matter. The June 11, 2009 hearing was adjourned sine die as the worker and his union representative wished to pursue other issues with the WCB in relation to his 2006 compensable right ankle fracture (a separate WCB claim).
On December 10, 2009, Review Office determined that the graduated return to work program was not appropriate due to the worker's right ankle restrictions and that the worker was entitled to full wage loss benefits from February 8, 2008 to April 20, 2008 inclusive. It felt, however, that the worker's loss of earning capacity after April 20, 2008 was due to a deterioration of his physical conditions which were unrelated to his WCB claims. On January 11, 2010, the worker's union representative appealed the second decision made by Review Office and an oral hearing was held on September 16, 2010.
Issue
Whether or not the worker is entitled to wage loss benefits after April 20, 2008.Decision
That the worker is not entitled to wage loss benefits after April 20, 2008.Decision: Unanimous
Background
On October 24, 2007, the worker reported that he injured his back, neck and both hands from hauling/pulling five bags with draw strings weighing approximately 45 pounds up two flights of stairs.
On October 25, 2007, the family physician diagnosed the worker with a back sprain. He noted that the worker had pre-existing conditions that may affect his recovery which included headaches and injuries stemming from a physical assault on January 25, 2007. When seen for follow up treatment on November 26, 2007, the family physician changed the diagnosis to upper back and neck sprain.
When speaking with a WCB medical advisor on December 10, 2007, the family physician indicated that the worker was unable to work but was not sure if it was related to this specific claim, his previous assault or other issues. The medical advisor indicated that a WCB call in examination would be arranged to establish the compensable diagnosis and current status.
At a WCB call in examination on January 10, 2008, the worker presented with neck pain over the past year which worsened after doing heavy lifting at work. The clinical examination was consistent with a soft tissue injury or non-specific neck pain. The worker had some underlying degenerative changes but there was no indication that these had been aggravated. There was no indication of any disc involvement or evidence of any myofascial irritability. The medical advisor recommended that the worker undergo a course of physiotherapy treatment and in the meantime would be fit for modified duties with the following temporary restrictions:
· To avoid lifting greater than 10 lbs.;
· To avoid any overhead work;
· To avoid heavy pushing or pulling;
· To avoid work where he had to hold his neck in a static position or do repetitive neck movements; and
· No driving due to his inability to shoulder check.
It was expected that these work restrictions would be lifted after physiotherapy treatment was completed. The medical advisor noted that the worker may require restrictions related to other medical issues but only those listed above would be related to his compensable injury.
A May 28, 2007 CT scan of the cervical spine showed multilevel degenerative changes throughout the cervical spine. On January 19, 2008, the WCB medical advisor reviewed the CT scan results and stated: “From the call in exam there were no findings to support that this condition had been aggravated but it could certainly delay recovery. Let’s review after the course of treatment. This really should resolve the effects of the C/I and after that any ongoing pain/disability would be more likely related to this pre-x.”
In a memorandum to file dated January 29, 2008, a WCB case manager documented that a return to work meeting took place with the worker, his union representative and several employer representatives. There were two jobs identified that met the worker’s compensable and non compensable restrictions. The case manager noted that the worker raised concerns regarding the amount of "standing-up" that was required for these jobs. As the restriction of "standing" was not related to the compensable injury nor was it established with respect to another medical condition, she was unable to consider it. The case manager advised the worker that if he felt he was not able to work due to other medical conditions, that he should seek medical treatment with his doctor and have further information submitted to his private insurance carrier.
On February 11, 2008, the worker’s union representative advised the WCB that the worker elected not to return to work and was going on sick leave. It was decided that the graduated return to work program would be paid out as written. On February 11, 2008, the worker was advised in writing that he would be paid full wage loss benefits to February 1, 2008 and then partial wage loss benefits from February 4 to 18, 2008 as he elected not to participate in the return to work program.
In a memorandum dated April 9, 2008, a WCB case manager documented that the worker attended physiotherapy treatment twice and was not interested in having any type of active treatment. He made a couple more appointments but did not show up. The worker was discharged from treatment.
On May 12, 2008, a WCB medical advisor noted that the worker had full range of motion and a normal neurological exam according to his family physician. There was no mention of tenderness. This supported a conclusion that the effects of the compensable injury had resolved.
On May 13, 2008, the worker was advised that WCB wage loss benefits would be paid based on the proposed graduated return to work program outlined on February 11, 2008 and that responsibility for medical treatment would conclude on May 13, 2008. The case manager indicated that after consulting with the WCB’s healthcare department, it was felt that the worker had essentially recovered from the injuries he sustained on October 24, 2007.
