Decision #135/12 - Type: Workers Compensation
Preamble
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits beyond November 4, 2010.Decision
That the worker is entitled to wage loss and medical aid benefits beyond November 4, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for a back injury that occurred at work on August 28, 2010. The worker described the accident as follows to the WCB's call centre:
I was in the dining room and the table was too close to the wall. It was a corner wall and I hit the wall when I turned the corner, from behind. It felt like a crunch or something. It wasn't too bad at first but it got worse. It is painful on the lower right side.
On September 10, 2010, the worker advised a WCB adjudicator that the dining room table was against the wall and she was standing near the corner of it. She turned and backed up and hit the corner of the wall down the middle of her back. She felt immediate pain and thought she heard a crunch. She reported the incident right away. The worker stated that she was off work from August 30 to September 6, 2010 and that her back was painful every day. By September 4, 2010, her back really started to bother her and that was when she went to a walk-in clinic.
Medical information showed that the worker attended a chiropractor and two physicians for treatment. The diagnosis accepted by the WCB was a back strain and benefits and services were paid to the worker.
On November 8, 2010, the worker advised the WCB that she was cleared to return to work by her treating chiropractor and she worked over the weekend without incident. The worker stated that she was feeling good and did not have any problems.
On December 16, 2010, the worker attended the WCB's offices stating that she returned to her full regular duties in the beginning of November 2010. She said she did not feel 100% upon returning to work. Around November 15, 2010, she noticed increased low back pain. On November 22, 2010, she saw her physician who advised her to be off work for one week. She then returned to work on November 29, 2010 but continued to have ongoing pain. On December 1, 2010, her doctor took her off work until January 3, 2011.
Updated medical information was obtained from the worker's treating physician. On December 3, 2010, the worker underwent a CT of the lumbar spine from L1 through to S1. The results were reported as follows: "Mild degree of spinal stenosis is demonstrated at more than one level predominantly related to annular disc bulging and narrowing of the bony canal on a congenital basis."
On January 5, 2011, a WCB medical advisor reviewed the medical information at the request of primary adjudication. The medical advisor's opinion was that the reported mechanism of injury was consistent with a lumbar strain and that a strain should resolve between 2 and 6 weeks. As the worker had multilevel degenerative and congenital changes at the lumbar spine, there would be a prolongation of recovery by an additional 4 to 6 weeks. She stated that the reported mechanism of injury was not anticipated to have materially influenced the structural findings at the lumbar spine noted on the CT of December 3, 2010. The medical advisor indicated that the ongoing medical reports of lumbar pain were not likely the consequence of the August 2010 injury.
On January 7, 2011, the worker was advised that the WCB was unable to accept further responsibility for her claim as it was felt that she had recovered from her compensable back strain injury and that her current back symptoms were unrelated to the workplace accident of August 28, 2010. On March 30, 2012, the worker appealed the decision to Review Office. The worker noted that she was supposed to go on a back-to-work program but was denied by her employer on October 22, 2010. She said she went back to her regular duties on November 6, 2010 and reinjured her back from the heavy lifting as she was not fully recovered from her compensable injury.
On May 30, 2012, Review Office upheld the adjudicator's decision that the worker was not entitled to wage loss benefits and medical costs beyond November 4, 2010. Review Office noted that the worker was discharged from chiropractic treatment on November 5, 2010 and that she worked November 6 and November 7, 2010 with no difficulties. The physician's chart notes of November 23, 2010 indicated the worker had complaints of right hip pain and back pain. Range of motion in the back was complete and pain free except in extension. Review Office also stated that it accepted the WCB medical advisor's opinion of January 5, 2011.
