The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of returning to full regular duties as a truck driver by February 27, 2015. A hearing was held on October 22, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after February 27, 2015.

Decision

That the worker is entitled to wage loss benefits after February 27, 2015.

Decision: Unanimous

Background

On December 27, 2013, the worker was involved in a motor vehicle accident during the course of his employment as a truck driver. Initial medical reports showed that the worker underwent medical treatment at two hospital facilities and was discharged on January 21, 2014. A CT scan dated March 27, 2014 showed compression fractures at T8, T9, T11, T12 and L1. The claim for compensation was accepted and benefits were paid accordingly. On May 28, 2014, the worker was discharged from physiotherapy treatment and was given home exercises to perform.

On September 29, 2014, the worker commenced a four week reconditioning program, as the employer was not able to accommodate him with modified duties.

On October 30, 2014, the treating physiotherapist's final report noted the worker had been making great strides in increasing his tolerance for exercise and functional activities until the last week of the program when he became severely limited by pain. The physiotherapist noted that the worker's job involved riding in a semi for up to 12 hours at a time; however, they could not specifically increase his tolerance for sitting.

On December 15, 2014, the worker was seen by a WCB medical consultant for a call-in assessment. In response to questions posed by WCB case management, the medical consultant stated:

• The initial diagnosis of December 27, 2013 was some respiratory complaints which corrected with treatment. The worker had a liver laceration which did not require any surgical treatment. The worker sustained multiple compression fractures to the thoracic spine and L1. He mentioned an injury to C5, but none was documented on imaging.

• The respiratory contusions and liver laceration had healed, and the compression fractures were expected to heal, which could take several months. There would always be some wedging on imaging, but once the bone has healed, they should not be pain generators.

• The worker presented at the call-in examination with non-radicular thoracic pain. He denied any neurological symptoms. He reported no difficulty with bending or twisting, but only with sustained sitting or standing. On examination, he had full, fluid range of motion, normal strength, no tenderness, negative straight leg raise, and a normal neurological examination. As such, there were no clinical findings to support his subjective complaints. There was no new diagnosis on file.

• The worker might have some lingering non-specific pain in relation to the significant mechanism of injury, however, the presence of the 7-8/10 constant pain that limited his ability to work could not be medically accounted for.

• Since the worker had already had a reconditioning program, a graduated return to work would not be required. However, the worker should be allowed frequent stretching breaks until he could tolerate full time sitting. It was expected that this would occur over a period of about four weeks.

On January 21, 2015, a WCB case manager verbally advised the worker that based on the call-in examination findings, there were no medical contraindications for him to return to full, regular duties with the only "restriction" being that he have an opportunity to take stretching breaks.

Following discussion with the accident employer, who advised that they did not have a job for the worker to return to, the WCB wrote the worker on February 3, 2015, stating:

A review of these unfortunate circumstances as well as a review of your claim including the Health Care opinion on file has resulted in the determination that you do not have a loss of earning capacity in relation to the compensable injury of December 27, 2013. Further, you are not considered to be competitively disadvantaged due to your workplace injury should you choose to seek employment elsewhere. As such, you are not entitled to wage loss benefits past the date to which you were paid: January 30, 2015.

On March 2, 2015, the worker filed an appeal with Review Office as he disagreed with the case manager's decision. The worker stated that he still had back pain and could not sit for more than four hours in a day, so it was impossible for him to return to work as a truck driver. He also said that the back pain was affecting his sleep.

On April 15, 2015, Review Office determined that the worker suffered a loss of earning capacity beyond January 30, 2015 as he continued to suffer from the effects of his compensable injury beyond that date. Review Office stated that the worker did have a restriction imposed on him when he was advised he was capable of returning to work. The file evidence did not show if a return to work with the restriction of ability to take frequent breaks would be feasible for him, as the time to complete a run could be greatly extended and there was thus the potential of him not meeting his employment obligation.

