Decision #69/12 - 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 not entitled to further wage loss benefits or to a permanent partial impairment award. A file review was held on May 2, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to further wage loss benefits; and

Whether or not the worker is entitled to a permanent partial impairment award as a result of the March 16, 2009 compensable injury.

Decision

That the worker is not entitled to further wage loss benefits; and

That the worker is not entitled to a permanent partial impairment award as a result of the March 16, 2009 compensable injury.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a neck injury that occurred on March 16, 2009. The worker described the accident as follows:

I was carrying a jackleg on my left shoulder. I tripped and fell forward and the top of my head hit the wall. I was wearing a hard hat…my head hit the rock wall. I felt immediate pain to the neck for approximately 15 to 20 minutes. I continued working but the pains in my neck progressively got worse.

The worker advised the WCB that he had a 2003 claim with the Ontario WSIB for a bulging disc to the C5-C6 region and he never fully recovered from that injury. The worker advised that he attended a local hospital on two occasions after the March 16, 2009 incident but was given conflicting advice. The first physician told him that he could do modified duties. The second physician told him to go off work and then return to work for the next rotation. The worker indicated that he walked off the job and returned home to Ontario on March 25, 2009. He then went to the hospital and was told to stay off work for two to three weeks.

On March 26, 2009, the employer advised the WCB that the worker completed an incident report relating to the March 16, 2009 fall. He then decided that he should go to the hospital and be checked because of a pre-existing injury. The worker was taken to the hospital on March 17, 2009 and the attending physician filled out a functional abilities form stating that the worker had few restrictions and was fit for modified duties. Modified duties were provided to the worker but after a short period of time, he missed work without reason. On March 24, 2009, the worker asked to be taken to the hospital again for a second opinion. The worker went to the hospital and a functional abilities form was completed which indicated that the worker was fit for modified duties. The following day, the worker notified his supervisor that he was leaving work and returning home. The worker noted that the hospital physician told him that he was in "rough shape and needed to go home immediately to see his family doctor and a specialist." The worker said he was prescribed medication and could not work because of it. The worker was unable to provide any documentation to confirm that he was unable to work and the worker was reminded that walking off the job and not returning was tantamount to having quit.

A hospital emergency report showed that the worker attended for treatment on March 17, 2009 and had a known neck problem, namely, a bulging disc. An x-ray was taken and noted diffuse moderate disk space narrowing from C3 to C6, no fracture or dislocation and an incidental large cervical rib on the right and a large transverse process at C7 on the right. The attending physician described these results as “unremarkable” and diagnosed musculoskeletal neck pain. The report further noted that the worker was to see his own physician in Ontario, treat the pain with A535 and Ibuprofen, and that the worker was aware to avoid heavy lifting until seen by his own doctor.

A Functional Abilities Request for Modified Work form was completed by the attending physician on March 17 and noted that the worker was able to return to regular duties, but was to avoid bending or twisting of neck and above shoulder activity and should limit himself to mild physical exertion, working graduated hours.

When seen for follow-up on March 24, 2009, the hospital physician completed a Functional Abilities Request for Modified Work form indicating that the worker was not able to return to regular duties but was capable of modified duties with the following limitations: lifting floor to waist of less than 10 kg; lifting waist to shoulder of less than 10 kg; no bending or twisting; no operation of motorized equipment; exposure to vibration should be only low frequency; mild physical exertion and modified work hours. The physician also noted an expected date of return to work of April 14, 2009.

A hospital report from the Ontario hospital showed that the worker attended for treatment on March 28, 2009 reporting pain from neck to coccyx as a result of a March 16, 2009 accident. The worker further reported he worked light duties for a few days, and after a second visit to the emergency room, he flew out (back to Ontario). The physician noted normal range of motion in the neck, back and hip and suggested follow up as necessary. The worker was diagnosed with neck pain. The report noted that the x-ray revealed “DDD” or degenerative disc disease.

The worker again saw his Ontario physician on April 27, 2009. At that time he reported that after the accident, he was supposed to have modified duties but none were available, and that he had therefore returned to regular duties and that the pain in his neck area then worsened. He advised that after a second emergency room visit he was advised to remain off work and he returned to Ontario. On this date, the worker noted little improvement with pain in his neck and shoulders, radiating to his arms. The physician noted well-preserved range of motion in the neck and shoulders but with pain throughout. He diagnosed chronic neck pain, prescribed Tylenol 3 and range of motion exercises and arranged for an MRI study.

