Decision #36/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was capable of working 40 hours per week at the provincial minimum wage effective December 15, 2009. A hearing was held on February 8, 2012 to consider the matter.

Issue

Whether or not a deemed post-accident earning capacity equivalent to 40 hours per week at provincial minimum wage should be implemented effective December 15, 2009.

Decision

That a deemed post-accident earning capacity equivalent to 40 hours per week at provincial minimum wage should be implemented effective December 15, 2009.

Decision: Unanimous

Background

On July 17, 2009, the worker injured the left side of his low back during the course of his employment as a construction laborer. The diagnosis rendered by the treating physician was a back strain and the worker was referred for physiotherapy treatments. The claim for compensation was accepted by the WCB and benefits were paid to the worker.

On September 29, 2009, the worker was seen by a WCB physiotherapy consultant for a medical assessment. The consultant concluded that the worker had features of non-radicular, non specific back pain but could commence a graduated return to work program while undergoing additional physiotherapy treatments. The restrictions for a four week period were outlined as follows:

  • no lifting greater than 25 pounds;
  • no pushing greater than 50 pounds;
  • no pulling greater than 30 pounds;
  • avoid repetitive bending and twisting and;
  • to allow frequent rest breaks.

The worker returned to modified duties on October 5, 2009.

On November 2, 2009, the treating physiotherapist reported that the worker was currently working 8 hours per day. She stated that the worker's rehabilitation process had been successful overall; however, he was beyond the normal time frame of healing and he continued to be symptomatic into the low and mid back areas. He had no medical history which would explain any delay in healing time. Neurological signs and symptoms were negative and there was no history of low back trauma. A change in restrictions was recommended as follows:

  • no lifting greater than 60 pounds floor to waist;
  • no pushing greater than 150 pounds;
  • no pulling greater than 110 pounds;
  • no overhead lift greater than 50 pounds
  • no carrying of weights greater than 50 pounds;
  • avoid twisting and bending through the spine repetitively;
  • able to rest as necessary.

On November 17, 2009, the worker advised his WCB case manager that he was experiencing back spasms since 11:00 a.m. from pull-starting some equipment. The worker indicated that he was attending physiotherapy three times per week and was working eight hours per day.

On December 8, 2009, the worker advised the WCB that he had been laid off from work as of the previous Tuesday.

A physiotherapy report dated December 11, 2009 indicated that the worker voiced concerns that he was still sore and had ongoing back spasms. The worker stated that he was feeling better since he had been off work because of the decrease in activity and heavy lifting. The therapist concluded that the worker was capable of a full return to work and felt his maximum lift from the floor/ground should not exceed 100 pounds.

On December 14, 2009, the treating physician reported that the worker's back was a little stiff with movement.

A report from the physiotherapist dated December 14, 2009, stated that the examination highlights from December 11, 2009 showed ongoing tenderness to the thoracic and lumbar spine to palpation, decreased flexibility to the thoracic spine and subjective complaints of decreased sleep. His neurological scan was clear and it was indicated that the worker's restrictions could safely be removed. However, the worker should not be lifting extreme weight from a flexed spine position (i.e. greater than 100 pounds.)

On December 17, 2009, a WCB case manager wrote the worker to advise that he was not entitled to further wage loss benefits or medical treatment beyond December 14, 2009 as it was determined that he no longer had a loss of earning capacity and was capable of returning to work.

The worker contacted the WCB on July 8, 2010 to report that he was still having back problems and that he has continued to seek medical treatment. The worker noted that he had a CT scan which showed a herniated disc and that this was related to his original injury of July 17, 2009.

Medical reports showed that the worker underwent a CT scan of the thoracic and lumbar spine on June 22, 2010. With respect to the L5-S1 area, the report indicated "There is a shallow broad-based posterior disc bulge extending to the left foraminal region. The disc material slightly displaces the descending left S1 nerve root posterior. Nerve root irritation cannot be excluded. There is no significant foraminal stenosis."

In a July 26, 2010 report, the family physician indicated that the worker continued to complain of low back pain since his July 2009 injury. The physician reported that the herniated disc at L5-S1 level shown on the CT scan was likely the cause of the worker's symptoms. He said "This was consistent with his complaints of mainly lower left sided pain although he does not describe nor are there any findings neurologically."

At the request of the WCB case manager, a WCB medical opinion was sought related to the worker's current medical status. The medical advisor stated on August 6, 2010 that the current diagnosis based on updated medical information was non-radicular, non-specific low back pain. It was suggested that arrangements be made for a second radiologic opinion as there was discordance in the June 22, 2010 CT report, and for a neurosurgical consultation.

In a letter dated August 20, 2010, a WCB case manager confirmed to the worker that the evidence on file did not confirm an ongoing level of impairment that rendered him unable to work.

