Decision #139/11 - Type: Workers Compensation

Preamble

The worker is appealing a series of decisions made by Review Office of the Workers Compensation Board ("WCB") in relation to his claim for a back injury that occurred on January 29, 2006. A hearing was held on August 18, 2011 to consider the appeals.

Issue

Whether or not the worker is capable of increasing his hours at work beyond four hours per day effective October 2010;

Whether or not the worker is entitled to wage loss benefits after December 21, 2010; and

Whether or not the worker's fall at home on August 11, 2010 is related to the January 29, 2006 compensable injury.

Decision

That the worker is capable of increasing his hours at work beyond four hours per day effective October 2010;

That the worker is not entitled to wage loss benefits after December 21, 2010; and



That the worker's fall at home on August 11, 2010 is not related to the January 29, 2006 compensable injury.

Decision: Unanimous

Background

On January 29, 2006, the worker injured his legs and back in the following work-related accident:

I was strapping bundles on top of a rack about 4 feet high, my co-worker [name] picked up a bundle with a crane behind me and proceeded to swing it into the back of my legs (accidentally). I stumbled forward into the rack, from the moment of impact I didn’t feel too much because I was in shock, approx. 10 mins. later I started to feel pain in the back of my right knee, and front and up and down my thigh…The next day I noticed my back was killing me and my leg was really hurting, so I went to the doctor.

His claim for compensation was accepted by the WCB and benefits and services were paid to the worker while he underwent medical treatment.

The worker's case was previously considered by the Appeal Commission on September 11, 2008 wherein it was determined that the worker was entitled to wage loss and medical aid benefits beyond November 7, 2007. A complete background of the case leading up to that decision can be found under Appeal Commission Decision No. 116/08.

Reports on file in 2010 showed that the worker was being treated at a pain clinic for right low back and right leg pain and was seen by a registered psychologist for psychotherapy treatment to deal with pain and depression management. The worker was also seen by a neurosurgeon.

A report from a physical medicine and rehabilitation specialist (physiatrist) at a pain clinic dated June 3, 2010 indicated that the worker continued to report low back pain and that a right-sided L4-5, L5-S1 medial branch rhizotomy was done on May 26, 2010.

Following this procedure, the worker developed some post-rhizotomy neuritis in the low back and did not experience any improvement in his back pain. The specialist noted that the worker was at that time working four hours per day. He stated: "This is a reasonable work schedule for him at present and hopefully he will be given time to adjust to this new work schedule before progressing him to a longer work day."

In a follow up report dated July 6, 2010, the treating physiatrist advised that the worker had 40 pounds of weight gain and while he was trying to exercise on his own, he would benefit from a formal exercise program. He noted that the May 26, 2010 rhizotomy made no change to his low back pain.

On August 12, 2010, the worker called the WCB to advise that he had a bad fall the night before in the bathroom and that he hurt his back, shoulder and leg. The worker indicated that he saw his family doctor and that he was in a lot of pain. He said he could not work for the next two weeks.

On August 17, 2010, the director of the pain clinic reported that the worker had an accident where he fell which led to an aggravation of his right low back pain along with some new discomfort in his right shoulder. There was evidence of increased muscle tonicity in the paraspinal groups bilaterally. The worker noticed a decrease in all his functions including walking since the fall. The director noted that the worker was prescribed a muscle relaxant in the hopes that it would increase his functioning. He said that the recovery period for someone with chronic pain and an acute injury would be slightly prolonged.

Surveillance of the worker's activities was conducted during the period July 23, 2010 and August 16, 2010 and the surveillance videotape was reviewed by a WCB physiatry consultant on August 31, 2010. The consultant noted that the worker was seen on the videotape performing a variety of light activities and was seen driving, running errands and lifting/bending without difficulty and without any apparent discomfort. The consultant indicated that reasonable restrictions for the worker would be "limiting lifting to a light level only, with maximal lifting to 20 pounds only, with the expectation that full hours of duties to this level would be manageable."

In a decision dated September 9, 2010, a WCB case manager confirmed to the worker that based on the observations made by the WCB physiatry consultant of the surveillance, the WCB considered him capable of working eight hours a day at modified duties with the restrictions outlined by the WCB consultant. The case manager also determined that the cause of the worker's secondary accident in his bathroom on August 11, 2010 was not related to his compensable back injury and therefore the WCB was not responsible for any time loss or medical treatment as a result of the fall.