On May 20, 2009, the worker was advised by his WCB case manager that his claim had been accepted for the March 16, 2009 neck injury; however, wage loss benefits associated with the injury would not be authorized. The case manager noted that the worker was examined by a healthcare practitioner on March 17, 2009 and March 24, 2009 and was provided with a functional abilities form on each examination that said he was fit for modified duties. As the worker chose to remove himself from work on March 24, 2009 and the offer of modified duties so he could seek further medical treatment in his province, wage loss benefits and any out of province medical aid or travel associated with the claim would be disallowed.

The worker attended for an MRI study on May 23, 2009. The results indicated no change compared to the worker’s prior MRI examination study on July 17, 2008. There were mild degenerative changes noted between C4/C5 and greater degenerative changes at C5/C6.

On December 17, 2009, the lawyer acting on the worker's behalf provided the WCB with additional medical information for consideration. He noted that the worker was still experiencing difficulties related to the accident. He noted that the functional abilities request for modified work dated March 24, 2009 indicated that the worker was not able to return to regular duties and the recommended return to work date was April 14, 2009. On December 8, 2010, primary adjudication advised the worker that the new information did not alter the WCB's previous decision dated May 20, 2009.

On June 28, 2011, the worker’s lawyer appealed the December 17, 2009 decision to Review Office and requested that the worker be provided with a permanent pension for his neck and headache conditions which resulted from the March 16, 2009 accident as well as wage loss benefits. The lawyer indicated that the worker needed to return to his family physician within his province and hometown in order to obtain the proper medical attention for his neck and headaches.

Primary adjudication wrote the worker on November 8, 2011 to advise that his file had been reviewed, and that based on the accepted compensable diagnosis of a neck sprain there was no entitlement to a permanent partial impairment ("PPI") award.

On November 30, 2011, Review Office determined that the worker was entitled to wage loss benefits for March 17, 2009 and March 24, 2009, being the dates he was seen for medical assessments and was advised that he was capable of modified duties. Review Office noted that the worker's employer was able to accommodate him with duties that were within the restrictions noted by the hospital physicians and there was no loss of earning capacity beyond that time. Review Office indicated that there was no new medical evidence to suggest that the worker was unable to work modified duties. It noted that the worker saw a doctor on April 27, 2009 who stated that the worker told him there were no modified duties available with the employer. The diagnosis was neck pain, acute or chronic. The worker was advised to continue with home exercise and was referred for an MRI assessment. Review Office stated that at that point in time, the loss of earning capacity was directly related to the fact that the worker's employment had been terminated as he refused modified duties and did not return to the worksite. Review Office noted that the MRI of May 24, 2009 stated that there was no change compared to the study dated July 17, 2008.

Review Office also confirmed that the worker was not entitled to a PPI in relation to his compensable injury as all medical examinations of the worker following the March 16, 2009 injury reported normal findings and the findings reported on the MRI in May 2009 were unchanged from the July 2008 MRI findings. On January 27, 2012, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the "Act") and the policies of the WCB’s 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.

Section 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…” and 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.

Section 22 of the Act creates a responsibility for the worker to cooperate in medical treatment, cooperate in programs for return to work, rehabilitation and disability management, and also to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury. Where a worker has failed to meet these obligations, the WCB may reduce or suspend compensation payable to the worker.

Section 4(9) of the Act provides that the board may award compensation in respect of an impairment that does not result in a loss of earning capacity.

Section 37 of the Act states that an impairment award is payable where, as a result of an accident, a worker sustains an impairment. The method for calculating compensation for impairment is set out in section 38 of the Act:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Worker’s Position

The worker’s position is that as a result of the workplace accident which took place on March 16, 2009, he should be entitled to additional wage loss benefits beyond those paid in respect of his March 17, 2009 and March 24, 2009 absences from work to attend medical appointments, and, further, that he has sustained a permanent impairment as a result of that accident and should be compensated for a permanent partial impairment.

Employer’s Position

The employer did not participate in the appeal.

Analysis:

The issues before the panel are:

  1. Whether or not the worker is entitled to further wage loss benefits; and
  1. Whether or not the worker is entitled to a permanent partial impairment award as a result of the March 16, 2009 compensable injury.

Wage Loss Benefits

The basis for the entitlement to receipt of wage loss benefits is set out ss. 4(1) and 39(1) of the Act as set out above. Where a worker has been injured in the course of employment and has suffered a loss of earning capacity, wage loss benefits will be paid until the loss of earning capacity ends or the worker reaches the age of 65.

In order to find that the worker is entitled to further wage loss benefits, this panel must find on a balance of probabilities that the worker suffered a loss of earning capacity beyond the periods for which he has already been compensated.