Review Office further stated that the worker's sitting tolerance was not addressed in the reconditioning program. It determined that the worker was capable of a return to work with the restriction of having the ability to take frequent breaks. Since the employer was not able to accommodate him with a modified position, the worker had a loss of earning capacity after January 30, 2015, related to the compensable injury. The Review Office thus determined there was entitlement to wage loss benefits to February 27, 2015, inclusive.

On April 28, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from two treating physicians.

On February 22, 2016, the worker was provided with a copy of the new medical information and was asked to provide comment. On March 9, 2016, the panel met to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) provides 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 attended the hearing with his brother, who made a presentation on his behalf. The worker and his brother responded to questions from the panel.

It was submitted that the worker's back condition has not improved to the point where he could go back and do the work he was doing before. A long haul truck driver sits for 12 to 13 hours a day. The worker cannot sit or stand for more than 3 to 4 hours a day. After that, he has to lie down to relieve the pain.

In response to questions from the panel, the worker described his daily activities. He said that his pain is around 4 out of 10 when he first wakes up in the morning, and increases as the day goes on to around 8 or 9 out of 10 by 6:00 p.m. He can do about as much now as he could at the time of the call-in examination in December, 2014. He is able to work an hour or so every other day doing chores such as mowing the grass. He can sit in a vehicle for 2 to 2½ hours, but the pain is then to the point that he is basically done for the day. He has to lay down for 4 to 5 hours to relieve the pain, after which he still cannot go back to sitting for any further stretch of time. He said he would sometimes go for an hour's drive with a friend, lay down for 4 to 5 hours, then go for about another hour. After that hour, the pain would come back and he would have to get horizontal again.

Asked about the suggestion that if he were driving, he could stop regularly and just get out and walk around, then get back in and drive again, he said that does not work, that:

…it just doesn't change the pain any, because I'm still, if I stand and walk around for 10 minutes, that's not going to change my pain any, because my pain is still going to be there. As soon as I sit back down in that seat, my pain is right there again. It doesn't relieve until I get to lay down. If I could lay down on the side of the road for four hours, or whatever, then okay. If I have to drive for another hour, two hours, then what? Have another four-hour --- like, that's the thing.

It was noted that no one had said he would be able to return to work full time, because of his back. The worker's treating physician had said that he could possibly return to partial duties after physiotherapy. He went to physiotherapy, and at the end of the four-week daily reconditioning program, the physiotherapist reported that he could not specifically increase the worker's tolerance for sitting and was not sure the worker could tolerate sitting for 12 hours.

It was submitted that Review Office found enough reason to extend the worker's wage loss benefits an additional month, to February 2015, and it is reasonable to conclude that they felt his back was not healed at that time or they would not have extended his benefits even another month. Nothing has changed since then. There is nothing to show that there has been any improvement. He has had no treatment and the condition of his back is probably the same or worse.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after February 27, 2015. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after February 27, 2015 due to his workplace accident. The panel was able to make that finding.

The evidence indicates that the worker sustained significant injuries as a result of the motor vehicle accident on December 27, 2013. The March 27, 2014 CT scan of the thoracic spine shows multiple levels of compression fractures. It also reveals the presence of a substantial number of degenerative conditions.

The WCB medical advisor stated on December 15, 2014, that the compression fractures were expected to heal, which could take several months, that there would always be some wedging, but once the bones had healed, they should not be pain generators. The panel accepts that the worker could heal from the compression fractures in the sense that they are not specific pain generators. It is the panel's understanding, however, that each of these compression fractures and resultant wedging would contribute to an overall realignment of the spine, which is not reversible. The alignment of the worker's spine would therefore have been permanently changed. The changes in alignment would all have taken place in the environment of the significant degenerative conditions that are noted in the March 27, 2014 CT scan.

