The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he had recovered from his compensable injury and was not entitled to wage loss or medical aid benefits beyond October 2012. A hearing was held on September 10, 2013 to consider these matters.

Issue

Whether or not the worker is entitled to wage loss benefits on October 2, 2012; and

Whether or not the worker is entitled to wage loss or medical aid benefits after October 31, 2012.

Decision

That the worker is entitled to wage loss benefits on October 2, 2012; and

That the worker is not entitled to wage loss or medical aid benefits after October 31, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back strain that developed on Wednesday, August 8, 2012 during the course of his work duties as a sorter. The worker reported that he was pulling "bigger parts" when he started to feel back pain and discomfort. He said he made it through the night and told the lead hand. The worker thought that the discomfort was ordinary for his daily routine. He said his back pain continued and he went to see a chiropractor for treatment on Friday, August 10, 2012. The worker reported that he spoke with his supervisor and a safety representative after seeing the chiropractor and he was given a light duty job in accordance with a doctor's note.

The Employer's Accident Report dated August 16, 2012 outlined the view that the worker's back complaints were not work-related as he was unable to validate how he was injured nor did he report an actual injury.

After reviewing information related to the worker's job duties as well as accident reports and medical documentation from the treating chiropractor, the worker's claim for compensation was accepted on September 12, 2012. The compensable diagnosis was a strain/sprain type injury of the lumbosacral spine. The worker performed light duties in August and September 2012 and returned to his regular job duties on October 2, 2012.

On October 2, 2012, the worker advised the WCB that after two hours of work that day his back pain got to the point where he had to stop working. The worker indicated he was told by his treating chiropractor that he should refrain from the repetitive twisting and bending which was required as part of his regular job duties.

On October 3, 2012, the employer advised the WCB that the worker approached the day supervisor during his shift on October 2 to advise that he could not perform his regular job duties because he had to lift pieces over his head and do excessive bending and twisting. The worker was then shown the correct ergonomic way to handle the pieces. The employer stated that overhead lifting, twisting and bending were not required. The worker reported to the evening supervisor at 7:20 pm that his back was burning and he could not continue as the employer was not accommodating his restrictions.

A WCB chiropractic advisor reviewed the file on October 4, 2012 and stated:

…it appears that his lifting restrictions are at the upper end of his work activity. It appears there is an issue with technique and lifting procedures. In my opinion, the claimant should be able to return to his regular duties and should be able to follow proper lifting techniques that have been demonstrated to him as per the employer.

On October 12, 2012, the employer advised the WCB that the worker complained of a burning feeling in his back on October 2, 2012. The worker was then offered an alternate duty position which he declined.

On October 17, 2012, the WCB advised the worker that he was not entitled to wage loss for the time he missed from work on October 2, 2012 given that he declined the employer's job offer which accommodated the restrictions of no lifting over 25 lbs.

In a medical certificate dated October 22, 2012 the treating chiropractor provided a note which indicated that the worker was fit to return to full activity at his discretion and to pace himself to avoid re-injury or aggravation.

The worker was seen at a call-in examination by the WCB chiropractic advisor on October 24, 2012. The chiropractic advisor outlined the opinion that the worker, in all probability, suffered a lumbosacral strain/sprain as a result of the August 8, 2012 injury. He noted limited objective findings with respect to the worker's lumbar spine. There was no radicular component to the worker's injury. The chiropractic advisor noted that the worker had returned to work at his regular duties and that this was appropriate given his back situation. It was felt that work restrictions were not required at this particular time.

Based on the October 24, 2012 examination findings, the worker was advised by the WCB on October 31, 2012, that he had recovered from his compensable injury.

On December 10, 2012, x-rays of the lumbosacral spine showed minimal retrolisthesis of L4 on L5. There was minimal narrowing and sclerosis at this level and at the L5-S1 and L3-L4 level.

In a January 9, 2013 report, the treating physiotherapist reported:

(The worker) is …under my care for physiotherapy treatment following a work related injury that happened in August 2012, which resulted in lower back pain. His back pain apparently aggravated at work since last week. Please allow patient to heal and recover. Please allow him to be off work from January 08 to 11, 2013. Treatment will ensue to get him ready in going back to work.

