Decision #47/11 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for a back and wrist injury she suffered when she slipped and fell in her employer's parking lot. The claim for compensation was accepted and benefits were paid to the worker to August 28, 2009 when it was determined by the WCB that her ongoing complaints were not related to the compensable injury. The decision was upheld by Review Office on October 22, 2009. The worker disagreed and an appeal was filed with the Appeal Commission.Issue
Whether or not the worker is entitled to wage loss benefits beyond August 28, 2009.Decision
That the worker is not entitled to wage loss benefits beyond August 28, 2009.Decision: Unanimous
Background
On November 8, 2008, the worker injured her low back and right wrist when she slipped in her employer's parking lot.
Initial medical reports showed that the worker attended a hospital facility on the day of the accident and had x-rays taken of her right wrist and lumbar spine. The right wrist revealed no fractures. The lumbar spine also showed no signs of a fracture and the disc spaces were adequately maintained in height.
On November 10, 2008, the family physician diagnosed the worker with a right wrist trauma and a low back strain. Treatment included medication and a referral to physiotherapy.
In a progress report dated December 2, 2008, the family physician reported a new diagnosis of a left temporomandibular joint ("TMJ") syndrome.
On January 13, 2009, the worker started a graduated return to work program with her employer while continuing to attend physiotherapy treatments.
Updates from the employer indicated that the worker continued to experience ongoing difficulties with her back while performing work duties. Reports from the family physician indicated that the worker would undergo an MRI examination due to her ongoing back complaints.
On February 2, 2009, the treating physiotherapist suspected that the worker may have a right scapholunate ligament tear.
The worker was assessed by a WCB medical advisor on May 8, 2009. With regard to the worker's low back, the current diagnosis appeared to be non-specific low back pain with no evidence of radiculopathy. The medical advisor recommended that the worker increase her daily hours at work until she returned to her pre-accident hours. With respect to the TMJ joint, the medical advisor felt that it was unlikely that severe and prolonged symptoms in this area would follow in relation to the November 2008 incident.
An MRI of the right wrist taken on May 14, 2009 showed a small dorsal ganglion adjacent to the scapholunate ligament but the ligament itself was intact.
An MRI of the lumbosacral spine taken on May 14, 2009 revealed the following findings: "At the L4-5 level there is a left lateral disc bulge vs. a very small left lateral disc herniation with associated high signal intensity annular tear at the level of the medial aspect of the left intervertebral foramen…"
On June 18, 2009, the WCB medical advisor who examined the worker in May 2009 reviewed the MRI results. It was his opinion that the findings on the MRI demonstrated evidence of L4-5 disc degeneration (annular tear and disc bulge vs small lateral herniation). The potential left sided root involvement did not correlate with any exam findings or reported symptoms. The L4-5 disc bulge/herniation and associated annual tear was likely representative of age related degeneration. He stated there was no evidence of a significant structural abnormality noted on the right wrist beyond a small ganglion and that the ganglion may have accounted for the degree of the reported wrist symptoms.
The file was reviewed by a WCB chiropractic consultant on June 18, 2009. It was recommended that the worker start an 8 week chiropractic therapy program to assist in her recovery with her ongoing low back discomfort.
On July 6, 2009, a WCB case manager advised the worker that based on the review by the medical advisor, it was expected that she increase her hours at work by one hour every two weeks. On July 15, 2009, the worker was given her return to work schedule. On July 16, 2009, the worker advised the case manager that she would participate in the graduated return to work to the best of her ability but that her back still bothered her.
On July 28, 2009, the worker advised her case manager that she was instructed by her doctor to have a day off in between so she would work 4 hours, 2 days a week this week and next. The case manager advised the worker that she would not support this change and would only pay her as if she were participating in the program as was previously outlined.
A WCB chiropractic consultant reviewed the file information and outlined the opinion that ongoing passive therapy would not be of assistance for the worker and he would not approve ongoing chiropractic care beyond August 13, 2009. Alternative therapies for the worker were outlined.
On August 17, 2009, the family physician advised a WCB medical advisor that the worker's ongoing symptoms and reported functional impairments were difficult to account for in relation to the compensable injury of 10 months ago. No further treatment plans or investigations were being planned.
On August 17, 2009, the WCB medical advisor opined that based on the nature of injury, the treatment already administered, the exam results of the May 2009 call-in and the time that already passed, it was difficult to account for the worker's ongoing reported symptoms and associated functional limitations in relation to the effects of the compensable injury. A need for workplace restrictions was not indicated and normalization of activity was suggested.
In a decision dated August 21, 2009, the worker was advised that she would be paid partial wage loss benefits to August 28, 2009 as it was felt that there was no relationship between her present difficulties and the November 8, 2008 workplace injury. On August 31, 2009, the worker appealed the decision to Review Office.
On October 22, 2009, Review Office confirmed that the worker was not entitled to wage loss benefits beyond August 28, 2009. Review Office ultimately based its decision on the following opinion expressed by the WCB medical advisor on September 2, 2009:
It is difficult to account for (the worker's) ongoing reported functional limitations, and in particular her inability to progress or even continue with her modified duty return to work program. At the time of my May 8 09 exam (6 months post injury), no concerning features were noted and increasing activity was advised at that point. Now, 10 months post injury an ability to resume regular duties would have been anticipated, and despite reported symptoms, a need for further restrictions of activity is not apparent. Hence the suggestion for normalization of activity, both at home and at work. To summarize, based on my prior examination, review of the information on file, and discussions with the treating physician, as of the date of the Aug 17 09 Healthcare service request, it would appear that (the worker) would have been capable of safely returning to full unrestricted work duties.
