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 capable of a graduated return to work program starting June 2,2014.  A hearing was held on October5, 2015 to consider the worker's appeal.

Issue

Whether or not the worker's gradual return to work planstarting June 2, 2014 is appropriate.

Decision

That the worker's gradual return to work plan starting June2, 2014 is appropriate.

Decision: Unanimous

Background

During the course of her employment as an export coordinator on May 13, 2013, the worker reported that she was going down stairs and her foot caught in the edging. She tried to hold herself on the railing but could not hang on. The worker fell down 15-16 stairs. The worker's claim for compensation was accepted and benefits and services were paid. The diagnosis accepted as compensable was a lumbar spine strain/sprain with nerve involvement, multiple L/E contusions, right thoracic/rib cage strain.

Following a WCB call-in examination on July 31, 2013, it was concluded by the examining orthopedic consultant that the workplace injury of May 13, 2013 caused multiple contusions and a strain of the lumbar spine with right L5 nerve root irritation. The consultant also opined that the worker was capable of a gradual return to work with certain work restrictions. File records showed that the worker attempted a return to work but discontinued due to pain complaints and side effects from prescribed medication.

Ongoing medical reports showed that the worker began a four week reconditioning program in September 2013 and on November 12, 2013, she underwent a lumbar spine MRI assessment. In January 2014, the worker underwent nerve conduction studies.

On January 9, 2014, the WCB orthopedic consultant stated that the new diagnosis, based on the neurology report; was right sided L5 radiculopathy. He further stated: "It is probable that the right L5 nerve root lesion was caused by a transient disc protrusion, even though the MRI of 12-Nov-2013 demonstrated only a bulge at L4-5 level without nerve compromise. The onset of this nerve root lesion is compatible with the mechanism of workplace injury of a fall down stairs." The consultant stated that based on the diagnosis, sedentary work would still be appropriate for the worker. The consultant outlined workplace restrictions and review of same in 3 months time.

In January 2014, the worker was interviewed at the WCB's Pain Management Unit ("PMU"). At a PMU case conference held on April 3, 2014, it was documented that the worker did not appear to be experiencing any cognitive side effects from the medication and therefore there was no restrictions related to the worker's cognitive functioning related to a return to work.

Following contact with the accident employer, a graduated return to work program (office type sedentary duties) was arranged for the worker to commence June 2, 2014 starting at four hours per day. In a letter dated May 27, 2014, the worker was advised of the WCB's position that there was no cognitive impairment impacting her ability to participate in office type sedentary duties. Physical work restrictions were outlined.

On May 28, 2014, the worker's daughter advised that her mother would not return to work on June 2, 2014 as she was incapable of doing so due to short term memory loss and side effects from medication. It was also mentioned that the worker had a bad fall at an Aquasize program (WCB approved) and was experiencing pain at the thigh joint and the tail bone.

In a decision dated June 4, 2014, the worker was advised that the modified duties offered to her by the employer were compatible with her current functional ability and restrictions. Based on this decision and WCB policy, partial wage loss benefits would be paid according to the return to work schedule outlined on May 27, 2014. In September 2014, the decision was appealed by the worker's advocate (daughter) and the case was referred to Review Office.

The claim file contains a report dated November 19, 2014 regarding surveillance of the worker's activities conducted on June 27, 29 and 30, 2014.

In a further decision dated November 25, 2014, the worker was advised that based on the observations made by a WCB medical advisor who had reviewed the video surveillance, it was the WCB's decision that no changes would be made to the prior decision regarding her ability to participate in the graduated return to work program within the previously outlined restrictions.

On December 1, 2014, the worker's advocate provided a response regarding the video tape footage findings.

On December 4, 2014, Review Office found that the gradual return to work plan starting June 2, 2014 was appropriate and it agreed with the decision to pay partial wage loss benefits based on the gradual return to work plan until June 27, 2014.

In reaching its decision, Review Office accepted that the compensable diagnosis was right-sided L5 radiculopathy and that the physical restrictions outlined on the file were in keeping with the diagnosis. Review Office stated that treatment providers recommended that the worker remain as active as possible within her restrictions to maintain conditioning, reduce pain and improve mood. Review Office accepted the opinion of PMU that there were no restrictions related to the worker's cognitive functioning. Review Office indicated that the worker's fall on April 30, 2014 did not impact her ability to continue with the pool exercise program according to the therapist who supervised the pool clinic. Based on its review of surveillance information, Review Office accepted the WCB orthopedic consultant's November 20, 2014 opinion that the worker's activities of daily living without indications of significant pain supported that her physical restrictions were appropriate.

Review Office referred to the advocate's appeal submission outlining the worker's reported symptoms, difficulties and medication side-effects as a result of the compensable injury. Based on the above findings, Review Office did not find the worker was unable to work in any capacity. On January 5, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Relevant provisions of the Act include:

ss. 4(1) provides that 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.

ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

ss. 40(1) provides that the loss of earning capacity is the difference between the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

The WCB Board of Directors established WCB Policy 43.20.05, Return to Work with Accident Employer, which outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.

The worker has an accepted claim for a back injury. She is arguing that the gradual return to work plan was not appropriate and that she was not medically able to participate in the plan on June 2, 2014.

Worker's Position

The worker attended the hearing with her daughter who acted as her representative.

The representative also called a long time friend of the worker to provide evidence on her behalf. He provided evidence on his observations of the worker's condition. He also gave evidence about his attendance at the worker's meeting with a WCB psychological advisor.

