The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from his compensable accident and that his ongoing low back problems were not related to the September 4, 2012 workplace accident. A hearing was held on October 17, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after February 22, 2013.

Decision

That the worker is not entitled to benefits after February 22, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on September 4, 2012 while lifting and throwing garbage bags into a dumpster. His claim for compensation was accepted by the WCB and benefits were paid to the worker. The accepted compensable diagnosis was a lumbar strain.

Based upon the worker’s reports that his back condition was not improving with physiotherapy and rest, an examination by a WCB medical advisor was arranged and took place on January 21, 2013. Upon reviewing those findings, the WCB arranged for the worker to undergo a four week reconditioning program that included counseling directed at the worker’s pain management skills.

The worker began his reconditioning program on January 28, 2013 and completed it on February 22, 2013. Upon conclusion of that program, the case manager determined that the worker had recovered from his workplace injury and was capable of returning to his pre-accident duties. The worker was advised by letter dated February 28, 2013 that he was not entitled to wage loss benefits or medical treatment expenses beyond February 22, 2013.

Subsequently, the WCB contacted the worker by letter dated March 13, 2013 to advise that the WCB did not accept responsibility for the disc protrusion shown on the worker’s December 2012 MRI results, and confirming that the accepted diagnosis related to the compensable injury was a lumbar strain/sprain. The worker provided the WCB with additional medical evidence in May 2013, and at the request of the case manager, a WCB orthopaedic consultant was asked for an opinion based upon this new information. The WCB consultant provided his opinion and the case manager advised the worker on May 23, 2013 that the report had been reviewed but did not provide a basis upon which to change the previous WCB decision.

The worker, through the Worker Advisor Office, appealed from this decision to Review Office and on July 11, 2013, Review Office upheld the decision that the worker was not entitled to benefits after February 22, 2013.

On July 25, 2013, the worker, through the Worker Advisor Office, appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The sole issue in this appeal is whether the worker is entitled to wage loss benefits after February 22, 2013.

Applicable Legislation

In considering this appeal, the panel is 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.

Section 39 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 that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker’s Position

The worker, assisted by a worker advisor at the hearing, put forward the position that his entitlement to WCB benefits extended beyond February 22, 2013 as he had not at that time fully recovered from the effects of his workplace injury and was still experiencing a loss of earning capacity.

The worker advisor argued that the compensable injury was a combination of low back strain and a disc injury. To support this position, the worker advisor pointed to the May 2013 report from the worker's treating physiatrist (based on a March 2013 examination), stating it supported that the worker was experiencing symptoms from the disc protrusion and that onset of symptoms consistent with this diagnosis occurred following the worker's September 4, 2012 accident. The worker advisor also pointed out that WCB’s orthopaedic consultant confirmed that the symptoms the worker was experiencing in May 2013 were consistent with the disc protrusion.

The worker advisor suggested that the WCB had placed too much emphasis on the comments regarding the worker’s “pain focus” and exaggerated pain behavior. The medical reports, he argued, provided evidence of a physical basis for the worker’s pain reports, and in particular, that the December 2012 MRI results provided an objective explanation for the worker's reported symptoms of radiating numbness and tingling down his legs.

The worker advisor concluded that the evidence showed that the disc injury formed part of the compensable injury, and as the worker’s symptoms of disc injury were ongoing beyond February 22, 2013, he was not fully recovered from the effects of his workplace injury at that time and in the result, continued to experience a loss of earning capacity.

Employer's Position

The employer did not participate in the appeal hearing.

Analysis

In coming to a decision in this matter, the panel considered the medical evidence on file, including the most recent reports provided by the worker, through the worker advisor as well as the testimony of the worker with respect to his recovery from the injury of September 4, 2012.

The facts before us are that the worker was injured on September 4, 2012 and sought medical treatment soon thereafter. He was soon diagnosed with a lumbar strain and the WCB accepted this as the compensable diagnosis on October 15, 2012. We note that these early medical reports indicate normal neurological testing results.

The worker was treated with physiotherapy, including some acupuncture through fall 2012 and the reports from that treatment and from the worker’s own doctor indicate slow improvement and a satisfactory recovery during this time period.

A December 6, 2012 MRI assessment of the worker’s lumbosacral spine indicated a “focal left paracentral” disc protrusion at L4-5 and noted that the protrusion may “just contact the exiting left L5 nerve root." Clinical correlation of the findings was recommended, but the evidence on file does not provide that correlation. Rather, the evidence indicates ongoing, though slow, improvement through mid-January 2013. Specifically, the worker’s family doctor, who continued to monitor the worker’s recovery from the back strain injury reports further improvement on December 17, 2012, no change on January 2, 2013 and a satisfactory, though very slow, recovery on January 14, 2013.

A call-in exam by the WCB medical advisor took place on January 21, 2013 and noted a general impression of pain behavior and an exaggeration of symptoms, including a Waddell score of approximately 4/5. Importantly, the medical advisor, in his report, notes he did not find clear evidence of any radiculopathy. Based on the findings of the medical advisor, the worker was then referred to a 4-week work hardening/reconditioning program to prepare him for a return to work.

The evidence of the worker’s recovery from the symptoms associated with his lumbar strain through the fall of 2012 and into the early part of 2013 leads us to conclude that, on a balance of probabilities, the worker had recovered from the compensable injury by February 22, 2013. In so finding, we give particular weight to the evidence of the physicians treating the worker in the months immediately following his workplace accident.

The worker argued that he had not recovered from the compensable injury by February 22, 2013 and was at that time still symptomatic from the disc protrusion. The panel agrees with the medical evidence of the worker’s physiatrist and the WCB orthopaedic consultant that in the winter and spring of 2013, the worker was subsequently symptomatic from his disc protrusion, but the evidence does not satisfy us, on a balance of probabilities, that the worker’s disc protrusion relates back to the September 4, 2012 compensable workplace injury. We note that the conclusion ultimately reached by the WCB’s orthopaedic consultant that the worker’s ongoing symptoms related to the disc protrusion are not related to the workplace accident, supports our findings.

Although it is not determinative, we also note that the discharge report from the worker’s reconditioning program, dated February 26, 2013 notes that the worker failed to participate fully in the program due to his subjective reports of pain. As a result, the functional capacity testing results are unreliable as evidence of the worker’s capabilities at that time.

For these reasons, the appeal is not allowed.

Panel Members

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

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 28th day of November, 2013