On March 18, 2010, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 30, 2010 to consider the matter.
Following the hearing, the panel requested updated medical information regarding treatment the worker received from a physical medicine and rehabilitation specialist. In a consultation report dated March 24, 2010, the specialist indicated that the worker presented with non-specific lumbosacral pain and right lumbosacral radicular pain. An L4-5 disc herniation was seen on her MRI, but lateralizing more to the left side and not clearly the source of her mostly right-sided symptoms. However, given her persisting symptoms, a lumbar transforaminal injection would be performed. By report dated May 12, 2010, the specialist reported that the worker did not have any benefit following the injection and a trial of new medication was proposed. The worker was subsequently discharged from treatment with the specialist.
The specialist's report referenced a motor vehicle accident of June 28, 2010. Subsequent reports from a treating physiotherapist indicated treatment directed to the neck and chest as a result of injuries sustained in the motor vehicle accident.
The information obtained from the specialist was forwarded to the interested parties for comment. On February 24, 2011, the panel met further to discuss the case and rendered its final decision.
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. Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
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.
The Worker’s Position
The worker was self-represented at the hearing. The worker disagreed with the WCB's assessment that she was able to return to her previous job duties. She indicated that since the slip and fall accident, she was not the same person she was before. She was not able to do all parts of her job as she used to do, nor was she able to stand, walk, bend and engage in recreational activities as she formerly did. Her days now were spent taking pills for pain, sleeping and stress, and going to medical appointments. The worker emphasized that she did not want to live this way and that her goal was to get back to work and be pain free.
The Employer's Position
The employer was represented by an advocate at the hearing. It was submitted that the worker had been fairly compensated for the low back and right wrist injury she suffered at work. The decision to end benefits was made after nine months and only after extensive medical investigation which included diagnostic testing, MRI, a call-in examination, the results of medical treatment, and the opinions of medical practitioners. It was noted that the employer had been extremely supportive of the worker's return to work and provided very light modified duties. Given the mechanism of injury, the diagnosis, and the lack of objective findings of disability related to the compensable incident, it was submitted that the worker should have been capable of returning to work by August 28, 2009.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond August 28, 2009. In order for the appeal to be successful, the panel must find that the worker's earning capacity continued to be impaired from the effects of the injuries she sustained in the November 8, 2008 work related accident. We are not able to make that finding.
At the hearing, the worker advised that since her motor vehicle accident of June 28, 2010, she had not been able to work. Prior to that, she had been working a modified work schedule of four hours per day every three days (Monday/Wednesday/Friday). The worker's evidence was that she felt she was unable to work more than these hours because she would experience pain and spasm if she engaged in too much movement. Walking or standing for any length of time would also cause her to suffer spasm and inflammation. She was not able to perform half of her duties as her symptoms would become irritated. The worker indicated that her problems were with her back which had never been the same since the slip and fall. She considered her wrist injury to have mostly resolved.
The information from the employer's advocate at the hearing was that the worker's duties were very, very light during her return to work program. She did not progress beyond four hours per day and there was always a buddy present if she needed any help. Her duties involved dusting mirrors and computer screens and folding light linen. There was an attempt to increase her duties by introducing one new duty of wet mopping for ten minutes per day, but this was not tolerated by the worker so it was dropped. The worker's modified duties remained constant from September 2009 to June 2010, when the program ended after the worker was involved in the motor vehicle accident.
After considering both the file material and the evidence provided at the hearing, the panel is unable, on a balance of probabilities, to find a causal relationship between the worker’s continued loss of earning capacity beyond August 2009 and the compensable accident. In coming to this conclusion, we relied on the following:
· None of the physicians (including the physical medicine specialist) were able to identify a diagnosis which could be specifically related to the slip and fall accident. At best, the reports give a generic diagnosis of “non-specific low back pain with no evidence of radiculopathy.” There were no signs of a physical injury or lesion to the worker's lumbo-sacral spine;
· There is insufficient medical opinion to support the longevity of the worker's symptomatology. In August 2009, there was acknowledgment by both the WCB medical advisor and the worker's own treating physician that the ongoing symptoms and reported functional impairments were difficult to account for in relation to the compensable injury ten months prior;
· The doctor's progress report of January 6, 2009 indicated a much improved condition and that the worker stated that she was "65% improved." This, however, was the only report of improvement. It would appear that since commencing her graduated return to work on January 13, 2009, the worker did not progress in terms of either time at work or duties. The panel notes that the employer provided the worker with a very graduated return to work program and we see nothing in the limited job duties she was required to perform which would tend to exacerbate or aggravate her condition. The worker was afforded almost eight months of very light duties and reduced hours.
Overall, the panel is of the view that the worker's lack of progress cannot be explained in relation to an injury she may have sustained in her slip and fall. There is no positive basis upon which to say that there was a clear injury to her spine which continued to affect her beyond August 2009. The panel is unable, on a balance of probabilities, to relate the worker’s loss of earning capacity beyond August 2009 to the injuries she suffered in the November 8, 2008 slip and fall accident.
We therefore find that the worker is not entitled to wage loss benefits beyond August 28, 2009 and her appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of April, 2011