Decision #30/12 - Type: Workers Compensation

Preamble

The worker is appealing two decisions made by Review Office of the Workers Compensation Board ("WCB") in relation to his 2001 compensable injury. A hearing was held on November 16, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 28, 2004; and

Whether or not the worker is entitled to vocational rehabilitation benefits and services.

Decision

That the worker is not entitled to wage loss benefits beyond June 28, 2004; and

That the worker is not entitled to vocational rehabilitation benefits and services.

Decision: Unanimous

Background

On April 11, 2001, the worker fell off a ladder landing onto a concrete floor at work at a job site. He reported injuries to his lower and upper back regions as well as his neck. His claim for compensation was accepted by the WCB and wage loss benefits were paid to April 20, 2001 when the worker returned to his regular work duties. The compensable diagnosis was a back contusion and strain.

In early October 2001, the worker advised the WCB that he was experiencing further difficulties with his low back which he related to his compensable injury. The worker was prescribed physiotherapy treatment which was accepted as a WCB responsibility. On February 1, 2002, a WCB medical advisor reviewed the worker's claim, and stated in his opinion that the worker's ongoing low back pain was not related to his April 11, 2001 compensable injury.

Further medical reports showed that the worker continued to seek treatment for his back complaints. In 2002, the worker was diagnosed with mechanical back pain by both an orthopaedic specialist and a physical medicine and rehabilitation specialist.

On January 27, 2003, bone scan results were reported as being normal.

On June 2, 2003, an MRI scan revealed a tiny central disc herniation without compression at T2-3 and degenerative desiccation at L2-3 with central disc bulging and mild hypertrophic changes in the left facet joint at the L5-S1 level.

On June 19, 2003, an orthopaedic surgeon reported that the worker's MRI showed a very tiny disc herniation to the thoracic area that had no clinical relevance. There were some degenerative changes in the lumbar spine but no evidence of any nerve compression, spinal stenosis, tumors or infections. It was the surgeon's opinion that no operative procedure was going to improve the worker's back condition and that treatment would be conservative.

In a March 23, 2004 report, an assistant professor in orthopaedics and neurosurgery outlined the following opinions:

  • the clinical findings of March 15, 2004 were not consistent with the limitations reported by the worker.
  • the worker was able to return to work in a graduated return to work function combined with a work hardening program.
  • the worker did not suffer from a physical condition which prevented him from returning to any type of alternate employment on a part-time or full-time basis.
  • further investigations were not required with respect to the worker's back. Should his pain still be problematic, a referral to a pain clinic was suggested.

On July 22, 2004, the worker was advised by his WCB case manager that the medical information did not support a relationship between his ongoing difficulties and the back strain which occurred on April 22, 2001. The worker disagreed with the decision and an appeal was filed with Review Office.

On October 1, 2004, Review Office determined that no responsibility could be accepted for the claim beyond November 15, 2001. Review Office stated that all the reports received from various medical practitioners and specialists had not provided an opinion which supported a relationship between the worker's ongoing complaints and his compensable injury of April 11, 2001. It noted that the recent neurologist's medical assessment reported that the worker's claimed limitations were not supported due to the lack of clinical findings upon examination. Review Office concluded that the worker's ongoing low back complaints were not due to the effects of the contusive and muscular injury sustained on April 11, 2001.

The claim was again considered by Review Office on May 8, 2009 based on a submission made by the worker's legal representative that included additional evidence which was then reviewed by the medical consultant to Review Office. Review Office accepted the medical consultant's opinion that based on a balance of probabilities, the worker's ongoing complaints were attributable to benign mechanical low back pain related to his April 11, 2001 work accident. Review Office directed that the case be transferred back to primary adjudication to consider the worker's entitlement to further benefits.

