The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits in relation to her low back injury for the period October 11, 2012 to February 21, 2013 and beyond April 5, 2013. A hearing was held on February 11, 2014 to consider these matters.

Issue

Whether or not the worker is entitled to wage loss benefits from October 11, 2012 to February 21, 2013; and

Whether or not the worker is entitled to wage loss benefits beyond April 5, 2013.

Decision

That the worker is entitled to wage loss benefits from October 11, 2012 to February 21, 2013; and

That the worker is entitled to wage loss benefits beyond April 5, 2013.

Decision: Unanimous

Background

On September 15, 2011, the worker injured her low back when she attempted to lift a heavy box during the course of her employment as a store clerk. The claim for compensation was accepted based on the diagnosis of a low back strain/sprain. Based on a CT scan of the lumbosacral spine dated October 9, 2011, the diagnosis changed to a moderately sized central disc herniation at L4-L5.

In November 2011, the worker underwent an MRI assessment of her lumbosacral spine. The radiological report stated:

At L4-5 there is a moderate broad-based central disc protrusion. This approaches both L5 nerve roots but there is no definite compression. No central stenosis or foraminal narrowing is seen. At L5-S1 there is no abnormality identified and all remaining levels appear normal.

On January 24, 2012, the worker was seen at the WCB offices for a call-in assessment. The WCB medical advisor outlined temporary physical restrictions for the worker which included the ability to change positions, limit forward flexion and twisting and to avoid lifting and carrying weights greater than five pounds. The medical advisor also suggested that a neuro-radiologist review the October 2011 CT scan and the November 26, 2011 MRI given the discrepancy between the imaging findings.

In February 2012, the employer advised the WCB that they had modified duties available for the worker. A worksite assessment was then carried out by a WCB rehabilitation specialist and it was determined that the duties of front facing products and stocking product were within the worker's restrictions. It was also recommended that the worker use a chair with lumbar support while performing these duties.

In a medical report dated April 13, 2012, the treating neurosurgeon noted that some of the worker's discomfort was probably musculoskeletal in nature. He noted that the etiology of the pain extending to the lower extremities was unclear and the same applied to the intermittent diffuse numbness of the left lower extremity. He said the MRI of November 2011 did not provide any obvious radiological correlation for radiculopathy.

On April 18, 2012, the worker returned to modified duties working two hours per day, three days a week.

On June 5, 2012, the treating physician noted that the worker was experiencing pain, numbness and weakness in her left leg after working one hour and that she was unable to attend work during her menstrual period. A reconditioning program was also recommended.

On August 1, 2012, a WCB medical advisor commented that the cause of the worker's complaints were unclear and were not necessarily ascribed to the noted L4-5 central disc herniation.

On August 13, 2012, the worker returned to work and was scheduled to work four hours a day three days a week.

In a medical report dated August 27, 2012, the neurologist reported:

There was no evidence of significant neurologic dysfunction currently, with her episodic symptoms consistent with a mechanical problem, conceivably with some irritation of the left greater than right L5 roots with no prolonged standing or strenuous activity as described. There is no nerve root dysfunction, however, electrodiagnostic testing revealed some minimal changes consistent, but not diagnostic of, such a process. I strongly advised her to improve her physical status, particularly paying attention to stabilizing her spine…

A WCB sports medicine advisor reviewed the file on September 25, 2012 at the request of the case manager to clarify the current diagnosis in relation to the workplace injury. The medical advisor stated:

…treatment appears to be directed to a gynecological issue, which would not be considered to be a WCB responsibility….L5 nerve root irritation, if present, may be due to the effects of a disc protrusion/herniation versus another medical condition including a gynecological process affecting the lumbosacral spine plexus as alluded to by the neurologist. On February 15, 2012 an external neuroradiologist reviewed [the worker's] CT and MRI films. He noted that the November 26, 2011 MRI-noted L4-5 disc protrusion does not displace or compress the left L5 nerve root. This opinion does not appear to support a left L5 nerve root irritation in relation to a disc protrusion. Given the lack of improvement in function and symptoms to date, the current presentation does not appear to be accounted for by the workplace injury more than 1 year ago.

On September 27, 2012, the WCB advised the worker that she was not entitled to benefits beyond October 10, 2012 as it was felt that her current presentation was not accounted for by the workplace injury of more than one year ago and that the weight of evidence did not support that her ongoing back complaints were related to the original compensable injury.

