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 not entitled to full wage loss benefits effective September 9, 2015 in relation to his compensable back injury. A hearing was held on July 20, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits effective September 9, 2015.

Decision

That the worker is not entitled to full wage loss benefits effective September 9, 2015.

Background

The worker has an accepted claim with the WCB for a low back injury that occurred on June 24, 2008 when he drove over a pothole in a warehouse floor while operating a power transporter. The diagnoses accepted by the WCB were enhancement of degenerative lumbar disc disease and spinal stenosis. File records show that the worker eventually returned to work with the accident employer in a permanent position at four hours per day in an office environment. In September 2014, the worker asked the WCB to provide him with full long term wage loss benefits on the premise that he was totally disabled due to pain and limitation of function due to the nature of his back condition.

In a report to the family physician dated September 19, 2014, a pain management specialist reported that the worker was having classic chronic symptoms of low back and bilateral leg pain. He had moderate responses to steroid injections and between this and Tylenol 3 his pain was manageable at times; however, it did not allow him to function appropriately at work.

In a report to the WCB dated September 29, 2014, the family physician reported that the worker had been attempting and failing at work for the past while and that his pain had worsened to the point where his usual method of pain control had almost ceased to be effective. He noted that the worker applied for a disability pension through Service Canada due to his inability to function at work. His focus was no longer on the job but rather at trying to maintain some control over the suffering that he underwent on a constant basis.

On November 12, 2014, the worker was seen at the WCB offices for a call-in assessment by a WCB orthopedic consultant. In response to a question as to whether the medical findings support that the worker is totally disabled, the consultant responded:

• Objective medical findings are inconsistent with anatomical distribution of nerves in the lower limb. The degree of disability based on his subjective presentation would suggest total disability, but because of the reported level of fatigue.
• Positive Waddell signs include reproduction of pain by axial pressure in the spine, reproduction of pain by passive rotation of the pelvis, and no anatomical distribution of perceived sensory findings in the lower limbs. There is therefore no objective clinical evidence to support the subjective claim of total disability.

The WCB orthopedic consultant responded as follows with respect to workplace restrictions:

• Given the presentation at time of examination, the worker would not have the motivation or overall ability to return to work, based on his self-perception and observed level of activity during this examination.
• The treatment measures which appear to be effective to some extent are measures to improve coping mechanisms with his perceived symptoms. Before any consideration of use of a surgically implanted spine stimulator, it should be assessed by rigorous psychological assessment.

On November 27, 2014, the worker was seen for an assessment at the WCB's Pain Management Unit ("PMU"). In a subsequent Pain Management Case Conference memorandum dated December 11, 2014, it was stated that the worker did not appear to be experiencing any psychological disorder related to the compensable injury that would be a barrier to return to work. The worker did not report any psychological symptoms, he reported as being much satisfied with his life and indicated that his only emotional challenge was dealing with uncertainty with respect to WCB decisions. As such, there did not appear to be an indication for WCB funding for additional counselling.

In a decision dated December 15, 2014, the worker was advised by his case manager that his file had been reviewed and there were no medical findings that would support that he was totally disabled from working. His current permanent restrictions were unchanged and his permanent accommodation with the accident employer was appropriate and within his permanent restrictions. The worker was advised that the WCB would continue to cover partial long term wage loss benefits.

On January 20, 2015, the worker's union representative asked the case manager to reconsider her previous decision based on new medical information dated January 7, 2015 which indicated that the worker was not fit for work.

Following consultation with the WCB's healthcare branch, the worker was advised that the new medical information did not provide clinical findings that supported total disability in relation to his compensable injury.

On October 7, 2015, the worker's union representative wrote the WCB requesting reconsideration of the case manager's decision dated December 15, 2014 and February 17, 2015 to deny the worker full wage loss benefits effective September 9, 2014. The representative also asked the WCB to reconsider two other decisions made on his claim related to medical aid coverage.

In a decision dated November 10, 2015, Review Office confirmed that there was no entitlement to full wage loss benefits effective September 9, 2014. Review Office stated it reviewed the worker's description of his current job duties and found them to be sedentary in nature and allowed for movement when needed. It noted that the worker's main concern was the frequency in which he was required to access the second floor (walking/climbing stairs) of his employer's premises on a daily basis. The worker said he would have to climb 33 or 34 stairs that lead to the second floor, an activity he performed several times per day. Based on the worker's permanent restrictions noted on file, Review Office did not find the amount the worker climbed stairs on a daily basis to be outside of his "no repetitive stair climbing" restrictions. Regarding the worker's job demands in general, Review Office was satisfied that the workplace accommodation was within his permanent restrictions.

Review Office referred to the PMU assessment and the findings of the WCB orthopedic consultant and did not find that the worker was totally disabled from work activities or that his permanent restrictions had changed.

Review Office noted that the worker claimed of feeling fatigued and short of breath. Review Office stated that in the absence of supporting clinical evidence, the worker's level of fatigue related symptoms reported in relation to his inability to work cannot be medically accounted for in relation to his compensable injury.

