Decision #44/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was no cause and effect relationship between his ongoing pain complaints and the January 20, 2011 compensable injury during the period August 29, 2011 to October 7, 2011. A hearing was held on March 26, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits from August 29, 2011 to October 7, 2011.Decision
That the worker is not entitled to wage loss benefits from August 29, 2011 to October 7, 2011.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for bilateral inguinal hernias that developed during the course of his employment as a production worker. On June 2, 2011, the worker underwent laparoscopic surgery to repair the hernias.
On July 13, 2011, the employer advised the WCB that they had full time modified duties for the worker which entailed sitting at a desk in the machine shop writing out tags. The worker commenced the modified duties on July 18, 2011 while attending physiotherapy treatment.
On July 27, 2011, a WCB medical advisor opined to the file that the typical recovery period following bilateral inguinal hernia repair was 8 to 12 weeks post-operatively. The medical advisor outlined the following work restrictions for the worker: Avoid heavy lifting greater than 25 pounds and equivalent activities such as forceful pulling, pushing and twisting about the waist and squatting, over the 8 to 12 week time frame.
A WCB case manager spoke with the worker on August 8, 2011. The worker advised that he had some pain in his right leg and his abdomen and that he was taking medication for pain relief. The worker advised that he was currently working in the machine shop and the electronics area with no difficulties to report.
On August 24, 2011, the employer advised the WCB that the treating physician cut back the worker's hours to four hours per day for one week.
A progress report from the treating physician dated August 24, 2011 noted that the worker recently did normal duties for the last two weeks and that this caused increased pain. He noted that the worker should continue duties at four hours a day.
On August 26, 2011, the employer noted that the worker was assembling small doors under the weight restriction of 25 pounds while in his home department. The worker said he could not work eight hours because he was in constant pain since his surgery.
On August 26, 2011, a WCB medical advisor reviewed the file at the request of the case manager. The medical advisor stated that an objective medical reason to restrict workplace hours was not identified on the physician's progress report of August 24, 2011. He stated that as long as the workplace restrictions outlined by the WCB surgical advisor were followed, there was no anticipated medical contra-indication to working full time hours.
In a letter to the worker dated August 26, 2011, the case manager stated that wage loss benefits would be issued for the additional 4 hours that the worker missed from work on August 24 and August 25, 2011 only. The worker was informed that based on review of his file in consultation with the WCB medical advisor, there was no objective medical reason to support the need to reduce his hours. It was felt that his current restrictions were appropriate and that he should be able to remain at work for his entire shift.
On September 19, 2011, the treating physiotherapist noted that the worker reported 95% improvement in his abdomen and left groin with 80% improvement in his right groin and hip.
On October 7, 2011, the treating physician noted that the worker's main complaint was right hip discomfort. The inguinal regions were comfortable and examination was normal at the hernia repair sites. The physician's impression was that the worker's right hip complaints were arthritic in origin. He noted that the worker was to return to full work the following Tuesday.
On October 30, 2011, the worker wrote to Review Office and outlined the position that he should be entitled to benefits between the period August 29, 2011 to October 7, 2011.
On December 28, 2011, Review Office determined that there was no entitlement to wage loss benefits from August 29 to October 7, 2011. Review Office noted that the accepted diagnosis of the compensable injury was bilateral inguinal hernias and the diagnosis of the worker's ongoing symptoms was reported as arthritis. Review Office felt there was insufficient evidence to support a conclusion that the worker's ongoing hip/thigh problems diagnosed as arthritis were related to the compensable bilateral hernias. Review Office accepted the opinion of the WCB medical advisor dated August 26, 2011. It determined that the worker's ongoing loss of earning capacity was not the responsibility of the WCB. On January 16, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
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.
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.
Worker's Position
The worker was self-represented and attended the hearing to explain his position. He also answered questions posed by the panel.
The worker advised that he was seeking reimbursement for approximately 100 hours which is the time that he missed while participating in a graduated return to work program recommended by his family physician.
