Decision #152/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury and was fit to return to work as of May 2010. The worker disagreed with the decision and an appeal with filed with the Appeal Commission. A hearing was held on October 11, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after May 7, 2010.Decision
That the worker is not entitled to wage loss and medical aid benefits after May 7, 2010.Decision: Unanimous
Background
In November 2008, the worker filed a claim with the WCB for low back pain that he related to his job duties as a truck driver. His claim for compensation was accepted by the WCB based on the diagnosis of a strain injury and benefits and services were paid to the worker.
Between March 16, 2009 and April 10, 2009, the worker participated in a work hardening program. In the work hardening discharge report dated April 15, 2009, it was stated:
[The worker] has shown a good tolerance for high levels of physical activity in the physical exertion category of Heavy. Despite ongoing symptoms, he has shown the ability to tolerate sustained physical activity in the Medium to Heavy range without decline in his medical condition. As such, he would be suitable for return to work at his prior job as a truck driver at this time.
On April 14, 1999, the worker returned to his full regular work duties and wage loss benefits were paid to April 11, 2009.
On July 23, 2009, the worker contacted the WCB stating that his back had been bothering him since he returned to work in mid April 2009. The worker noted that he was performing modified duties in the warehouse and then he gradually returned to truck driving. In the beginning of July 2009, his symptoms began to worsen.
On July 16, 2009, the treating physician reported that the worker's back pain worsened after driving on a bumpy highway. The diagnosis was chronic lumbar back sprain. The worker's benefits were reinstated by the WCB on July 16, 2009.
In November 2009, the WCB arranged for the worker to undergo physiotherapy treatment and in March 2010, arrangements were made for him to undergo a three week reconditioning program. It was expected that by the completion of the program, the worker would be capable of returning to his pre-accident full duties as a truck driver.
In a Reconditioning Program Discharge Report dated April 12, 2010, it was indicated that the worker was "fit for an immediate, unmodified return to pre-injury employment."
On April 9, 2010, the employer called the WCB to advise that he had spoken with the worker and the worker was returning to work at full time hours starting Monday, April 12, 2010. On April 12, 2010, the employer called the WCB to advise that the worker did not show up for work.
On April 12, 2010, the worker advised the WCB that he was suffering from spasms over the weekend down the right side of his body/back. He attended his doctor who suggested that he continue with physiotherapy and to attend a physical rehabilitation program for one month.
On April 13, 2010, the treating physician advised a WCB case manager that the worker was very pain focused and was not motivated to return to work. He authorized an immediate return to work with no lifting above 30 pounds. The physician suggested a call-in assessment by a WCB physician.
A medical assessment took place at the WCB's offices on April 28, 2010 by a WCB sports medicine advisor. The medical advisor reported that the current diagnosis appeared to be non-specific right low back pain. Based on the file review and his examination findings, the medical advisor indicated that the worker was not totally disabled and there were no objective medical findings to account for the lack of functional improvement or a need for ongoing physical restrictions. Given the worker's pain focus, a graduated return to work in combination with a few sessions of psychotherapy were suggested as well as core strengthening exercises.
Based on the WCB assessment, the WCB case manager determined that the worker could return to full duties as of May 3, 2010. As of May 10, 2010, the employer was able to offer the worker his regular duties. Wage loss benefits were paid to the worker to May 7, 2010 inclusive.
On May 12, 2010, the employer called the WCB to advise that the worker did not come in to work due to a sore back.
On June 8, 2010, the WCB case manager advised the worker that the WCB would provide him with three sessions of counselling but that no further wage loss would continue as there were no physical restrictions on file.
In a letter dated June 9, 2010, the case manager confirmed to the worker that no further wage loss or medical aid benefits would be paid beyond May 7, 2010 as it was considered that he had recovered from the effects of his compensable injury. On March 3, 2011, the worker appealed the decision to Review Office.
On March 24, 2011, Review Office determined that the worker was not entitled to medical aid and wage loss benefits after May 7, 2010. Review Office found insufficient evidence to conclude that the worker's current pain symptoms were related to the injury he sustained in the workplace accident. Review Office noted that the practitioners and a WCB medical advisor found little evidence to account for the worker's continued pain symptoms and had stated he is capable of returning to his pre-accident duties without restrictions. The employer was able to accommodate the worker with duties as of May 10, 2010 and no further treatment or follow-up care had been recommended in relation to the compensable injury.
On April 13, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on October 11, 2011.
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(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. 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 Position
The worker was self-represented at the hearing. It was the worker's position that he was unable to perform the duties of a truck driver because of his low back condition. He was originally injured in 2008 then suffered a recurrence in July 2009. After the recurrence, the worker returned to work at modified duties in the warehouse. He was content in the warehouse and stated that he could handle the duties there. Although there was some lifting, he could manage the pain with the use of medication and with the knowledge that after eight hours, he would be able to go home. On the truck, however, he would be bouncing around from ten to fourteen hours per day and it was very hard on his back. After the WCB declared the worker fit to go back to work, his employer offered him his original driving position. He tried it for a few days but was not able to "take the pounding."
The worker's position was that he abided by everything the WCB said, but was not able to return to driving a truck. He would have liked if the WCB could have worked with him, and his doctor and the employer to help him continue working in a position that his back could handle.
Analysis
In order for the worker’s appeal to be successful, the panel must find that the worker continued to suffer from the effects of his workplace injury beyond May 7, 2010. On a balance of probabilities, we are not able to make that finding.
The worker's diagnosis has been described by WCB medical advisors as non-specific low back pain. At the time of the recurrence on July 19, 2009, the worker's attending physician described the injury as chronic lumbar back sprain. The reports on the WCB file make reference to some shooting or sciatic pain in the leg in the period immediately following the recurrence, but at the hearing, the worker confirmed that the sciatic pain resolved after treatment with the physiotherapist and that his more current complaints consisted of a continued aching pain in his right lower back.
After reviewing the medical evidence, the panel finds on a balance of probabilities that the worker's compensable injury was limited to a muscular sprain/strain type of injury, with some sciatica. In the panel's opinion, the effects of this injury were resolved by May 2010 and accordingly, he is not entitled to further wage loss or medical aid benefits. In coming to our conclusion, we relied on the following:
- The Work Hardening Discharge Report with a discharge date of April 9, 2010 stated that despite ongoing symptoms, the worker had shown the ability to tolerate sustained physical activity in the medium to heavy range without decline in his medical condition and as such, he would be suitable for return to work at his prior job as a truck driver. The report declared the worker fit for an immediate, unmodified return to pre-injury employment.
- The findings at the WCB call-in examination of April 28, 2010 were that the worker was not totally disabled and that there were no objective medical findings to account for the worker's reported lack of functional improvement or a need for ongoing physical restrictions.
- The report from the attending physician dated May 13, 2010 was not supportive of a continuing injury, with no objective findings to support ongoing disability.
Based on the foregoing, the panel concludes on a balance of probabilities that the worker did not continue to suffer the effects of his workplace injury beyond May 7, 2010. We therefore find that he is not entitled to wage loss and medical aid benefits after that date. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 17th day of November, 2011