The accident employer offered the worker an eight-hour per day job that met his compensable work restrictions. It involved office and computer work.

On September 15, 2010, the director of the pain clinic indicated that when he saw the worker on August 17, 2010, he saw no evidence to change the worker's work schedule of four hours per day because of the recent fall in the bathroom. When assessed on September 14, 2010, the worker continued with right low back pain at the L5-S1 facet region. The specialist stated "Any return to work should be graded and going from four hours, I would not increase to eight hours but rather to five per day for a week or two and then subsequently six. This has and will be my recommendation until such a time that he can show that he would be able to tolerate it."

On September 17, 2010, the worker advised his WCB case manager that he worked eight hours of modified duties on September 15, 2010. He then experienced back spasms and did not work on September 16, 2010.

On September 20, 2010, a return to work meeting was held with the worker, employer and WCB staff. The employer offered the worker different modified duties that involved auditing (walking through the plant, holding a clipboard, verifying parts) and shelving parts (putting away small parts). The employer also offered the worker reduced hours on a temporary basis to help him ease back into working eight hours a day.

A medical note dated September 22, 2010 indicated that the worker was to be off work for the next two weeks due to "acute on chronic aggravation."

On September 28, 2010, the WCB case manager confirmed to the worker that he had no entitlement to further partial wage loss benefits after September 12, 2010 as his employer was able to accommodate him with full time modified duties.

On October 5, 2010, the worker wrote to Review Office in regard to the September 28, 2010 decision. The worker indicated that his current restrictions were based on conjecture and not fact. The worker noted that he was back at work after a two week rest period and was working four hours and was trying to do what was wanted of him. He noted that he was in constant pain and was taking extra medication to get through the day.

On October 12, 2010, the WCB physiatry consultant reviewed the worker's file in regard to restrictions. He stated in part: "…there have been extensive appropriate medical investigations and treatments with no structural cause or problem identified (on a physical basis) that would be consistent with the mechanism of injury and the file information. There is file information of a number of medical diagnoses present that could be contributing to the symptoms. The placement of estimated restrictions (primarily preventive in nature) to light level lifting only, related to his subjective reporting, some degree of degenerative involvement and his preexisting conditions is reasonable. However, specifically no claim related physical based restrictions appear indicated. Also no further claim related therapy on a physical basis appears indicated."

In a report dated October 12, 2010, the director of the pain clinic noted that the worker was seen for an assessment, and he was working two hours in the shop and two hours in the office. He seemed to be tolerating this with some mild increase in symptoms. The director outlined the opinion that it was safe to increase the worker's hours to five hours per day starting October 18, 2010.

The worker advised the WCB on October 15, 2010 that he was going on six weeks stress leave commencing October 15, 2010.

The employer's representative submitted to Review Office on November 17, 2010 that any loss of earning capacity experienced by the worker was related to non-compensable issues and not to the effects of the compensable injury. The representative agreed with the WCB that the worker was not entitled to further partial wage loss benefits in accordance with section 39(2) of the Act. On November 24, 2010, the worker submitted a rebuttal to Review Office.

On December 7, 2010, Review Office determined that the worker was entitled to the following wage loss benefits based on the findings of the pain management specialists and review of the worker's activities on the videotape surveillance:

  • September 13, 2010 to October 3, 2010 based on actual earnings
  • October 4, 2010 to October 17, 2010 based on deemed earnings of four hours per shift or actual earnings if higher
  • October 18, 2010 to October 30, 2010 based on deemed earnings of five hours per shift or actual earnings if higher
  • October 31, 2010 to date based on deemed earnings of six hours per shift or actual earnings if higher
  • The worker's ongoing entitlement will be determined by the case manager in the context of this decision

Review Office also determined that the worker's August 11, 2010 accident was not compensable. Review Office noted that the worker attributed this fall to falling asleep in the bathroom because of his high use of medication. After considering WCB policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, Review Office opined that there was not a strong enough causal relationship between the effects of the worker's pharmacotherapy and his August 11, 2010 fall to meet any of the policy tests. On January 4, 2011, the worker appealed Review Office's decision to the Appeal Commission.