On July 9, 2008, the worker’s union representative submitted a copy of a FCE report dated June 20, 2008 which he submitted: “…concludes that his safe current level of work is sedentary for less than 50% of an 8-hour day.” Based on this report, the union representative contended that the WCB’s return to work plan was not realistic and should be re-evaluated.
On September 23, 2008, the worker was advised that a complete review of his claim, including the FCE report, had been completed in consultation with the WCB’s healthcare department. Based on this review, it was felt that the graduated return to work program scheduled to begin on February 4, 2008 was appropriate and that the worker had recovered from the effects of his workplace injury on or before May 13, 2008. The case manager noted the FCE reported little by way of back pain except with heavy lifting. This supported a finding that the worker’s compensable low back injury had essentially recovered. With respect to the worker’s neck difficulties, the case manager noted that the worker’s neck pain had returned to his pre-October 2007 level as reported by the worker at the January 10, 2008 call in examination. She also referred to the April 20, 2008 progress report from the family physician which reported a normal range of motion of the worker's back and neck with no neurological findings. This supported that the worker had recovered from his workplace accident. On October 23, 2008, the union representative appealed the decision to Review Office.
On January 9, 2009, Review Office determined that the worker was not entitled to further benefits. When making its decision, Review Office referred to medical reports on file from the attending physician and physiotherapist to support that the worker’s hands and back, from a compensation perspective, were of no consequence beyond January 2008 and that he had recovered from his 2007 injuries.
Review Office referred to the following comments written in June 2008 by the physiotherapist:
“Neck Range of Motion: suggests 50% decrease in active and passive range due to permanent structural changes not amenable to further treatment in my opinion, i.e. maximum medical improvement has been attained.”
Review Office stated that it was unable to accept that the physiotherapist’s findings were related to the October 2007 compensable accident but were on balance attributable to extensive degenerative changes of the worker’s cervical spine.
Review Office concluded that the worker was capable of returning to modified duties on a graduated basis in February 2008, that he would have been able to progress to full time work as scheduled and from there, would have been able to return to his pre-accident work in short order. It rejected the contention that the worker’s limitations found in June 2008 were related to his October 2007 accident. On February 17, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was held on June 11, 2009. The June hearing was adjourned sine die, however, in order for the worker to pursue other issues with the WCB that related to a compensable 2006 right ankle fracture.
In brief, the worker suffered a work related injury to his right ankle in 2006. His claim for compensation was accepted. On October 2, 2009, the worker was advised by the WCB that based on current medical information and in consultation with a WCB medical advisor, he had a permanent restriction to limit standing to 20 to 30 minutes at a time. The worker then continued with his appeal of the October 24 injury.
In a submission to Review Office dated October 7, 2009, the union representative contended that based on the worker's new permanent restriction imposed to his right ankle (in the 2006 claim), the worker's rejection of the proposed accommodation and return to work program discussed in January 2008 was entirely justified as the duties of the two job offers were clearly outside of the worker's standing restrictions. The union representative requested Review Office to reconsider its previous decision and to determine that the worker was entitled to ongoing wage loss benefits subsequent to January 29, 2008 when he was placed on partial wage loss benefits and subsequent to May 13, 2008 when his benefits were terminated completely.
On October 26, 2010, the employer confirmed to Review Office that both the jobs identified were standing positions only; however, there was a graduated return to work plan that would have had the worker starting at four hours per day with a gradual increase in hours. She noted that the worker did not attempt to try this accommodation at even four hours per day. The employer submitted that the worker's right ankle permanent limitation was not on the file in January 2008 and should not be considered today regarding whether the accommodation was suitable or not in January 2008. It argued that the permanent right ankle limitation pertained to the current date and could not be looked at retroactively.
In a decision dated December 10, 2009, Review Office determined that the graduated return to work program was not appropriate. Review Office opined that due to the worker's ankle injury, he was not physically capable of performing the jobs offered to him by his employer in January 2008. Review Office felt that the employer would have been able to accommodate the worker with a job that was within his permanent restrictions related to his ankle and hand injuries and the temporary restrictions related to his claim had it been asked to do so.
Review Office determined that the worker was entitled to full wage loss benefits from February 4, 2008, the date that his return to work program was to commence, and up to April 20 2008, the date that the worker's general practitioner indicated that the worker was not capable of any work. It felt that the worker's loss of earning capacity after April 20, 2008 was due to a deterioration of his physical conditions which were unrelated to his WCB claims. On January 11, 2010, the union representative appealed this decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing on September 16, 2010, the appeal panel met to discuss the case. Prior to rendering its final decision on the issue under appeal, the appeal panel requested additional information from the worker's physical medicine and rehabilitation specialist. The information from the specialist was later received and was provided to the interested parties for comment. On December 17, 2010, the panel met further to discuss the case.