On January 10, 2013, the treating physiotherapist stated:

Rested during company shut down, but pain returned once returned to regular duties. Now c/o persistent lower back pain that is worse when moving, lifting or after prolonged position. Pain interferes with work, daily activities and sleep." The diagnosis was aggravated lumbar strain and sacro-iliac joints irritation. The physiotherapist indicated: "Please allow off work Jan, 8-11, 2013. Then modified duties starting Jan. 14, 2013.

In January 2013, the treating physician reported that the worker was capable of modified work and that he still complained of back discomfort.

On January 17, 2013, the worker submitted an appeal to Review Office. The worker indicated that he still had pain arising from his compensable injury and that he sought treatment from a physician as well as a physiotherapist. The worker noted that his injury felt so intense while at work on January 7, 2013 that he reported it to his supervisor and then he went back to see the doctor at the clinic. The worker advised that his employer did not offer him an alternate position on October 2, 2012, contrary to the information provided by his employer.

In a submission to Review Office dated February 6, 2013, the employer's representative stated:

…we support the position of RACS that the non-specific strain/sprain injury of August 8, 2012 had recovered sufficiently as of October 24, 2012 (11 weeks later) to discontinue chiropractic treatments and confirm the adjudication that he had recovered from the effects of the compensable injury.

On February 21, 2013, Review Office determined that the worker's loss of earning capacity on October 2, 2012 was created by the worker's decision to leave work early and was not related to his injury or to his employer's inability to accommodate his restrictions. The worker was therefore not entitled to wage loss benefits for October 2, 2012.

Review Office also determined that the worker was not entitled to wage loss or medical aid benefits after October 24, 2012 as it was felt that he had recovered from his compensable injury at this time and no longer required work restrictions. Review Office based its decision on the WCB call-in examination findings of October 24, 2012. Review Office also outlined its opinion that any ongoing problems the worker was experiencing with his back were not related to his original compensable accident or injury. On April 17, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 10, 2013.

At the hearing, the worker's legal representative provided the appeal panel with an MRI report of the worker's lumbar spine dated August 13, 2013. The employer's representative was then given seven days to make a submission to the panel related to the MRI findings. On September 17, 2013 the employer's submission was received at the Appeal Commission and a copy was provided to the worker's legal representative for information purposes. On September 18, 2013, the panel met further to discuss the case and to render a decision on the issues under appeal.

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.

The worker’s position:

The worker was represented by legal counsel at the hearing. It was submitted that the injury the worker suffered at work on August 8, 2012 had never healed. The worker had worked for the accident employer for 15 years when he suffered the injury. He worked modified duties until October 2, 2012 when he was instructed by his employer to resume regular duties, based on direction from the WCB. The worker's position, however, was that his back was still painful and he was unable to resume his regular duties. From October to March, the worker always wanted to come back to work and indicated to the company that he wanted light work to accommodate his condition. This was constantly frustrated, to the point that at the end of March 2013, the worker was terminated because the employer would not and refused to accommodate him. It was submitted that the reason for the worker's termination from employment was that there was no accommodation offered by the employer as a result of the injury which occurred while the worker was on the job. This loss of earnings should be compensable. Both the October 2, 2012 and the October 25, 2012 and ongoing occurrences should be eligible for workers compensation benefits.

The employer's position:

The employer was represented by its disability manager. It was submitted that for the worker's appeal to be successful, the panel would have to find that the worker had a loss of earning capacity on October 2, 2012 and that as of October 31, 2012, he was still entitled to wage loss or medical aid benefits as related to his compensable injury of August 8, 2012. The employer's position was that the evidence did not support these findings. The worker's injury was a minor strain injury and accommodation with modified duties was offered on August 10, 2012, eliminating any wage loss. On October 2, 2012, the worker's manager reviewed with him the job tasks he was to perform and provided instruction on safe lifting and carrying procedures. These duties were well within the capabilities identified by the attending practitioner. The worker worked from October 2, 2012 to January 7, 2013 within the accommodated duties and experienced no time loss during this period. In early 2013, as the worker had been absent without supporting medical documentation, the employer ended up doing an independent medical examination. The diagnosis was non-specific low back pain with subjective complaints consistent with objective findings and symptom magnification evident. With respect to work capacity, the report indicated a capacity to return to work. Current medical information reported that the worker continued to experience what was likely mechanical back pain in his lumbar spine. It was submitted that as this was now one year after sustaining a minor strain injury with no radial components, it was not possible to link the current complaints of daily lower back pain to the compensable injury. The employer supported the current adjudication that the worker was not entitled to wage loss benefits on October 2, 2012 and that he was not entitled to wage loss or medical aid benefits after October 31, 2012.