Regarding the functional consequences of the worker's injury, the panel notes that the worker has had ongoing issues with respect to his inability to sit for extended periods of time and his limited endurance, which have been consistently reported all through the file. File evidence and the worker's evidence at the hearing indicate that his tolerance for sitting has increased somewhat since the date of the accident, but he still cannot sit for more than 2 to 2½ hours at a time or a total of 4 hours a day. While the worker underwent a reconditioning program, the treating physiotherapist noted at the end of that program that he had been unable to address the worker's sitting tolerance, stating:

The only activity I was not able to reproduce in the gym was prolonged sitting. I understand that [the worker's] job involves riding in a semi for up to 12 hours at a time; however, I could not specifically increase his tolerance for sitting in the clinic. I am not sure that he would tolerate sitting for 12 hours at this point, but he might be able to tolerate short haul trips if they are available.

In the panel's view, the physiotherapist's comments regarding sitting tolerance are entirely consistent with the permanent alteration of the spinal structures noted earlier and the altered biomechanics that result.

The panel further notes that upper back and scapular pain are consistently reported all the way through the file. The worker also spoke at the hearing of having lower back pain. An update on the worker's status from his treating physician, dated October 14, 2015 and provided to the panel in advance of the hearing, stated that the worker had debilitating back pain, as much as 8 of 10, in the lower back, radiating to the shoulder blades and more recently to the buttocks and into the right leg, which was aggravated by sitting and only relieved by laying down. It was also noted that the worker had had a cortisone injection in this back, and was waiting to see the doctor to discuss the results, and that he had been scheduled for an MRI.

After the hearing, the panel sought further information from the worker's regular treating physician and the physician who administered the cortisone injection. The worker's regular treating physician provided copies of chart notes from November 25, 2014 to September 2, 2015, which repeatedly refer to the worker's ongoing back pain. The chart notes for November 25, 2014 indicate, for example, "finished 5 weeks of work hardening; the pain is worse now than before; the pain is between the shoulder blades, worse with sitting after 3 hours - 7/10, steady stabbing…" In a letter dated December 1, 2015, the treating physician stated: "I think he had multiple vertebral compressions and whiplash injuries, and currently has chronic pain…I think his prognosis is poor - I do not expect him to improve further."

Information received from the second treating physician included a letter dated July 17, 2015 in which he noted that since the accident, the worker had been having quite significant back pain, which was exacerbated by sitting, and that the worker's "symptoms are quite debilitating." The physician went on to state that the worker's symptoms "could be radiculopathic given the description of his right leg tingling and discomfort and that he may benefit from an epidural corticosteroid injection." Subsequent chart notes from the second treating physician record that the worker received really no benefit from the injection, and that the physician recommended conservative treatment. The results of an MRI of the lumbar spine from January 16, 2016, which were also provided, reported that "there is potential for irritation of the right L5."

The panel is of the view that this more recent information remains consistent with the reports throughout the file regarding the worker's ongoing upper back and scapular symptoms and pain since the date of his accident.

The panel would add, however, with respect to the more recent references to complaints of lumbar pain and radicular symptoms, that we are unable to find that these complaints form part of the claim. We note that such complaints were not present at the beginning of the claim, or consistent with a March 27, 2014 CT scan of the lumbar spine, which showed that the lumbar spine was relatively well-maintained. We note that a physiotherapist's report from April 15, 2014 further indicated with respect to the lumbar range of motion that there was "good flexion/extension." In the panel's view, the lack of any benefit from the recent caudal injection, the results of the January 16, 2016 MRI and the second treating physician's recommendation of conservative treatment are also significant in this regard.

In conclusion, having considered all of the information on file, the worker's evidence at the hearing and the information subsequently provided at the panel's request, the panel finds, on a balance of probabilities, that the worker was not capable of returning to full regular duties as a truck driver by February 27, 2015 and continued to suffer a loss of earning capacity beyond that date due to his compensable accident.

The worker's appeal is therefore allowed.

Footnotes

 

Panel Members

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

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 3rd day of May, 2016