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(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.
The Worker’s Position
The worker was represented at the hearing by a union representative. It was submitted that the worker did not recover from his October 2007 injury by April 2008 and that the FCE report of June 2008 supported the continuum of disability that the worker had from his injuries. It was acknowledged that the worker had a pre-existing degenerative condition, but this condition never presented any difficulties for him. He had been able to engage in full duties at work and it was not until the compensable injury of October 2007 that he was unable to perform his duties. The compensable injury either entirely caused the worker's disability or was a contributor to accelerated degeneration. If not for the injury of October 2007, the worker would still be working.
The Employer’s Position
A representative from the employer was present at the hearing. The employer supported the WCB's decision to allow further time loss only to April 20, 2008. While the employer could have found suitable accommodation to respect the new standing restriction, the worker's physician indicated that the worker could not participate in any form of modified work as of April 20, 2008. The worker suffered from a significant pre-existing condition that would deteriorate as time when on. It was submitted that the limitations outlined in the FCE report were associated with the deterioration of his pre-existing degenerative condition.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits and services after April 20, 2008. In order for the appeal to be successful, the panel must find that by April 20, 2008, the worker had not recovered from the effects of the injuries he sustained in the October 2007 workplace accident. We are not able to make that finding.
On reviewing the medical evidence, the panel finds that the October 24, 2007 workplace accident caused the worker to suffer a strain type injury to his neck and upper back area. At the hearing, the worker indicated that at the present time, he is totally disabled from any employment. His disability arises from pain and limitation he experiences in both his neck and his hands. The worker believed that both his neck and his hands were negatively affected by the workplace accident. The WCB file reflects complaints regarding pain in both hands when the worker first made his report to the WCB, but subsequently, there was no medical management or treatment of hand pain. At the call-in examination by the WCB medical advisor on January 10, 2008, she notes "somewhat decreased strength generally throughout the wrists and hands" and states: "This was thought to be due to the arthritis that he indicated he had in this area."
In the circumstances, the panel is not prepared to find that the worker's hand symptoms formed part of the compensable diagnosis related to the October 2007 workplace accident. Although the worker may have initially experienced some pain due to wrapping the sac cords around his hands, the panel finds that this pain was only transitory and that the current disability he experiences with his hands is related to the arthritis which the file references he has in his hands and wrists.
The panel therefore limited its consideration to whether or not the worker's current disabling neck symptoms are attributable to the October 2007 accident. On a balance of probabilities, we find that the evidence does not establish such a relationship. In coming to our decision, the panel relied on the following:
- The mechanism of injury involved a relatively short period of time during which the worker over-exerted himself. While the initial reports on file indicated that he had to haul 4-5 bags weighing approximately 50 lbs up a flight of 20 stairs, at the hearing, the worker indicated that he believed it was 7 - 10 bags. Regardless of the exact number of bags, the panel notes that the mechanism of injury was mild and non-traumatic. There was no direct impact or jarring of the worker's neck and upper back. While we accept that a strain injury could result, the panel does not view the accident as one which would have caused aggravation or enhancement of the underlying degenerative changes which were present in the worker's cervical spine.
- The medical information on file shows no clinical evidence of injury to the worker's neck. The WCB medical advisor found no indication of disc involvement nor was there any myofascial irritability. The treating physician noted normal gait, normal range of motion, no neurological deficit and straight leg tests were negative. The only evidence of injury was the subjective complaints of pain recorded by the treating physician.
- After the hearing, the panel requested a medical report from a physiatrist who treated the worker on five occasions between August 24, 2006 to June 2, 2008. The information subsequently received from the physiatrist indicated that his impression when he saw the worker on April 17, 2008, was that the worker had pre-existing spondylosis of cervical spines, and that the injury of the 25 of January 2007 (physical assault) caused possibly flexion extension and rotational strain to this neck complicated by musculoligamentous strain of the cervical scapular group of muscles. The physiatrist was aware of the worker's activities on October 24, 2007, but did not attribute any of the worker's symptoms to that incident. We find nothing in the physiatrist's report to support that the worker's ongoing problems are attributable to the October 2007 work accident.
In view of the foregoing, the panel is unable to find that the worker suffered an injury in the October 2007 accident which disabled him past April 20, 2008. The panel agrees with Review Office's determination that the complete disability reported by the treating physician after that date is entirely referable to causes other than the compensable workplace injury. The neck and upper back strain which the worker had suffered on October 24, 2007 would have resolved by that date. We therefore find that the worker is not entitled to wage loss benefits after April 20, 2008. The worker's appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 14th day of February, 2011