On September 2, 2009, the WCB determined that the worker had recovered from the effects of his 2001 compensable injury and that he would receive wage loss benefits from January 9, 2002 to June 28, 2004. The adjudicator based her decision on the following evidence:

  • the opinion expressed by a WCB medical advisor dated April 17, 2009 that the worker's ongoing symptoms were related to his 2001 workplace injury and the diagnosis of benign mechanical low back pain.

  • the opinion expressed by a WCB medical advisor dated May 5, 2009 that there had been no strength or neurological impairment documented consistently to file despite numerous orthopaedic and physical medicine assessments. The consultant agreed with the March 2004 opinion outlined by the assistant professor in orthopaedics and neurosurgery that the worker could return to the essential duties of his occupation on a graduated basis.

On June 28, 2010, the worker's legal representative submitted to Review Office that the worker was entitled to further wage loss benefits beyond June 29, 2004, retraining in a sedentary job, and a permanent partial impairment award.

In a decision dated September 23, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond June 28, 2004. Review Office concurred with the opinion expressed by the WCB consultant to Review Office that the worker was capable of resuming his employment, albeit on a reduced time line and with the case manger's decision that the worker was fit for his pre-accident duties and had functionally recovered from his workplace injury.

Review Office also found that the worker was not entitled to a permanent partial impairment award related to the compensable diagnosis of mechanical low back pain. It stated that in keeping with board practice, a permanent partial impairment award was not implemented in these situations.

Review Office noted that based on its decision that the worker was capable of returning to his pre-accident employment with no restrictions as of June 28, 2004, he was not entitled to vocational rehabilitation benefits and/or services. On July 6, 2011, the worker appealed Review Office's decision to the Appeal Commission through the Worker Advisor Office and a hearing was held on November 16, 2011.

Prior to considering the worker's appeal, the appeal panel requested additional medical information from the worker's family physician. The family physician subsequently provided a copy of his chart notes including all consultation reports to the panel. This information was forwarded to the interested parties for comment. On February 2, 2012, the panel met further to discuss the case and rendered its decision.

Reasons

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with two issues, being entitlement to benefits beyond June 28, 2004 and entitlement to vocational rehabilitation and services.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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. Where a worker is entitled to benefits, these benefits may include vocational rehabilitation assistance and services. Subsection 27(20) of the Act provides for vocational rehabilitation assistance.

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel.

The worker advisor submitted that the medical evidence beyond June 28, 2004 confirms the worker has not recovered from the effects of his compensable accident. The evidence also supports that the compensable injury continues to be the disabling factor and since there have been long-term workplace restrictions which prevent a return to full regular duties, a loss of earning capacity exists. Therefore, there is a continued WCB responsibility in this case. Both wage loss and vocational rehabilitation benefits should be payable.

The worker advisor reviewed the medical information on the claim file. She stated that the area of injury has been consistent, mainly to the lower left lumbar area which continues to be a muscle injury as a result of the worker's workplace fall. She said there were continued medical findings through physical examinations from an occupational health physician, a physiatrist and the attending chiropractor that support the compensable injury continues to be the disabling factor in the worker's inability to return to his pre-accident status. These examination findings and opinions should not be ignored or dismissed.

The worker advisor also notes that the opinion of a WCB medical advisor dated April 17, 2009, identifies that from the day of the injury the worker has had a continuum of symptoms linked to the compensable accident. She said the WCB medical advisor also states that in his opinion, on a balance of probabilities and with a reasonable degree of medical certainty, the activating factor and therefore the probable cause for the worker’s ongoing mechanical low back pain, is the event in question.

She submitted that with the restrictions noted prior to and beyond June 28, 2004, it is the worker's position that the evidence supports that he remains in a loss of earning capacity due to his compensable injury. Therefore, there is an entitlement to further benefits under subsection 39(2) of the Act. She also submitted that the worker is entitled to vocational rehabilitation benefits and services pursuant to WCB Policy No. 43.00.