The worker explained that on July 18, 2011, he returned to light duties on a full time basis. Initially he worked at tagging parts. After about 3 weeks he moved to his pre-accident position, assembling small parts at a bench. He was provided a stool to sit at the bench but he preferred to stand at the bench. He acknowledged that the duties did not exceed his restrictions which at that time included: avoid lifting greater than 25 lbs, avoid forceful pulling and pushing and avoid forceful twisting about the waist and squatting.
The worker noted that his surgery involved 3 different sites on his abdomen; right side, left side and middle near his navel. He said that the left side and middle healed quickly but that his right side continued to be painful. He said that over time his right side became more painful. He advised his physician who recommended a graduated return to work involving a reduction in hours. The WCB did not approve the reduction in hours, but the worker followed his physician's advice and commenced a graduated return to work. The worker said that the WCB made a mistake in not providing a graduated return to work.
Regarding his current condition, the worker said that he has recovered and is working full time. He expressed gratitude to his employer and its representative for treating him fairly.
The worker was asked about hip pain which was noted by the physiotherapist and investigated by his physician. He said that the pain is still present but that it does not interfere with his work. He is not taking medication for the hip pain. He indicated that the pain in his right groin area was the cause for his reduced hours.
Employer's Position
The employer was represented by its occupational health & safety specialist. The employer representative advised that he was in attendance to provide information and answer questions. The employer did not oppose the appeal.
The employer's representative was able to clarify dates and provide information about the worker's duties. He also confirmed information provided by the worker regarding the duties.
Analysis
The issue before the panel was whether or not the worker is entitled to wage loss benefits from August 29, 2011 to October 7, 2011. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the reduction in the worker's hours was required for medical reasons related to the compensable injury. The panel was not able to make this finding. The panel considered all the medical reports and medical findings but was not able to find a compensable cause for the reduction in hours.
In questioning the worker, we found that he was not a good medical historian. We found his answers regarding the onset and extent of pain to be vague and his recollection of events to be poor.
At the hearing, we confirmed with the worker and the employer representative that the duties performed by the worker did not exceed his restrictions.
We note that the worker's family physician recommended the reduction in the worker's hours of modified work. We reviewed the family physician's reports and note his August 24 report indicates that the worker recently did his normal duties for the last 2 weeks causing increased pain. He indicates the worker should continue duties at 4 hours per day. In our opinion, the report does not identify any clinical findings or medical reason to support this change. It appears to be based upon the worker's complaint of increased pain.
We reviewed the treating physiotherapist's August 22, 2011 report. The physiotherapist notes that the worker reports minimal surgical site pain but continues to complain of right groin pain and lateral hip/thigh pain. She notes that the worker reports subjective worsening at return to work and vague reports of short term relief with physiotherapy treatment. The physiotherapist notes objective findings of decreased flexibility right quads and hip flexors, tensor fasciae latae, right hip stiffness and decreased range of motion. She noted that treatment included quad strengthening, stretches, hip mobilizations and modalities. The physiotherapist notes that she encouraged the worker to continue with the return to work in conjunction with physiotherapy and home exercises. We find this report does not support the worker's request for reduced hours from his compensable hernia condition.
The panel notes a significant reference to hip pain suffered by the worker being introduced in August 2011. The worker complained about right hip pain at the time that his family physician recommended reducing his hours of modified duties. As well, the physiotherapist provided treatment aimed at the right hip and the treating surgeon's October 7, 2011 report indicates the worker's main complaint was right hip discomfort. The surgeon comments that he thinks the right hip pain is arthritic in origin. The panel finds that this was not a compensable condition, and that the increased symptoms and related treatment were the reason for the worker seeking a reduction in work hours. This loss of earning capacity for a non-compensable medical reason would not be related to the compensable injury.
Finally we note that the WCB medical consultant's August 26, 2011 medical opinion that "An objective medical reason for which to restrict workplace hours is not identified in the family physician's August 24, 2011 report."
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of April, 2012