Review Office noted that the worker relied on his being approved for Canada Pension Plan ("CPP") disability benefits in relation to his back as confirmation that he was unable to work, and wanted WCB to reach the same conclusion. Review Office noted that the criteria in determining entitlement to receive CPP benefits (i.e. total disability) differs from what the WCB considers in determining entitlement to full wage loss benefits/inability to work.

Review Office concluded that the worker was not entitled to wage loss benefits effective September 9, 2014 and that he was fit to work within his restrictions.

On January 24, 2016, the union representative appealed Review Office's decision to the Appeal Commission and an oral 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 40(1) provides that a worker's loss of earning capacity is the difference between the worker's net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

The Worker's Position:

The worker was represented by a union advocate at the hearing. The advocate provided the panel with a lengthy written submission which he referred to in his oral presentation.

The early part of the presentation dealt with an assertion that the worker's back condition was degenerative and that this condition was due to the cumulative effects of a long history of compensable back injuries plus 33 years of hard physical labour for his employer. The panel noted that these issues, being the etiology of the worker's degenerative conditions, had not been adjudicated yet by the WCB and could not be considered by the panel at this hearing without a Review Office decision on these issues. The worker and advocate withdrew their submissions on these points, with the understanding that for the purposes of this appeal, the degenerative conditions would be considered to be pre-existing, i.e. not caused by work.

Briefly, the position put forward by the worker was that the worker's injury in 2008 was accepted as an acceleration or enhancement of his pre-existing condition. This resulted in decreasing function over time, which was reflected in changes in his compensable work restrictions, such as the removal of truck driving, a reduction of hours from 8 hours/day to 4 hours/day, and ongoing removal of other parts of his alternate duties. Eventually, by September 2014, the worker was finally unable to work.

The advocate referred to WCB medical advisor opinions early in the claim that supported the expected decline in the worker's degenerative condition was actually happening, for example, an August 31, 2011 comment that "what is occurring here is fairly rapid degenerative changes developing over the time under review." These comments were consistent with a WCB orthopedic consultant who examined the worker on September 28, 2011 and noted that the worker's spinal stenosis was generally a progressive degenerative condition. As well, subsequent reports by the worker's attending physicians noted that the worker was advising of increasing pain and symptoms over time. The advocate suggested that the WCB and its doctors had, in contrast, stopped recognizing that the worker's back condition was continuing to worsen, and asked the panel to place greater weight on the medical evidence that was consistent with the predicted acceleration of the worker's degenerative low back condition.

The advocate also asked the panel to place greater weight on the CPP decision that determined the worker to be totally disabled, rather than the WCB medical call-in examinations in November 2014 that concluded that he was not totally disabled.

The panel asked the worker questions regarding his symptoms at the time of his departure from work, as well as his ongoing symptoms and his medical treatments to date. The worker advised that he was still generally in pain whether he was at work or at home, but he was "more in control when off." He was not in more pain as a result of his job duties. Rather, it was easier to be hurting at home rather than at work. He indicated that in the past three months, he could hardly walk, and would have sharp pains when he coughed. The worker acknowledged that he has a great employer as far as workplace accommodations were concerned.

The advocate also provided an extensive review of his concerns over the decision-making processes of the WCB. These will not be addressed by the panel in our analysis, as the worker was provided with a de novo hearing and a full opportunity to speak to the merits of his case.

The Employer's Position

The employer did not participate in the appeal and was not present at the hearing.

Analysis:

The worker in this case has a compensable injury to his low back that has been accepted as an enhancement of a pre-existing degenerative condition and spinal stenosis. As noted in the background, the worker was eventually accommodated with alternate duties by his employer in an administrative position, which had him working four hours per day and receiving partial wage loss benefits from the WCB. The worker's last day of work was on September 9, 2014, following which he stated that he had become totally disabled from work. He is now seeking full wage loss benefits from that date forward.

For the worker's appeal to be successful, the panel would have to find that the worker was totally disabled from working as of September 9, 2014, or alternatively that the worker's compensable restrictions were no longer appropriate based on a material change in the worker's medical condition as of that date.

The panel notes that the worker has multiple problems in his low back, many of which are pre-existing (or non-compensable), and that the WCB has accepted that the worker's compensable diagnosis is an enhancement of his pre-existing degenerative low back conditions. The WCB has further acknowledged that, because of the enhancement, the natural progression of the worker's condition (a general worsening over time) would be expected to accelerate over time, that is, it will get worse quicker.

In reviewing the medical evidence on file, the panel notes that the diagnostic imaging tests on file (two CT scans in 2009 and 2011, and an MRI in November 2013) of the worker's low back do, in fact, demonstrate the anticipated deterioration of the worker's lumbar spine. The worker's position is that the imaging tests support their position of worsening back symptoms, increased pain and finally of total disability in September 2014.