Analysis:

There are two issues before the panel. Both issues concern whether or not the worker's ability to earn his pre-accident income was impaired by the effects of his compensable injury. We will address each time period separately.

October 2, 2012

The evidence at the hearing was that on October 2, 2012, the worker was instructed to resume his regular duties, which did not involve lifting over 25 pounds. The worker's evidence was that he attempted to perform these duties, but developed increased pain in his back.

The medical reports from that time indicate that as of September 14, 2012, the treating chiropractor indicated the worker was fit for light duty only, with no lifting or carrying in excess of 15 pounds, and no repetitive twisting or bending for two weeks. By October 1, 2012, the chiropractor reported improved lower back discomfort, but that there was still periodic pain with discomfort after standing and twisting repetitively. Although the weight restriction was changed from 15 to 25 pounds, the chiropractor still stated that the worker was to use his discretion on repetitive bending and twisting. The chiropractor anticipated full recovery in three weeks.

A note on the WCB file of a conversation with the employer's disability manager indicated that: "… the worker approached the day supervisor … during the October 2 shift and said that he couldn't do his regular job because he had to lift the pieces over his head to do excessive bending and twisting. He was then shown the correct, ergonomic way to handle the pieces." The evidence at the hearing was that the worker's job involved bending and twisting, but according to the employer's representative, if the worker pivoted when performing his duties, the repetitive bending and twisting could be avoided.

In the panel's opinion, as of October 1, 2012, it was possible for the worker to perform his regular duties within the physical restrictions outlined by his chiropractor, but only so long as he did so in an ergonomically correct manner. We note, however, that the worker was not instructed in the proper way to handle the pieces until after he had already returned to his regular position and developed back pain, presumably from incorrect technique. Although the employer produced a job duties form signed by the worker which set out the expectations with respect to the correct technique when performing job duties, that form was not signed until October 3, 2012. On a balance of probabilities, the panel finds that for at least part of the day on October 2, 2012, the worker was working outside of his repetitive bending and twisting restrictions and that as a result, he developed increased back pain. We find that the worker's decision to leave work that day was reasonable in the circumstances and we accept that his inability to work that day was attributable to the August 8, 2012 injury, which was still periodically symptomatic. We therefore find that the worker is entitled to wage loss benefits on October 2, 2012. The worker's appeal on this issue is allowed.

October 31, 2012

By October 3, 2012, the worker was fully instructed on the proper way to perform his regular job duties and he acknowledged this by signing the job duties form.

The medical reports on file indicate that the worker's condition continued to improve following the treating chiropractor's report of October 1, 2012. By October 15, 2012, the chiropractor reported residual periodic mechanical discomfort after performing occupational duties, but that lumbosacral range of motion was full. By October 22, 2012, the chiropractor indicated fitness to return to full activity, at the worker's discretion and pace to avoid re-injury or aggravation.

The findings from the October 24, 2012 WCB call-in examination indicated that the worker's lumbosacral strain/sprain injury showed limited objective findings and that no restrictions were required for the worker to perform his regular duties.

Based on the foregoing, the panel finds on a balance of probabilities that the worker had essentially achieved a full recovery by the time of the call-in examination. As a result, we find that he is not entitled to further wage loss or medical aid benefits after October 31, 2012. The worker's appeal on this issue is dismissed.

The panel notes that at the hearing, submissions were made regarding entitlement to benefits for time loss experienced by the worker subsequent to October 31, 2012, starting in early 2013 and leading to the termination of his employment in March 2013. The panel finds that these periods of time loss are not directly related to the effects of the August 8, 2012 workplace accident. Nevertheless, the question of whether this loss of earning capacity relates to new work-related injuries for which the worker may receive benefits has not yet been adjudicated by the WCB and the worker remains entitled to have these issues considered by the WCB.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of November, 2013