On September 27, 2012, the worker was seen by her treating physician who reported that the worker worked her four hour shifts on August 10, 2012 and her last shift was September 7, 2012. The worker missed the last three weeks of work due to menstrual problems. The worker reported that during her shifts, she was required to do repetitive bending and had to stand on a stool to reach merchandise on upper shelves. The worker found these duties exacerbated her pain to the point where she was unable to do any activities when she returned home at the end of her shift. The treating physician outlined his examination findings and stated: "The patient's gynecological problems are not related to her continuing lumbar spine injury. The graduated return to work program should be considered a failure as this patient's lumbar symptoms and physical limitations have worsened to the point that she is unable to return to work."

On January 15, 2013, the Worker Advisor Office provided the WCB with a report from the family physician dated December 19, 2012 who opined that the mechanism of injury was consistent with a lumbar disc herniation and that the worker had not recovered sufficiently to return to work. The Worker Advisor Office submitted that the worker continued to have a loss of earning capacity and that benefits were payable beyond October 10, 2012.

An MRI of the worker's lumbosacral spine was carried out on January 17, 2013. The report stated:

At L4-5 there is a moderate-sized disc protrusion and this has increased slightly in size on the right. There does appear to be compression upon the right L5 nerve root. It approaches the left without definite compression. At the L5-S1 there is again a very minor disc bulge but no evidence of specific nerve root compromise or stenosis.

On February 8, 2013, the WCB's sports medicine advisor commented that the available medical evidence was sufficient to support an ongoing cause and effect relationship between the worker's ongoing clinical presentation and the September 15, 2012 workplace injury. He stated that the diagnosis in relation to the worker's ongoing lumbar pain appeared to be discogenic back pain.

On February 19, 2013, the WCB advised the worker that she would be paid full wage loss benefits from February 22 to April 5, 2013 while she participated in a strengthening program and that no wage loss benefits were payable from October 11, 2012 to February 21, 2013 as the employer had modified duties available but the worker did not work the modified duties.

In a submission to Review Office dated March 14, 2013, the Worker Advisor Office argued that the worker was entitled to wage loss benefits from October 10, 2012 to February 21, 2003 based on the following factors:

• the February 8, 2013 WCB healthcare opinion that there was an ongoing relationship between the workplace accident and the current presentation;
• the modified work duties provided to the worker between August 13, 2012 to September 5, 2012 were outside her restrictions and she performed these work duties until she could no longer continue due to an increase in symptoms.
• the work she performed on September 5, 2012 was outside of her restrictions as she had to bend numerous times which caused an increase in her symptoms;
• the family physician's opinion of September 27, 2012 that the gradual return to work program was a failure because of the worker's lumbar symptoms and physical limitations to the point where she was unable to return to work. It was felt that his objective examination findings confirmed an increase in disability which was supported by the MRI of January 17, 2013.

On April 10, 2013, the WCB confirmed to the worker that she was not entitled to further wage loss benefits beyond April 5, 2013 as she had completed the reconditioning program and because arrangements had been made for her to return to work on April 8, 2013. On May 23, 2013, the Worker Advisor Office appealed this decision to Review Office.

On September 10, 2013, Review Office determined that the worker was not entitled to wage loss benefits from October 11, 2012 to February 21, 2013 or beyond April 5, 2013.

Regarding wage loss benefits for October 11, 2012 to February 21, 2013, Review Office concluded that the worker's loss of earning capacity during this period was not related to her compensable injury. Review Office concluded that the worker had been capable of performing modified duties beyond September 5, 2012 and there was insufficient evidence to support that she was working outside of her restrictions in August and September 2012.

At the conclusion of the worker's reconditioning program, Review Office concluded that the worker was capable of performing her regular duties at her pre-accident hours and therefore she was not entitled to wage loss benefits beyond April 5, 2013. Review Office based its decision on the given diagnosis, the clinical findings, the treatment rendered and the time that had passed.

On October 2, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on February 11, 2014.

Following the hearing, the appeal panel met to discuss the case and requested medical information from four of the worker's treating physicians as well as the worker's employer pertaining to an independent medical examiner's report. On March 19, 2014, the interested parties to the appeal were provided with the medical information that was obtained by the panel and were asked to provide comment. On April 14, 2014, the panel met further to discuss the case and made decisions on the two 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 assisted by a worker advisor at the hearing and the services of an interpreter were provided. The worker's sister also attended the hearing as an observer.