Review Office found that the evidence including the diagnosis of a strain, treatment rendered, minimal clinical findings and the worker's report of a return to work with no difficulty and the time that had passed, did not support that the worker had a loss of earning capacity related to the compensable injury beyond November 4, 2010. On June 13, 2012, the worker appealed Review Office's 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(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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The worker’s position:
The worker was self-represented at the hearing. It was submitted that after her initial time off work for her injury, the worker was supposed to be on a graduated return to work program. The letter from her chiropractor of October 22, 2010 recommended reduced hours and restricted duties. The worker showed this letter to her employer who advised he was not able to accommodate her as he already had several other employees on modified duties. On November 6, 2010, she returned to work and immediately started to perform her regular job duties with no restrictions. She managed to carry out her full duties for two weeks, but found that her condition was getting worse. She went to see her doctor, who recommended she stay off work for another week. After a week off, she returned to work on November 29, 2010, but was just barely able to complete her shift. She went back to her doctor who took her off work for one month. The worker's evidence was that her doctor told her to give her back more time to heal and that by going back to her regular heavy duties as a healthcare aide, her back was just getting aggravated. The worker felt that if she had been given a graduated return to work program, her recovery would not have been so slow. While she was off work in December, her back started to feel better and she could walk better with less pain. Since January 3, 2011, she had returned to work to her full duties and had not experienced any problems since. The worker submitted that she needed more time to fully recover from the injury and asked that she be granted compensation benefits from November 20, 2010 to January 3, 2011.
The employer's position:
The employer was represented by an advocate at the hearing. The employer's position was that it agreed with the WCB's decision to end benefits effective November 4, 2010. It was submitted that diagnostic testing showed that the worker had a badly degenerated back. On August 28, 2010 she suffered a fairly minor accident mechanism as a result of which she sustained an acute injury which was diagnosed as a back strain. She was off work for approximately nine weeks and then was pronounced recovered by her chiropractor. She returned to regular duties for a few days before experiencing additional pain. The WCB medical advisor indicated that a typical back strain would be expected to fully resolve within two to six weeks. The reason why the worker's condition did not resolve that quickly was due to her pre-existing degenerative condition. There was never any indication that the minor work accident and injury enhanced her pre-existing condition. It was submitted that it was reasonable to assume that the worker had fully recovered from the acute back strain at least by the time she returned to work in early November and that her renewed back pain after that period was simply an onset of her symptoms related to her degenerative back disease. Even without the pre-existing condition, it was submitted that such a relatively minor accident mechanism would not have resulted in a nine week injury. There was therefore no reason for the panel to overturn the decision to end benefits in early November, 2010.
Analysis:
The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond November 4, 2010. In order for the appeal to be successful, the panel must find that by November 4, 2010, the workplace injury had not yet resolved and the worker continued to experience a loss of earning capacity as a result of her injury. After reviewing the evidence as a whole, we find on a balance of probabilities that by November 4, 2010, the worker had not yet fully recovered from her injury and she is entitled to further wage loss and medical aid benefits for the period up to her return to work on January 3, 2011.
In the panel's opinion, the evidence supports that the worker continued to experience pain from her compensable back injury beyond November 4, 2010. The worker's evidence was that she did return to work, but was working with pain while performing her regular duties. The pain was always in the same spot on the right side of her back. The panel acknowledges that the worker's job duties as a healthcare aide involved physical work and that modified duties were not available to her. We accept that the continued requirement to perform heavy lifting and pushing duties caused her recovery from her back strain to be delayed. At the hearing, the worker described still reporting for her shifts, but she would walk around slowly as she was in continuous pain. By mid-November 2010, her doctor authorized another week off work. When she returned to work on November 29, 2010, she was turning a patient when she felt a sharp pain in her low back. After that, she couldn't continue her duties and she had to sit down for the rest of her shift. After that, she was no longer able to continue working. The pain was too much. The panel finds that this was a specific aggravation of her ongoing compensable back strain which caused her to go off work for a more extended period.
The WCB file makes reference to a motor vehicle accident which occurred in September 2010. The panel considered whether the worker's ongoing symptoms could be attributed to this event. We note that the medical evidence on file does not suggest that there was trauma from the motor vehicle accident which contributed to the worker's ongoing back pain. The panel therefore finds that the motor vehicle accident is not responsible for the worker's back condition beyond November 4, 2010.
The panel places significant weight on the fact that after a full month to recover away from the workplace, the worker successfully returned to her full duties at work. This would suggest that the pre-existing degeneration in the worker's back was not responsible for her ongoing condition through November and December 2010. The worker's evidence was that since her return to work on January 3, 2011, she has not had to see any doctors for her back.
For the foregoing reasons, the panel finds that the worker's compensable back injury continued to be symptomatic after November 4, 2010 and that she is entitled to further wage loss and medical aid benefits for that condition. By the time of her return to work on January 3, 2011, the worker had fully recovered from her compensable injury.
The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 5th day of December, 2012