Decision #156/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision that was made by the Workers Compensation Board ("WCB") in relation to his claim for a back injury that occurred in the workplace on June 17, 2008. A file review was held on August 17, 2011 to consider the matter.Issue
Whether or not the worker is entitled to full wage loss benefits after August 14, 2008.Decision
That the worker is not entitled to full wage loss benefits after August 14, 2008.Decision: Unanimous
Background
On June 19, 2008, the worker filed a claim with the WCB for a back injury that he related to his work activities on June 17, 2008 which involved "lifting boxes non stop 8 hours per day." The claim for compensation was accepted by the WCB and benefits were paid to the worker. On June 18, 2008, the treating chiropractor diagnosed the worker with a paraspinal and latissimus dorsi strain.
On July 2, 2008, the worker returned to modified duties with the restriction to avoid lifting more than 45 pounds for two weeks. The worker returned to modified duty work on July 3, 2008 but claimed further re-injury to his back.
On July 3, 2008, the family physician reported to the WCB that the worker was on light duties and experienced significant low back pain. Examination findings revealed: "LS spine tender paraspinal region. Straight leg raising 45 degrees bilateral. Deep tendon reflexes intact bilaterally. Neurovascular intact bilateral."
The worker underwent physiotherapy treatments starting July 9, 2008. The physiotherapist's diagnosis was a strain/sprain.
Progress reports were received from the family physician dated July 10, 2008 and July 17, 2008. On July 24, 2008, the physician's examination findings were no paraspinal tenderness, no bony tenderness and neurovascular was intact. Straight leg raising was 70 degrees bilaterally.
After speaking with the worker's physiotherapist, arrangements were made for the worker to commence modified duties with the employer as of July 28, 2008. On July 24, 2008, the worker was advised of his work restrictions as outlined by the treating physiotherapist and was given details of his return to work schedule.
In a progress report dated July 30, 2008, the treating physician reported that the worker returned to light duty work on July 28, 2008 but developed significant low back pain and he was unable to finish the day. The worker indicated that he had some mild gastro-intestinal side effects from the medication he was taking. Examination showed tenderness in the paraspinal region, no bony tenderness and straight leg raising was 90 degrees bilaterally. The physician indicated that the worker should remain off work until August 11, 2008.
On July 30, 2008, the worker advised his WCB case manager that he worked four hours on July 30, 2008. He was picking up garbage and stood for most of the four hours, with the ability to sit when needed. Throughout the shift, he experienced tightness and spasms.
On August 11, 2008, the treating physician reported that the worker was still having problems with his back and it was suggested that the worker remain off work until September 2, 2008.
On August 14, 2008, a WCB case manager advised the treating physiotherapist that the accident employer had sedentary duties for the worker. The duties involved sitting in an enclosed shelter counting product and directing traffic. The worker would be able to sit and stand at his leisure and would start at four hours per day starting August 15, 2008. The physiotherapist opined that the worker was capable of these duties at the proposed schedule.
The WCB case manager then called the treating physician to advise that modified duties were offered by the employer. The physician noted that the worker was able to perform the offered duties but pointed out that the worker had other health issues that were not related to the compensable injury.
The WCB adjudicator spoke with the worker on August 14, 2008 to provide him with details of his return to work at modified duties. The worker was advised that his failure to participate could have a substantial effect on his benefits. A letter outlining the return to work details was sent to the worker dated August 14, 2008.
On August 18, 2008, the WCB received a call from the worker's mother advising that her son had been throwing up for the last week and a half due to the medication he was taking for his low back strain. The case manager indicated that there was no objective information to substantiate that the worker was ill due to the medications he was taking and therefore he was not entitled to wage loss benefits beyond August 14, 2008.
In a report dated August 18, 2008, the treating physician reported that the worker's back pain was continuous. The worker did not go to work due to his vomiting for a week and he had some epigastric discomfort and abdominal pain.
On September 23, 2008, the worker was terminated from his employment due to non-participation with the modified duty program.
On September 28, 2008, the worker was advised that he was not entitled to wage loss benefits beyond August 14, 2008 as there was no objective medical information to substantiate that he was incapable of participating in the modified duty program due to the medications he was taking.
In November 2008, the worker was seen by a different chiropractor and the diagnosis rendered was a right lumbosacral strain and right thoracodorsal strain.
On December 2, 2008, the worker advised the WCB that he had been seeing a different chiropractor since November 20, 2008, 3 times per week. He tried to get back to work but could not handle standing for 8 hours. The worker indicated that he did not see anyone for medical treatment between August 18, 2008 and November 8, 2008 as he felt that his back would not get better and he was in a state of depression. The worker reported that he was not sleeping because of the pain and he had no energy.
On January 7, 2009, the worker's file was reviewed by a WCB chiropractic consultant at the request of primary adjudication. The consultant stated:
The claimant appears to have suffered a mild strain of the lumbar spine. He appears to have improved significantly with his physiotherapy treatment. There was a long period of time between the end of his physiotherapy and attendance with [the second chiropractor]. The natural history of strain injuries is of improvement over time. In my opinion there is not a probable causal relationship between the claimant's current condition and the effects of the compensable injury.
