The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not totally disabled and was capable of employment within National Occupational Classification 6651. A hearing was held on August 13, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to full wage loss benefits.

Decision

That the worker is entitled to full wage loss benefits.

Decision: Unanimous

Background

The worker filed a Worker Injury Report on August 14, 2008 indicating that he injured his back on July 9, 2008 when lifting a 2 x 6 at his job site.

A CT scan of the lumbosacral spine taken August 25, 2008 showed degenerative changes in the facets and a congenitally narrow canal resulting in central stenosis at the L2-3 level. At L3-4 there was a large right paracentral disc herniation compressing the right side of the thecal sac and degenerative changes were present in the facets. The report also noted previous laminectomy at the level of L4-5 and L5-S1. Degenerative changes were present in the facets and no disc herniation, spinal stenosis or nerve root compression was seen.

The claim for compensation was accepted by the WCB and benefits were paid to the worker. The worker was later provided with a permanent partial impairment award related to his back condition and was referred to the WCB's vocational rehabilitation branch to assist in finding him employment that would meet his compensable restrictions to avoid repetitive bending and twisting of the lower spine, limit lifts from 10 to 15 pounds and avoid prolonged standing or walking. By June 18, 2010, the worker found employment in the security field (National Occupational Classification 6651) and his wage loss benefits were reduced based on WCB policy.

On September 18, 2012, the worker advised the WCB of the following information:

• he tried to return to work on September 7, 2012 in security and within ½ hour of his shift, his back started to cramp up and within an hour both legs were starting to go numb.
• he found that standing and sitting placed pressure on his spine. He cannot stand or sit for long periods of time. He still had some numbness down his legs.
• no new injuries or accidents occurred.
• when seen by his physician on September 12, 2012 he was advised to stop work.
• prior to September 7, 2012, he had not worked since March 2012.
• chiropractic treatment helped with his back pain but it did not help the injury. He had an injection in May 2012 but found no relief from the pain.
• he applied for CPP disability benefits as a result of his low back injury but had not heard whether his claim was accepted.

A progress report from the treating physician dated September 12, 2012 reported that the worker stopped work on September 7, 2012 as a security guard. He noted that the worker had pain, pins and needles and weakness in the left leg that continued. Clinical examination showed leg weakness and gait change. There was tenderness and pain in the L4-5 lumbar area and paraspinal muscles. The worker was assessed with functional back pain and possible sciatic nerve root irritation.

On October 8, 2012, a WCB sports medicine advisor reviewed the worker's file and outlined the following opinions:

• there was no change to the compensable diagnosis of "large right paracentral disc herniation compression thecal sac."
• the worker was not totally disabled based on the September 12, 2012 clinical findings outlined by the treating physician.
• there did not appear to be an objective requirement to change the worker's current permanent restrictions.

On November 16, 2012, the worker was advised that the WCB would not reinstate full wage loss benefits as it was felt that he was still capable of work within the security guard occupation based on the medical opinion outlined on October 8, 2012. On January 2, 2013, the worker appealed the decision to Review Office.

On January 31, 2013, Review Office determined that the worker was not entitled to full wage loss benefits. Review Office noted that although the worker experienced instances of increased pain or reported numbness, these did not render him fully disabled or unable to work. It noted that three specialists who saw the worker in the past all felt that the worker's condition was not neurological but were mechanical or musculoskeletal issues in combination with his widespread degenerative disc disease.

Review Office outlined the opinion that the worker's most current complaints of disability were the same as when his restrictions were made permanent in February 2010. It noted that the worker eventually completed his VR plan and that he successfully obtained employment at two security companies which included standing and walking as some of their main functions. Review Office saw no reason to change the worker's permanent restrictions and found that they were appropriate regarding employment within the security field. On March 11, 2013, 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.

Worker’s Position

The worker was self-represented at the hearing and accompanied by a friend. The worker's submission was that in 2010, the WCB forced him to take training as a security guard. At that time, his doctor indicated that doing security work was going to be too hard on his back with all of the standing, but the WCB insisted that he would be able to perform this work. The worker stated that he did comply with the WCB's direction and initially, he was able to do the work. In order to be able to keep up, the worker continued to see a chiropractor, which he paid for out of his own pocket. For six months straight, he would attend the chiropractor regularly in order to relieve the pain. As time went on, the longer the worker stayed doing security work, the less he was able to stand. He was down to four hour shifts and had asked for positions where he could be seated, but no such positions were available. He had sought employment as a security guard by several different employers. In approximately April 2012, he stopped working as he could not even last a three hour shift as the standing put too much pressure on his spine and his back would give out.

The worker's evidence was that sitting was now also a problem and if he sat for even one hour, he would develop severe back pain, with numbness running down both legs. Just fifteen minutes of standing on a concrete floor would cause the pain and numbness down his legs.

In September 2012, the worker attempted to return to work as a security guard. After just half an hour, his legs cramped and he was unable to complete his shift. Since then, the worker had not been employed. He stated that he felt like he was in limbo as he was not able to return to his previous occupation in heavy construction and now he was not even able to perform security work.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits. In order to decide the appeal, the panel must determine whether the worker is capable of employment in his deemed NOC 6651 as a security guard or whether his compensable injury disables him from achieving this level of earning capacity. After reviewing all of the evidence, the panel finds that the worker is not realistically capable of employment in NOC 6651 and he is entitled to full wage loss benefits.

At the hearing, the worker's evidence was that his back had been getting worse and he was experiencing more severe pain. He now relied on a cane to mobilize. As a result of this worsening, his family physician sent him for another MRI. The MRI of April 30, 2013 identified multilevel degenerative changes, essentially unchanged in appearance since the September 2011 study.

The WCB file showed that the worker had been receiving increased medical intervention in the past two years, with zygapophyseal joint infiltrations in May 2012, authorization for further chiropractic treatment in February 2013 and approval for Tylenol #4 in May 2013 due to worsening pain and functional scores. The worker had seen specialists who advised him that they were unable to offer him any further surgical interventions. The family doctor's report of March 1, 2013 identified the worker as permanently disabled. He suffered a severe exacerbation of pain by simply getting out of bed.

The panel accepts that the worker has a severe low back condition, with a history of previous decompression and partial discectomy in 1991 at L5-S1. The workplace accident of July 8, 2008 enhanced this back condition. His most recent MRI of April 2013 shows multi level degenerative changes. The worker now reports reduced functional ability and increased pain, which he has not been able to manage. He tried infiltrations but they did not provide him with relief and he has been increasing his pain medications. By the end of March 2012, the worker found he could not continue working and he left the workforce for a few months. In September 2012, he made a bona fide attempt to return to work, but quickly found that he was physically unable to perform the duties of a security guard. The worker can neither stand nor sit for any significant amount of time and uses a cane to mobilize. In April 2013 he suffered a severe exacerbation of pain by just getting out of bed.

On a balance of probabilities, the panel finds that the worker's compensable back condition has deteriorated to the point where he is no longer able to sustain employment in NOC 6651. The worker was last able to maintain employment as a security guard in March 2012 and since then, he has not been able to work (but for the one failed attempt to return to work in September 2012). The panel therefore finds that the worker is entitled to full wage loss benefits effective April 1, 2012.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of October, 2013