The worker's representative referred to various photographs of the worker which depicted bruising and other injuries which the worker sustained in falls after the workplace accident. She said the incidents were caused by medications which the worker takes for her injury. She also referred to incidents that occurred when the worker was participating in a reconditioning program.

She also said that the worker suffers from short-term memory loss due to the medications. She provided a list of things that happen because of the medication. The list was extensive and included: leaves lights on, milk in the freezer, left a water tap running, left the stove on, left the fridge door open, never closes cupboard doors, and cannot remember conversations with her daughter. She said that the worker loses her train of thought.

She also said that her mother can no longer engage in activities that she was involved in before the workplace accident, such as: read books or the newspaper, exercise, take long walks, go to movies, baseball, and football games, plant flowers, cook and bake, travel, dance, swim, clean the house, socialize with friends, use a computer for any length of time.

The worker's representative submitted that the worker has not improved in the medical reports and that her doctors have stated that she is not fit to return to work.

Regarding the WCB medical advisor's July 2013 report and examination, the worker's representative noted that he recommended restrictions of no lifting, no carrying more than 25 pounds, no repetitive bending and twisting spine, no sustained seated or standing postures more than 30 minutes without the opportunity to change positions. She said the weights were too heavy and her mother could not lift them. She also said that the report is incomplete and contains false information.

The worker's representative submitted that the video which was taken on behalf of the WCB did not show any misrepresentation. She said there is no evidence that the worker is misleading or misrepresenting her medical condition to the WCB. She noted that the worker uses her cane in the video and shows her limping when she walks. She noted anomalies with the dates on the video. She also questioned whether the video is turned off when the worker was in distress.

When asked about the duties that had been arranged for her return to work, the worker said

she would not be able to perform the duties. She said that she could not key-in on the keyboard and would have difficulty filing. She also said that she can't remember numbers so would have difficulty with the switchboard. She said that the physical layout of the office would be okay but that she was not able to perform the duties. She also said that she was afraid of falling because her "leg just gives out."

In answer to a question regarding future plans for future care from her physician, she said her physician advised that she will not get better. She said she has chronic pain. The worker also acknowledged that her physician has identified myofascial pain. She described the exercises that she does for this condition. She also said that acupuncture did not work.

In closing the worker's representative said:

"I just have to say that my mother is not the same person over two years ago. She’s totally a different person with the medication, and also with the injury."

Employer's Position

The employer representative attended the hearing and provided information to the panel on the worker's pre-accident duties and proposed modified duties. He answered questions from the panel. He did not take a position on the appeal.

He described the physical premises and the duties for the proposed return to work. He said they were building the tasks around the worker and would alter them if she could not perform. He did, however, indicate that these were minimum but important duties from work that was required and performed by other staff.

Analysis

The worker is appealing the WCB decision that the gradual return to work plan starting June 2, 2014 is appropriate.

For the worker's appeal of these issues to be successful, the panel must find that the gradual return to work plan starting June 2, 2014 was not appropriate. The panel was not able to make this finding.

The panel has considered the file information, including medical reports and video surveillance evidence, and the evidence provided by the worker, her witness and employer at the hearing. The panel finds, on a balance of probabilities, that the gradual return to work plan starting on June 2, 2014 was appropriate.

In reaching this decision, the panel accepts that the diagnosis for the worker's condition is a right sided L5 radiculopathy. The panel notes that this is consistent with the findings of the clinical and electrophysiological tests performed in January 2014 by the neurologist. The panel also accepts the comments of the WCB orthopedic advisor that the L5 nerve root lesion was caused by a transient disc protrusion, even though the MRI of November 12, 2013 demonstrated only a bulge at L4-5 without nerve compromise.

The panel accepts that the worker's restrictions are as noted in the January 9, 2014 opinion of the WCB orthopedic advisor. The restrictions are sedentary work with:

a. no repetitive bending and twisting of the spine

b. no sustained walking, standing, or sitting positions (more than 30 minutes) without opportunity to change positions

c. no lifting and carrying more than 10 lbs.

The panel considered the job duties and are satisfied that the duties comply with the above medical restrictions. As explained by the employer representative at the hearing, the duties were built around the worker's abilities. The tasks included answering phones, using a switchboard, taking orders and keying in part numbers, and filing starting on a gradual basis. While the worker had previously worked on the 2nd floor, for the gradual return to work, the worker would be working on the main floor. At the hearing, the worker confirmed that the physical layout of the work area was acceptable.

Unfortunately, the worker did not attempt the gradual return to work. She maintains that she was not able to perform any work physically and also expressed concern regarding the effects of her medication. The panel finds that this explanation is not consistent with other evidence on her file. The panel notes that the worker was able to participate three times a week in an aqua size program from February to May 2014. The panel believes that the physical and mental effort required to attend and participate in this program was equivalent to or greater than the effort to participate in the gradual return to work.

The panel also finds that in the video surveillance the worker demonstrated a higher level of fitness than she presented to the panel at the hearing. The video demonstrated that the worker could drive, walk, sit, stand, bend, enter and exit her vehicle. The panel finds that she demonstrated a level of fitness that would allow her to perform the sedentary duties offered in the gradual return to work program.

The worker also reported that she had short term memory issues which would prevent her from participating in returning to work. At the hearing, the employer clarified that the worker would not be required to do any work which required long memory span. He said it would involve tasks such as taking an order and keying in a part number.

Given these findings, the panel finds that the gradual return to work plan was appropriate. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of November, 2015