The worker advisor submitted that the worker continued to experience a loss of earning capacity as a result of the accepted diagnosis of discogenic pain from an L4-L5 disc injury. The WCB discontinued benefits as of October 10, 2012 based on a lack of improvement in function and symptoms and found that the weight of evidence did not support that the worker's ongoing back complaints were related to the original workplace injury. It was the worker's position that if there was a lack of improvement in function and symptoms, then benefits should have continued as the worker had not recovered from the effects of the workplace accident. The medical evidence did support that the ongoing back complaints resulting from the original workplace injury continued to be a disabling factor. The treating family physician confirmed that the compensable lower back condition continued to be a contributor to an inability to return to work. He also identified that the worker's condition worsened due to performing work outside her restrictions in August 2012.

The WCB medical advisor's opinion of February 8, 2013 concluded that an ongoing relationship existed between the workplace accident and the compensable diagnosis. Based on this, the WCB reinstated benefits for the period February 22, 2013 to April 4, 2013. It was submitted, however, that full benefits should have been reinstated as of October 10, 2012.

With respect to the issue of wage loss benefits beyond April 5, 2013, it was submitted that there was clear discord of communication between the WCB and the employer as to what duties the worker was capable of performing. There was also discord between the WCB and the physiotherapist's discharge report. Due to this confusion, the worker remained in a loss of earning capacity due to her compensable low back condition. There was no evidence to support that the worker refused to cooperate or mitigate the consequences of her injury between April 5 to July 8, 2013. To the contrary, the evidence supported that she did want to return to work. A firm offer of suitable duties was not made by the employer during this period on which to disallow benefits. As such, there was entitlement to wage loss benefits from April 5, 2013 to the actual return to modified duties with regular pre-accident hours.

The Employer's Position

The employer was represented by an advocate who participated by teleconference. The employer supported the decisions made by the WCB. With respect to entitlement to wage loss benefits from October 11, 2012 to February 21, 2013, it was submitted that the worker's loss of earning capacity during that period was not attributable to her compensable low back injury but rather to her decision to not attend her agreed upon graduated return to work plan. Furthermore, the worker's decision to not attend work was solely due to her non-occupational medical issues. The worker's last day worked was September 7, 2012 which corresponded perfectly with a scheduled surgery on September 20, 2012 for this non-occupational condition.

The WCB medical advisor's assessment of January 25, 2012 indicated that the worker was not totally disabled. Furthermore, the employer had offered suitable modified work on February 6, 2012. This offer included front facing shelves and stocking light weight products under five pounds from waist height onto shelves and these same duties had been available since the first offer of modified duties to the worker on September 21, 2011. The jobsite assessment of March 2, 2012 identified the offered duties as suitable and recommended a chair with lumbar support for the worker. This chair was purchased by the employer and provided to the worker. The worker returned to work on modified duties August 13, 2012, working reduced hours, and stopped working on September 5, 2012. There was no evidence that she reported difficulties related to her back or stopped working at that time due to her compensable injury. Given the absence of evidence of total disability from the compensable injury, the worker would have been able to work between October 10, 2012 and February 21, 2013 had it not been for her non-occupational condition.

With respect to wage loss benefits after April 5, 2013, it was submitted that the objective medical evidence clearly showed that the worker was capable of working during this time period. The physiotherapist determined the worker was capable of starting a graduated return to work at modified work. The WCB provided a six week reconditioning program to assist the return to work. Upon completion of the program, the physiotherapist recommended that the worker avoid heavy lifting and overhead work. The employer was able and willing to accommodate these restrictions. The original offer of modified duties was never rescinded and was available to the worker at all times. However, the worker did not attempt to return to work and instead chose to pursue full wage loss benefits. Given that there was no objective medical evidence to support the worker's inability to work, it was submitted that the worker was not entitled to wage loss benefits after April 5, 2013.

Analysis

The issues before the panel are whether or not the worker is entitled to wage loss benefits from October 11, 2012 to February 21, 2013, and whether or not the worker is entitled to wage loss benefits beyond April 5, 2013. In order for the appeal to be successful, the panel must find that the worker's earning capacity was impaired during those periods of time as a result of the injuries she sustained in the September 15, 2011 work related accident. On a balance of probabilities, we are able to make that finding.