On January 16, 2009, the worker was advised by the WCB that based on the history of injury, the diagnosis at the time of the compensable injury and lack of continuity of medical care from August 2008 to November 2008, the WCB was unable to establish a cause and effect relationship between his symptoms reported in December 2008 and the compensable injury of June 17, 2008. On April 17, 2009, the worker appealed the WCB's decision to end his wage loss benefits on August 14, 2008 to Review Office.
On June 11, 2009, Review Office determined that the worker was capable of performing the sedentary duties offered to him as of August 15, 2008 and therefore he was not entitled to full wage loss benefits as of that date. As a return to work with gradually increasing hours had been arranged, the worker continued to have a loss of earning capacity until the day before he was scheduled to resume full time hours on September 2, 2008. Review Office therefore ruled that the worker was entitled to partial wage loss benefits from August 15, 2008 to September 1, 2008.
In making its decision, Review Office relied primarily on the reports from the treating physician dated July 30, 2008 and August 18, 2008. The worker subsequently appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Following a file review held on August 17, 2011, the appeal panel requested additional information from two of the worker's treating physicians. The requested information was later received and was forwarded to the interested parties for comment. On October 5, 2011, the panel met further to discuss the case and render 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.
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.
The Worker’s Position
The worker was self represented and asked for reconsideration of the decision to end benefits on his claim. He submitted that prior to the workplace accident, he was a young man who was active and involved in many activities and sports. Since the injury, he has not been able to work and cannot stand or sit for very long. Anxiety and depression have become a problem. The worker felt that because of his young age, the physicians did not believe that he was actually injured. They did not believe there was a problem and did not treat the worker's condition seriously. It was only after the worker convinced his family physician to book an MRI that it was determined that the worker had a herniated disc which was still inflamed. He has been told that he will never be able to perform manual labour again. The worker asked that his benefits be reinstated as he felt that his current disability was caused by the initial injury and because his doctor did not believe, test for or treat the herniated disc.
The Employer’s Position
The employer provided a written submission to the panel. The employer's position was that it did all that it was required to do under the Act by providing the worker with a return to work program that was within his restrictions and that it should be absolved of any obligation beyond the point of the original injury. It was submitted that the worker's appeal should be denied.
Analysis
For the worker’s appeal to be successful on this issue, we must find on a balance of probabilities that after August 14, 2008, the worker continued to suffer a loss of earning capacity as a result of his compensable injury. We are not able to make that finding.
In the panel's opinion, the injury suffered by the worker on June 17, 2008 was limited to a strain/sprain of his low back which, by August 14, 2008, had largely resolved and did not prevent him from performing the modified duties which were offered to him by his employer. The panel is unable on a balance of probabilities to relate his later symptoms of low back pain radiating into both legs with paresthesia and some weakness to the original workplace injury.
Following our initial review of the matter, the panel requested a physical medicine specialist who examined the worker in May 2009 to provide a narrative report regarding his findings. By letter dated September 9, 2011, the physical medicine specialist reported that he saw the worker on May 27, 2009 with complaints of central low back pain extending from the thoracolumbar junction to the lumbosacral junction with referral to the medial aspect of both thighs and the posterior aspect of the calves. The clinical diagnosis was identified as being consistent with a persistently symptomatic L5-S1 disc herniation with a mostly normal neurological examination. There was evidence of delayed recovery and possibly elements of chronic pain disorder emerging from the condition, likely aggravated by chronic smoking and chronic use of painkiller medication. Anxiety/depression was also identified as a contributing element.
With respect to a causal link, the specialist reported that the history relayed to him by the worker was that his symptoms began while lifting at work and that his treating chiropractor suspected a disc herniation shortly after the onset of his symptoms. As there was no history of a pre-existing similar condition, the temporal relationship between work and the disc herniation was thought to be appropriate.
The panel accepts that the worker's diagnosis in 2009 was a symptomatic L5-S1 disc herniation with possible elements of chronic pain disorder. We do not, however, agree that there was a causal link between that diagnosis and the workplace incident in June 2008. The history given to the specialist was not accurate as the medical records do not reflect reports of paresthesia in the legs until November 2008. The family physician's clinical notes indicate that at the worker's attendances in July 2008, he complained of pain on range of motion of low back, but specifically denied any paresthesia of the limbs. His last visit in the immediate period following the compensable injury was on August 18, 2008, at which time the worker was reported still to have back pain, but was being taken off light duty options because of underlying medical conditions. It was only when he next returned to the family physician on November 8, 2008 that the complaints of radiation into the left and right upper thigh began. Given the gap of five months between the lifting incident and the first report of parasthesia to the limbs, the panel is not satisfied that there is a causal link between the L5-S1 disc herniation symptoms and the workplace incident.
The panel further notes that the early medical reports from the first treating chiropractor, the treating physiotherapist and the family physician all reference low back pain with no indication of neurological symptoms. There were no comments in the initial medical reports regarding a suspected disc herniation.
For the foregoing reasons, the panel finds that the worker's injury was limited to a strain/sprain of the low back. We agree with the WCB chiropractic advisor's memorandum of January 7, 2009 and note his comments that: "the natural history of strain injuries is of improvement over time." In the panel's opinion, by August 14, 2008, the worker was no longer prevented by the compensable injury from performing modified duties offered by the employer, and therefore he is not entitled to full wage loss benefits beyond that date. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 23rd day of November, 2011