On September 7, 2010, the worker was seen by a neurosurgeon and the following opinion was formed:

"The clinical presentation is suggestive of some mechanical low back pain that partially persists. The intermittent numbness of the toes may have been radiculopathic, but there is no obvious radiological finding for a right-sided radicular irritation. Given the favorable clinical evolution, I would recommend that the patient continues his present conservative treatment with emphasis on physiotherapy/stabilization of the lumbosacral segment. At this point in time he should still avoid strenuous physical activities involving repetitive bending or heavy lifting."

A report was received from a massage health and wellness centre dated October 26, 2010. It stated that the worker's lower back injury was causing him serious pain along with numbness and he was being treated with acupuncture and cupping. It stated that the worker should avoid heavy lifting.

On November 1, 2010, a decision was issued to the worker that based on the June 2010 CT scan and the neurosurgical consultation, the evidence supported an ongoing causal relationship between some of his reported back difficulties and the workplace injury of July 17, 2009. The case manager advised that medical aid benefits would be authorized related to the treatment of the worker's residual low back symptoms. With regards to wage loss eligibility, the worker was advised that the dominant reason for his loss of earnings was related to his lay-off from work as opposed to his workplace injury in light of his ability to perform full days of moderate to very heavy work leading up to his lay-off date. The worker was advised to obtain a report from his treating practitioner citing how he was functionally unable to work since December 2009.

An MRI of the lumbar spine was done on November 15, 2010. The results were reported as follows:

"The findings are most suggestive of a small central disc extrusion at L4-L5. This does appear to contact both of the traversing L5 nerve roots but does not lead to significant displacement of the nerve roots.

The patient's studies from [hospital name] dated June 22, 2010 were reviewed and although the report indicates a broad based disc bulge at L5-S1, this is felt to be the L4-L5 disc as the patient has a somewhat hypoplastic 12th rib. Five lumbar type vertebrae are felt to be present with the L5-S1 disc being relative unremarkable."

On November 26, 2010, a WCB medical opinion was placed on file noting that the MRI report of November 17, 2010 confirmed the discogenic changes concordant with the previous CT review report of October 15, 2010.

The treating physician stated in a report dated January 4, 2011:

"To date [the worker] has sought treatment from several therapists over the last year including an acupuncturist who has been very helpful in relieving his symptoms. He continues to have symptoms of lower back pain. At this recent consultation Dr. [treating neurosurgeon] also recommended restrictions with repetitive bending and heavy lifting. I would consider [the worker] is continually affected by his injury. He is not able to find work within his skill level or previous pay rate as a result of his injury and I would urge you to reconsider your decision on wage loss eligibility."

A submission from a worker advisor to Review Office dated April 8, 2011 indicated that the worker was requesting wage loss benefits beyond December 14, 2009 on the basis that he was competitively disadvantaged compared to other employees due to his work restrictions when he was laid off on November 27, 2009.

Prior to considering the appeal, Review Office arranged for a WCB orthopaedic consultant to review the file on June 7, 2011. It was the consultant's opinion that the workplace injury of July 17, 2009 was a protrusion of the L4-5 disc which contacted the left L5 nerve root.

On July 4, 2011, Review Office determined that the worker was entitled to wage loss benefits effective December 14, 2009 and that a deemed post accident earning capacity equivalent to 40 hours per week at the provincial minimum wage should be implemented effective December 15, 2009.

Review Office determined that the worker's compensable injury from July 17, 2009 was an L4-L5 disc herniation and that he would not have been fit to perform his pre-accident duties beyond December 14, 2009. Review Office was of the opinion that the worker was not involved in "suitable work" prior to being laid off of work by the employer in December 2009. The worker was working his regular duties which were outside of the restrictions that retrospectively he should have been observing.

Review Office found the evidence did not support that the worker had a total loss of earning capacity. It referred to subsection 22(1) of the Act that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury. It did find that the worker did not do this after being laid off in December 2009. It found that the worker was entitled to wage loss benefits December 15, 2009 based on a deemed post accident earning capacity equivalent to 40 hours per week at the provincial minimum wage level as the worker had the skills and experience to be employed in a minium wage position that considered his back restrictions. On November 1, 2011, the worker appealed the 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(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.

The worker's claim for a workplace injury has been accepted. He is appealing the WCB's determination that he is capable of earning income.

Section 22 of the Act was applied to this case by Review Office. This section provides that workers must take reasonable steps to reduce or eliminate any loss of earnings resulting from the workplace injury.

Worker's Position

The worker attended the hearing with his father. The worker and his father jointly presented to the panel. The worker called and examined a witness. The worker answered questions posed by the panel.

