Decision #82/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that he was not entitled to wage loss benefits beyond November 9, 2012. An oral hearing was held on Tuesday, April 30, 2013.
Issue
Whether or not the worker is entitled to wage loss benefits beyond November 9, 2012.
Decision
The worker is not entitled to wage loss benefits beyond November 9, 2012.
Decision: Unanimous
Background
The worker sustained injuries to his back while performing his duties on September 13, 2012. The WCB accepted responsibility for the claim and payment of various benefits commenced.
The worker attended his physician and physiotherapy and the case manager monitored his progress. As part of the case management process, the case manager consulted with WCB medical consultants. On October 30 and November 6, 2012, the case manager advised the worker that the WCB was unable to accept further responsibility for wage loss as there was no evidence of a loss of earning capacity due to the compensable injury. Additional medical reports were received and reviewed by the WCB. Specifically, the case manager noted the following:
(i) On September 13, 2012 the worker injured his mid to upper back;
(ii) The worker’s claim was accepted as a thoracic sprain/strain and a course of physiotherapy was approved;
(iii) The worker had an x-ray on October 2, 2012 which showed as normal;
(iv) On October 24, 2012 the worker’s file was reviewed by a WCB medical advisor who was of the opinion that the worker had suffered a back strain;
(v) The WCB Medical Advisor also noted that there was no objective medical evidence to suggest delay in recovery and that the normal recovery for such an injury is six to eight weeks. A recommendation was made that the worker return to pre-accident employment in the next two weeks with no restrictions; and,
(vi) On November 6, 2012, the worker’s file was again reviewed by a WCB medical advisor. At that time, the WCB medical advisor reviewed the medical report of November 2, 2012 which did not provide any objective medical reason for delay in the worker’s recovery. Although a physiotherapy report showed some indications of reduction in range of motion of thoracic spine, the main content of the report related to pain complaints. It was determined that the injury itself was a thoracic lumbar strain due to lifting, the x-rays were normal and the natural history of this condition is for recovery in 6-8 weeks.
On December 31, 2012, the WCB case manager advised the worker she was unable to change her earlier decision, and it was determined that the worker was not entitled to wage loss benefits beyond November 9, 2012.
The worker submitted an appeal to Review Office, indicating that he disagreed with the case manager's decision and that he was still experiencing back pain.
The Review Office decision dated January 29, 2013, held that there was no entitlement to wage loss benefits beyond November 9, 2012. In reaching this decision, the Review Office took note of the following:
(i) The claim was accepted on the basis of a thoracic strain/sprain;
(ii) The natural recovery time of this condition is 6-8 weeks and there is no objective evidence to support disability beyond this time period;
(iii) Medical reports were received subsequent to the initial decision. The "objective findings" area of the November 14, 2012 doctor's progress report was blank and the November 27, 2012 report indicated "no objective findings to report"; and,
(iv) On December 6, 2012 the WCB contacted the attending physiotherapist and she opined she could not account for the worker's pain complaints on a patho-anatomical basis.
Based on the foregoing, it was the Review Office’s opinion that the worker did not have a loss of earning capacity due to the compensable injury after November 9, 2012. Therefore, there was no further entitlement to wage loss benefits and the worker's appeal was denied.
The worker filed an appeal with the Appeal Commission.
Reasons
In order for the worker’s appeal to be successful, the panel must accept on a balance of probabilities that the worker continues to suffer a loss of earning capacity due to the compensable injury of September 13, 2012. For the following reasons, the panel is unable to make this finding.
Worker’s Position
During the hearing, the worker was represented by a friend. The worker’s position was that on March 20, 2013 he obtained an MRI which he is relying on to overturn the Review Office decision of January 29, 2013.
Employer’s Position
The employer was represented by its Safety Coordinator. The employer’s position was that the Review Office decision ought to be upheld.
The Legislation
The following sections of The Workers Compensation Act (the “Act”) are relevant to this matter:
Compensation payable out of accident fund
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.[Emphasis Added]
[…]
Wage loss benefits for loss of earning capacity
39(1) Subject to subsections (6) and (7), where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits must be paid to the worker calculated in accordance with section 40 and equal to 90% of the loss of earning capacity.
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years.
In summary, 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. Subsections 39(1) and (2) of the Act then provide that wage loss benefits will be paid where an injury to a worker results in a loss of earning capacity and 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.
Analysis
As noted earlier, the worker placed a great deal of importance on some of the diagnostic findings in the March 20, 2013 MRI. In particular, he has a small tear at L4-L5 and a small disc protrusion is present contacting the exiting L-5 nerve root. He asserts that these findings are related to the compensable injury of September 13, 2012.
However, the panel notes that, viewed in its entirety, the MRI findings do not align with the worker’s complaints which were to his middle and upper back, and resulted in an accepted claim for a thoracic sprain/strain injury. Rather, the MRI findings are:
Alignment of the thoracic spine is normal. No compression fracture is identified. The thoracic spinal cord is normal. There is no evidence of a disc herniation or spinal stenosis within the thoracic spine the neural foramina are patent. [Emphasis Added]
Alignment of the lumbar spine is normal. No compression fracture is demonstrated. The conus medullaris ends around T12 and has a normal appearance.
L1-L2 L2-L3 L3-L4: No disc herniation, facet anthropathy, central canal stenosis or neuroforaminal stenosis is identified.
L5-L5: Mild degenerative disc desiccation present along with a small posterior bulging disc and small central annular tear. Disc material contacts but does not compress the descending L5 nerve roots. There is no central canal or foraminal stenosis.
L5-S1: Mild disc desiccation present. A small left foraminal disc protrusion is present contacting the exiting left L5 nerve root. There is minimal left foraminal stenosis. There is no central canal or right foraminal stenosis.
IMPRESSION
No traumatic abnormality is identified. Degenerative changes are noted in the lower lumbar spine as detailed with a small annular tear noted at L4-L5. [Emphasis Added]
The panel finds that the MRI report states that there is no traumatic abnormality identified in any part of the spine. Rather, the findings identify degenerative changes in the lower lumbar spine, a different anatomical location than the original injury site. Given the fact that the pain complained of pertains to the worker’s mid and upper back this panel is unable to find that there is a medical basis to establish a causal link between the workplace injury of September 13, 2012 and the worker's ongoing back difficulties and associated costs related to treatment and/or time missed from work.
Taken as a whole, the evidence does not, on a balance of probabilities, establish that the worker continues to suffer a loss of earning capacity due to the compensable injury of September 13, 2012.
The worker’s appeal is therefore denied.
Panel Members
C. Monnin, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
C. Monnin - Presiding Officer
Signed at Winnipeg this 26th day of June, 2013