However, it is the panel's understanding that there is no automatic or direct correlation between the findings on diagnostic tests and either clinical findings or an individual's functional abilities. Stated differently, "bad" CT or MRI findings do not automatically equate to a painful or bad back; many individuals can be pain free and have no confirmatory clinical findings by their doctors, while other individuals with "mild" CT or MRI findings can have positive clinical tests and have significant functional limitations. As a result, each case is decided on its own evidence and on its own merits.

With that in mind, the panel has considered whether the worker was functionally able or unable to perform his alternate job duties with his accident employer as of September 2014 and beyond.

The worker relied heavily on the opinions of his treating physicians who state that that he is not fit to perform his job duties. He has asked the panel to place greater weight on those doctors than on the opinion put forward by the WCB orthopaedic consultant who examined the worker on November 27, 2014.

In considering the medical evidence, the panel notes the following:

The worker's attending healthcare professionals have tended to rely on the worker's reported complaints to them, rather than clinical testing or findings, in assessing the worker's functional capabilities. The panel notes that the worker's attending general practitioner first took the worker off work after September 9, 2014. He advised that he was seeing the worker every two months, but was not examining him during those visits. In a September 29, 2014 report, the doctor described the worker as totally disabled based on his observation that "When walking he is barely shuffling along at a slow pace and he has become more irritable as a result. Basically, the objective medical evidence is self-evident upon watching and observing [the worker] attempting to perform even simple tasks such as getting out of a chair and moving about."

The worker was also referred to an orthopedic surgeon in this time period who advised that surgery was not a viable treatment option at that time. In a letter dated January 7, 2015, the surgeon advised that the worker was not fit to work. The panel notes that other than the worker advising the surgeon that he was off work and had pain, there is no sense that the surgeon had access to information regarding the worker's restrictions and the nature of his job duties in forming this opinion, nor does he point to specific clinical findings to support his opinion.

Countering these medical opinions are the two WCB call-in examinations held on November 12, 2014 by a WCB orthopedic consultant (WCBOC) and on November 27, 2014 by a psychologist consultant (WCBPC) as part of the WCB's pain management unit. These took place soon after the worker had left his job. The panel places greater weight on the examination findings and opinions rendered by the WCBOC over those of the worker's treating physicians, noting that he conducted a full medical examination of the worker, and was fully familiar with the worker's WCB file which included information on the worker's full medical history, his medical restrictions and his evolving job duties with the accident employer. Further, the panel notes that this particular consultant had been active on the worker's file for some time, and had been the one to identify and recommend to the WCB that the worker's pre-existing conditions had been enhanced by the worker's 2008 workplace accident, with its anticipated acceleration of the condition.

The panel notes that the orthopaedic consultant acknowledged the work injury and its permanent nature and was asked to address specifically whether the worker was totally disabled. Following his examination, the WCBOC noted that his testing concluded that "there is therefore no objective clinical evidence to support the subjective claim of total disability."

Moreover, the WCBOC described a number of non-anatomical physical findings/responses which led him to believe that the worker was motivated to be found to be totally disabled. He further noted that the worker was now reporting that his sitting tolerance was now reduced to 10 minutes (from 30 minutes reported to him in a 2011 examination), while the worker was observed to be sitting for 25 minutes during his interview. Finally, the WCBOC commented that "Given the presentation at time of examination, the worker would not have the motivation or overall ability to return to work, based on his self-perception and observed level of activity during this examination."

The panel notes that the issues of motivation, self-perception and observed levels of activity were also identified by the WCBPC during her interview with the worker. She noted that "Thinking process was pain- and disability-focused from the onset of the interview. The claimant appeared to attempt to control the direction and focus of the interview." She could not establish a psychological diagnosis for the worker. She also noted that the worker sat very well through a 1 hour 50 minute interview.

The panel similarly observed that the worker demonstrated an essentially normal gait at the hearing and sat for almost two hours before visually demonstrating any discomfort. Again, this was not consistent with the worker's evidence at the hearing as to his recent mobility issues.

Regarding the worker's job duties, the panel notes that the worker provided considerable evidence, on file and at the hearing, as to his work routine. In the panel's view, the worker's job duties in 2014 were designed to be sedentary in nature and were quite varied, not in the sense of just sitting, but allowing for breaks, some stairs, and a rotation of job duties on the main floor in the warehouse and his office as well as to the second floor that the worker could plan for. Further, the panel notes that the worker and his employer have an acknowledged good relationship; the worker's job duties are self-directed by the worker, have considerable value to the employer and are adjusted or removed to accommodate the worker's changing needs.

The panel finds that the current workplace restrictions were appropriate for the worker and that his job duties all fell easily within those restrictions. The panel notes that the worker's activities of daily living were not dissimilar from his work activities in 2014, and that the worker was not experiencing more pain at work than at home prior to his departure from his job in September 2014.

The panel therefore finds, on a balance of probabilities, that the worker was not totally disabled at the time of his departure from the workplace as of September 9, 2014, and that his job duties were appropriate to his medical restrictions which included the ability to work four hours/day. The worker is therefore not entitled to full wage loss benefits effective September 9, 2014.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 26th day of August, 2016