The worker called an acquaintance as a witness. The witness advised that he has known the worker for about 6 to 7 years. He said that before the injury the worker could participate in many activities, such as cutting and splitting wood but that he has not been able to participate in these activities since the injury. The witness said that he has had to cut and split wood for the worker. The witness also said that before the injury he would hunt with the worker but since the injury the worker has not been able to hunt.

The worker noted that his injury was initially misdiagnosed. The WCB's decision that he was fit to return to work and no longer entitled to wage loss benefits was based upon the diagnosis of a back strain. He said that it was ultimately determined that he had a disc injury as opposed to a back strain. The worker said that after he was laid off in December 2009, his symptoms worsened so he continued looking for the cause for his sore back. In answer to questions, he advised that after he was laid off from work, his back became more stiff, he was having spasms, and he could not sleep. The worker was concerned that the WCB did not accept the advice of his medical providers.

Regarding his condition in 2012, the worker advised that he is not currently receiving treatment. He said that he has setup a gym which he intends to use. He said that he sees himself at 100% cured within 6 months. Currently he sees himself as 80 to 85% cured.

The worker was asked to identify his skills. He advised that he can weld, drywall, frame, do cement, metal fabrication, pipe work, and painting. He said that he should be able to walk a few miles and that he still gets sore when driving. He felt that he should be able to work three days a week at a medium level. He expressed concern about not working before he is healed and about re-injury.

Employer's Position

The employer was represented by its Safety Coordinator. The employer representative advised that the employer does not support the appeal. He answered questions posed by the panel. He stated that the employer does not dispute that the worker has issues with his back. However, the employer believes his condition was not a result of an incident that occurred at the employer's on July 17, 2009. The employer's position is that the worker aggravated an old injury.

Analysis

The issue before the panel is whether or not a deemed post-accident earning capacity equivalent to 40 hours per week at provincial minimum wage should be implemented effective December 15, 2009. Stated simply, the question is whether the worker was able to work 40 hours per week in a minimum wage position. It is understood that the worker had not fully recovered from his workplace injury.

In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities, and determine whether the worker was capable of earning at least the provincial minimum wage or whether his compensable injury prevented him from achieving this level of earning capacity. The panel finds that the worker was capable of working 40 hours per week at the provincial minimum wage.

The panel relies upon the worker's evidence at the hearing that he was able to work for the employer until he was laid off. Specifically, we rely upon the following in making this decision:

  • That at the time he was laid off he was working full-time for the employer. His duties during his last week at work included delivering roofing material with a pick-up truck, delivering propane tanks, and some mechanical work. He said that he received assistance with some aspects of his duties particularly with loading the truck.
  • That if he would not have been laid off by the employer, he would have continued working for the employer at the assigned duties.
  • That he did not look for work when laid off because he expected to be called back by a certain date.
  • In addition, the worker told the panel about the many skills he has acquired in a varied career.

We also rely upon the following medical information:

  • The Neurosurgeon's opinion dated September 7, 2010. The neurosurgeon recommended conservative treatment with an emphasis on physiotherapy/stabilization. He also recommended that the worker avoid strenuous activities involving repetitive bending or heavy lifting. The neurosurgeon did not find the worker to be disabled from working.
  • The WCB orthopaedic consultant's opinion dated June 15, 2011 that "Based on the reported clinical findings in late 2009, it is probable that most physicians would have advised restrictions of no lifting more than 50 lbs."

The panel accepts that he has many skills and significant experience. His evidence is that he is 85% cured and that within 6 months he will be 100%. When asked how much he could work he said that he could work 3 days per week. The panel places greatest weight on the medical findings above which do not restrict the worker from full time employment. We find that on December 15, 2009 the worker was physically able to perform 40 hours per week of minimum wage employment.

In addressing this appeal, the panel has considered the effect that the change in diagnosis from a back strain to a L4-L5 disc herniation had on the worker's ability to work as of December 14, 2009. The worker submitted that a deemed post-accident earning capacity equivalent to 40 hours per week at provincial minimum wage was not appropriate given the new diagnosis. Having considered all the medical information, the panel finds that the change in diagnosis does not affect this decision. The decision to deem the worker was based on the worker's abilities in December 2009. We find that while the diagnosis changed, the worker's ability to work did not change, except with respect to the maximum weight that the worker could lift. We find that the worker's maximum lifting ability should be reduced to lifting no more than 50 lbs. as recommended by the WCB orthopaedic consultant and the worker's attending physician. This changed restriction does not affect the finding that the worker was able to work full time in a minimum wage position effective December 15, 2009.

Although our decision does not alter his wage loss benefits, the panel notes that the worker's medical aid benefits were continued as a result of the change in diagnosis and this will not be affected by this decision.

The worker's appeal 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 15th day of March, 2012

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