The worker described his pre-accident duties as an electrician. He said that he tried to return to work but has not been able to. The worker advised that he does on occasion assist his employer. He last worked for the employer for the period April 27 to May 15, 2011. He said that he was just answering the phone. He has also supervised a few small service calls. The worker said he volunteered at a business that dealt with large appliances but he could not move the appliances. He has considered other possibilities such as working with small appliances and teaching. He also met with an organization that assists people find employment.

Regarding medical treatments, the worker advised that he was treated by a chiropractor commencing in 2008. He had over sixty treatments over a six month period and continued for a further six month period. He said that he sees his family physician three to four times per year for the purpose of prescribing medications. He said the family physician does not examine him. He also saw a physiatrist who provided treatments and was attending a pain clinic. Recently, the worker saw physicians from Germany but was advised that they are not able to help, as his problem is not an orthopaedic or structural problem. He received other treatments including massage and physiotherapy.

The worker advised that he is never pain-free. He said that he uses medication to deal with his pain. When the pain is bad, he may require bed rest.

The worker said that the WCB relied upon the opinion of an orthopaedic surgeon in deciding his claim. He said this is not his problem and that the WCB should use the opinion of the treating physical and rehabilitation specialist.

Employer's Position

The employer attended the hearing. He advised the panel that he wished to be considered as a character reference for the worker. He said that he has known the worker for many years and said that if the worker says his back hurts, he is telling the truth. The employer confirmed information provided by the worker regarding his attempts to return to work.

Analysis

We have reached our decision after an extensive hearing at which the worker provided detailed information regarding his symptoms and the impact of this injury on his ability to work. Subsequent to the hearing we requested additional medical information to ensure that we had a complete picture of the worker's health.

Issue 1: Whether or not the worker is entitled to wage loss benefits beyond June 28, 2004.

For the worker's appeal to be successful, the panel must find that the worker continued to have a loss of earning capacity after June 28, 2004 as a result of the workplace injury. For the reasons that follow, we were not able to make this finding.

We specifically rely upon the following information:

  • The opinion of the assistant professor in orthopaedic and neurosurgery an orthopaedic specialist dated March 23, 2004. The specialist noted that the worker describes pain after prolonged activity such as standing, sitting or walking. He stated that he was unable to discover any findings on physical examination that could recreate the degree of pain that he experienced after a day of work. He concluded that "Based on the examination of the 15th of March 2004, the clinical findings were not consistent with the limitations reported by the employee." The specialist also opined that the worker should be able to return to work in a graduated return to work function combined with a work hardening program. He said the worker does not suffer from a physical condition which prevents him from returning to any type of alternate employment on a part-time or full-time basis. He also said the worker does not require any further treatments or investigation.
  • The opinion of a WCB medical advisor dated May 5, 2009. The medical advisor reviewed the worker's file and stated that:

1. The medical evidence indicates that the worker has been able to work since the event in question. In general, his physical examination has revealed very few areas of impairment.

2. The worker's condition is primarily limited by his symptomatology.

3. The general medical evidence does not paint a picture of substantial physical impairment, which would prohibit the worker from returning to his occupation as an electrician.

4. Based upon the physical findings and imaging that are on the file in relationship to the worker, no specific restrictions would be required in terms of the worker's lifting capability or occupational exposure.

We note significant investigation and treatments have taken place for a variety of potential diagnoses but none have found a treatable cause for the worker's condition. This included extensive physiotherapy treatments, chiropractic treatments, needling treatments by a physical medicine and rehabilitation specialist and treatments at a pain clinic beyond June 28, 2004. We are not able, on a balance of probabilities, to relate the worker's ongoing difficulties to the original diagnosis and his consequent inability to work.

The worker's appeal on this issue is denied.

Issue 2: Whether the worker is entitled to vocational rehabilitation benefits and services.

Given our finding that the worker is not entitled to wage loss benefits after June 28, 2004 as he has recovered from the compensable injury, we find that the worker is not entitled to vocational rehabilitation.

The worker's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of March, 2012

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