At the outset, the panel first gave consideration to the non-compensable medical condition which was referenced in the WCB file and in the employer's submission. Following the hearing, the panel obtained a report from the specialist to whom the treating family physician referred the worker. In a report dated March 6, 2014, the specialist advised that she had only seen the worker on two occasions. The worker had been scheduled for an exploratory surgical procedure but this did not take place as the worker's condition resolved on its own. The worker did have an ultrasound done on September 2012, the results of which were essentially benign.

It is notable that the specialist addressed the issue of back pain. The worker advised the specialist that she had been doing heavy lifting at work a year prior and had a slipped disc. She was now suffering from chronic pain. The worker thought that menstruation may have brought out some of that pain. The worker reported that she experienced pain one week prior to her period located mostly in her back, but also experienced much pain that was not during her menses.

After reviewing the specialist's report, the panel is of the view that the worker's non-compensable medical issues, in and of themselves, were not the cause of her loss of earning capacity during the relevant times. The specialist's report indicates that the issues were not significant and resolved on their own with no further follow-up required. There was no history of this condition ever causing the worker to miss time from work prior to the workplace injury. The information reported to the specialist from the worker suggests that it was a combination of the chronic back pain and the monthly cyclical pain which caused the worker the most difficulty. In cases where a loss of earning capacity is caused in part by the effects of a compensable injury and in part by a non-compensable pre-existing condition, the WCB will accept responsibility for the full injurious result.

The panel next considered whether the worker was continuing to suffer from the effects of her compensable injury. The accepted compensable diagnosis was discogenic back pain. The opinion of the WCB medical advisor dated February 8, 2013 accepted that at that time, there continued to be a cause and effect relationship between the worker's ongoing lumbar back pain and the September 15, 2011 workplace injury. As a result, the WCB reinstated the worker's wage loss benefits and supported her participation in a reconditioning program which ran from February 22 to April 5, 2013.

The question for the panel is whether, at the end of the reconditioning program, the worker continued to suffer a loss of earning capacity as a result of her discogenic back pain. According to the physiotherapy discharge report dated April 8, 2013, the worker had achieved objective improvement in her core and peripheral musculature and endurance but that her pain score was still high. The physiotherapist considered the worker capable of modified work which avoided heavy and repetitive lifting, especially overhead lifting.

The worker's evidence was that when she returned to work at the merchandising duties in August 2012, even though she was supposed to be on modified duties, there was still repetitive bending and lifting involved. There were many boxes on the floor which had to be lifted and carried. She also had to do a significant amount of reaching. The worker acknowledged that she was supposed to be able to ask for help but there was no one around to ask. The worker stated that she tried to do the work but found that her pain just got worse because of all of the bending. The family physician's report of September 20, 2012 also reported the difficulties the worker had with her graduated return to work program. The panel accepts the worker's evidence that the duties of merchandising aggravated her back.

The worker was referred for an Independent Medical Examination by the employer and a copy of the June 25, 2013 report was provided to the panel. The orthopedic specialist who conducted the examination indicated that the worker had a symptomatic lumbar disc herniation. The prognosis for a chronic moderately large central L4-5 disc herniation which had been symptomatic for almost 21 months was guarded and relatively poor. The orthopedic specialist stated that contrary to the WCB's opinion that the worker could return to full duties with no restriction to the whole spectrum of merchandising responsibilities, he recommended restrictions against lifting and bending with the lifting restriction at 10 pounds.

On a balance of probabilities, the panel finds that as of April 5, 2013, the worker continued to suffer from discogenic back pain which required restrictions against repetitive bending and lifting over 10 pounds. The worker's previous attempt at a graduated return to work revealed that the employer's offer of modified merchandising duties did not respect these restrictions. Although the employer indicated that repetitive bending and lifting was not required, the worker's experience was that she did in fact have to perform these actions. It was only when the worker changed to a cashier position which did not require the same degree of bending and lifting that she experienced success in her return to the workplace.

The panel wishes to note that our decision is based solely on the effects of the worker's compensable discogenic low back pain. More recent medical information from a pain management specialist indicated that in his opinion, the worker met the latest proposed diagnostic criteria for fibromyalgia. The panel has not considered whether this diagnosis bears any causal relationship to the workplace accident and our decision is based only on the effects of the L4-5 disc herniation and ongoing discogenic pain.

Based on the foregoing, the panel concludes that the worker is entitled to wage loss benefits from October 11, 2012 to February 21, 2013 and wage loss benefits beyond April 5, 2013, due to the ongoing effects of her compensable discogenic back pain. 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 16th day of May, 2014