The evidence before us is that the worker first attended for medical treatment after the accident on March 17, 2009. The attending physician completed a Functional Abilities Request for Modified Work form and noted that the worker was able to return to regular duties, but was to avoid bending or twisting of the neck and above shoulder activity and should limit himself to mild physical exertion, working graduated hours.

The worker returned to work after March 17, 2009 and participated in light duties. On March 24, 2009, the worker returned for follow-up medical treatment. At this time, the attending physician completed a second Functional Abilities Request for Modified Work form. This form indicated that the worker was not able to return to regular duties but was capable of modified duties with the following limitations: lifting floor to waist of less than 10 kg; lifting waist to shoulder of less than 10 kg; no bending or twisting; no operation of motorized equipment; exposure to vibration should be only low frequency; mild physical exertion and modified work hours. The physician also noted an expected date of return to work of April 14, 2009.

The worker did not return to work and did not participate in modified duties after March 24, 2009. He notified his supervisor on March 25, 2009 that he would not return to work and would be returning to Ontario. The employer confirmed to the worker that he was expected to return to modified work with restrictions unless he provided some documentation to indicate he could not return to work. The worker confirmed he had no other documentation and would not return to work, stating that he couldn’t work because of new medication he was taking and that he needed to see his family physician in Ontario.

There is no information before us to suggest that the employer was not able to offer modified duties to the worker with the restrictions noted in the March 24 Functional Abilities Request for Modified Work form.

As of March 28, 2009, the worker’s condition was noted as stable and the medical examination by his own family physician disclosed only normal findings, with follow up to take place as necessary.

The medical and functional abilities evidence reviewed does not support the worker’s position that he is entitled to further wage loss benefits. The evidence is that the worker failed to return to modified duties as required. We therefore find that the worker is not entitled to further wage loss benefits.

Permanent Partial Impairment Award

The basis for awarding compensation for a permanent partial impairment is set out in ss. 4(9), 37 and 38(1) of the Act as set out above. Where a worker sustains an impairment as a result of a compensable accident, the WCB may compensate a worker for the impairment even if the worker has not suffered any loss of earning capacity. Further, the degree of that impairment will be calculated as a percentage of total impairment.

An impairment that is not the result of an accident as defined by the Act is not compensable. In situations where the worker has a pre-existing injury, the Panel must also consider WCB policy 44.10.20.10, Pre-Existing Conditions, which sets out that the WCB:

…will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

In order to find that the worker is entitled to compensation for an impairment, this panel must find on a balance of probabilities that the worker sustained an impairment as a result of the compensable accident of March 16, 2009 and that it was not the result of a pre-existing condition.

The WCB has accepted that the worker did sustain an injury as a result of an accident arising out of and in the course of employment and did suffer a loss of earning capacity resulting in payment of wage loss benefits.

The evidence before us indicates that the worker experienced neck pain following the accident of March 16, 2009, but the evidence also indicates that the worker was treated for chronic neck pain before March 16, 2009 and the worker described a disc injury occurring in 2003 from which he had never fully recovered.

The post-accident medical assessments indicate that the worker reported a “known neck problem” on March 17, 2009 and the x-ray revealed some disc space narrowing between C3 and C6. On March 28, 2009 the worker’s family physician reviewed the x-ray of that date and noted degenerative disc disease. On April 27, 2009 the worker’s family physician noted neck pain, acute and chronic.

Prior to the accident, a December 16, 2008 letter from the worker’s family physician to a consulting specialist indicates that the worker has a history that includes chronic neck pain. Significantly, we note that the May 23, 2009 MRI study noted that there was no change compared to the MRI study of July 17, 2008, and that degenerative changes predominating at C5/6 are again noted. The July 17, 2008 MRI examination noted that the results correlated with the previous MRI of December 9, 2005 and that the worker had minimal degenerative changes.

The medical evidence before us does not support the worker’s position that he sustained a permanent impairment resulting from the compensable injury of March 16, 2009; rather, it leads us to find that the worker had a pre-existing and chronic neck pain condition which had not resolved. The MRI findings post-injury are indistinguishable from those pre-injury, taken in 2005 and 2008 and do not provide any evidence of a deterioration in the worker’s pre-existing chronic neck pain condition as a result of the compensable injury of March 16, 2009.

We therefore find, on a balance of probabilities, that the worker is not eligible for an award for a permanent partial impairment as a result of the compensable injury arising out of the workplace accident of March 16, 2009.

CONCLUSION:

Having reviewed the evidence before us, we have determined on a balance of probabilities that the worker is not entitled to receive further wage loss benefits, and is not eligible for a permanent partial impairment award as a result of the March 16, 2009 compensable injury.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 30th day of May, 2012

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