Decision #131/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that he had recovered from the effects of his compensable injury and that he was not entitled to benefits beyond August 2010. A hearing was held on August 4, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss or medical aid benefits beyond August 8, 2010.Decision
That the worker is not entitled to wage loss or medical aid benefits beyond August 8, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for a low back injury that occurred at work on January 25, 2010 when he lifted a case of product off a dolly and put it into a cooler.
The worker had two prior compensation claims for back injuries. One occurred in 1994 and the worker was paid compensation benefits for 24 days. The next back injury occurred in 2009 and the worker received 14.5 days of compensation benefits.
The worker sought medical attention for his back condition and was diagnosed with a low back strain. He then was referred for physiotherapy treatment. The claim for compensation was accepted and benefits were paid to the worker.
Subsequent file records showed that the worker underwent several laboratory investigations with the following results:
- February 4, 2010 - x-rays of the lumbar spine showed degenerative change of the lower lumbar facet joints.
- March 8, 2010 - CT of the lumbar spine showed mild right foraminal disc bulge at L3-4, a minimal posterior disc bulge at L4-5 and a minimal posterior disc bulge at L5-S1.
- April 16, 2010 - MRI of the lumbar spine showed a small central focal disc protrusion at L5-S1 of doubtful clinical significance. There was minimal central stenosis at L4-L5 from concentric disc bulging and ligamentous and facet hypertrophic changes.
On May 11, 2010, the treating physiotherapist reported that the worker had been very sedentary and was trying to get back into activity again. He noted that the worker had been off physiotherapy treatment for two months. Six additional weeks of physiotherapy treatment was approved by the WCB.
In a physiotherapist report of June 14, 2010, it was noted that the worker had pain in the low back into the right thigh anteriorly. The worker also complained of neck pain and stiffness in the past month.
On June 16, 2010, the worker was assessed by a WCB medical advisor in regard to his back condition. The medical advisor commented that based on history and physical examination, the worker's injury appeared to be mostly a strain type injury and there was an absence of findings suggestive of a radiculopathic process. He noted that the CT and MRI of the lumbar spine failed to reveal radiological evidence that would be consistent with nerve root impingement. Recommendations were made for the worker to become more active given that there was no evidence of radiculopathy. The medical advisor opined that the worker could return to modified duties if available.
On July 13, 2010, the WCB case manager wrote to the worker to advise that based on the recommendations at the June 16, 2010 medical examination, the WCB was authorizing an additional 9 weeks of physiotherapy treatment focusing on reconditioning and physical activity. It was expected that after the additional treatment, the worker would be fit to return to work by August 9, 2010.
On July 13, 2010, the physiotherapist provided a report to the WCB stating that the worker was going for a spinal injection on June 29, 2010 and he had not seen the worker since June 28, 2010.
The WCB case manager spoke with the worker on July 13, 2010. The worker stated that he had not attended or contacted his physiotherapist since June 14, 2010. He noted that he had an injection on June 29, 2010. The case manager advised the worker that his benefits would be suspended until he resumed physiotherapy.
On July 28, 2010, the treating physiotherapist reported that the worker's progress in physiotherapy was not going well as the worker had more pain and was less able to perform his exercises.
On July 29, 2010, the WCB case manager called the worker. The worker indicated that he wore a back brace every day and was not performing his exercises and stretches as he felt it bothered his back.
A doctor's progress report dated August 2, 2010, indicated that the worker was not capable of alternate or modified work and was to continue with analgesics and physiotherapy and to have a spinal injection.
On August 9, 2010, the physiotherapist discharged the worker from treatment. He noted subjective complaints of pain in the low back and a little pain to the right buttock but it was not as severe as a week ago. It was indicated that the worker was capable of light or modified work if available.
In a decision dated August 23, 2010, the worker was advised of the WCB's position that he had recovered from the effects of his back strain based on the duration of his claim, the medical treatment provided and the lack of objective medical findings regarding his back. As a result of the decision, the WCB would not accept responsibility for any further medical treatments or wage loss benefits beyond August 8, 2010. On September 9, 2010, the worker appealed the decision to Review Office stating that his injury was still there and that his doctor agreed that he was unable to perform any physical work. He noted that walking for short distances caused him pain.
On November 15, 2010, Review Office determined that the worker was not entitled to wage loss or medical assistance beyond August 8, 2010. Review Office noted in its decision that the worker was provided the opportunity to attend a physiotherapy treatment program to improve his deconditioned state but he failed to do so. It noted that the worker may have significant pain complaints but no medical testing had provided a diagnosis to explain his symptoms. It noted that the compensation injury which occurred on January 25, 2010 was diagnosed as a strain injury.
Review Office indicated that it placed significant weight on the June 16, 2010 opinion of the WCB medical advisor. It stated that there was insufficient evidence to support the worker's position that he could not participate in the reconditioning program and return to work effective August 9, 2010. On March 21, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing 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. 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. 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.
Worker’s Submission
The worker was self represented at the hearing and was accompanied by a friend. The worker submitted that after his previous claim in November 2009, he did not have enough time to recover and his doctor sent him back to work before he was ready. He acknowledged that just loading product into a cooler did not seem to be much of an accident, but since his back was already in pain, he re-injured it in the January 2010 accident. At the present time, the worker continued to be limited in what he could do. He was able to walk and get around, but he could only manage to do his house chores once or twice a week. Because of his back pain, he has not been able to return to work. The worker said that he had tried to attend physiotherapy, but he would just become "crippled up" again.
Analysis
To find that the worker is entitled to wage loss or medical aid benefits beyond August 8, 2010, we must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity as a result of his compensable injury. In the panel’s opinion, by August 8, 2010, the worker had recovered from the effects of his compensable low back strain and therefore no further benefits are payable in respect of this injury.
The worker’s claim was accepted based on the diagnosis of a low back strain. Although at the hearing, the worker referred to the fact that the discs in his back were "no good", the CT scan and MRI reports do not show evidence of an acute injury. Any abnormalities in the worker's back appear to be degenerative in nature. The panel therefore finds that the workplace accident was not the cause of any damage to the worker's discs.
The worker received compensation benefits for over six months on account of his low back strain. Although the worker feels he went back to work too early after his 2009 low back injury, the panel is of the view that six months gave the worker sufficient time for his 2010 injury to heal.
The medical reports on file from the physiotherapist indicate that the worker was self limiting in his participation with the physiotherapy treatment. The worker's evidence confirmed that he leads a very sedentary lifestyle. In the panel's opinion, the compensable back strain injury which the worker suffered on January 25, 2010 had resolved by August 8, 2010, and the worker's current condition is not due to the workplace injury. The worker was offered physiotherapy to improve his deconditioned state after his injury, but he declined to take advantage of this treatment.
For the foregoing reasons, the panel finds that by August 8, 2010, the worker had recovered from the effects of his compensable injury and therefore he is not entitled to wage loss or medical aid benefits beyond that date.
The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerB. Simoneau, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of September, 2011