On December 20, 2010, the worker was advised by his WCB case manager that as of December 22, 2010, he should have increased to eight hours per day on modified duties and that based on subsection 39(2) of the Act, partial wage loss benefits would be paid to December 21, 2010 inclusive and final. On January 16, 2011, the worker appealed this decision to Review Office.

File records showed that medical reports were submitted to the worker's file from the pain management specialists dated November 9, 2010 and January 19, 2011 and from the worker's family physician dated January 13, 2011.

In a decision dated February 4, 2011, Review Office determined that the worker was not entitled to wage loss benefits after December 21, 2010. Review Office indicated that based on the weight of evidence and on a balance of probabilities, the worker did not have a loss of earning capacity after December 21, 2010 related to the compensable accident. If not for intervening non-compensable factors, the worker would have been capable of working full time modified duties by December 20, 2010. The worker appealed Review Office's decision to the Appeal Commission.

On August 18, 2011, a hearing was held at the Appeal Commission to consider the appeals brought forward by the worker.

Reasons

Applicable Legislation and Policy

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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Worker's Position

The worker was represented by legal counsel at the hearing. It was submitted that the worker was involved in a return to work program and that he worked until October 2010. He was asked to increase his hours, which he could not perform, and his family physician put him off work until December 1, 2010. Since that time, the worker has remained off work, although it was submitted that he was willing to try to return to the workplace to see whether or not he was capable of increasing his hours beyond four hours. The latest advice from the worker's family physician, however, was that he was not able to work at the present time.

With respect to the August 11, 2010 fall, it was submitted that the fall at home was related to the January 2006 injury because it was caused by the worker's physician having prescribed him extra painkiller medication which made him susceptible to falling asleep on a constant basis. The worker took extra medication to relieve the pain, but as a result, he fell asleep while sitting and fell and hurt himself. It was not an isolated incident, but rather it had happened several times. The worker's most recent medical reports indicated that his medication had been cut back and the worker had not had any falls since that time.

Employer's Position

The employer was represented by an advocate and the employer's operations manager. The employer took exception to the worker's submission and stated that since September 2010, the employer had made every effort to accommodate and facilitate the worker's return to suitable modified duties as endorsed by his physicians and the WCB's medical practitioners. It was acknowledged that initially in September 2010, full time duties were offered to the worker. The employer recognized, however, that the return to work would have better success if there was a gradual increase in modified duties and therefore a return to work program was designed that did allow for a graduated re-entry. It was the employer's position that the problems with the return to work rested with the worker and that his inability to return to work had not been strictly related to his compensable injury. There had been other non-compensable issues that impacted on his ability to be at work. September to December 2010 was an extensively long time for a graduated return to work and the worker could reasonably have increased to full time hours within that period of time.

Analysis

The first two issues before the panel are whether or not the worker was capable of increasing his hours at work beyond four hours per day effective October 2010 and whether or not the worker is entitled to wage loss benefits after December 21, 2010. In order to decide these issues, the panel must consider the evidence regarding the worker's functional ability and determine whether he was capable of increasing his work hours up to full time hours by December 21, 2010.

As at October, 2010, the worker had been successfully performing modified duties for at least four hours per day since mid-2009. The physiotherapist's report of August 9, 2009 reported that the worker had been progressing, and it was estimated that he may be at full hours at modified work by October 2009. There had been some discussion in late 2009 of increasing the worker's hours, but the WCB accepted the treating physiatrist's recommendation that his work hours not be increased above the current schedule of four hours per day until further investigations and possible treatment was explored. In May 2010, following investigations, a rhizotomy was performed, with unfortunately no change in the level of pain reported by the worker. In June 2010, the physiatrist reported that four hours per day was a reasonable work schedule for the worker at that time and that hopefully, he would be given time to adjust before progressing him to a longer day.

In July and August, 2010, the worker was observed on surveillance and the WCB physiatry consultant opined that in view of the videotaped activity, full hours of light duties would be manageable for the worker. The panel agrees that the worker's activities recorded on surveillance would suggest that he was capable of more than four hours of work per day, but we acknowledge that the surveillance footage alone is not conclusive.

