Decision #105/14 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her ongoing low back pain was not related to her compensable accident. A hearing was held on June 24, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond November 30, 2012.

Decision

That the worker is not entitled to benefits beyond November 30, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for low back pain that developed during the course of her employment as a laundry worker in July 2012.

The Employer's Accident Report filed on September 14, 2012 indicated that they had the following concerns with respect to the claim: "On July 18, 2012, this employee came to the health unit - stated she was working by herself in laundry for the whole week and she is having low back pain. She stated what she was doing was bending to pick up clothes and put it on the shelf. She was given heat treatment and was told to report back to the health unit if she had more problems. However, this employee never came to the health unit again for the same problem until almost two months later on September 6, 2012. We are filing with concern - is because this employee has work related injury before, she is very familiar with the reporting procedure - if this employee has been having such a severe pain, she would have come to the health unit and report it."

On September 20, 2012, the worker attended the WCB offices to discuss her claim. In a memo dated October 12, 2012, the WCB adjudicator stated:

  • the worker was doing light duties in the laundry department due to a compensable injury to the right hand. She was in the laundry room for the entire 8 hours.
  • the worker related her injury to the constant twisting of her body when sorting laundry, bending when picking up and loading laundry to washing machines.
  • the initial onset of symptoms - she worked alone for one week. Normally there are four people in the laundry room. She worked alone because the other workers who were helping her had returned to their normal duties and the one worker who was permanently in the department was on vacation.
  • she reported the incident and complained that she needed help.
  • she went to the health unit on July 18 because the pain persisted and she was provided with ointment.
  • her symptoms included pain in the lumbosacral region and difficulty with bending. She denied any prior injury to the same body part and performed no extra-curricular activities.

The claim for compensation was accepted based on the diagnosis of a low back strain and chiropractic treatment was authorized. As of November 30, 2012 the worker was cleared as fit to return to her regular duties.

On January 17, 2013, the worker attended the WCB offices stating that chiropractic treatment had helped her condition but only temporarily. She was still having back pain as she was doing the same job in the laundry department which involved constant bending and twisting her body to the sides.

The WCB obtained medical information related to the worker's medical status which included x-ray and CT scan results, a physiotherapy report and up-dates from the treating physician.

On June 6, 2013, a WCB medical advisor reviewed the file and formed the following opinions:

  • there was a general lack of information regarding the worker's signs and symptoms. The worker may have had a back strain.
  • a back strain would have resolved long ago.
  • the CT scan showed mild degenerative bulging of the L4-5 disc.
  • the degenerative disc was probably pre-existing. There were no signs of any other diagnoses in the medical reports.
  • he was unable to state whether the work-related incident was contributing to a delay in the worker's recovery.
  • he could not specifically see any evidence of a relationship between the worker's disability and the work-related injury.

A WCB physiotherapy consultant, on July 27, 2013, provided the following opinion to the file:

  • regarding the diagnosis, the file was suggestive of non-specific, non-radicular back pain. There was no evidence on the May 18, 2013 CT scan of a condition that would result in radicular findings.
  • there were no specific activities that would result in this type of diagnosis.
  • the findings in the treating physiotherapist's report of May 27, 2013 were not accounted for in relation to the July 13, 2012 injury.

By letter dated June 28, 2013, the worker was advised that the WCB was unable to accept further responsibility for her claim based on the following findings:

  • she continued to have ongoing low back difficulties despite being off work for at least 2 months.
  • the compensable back strain was a temporary medical condition, which a WCB medical consultant noted should have been resolved long ago; and
  • the L4-L5 disc bulge could not be accounted for in relation to the workplace activities.

On September 16, 2013, the WCB received a submission from the worker's advocate which appealed the WCB decision of June 28, 2013.

On October 25, 2013, the accident employer's representative provided Review Office with a submission indicating that they agreed with the WCB's decision of June 28, 2012. The submission was then forwarded to the worker's representative for comment and their response is dated November 5, 2013.

On November 14, 2013, Review Office concluded that the worker's ongoing low back difficulties were not related to the July 13, 2012 compensable injury and that the worker was not entitled to wage loss or medical aid benefits after November 30, 2012. Review Office referred to medical information on file to support that the worker's injury of July 13, 2012 was minor, that there were minimal objective findings to support disability and the finding that the worker did not continue chiropractic treatment after being cleared to gradually increase her duties to regular. Review Office also relied on the opinion expressed by the WCB medical advisor dated June 6, 2013 and the fact that when the worker applied for short term disability through her employer she indicated her disability was not work-related. On January 10, 2014, the worker's representative 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was assisted by an advocate at the hearing and the services of a translator were provided. Two acquaintances of the worker sat in as observers during the hearing. The position advanced on behalf of the worker was that she had not recovered from her 2012 compensable injury and that she was entitled to benefits beyond November 30, 2012. It was noted that due to a previous compensable injury relating to her right hand, the worker was placed in the laundry department as part of the modified duties associated with her permanent right hand injury. Because of her permanent injury, the worker was unable to use her right hand while lifting clothes in and out of the bins in the laundry departments. Due to these working conditions, the worker had the compensable back injury in July 2012. She was initially diagnosed with a lumbar strain which was accepted as a compensable claim by the WCB but no CT scan or MRI was performed to establish the exact injury. The worker received chiropractic treatments and was recommended modified work duties.

While receiving the chiropractic treatment, the worker continued to work. Due to staffing shortages in the laundry department, the worker was assigned a very heavy workload which exceeded her work restrictions and there was little to no help available from other workers. Following the conclusion of her chiropractic treatments, the worker continued to experience back pain which it was submitted was related to her modified working conditions, as she continually had to bend and twist her back, contrary to her restrictions, in order to reach into the bins and pick up the heavy clothes with one hand. It was also noted that the worker complained of harassment by her supervisor and lead hand who would make statements questioning the legitimacy of her back injury and question her work. Her concerns regarding the work were not addressed by HR or her employer.

Written statements from three co-workers were relied upon as evidence regarding the worker's ongoing back pain and working conditions.

Overall, it was submitted that the worker's back strain never resolved as she was placed back in the laundry department doing the same job that injured her. Every day she worked in the laundry department she was reaggravating her compensable back injury and never allowing it to fully heal. It was therefore submitted that the panel should recognize the worker's ongoing back pain as being related to her 2012 compensable injury.

Employer's position:

The employer was represented by an advocate and the employer's charge nurse. It was submitted that the medical information on file did not indicate any degree of disability or inability to work in light duties. The initial diagnosis was a low back strain, with only minimal objective findings of tender low back and pain limited flexion. The worker continued to work, reporting no further difficulties to the employer until September 6, 2012. The delay in seeking medical treatment and the ability to continue working in the regular light duties suggested that the injury was minor in nature. The worker attended for chiropractic care and by the October 12, 2012 chiropractic appointment, her range of motion was normal and the worker was cleared to resume her regular light duties. It wasn't until a late April 2013 visit to the physician that further medical care was sought. That was a gap of about six months. The worker ceased working on April 19, 2013, and despite repeated entreaties from the employer, she did not return to work.

The employer had a long-standing policy of accommodating not only workers compensation injuries, but non-work-related disability as well. Although the worker ceased working in April, the April 20, 2013 doctor's progress report noted only findings of "tender low back." A May 18, 2013 CT scan revealed mild degenerative disc bulging at L4-5. A May 7, 2013 physiotherapy appointment, ten months post July 2012 injury, confirmed that there were mild degenerative changes and that the diagnosis was low back mechanical dysfunction. It was the employer's position that this diagnosis and any ongoing complaints by the worker were due to the mild degenerative problems. At a November 6, 2013 meeting, the worker indicated that she had continuing back pain and was unable to work. One would have expected improvement while off work if the job duties were the cause of the worker's difficulties. It was submitted that there were other factors at play.

The employer submitted that the light duties position in the laundry area was ideal for employees with restrictions. The employees only had to work within their abilities and there were chairs to sit down as needed. There was no expectation to keep up with line-speed and workers were only required to do what they felt they could do. The employer contested that the work load was heavy. The worker was in the area where she was only required to fold and hand out dry clothes. She did not deal with wet laundry. There was no repetitive bending or twisting. There was no twisting and the only time that the worker was required to bend was when the bin was near empty, to reach clothes at the bottom of the bin.

Overall, it was submitted that the worker's inability to work in light duties was not related to the workplace back strain of July 2012 and there was no medical basis upon which to extend the benefits beyond November 30, 2012.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after November 30, 2012 were related to the injury she sustained in the workplace accident of July 13, 2012. We are not able to make that finding. On a balance of probabilities, we find that the worker's compensable injury was limited to a back strain and that this injury had resolved by November 30, 2012. The panel does not accept that the subsequent back pain complained of by the worker is attributable to either the July 13, 2012 workplace injury or to the ongoing performance of the worker's regular accommodated duties until April 19, 2013.

In coming to our decision, the panel relied on the following evidence:

The initial diagnosis reported by the family physician in his Doctor First Report dated August 24, 2012 was a low back strain. Similarly, the treating chiropractor provided a diagnosis of lumbar strain.

  • After the last chiropractic visit on November 1, 2012, the worker did not seek any further medical treatment until April 20, 2013, a period of approximately six months. This would suggest that the compensable injury had resolved.
  • After the worker discontinued working on April 19, 2013, she continued to experience pain in her back. The complaints of pain did not improve, despite the fact that she was not working. If her job duties were the cause of her back pain, the panel would have expected the worker's condition to improve after she stopped performing the duties.
  • At the hearing, the panel was provided with a consultation report from a physical medicine specialist who saw the worker on February 21, 2014 in relation to her low back and left lower limb pain. The specialist ultimately found that despite the CT and MRI scan studies which demonstrated a very shallow central disc protrusion at L4-5, no structural injury had been demonstrated and that it was safe and appropriate for the worker to be performing an increased level of intensity during exercise. He stated that the worker needed to improve her fitness through a structured exercise program and that a spinal injection was not recommended.

Based on the foregoing, the panel finds that the worker's compensable back strain had resolved and she is not entitled to benefits beyond November 30, 2012. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of August, 2014

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