In September and October 2010, the worker was introduced to a new set of modified duties which were intended to help him ease back into working eight hour days. The panel finds that the employer did provide accommodation to the worker in a graduated return to full time modified work. The indications were that the worker was effectively tracking on a return to work program which was integrating him back to full time hours at modified duties. The employer's evidence at the hearing, which the panel accepts, was that the employer was capable of providing long term accommodation in the full time modified duties for the worker.

As of October 12, 2010, the director of the pain clinic was supportive of an increase to five hours per day starting October 18, 2010. Unfortunately, it would appear that on October 15, 2010 the graduated return to work program came to an end due to non-compensable reasons when the worker advised that he would be taking a stress leave. In the panel's opinion, the stress leave was non-compensable as the worker's psychological difficulties were never a condition accepted by the WCB as being causally related to the workplace injury. The WCB's pain management unit gave specific consideration to the worker's mood difficulties, but the condition was never found to have resulted from the effects of the compensable injury. We note that while the worker's psychological state may well have been affected by workplace issues and management of his WCB claim, this does not result in the stress becoming a WCB compensable condition.

After considering the evidence as a whole, the panel finds on a balance of probabilities that the worker was capable of increasing his hours beyond four hours per day effective October 2010. As early as 2009, the treating physiotherapist supported the gradual increase of the worker's hours to full time. The worker's specialists wanted to investigate further potential treatment, so the increase in hours was put on hold. After the investigations were complete, the panel is of the opinion that the worker was in a position to resume the increase of his hours. Further medical investigations, unfortunately, did not result in an improvement in his condition, and the worker's evidence at the hearing was that his pain remained exactly the same as it was when the accident first happened in 2006. Given the consistency in his medical condition and our earlier findings of the worker's increased functionality as evidenced in the surveillance, we think the worker was capable of increasing his hours in October 2010. It may not have been easy, but we think that he was capable of doing it. Were it not for the intervening non-compensable stress leave which took the worker out of the workplace, the panel finds that the worker would have progressed to full time modified duties by December 21, 2010.

For the foregoing reasons, the panel finds that the worker was capable of increasing his hours at work beyond four hours per day effective October 2010 and that he is not entitled to wage loss benefits after December 21, 2010. The worker's appeals on these issues are dismissed.

The third issue concerns whether the fall the worker suffered at home on August 11, 2010 is related to the January 29, 2006 compensable injury. In order for the worker’s appeal to be successful, the panel must find that the worker's fall was predominantly attributable to the effects of the compensable injury. On a balance of probabilities, we are unable to reach that conclusion.

The worker's evidence at the hearing was that routinely throughout the night, he would have to get up hourly to go to the bathroom. He had also been diagnosed with sleep apnea and was prescribed a CPAP machine. At the time he fell in August 2010, he was taking pain-killing medication which made him drowsy. The worker had been participating in his graduated return to work program at that time and was taking extra medication for breakthrough pain. The pills would last for six hours. The worker's evidence was that he was working 3:30 pm to 7:30 pm, and he would typically take two pills at around 5:30 pm and two at 8:30 or 9:00 pm. His normal sleep cycle was to go to bed at 11:00 pm. The incident occurred at approximately 4:00 am when the worker fell asleep during one of his visits to the bathroom and fell to the floor.

As noted earlier, in order for the WCB to accept the consequences of the fall, the panel must find that the subsequent injury was predominantly attributable to the effects of the compensable injury. In this case, the worker submits that the pain medications he was taking for his compensable low back condition were the cause of his fall. We are not able to agree with this submission. The worker's evidence was that the last dose he took was at approximately 9:00 pm. This was about seven hours before his fall. We find that the effects of the medication would have been minimal by 4:00 am. In our opinion, other factors were more likely the predominant causes of him falling asleep, which would include the fact that it was the middle of the night, he had gone to bed at 11:00 pm, he was not getting good sleep due to the constant interruptions to go to the bathroom (this would have been his fourth or fifth time) and the sleep apnea. In our opinion, the worker's drowsiness cannot be said to have been predominantly attributable to the medication. We therefore find that the worker's fall at home on August 11, 2010 was not related to the compensable injury.

The worker's appeal on this issue is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of October, 2011

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