Decision #152/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss and medical aid benefits after May 16, 2016 in relation to her compensable injury. A hearing was held on October 12, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after May 16, 2016.
Decision
That the worker is not entitled to wage loss and medical aid benefits after May 16, 2016.
Background
On July 16, 2013, the worker was a passenger in a work vehicle when the driver lost control and they struck gravel and flipped. The worker was later diagnosed with soft tissue injuries to her left shoulder, left hip and knee and a neck strain. By October 2013, the worker was diagnosed with a low pain tolerance and non-specific non-radicular neck and upper back pain. The worker was also diagnosed with General Anxiety Disorder which was not accepted by the WCB in relation to the workplace injury.
On March 17, 2015, the worker's case was the subject of an oral hearing at the Appeal Commission to determine whether or not she was entitled to benefits after October 9, 2014. On January 6, 2016, it was determined by the appeal panel that the worker "has an ongoing compensable diagnosis that is limited to non-specific thoracolumbar junction regional pain" and a reconditioning program was recommended. For further details regarding claim history and the findings of the appeal panel, please see Decision No. 01/16.
Arrangements were made by the WCB for the worker to undergo a four week reconditioning program starting on February 22, 2016 that included supportive counseling. The worker was advised that when the program was completed, there would be no further entitlement to wage loss benefits, medication or other medical costs.
On March 21, 2016, the treating physiotherapist reported that the worker had completed the four week reconditioning program and was capable of performing the driving components of her work duties. The worker had demonstrated the ability to lift and carry loads which would be in the light to medium level.
On May 3, 2016, a WCB medical advisor reviewed the file information and opined that the current compensable diagnosis of "non-specific thoracolumbar junction regional pain (left)" was a label to describe the reported symptoms and there was no structural abnormality associated with the condition. Any need for restrictions would only be in response to reported symptoms and perceived functional limitations. Based on the capabilities described at the conclusion of the reconditioning program and considering the lack of any vulnerable structural abnormality on which to base restrictions, it was concluded that the worker was capable of performing the outlined work duties and no specific work restrictions were required.
Based on the conclusions reached by the treating physiotherapist and the opinion of the WCB medical advisor, the worker was advised on May 9, 2016 that she was not entitled to further benefits beyond May 16, 2016 as it was felt that she had recovered from the effects of her July 16, 2013 workplace injury.
On May 19, 2016, the treating physician reported that the worker's fibromyalgia had improved significantly and that the worker was awaiting further interventional procedures. The physician noted that this was a chronic condition and it was difficult to determine exactly when the worker would be ready to return to work.
On June 7, 2016, the case manager advised the worker that the diagnosis of fibromyalgia was not related to her claim based on the decision made by the Appeal Commission in January 2016. On June 15, 2016, the worker appealed the case manager's decision dated May 9, 2016 to Review Office.
On July 26, 2016, Review Office determined that there was no entitlement to wage loss and medical aid benefits beyond May 16, 2016 as it was unable to find a causal relationship between the worker's current complaints and the July 16, 2013 workplace injury. On July 28, 2016, the worker 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 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.
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 has an accepted claim for a workplace injury and is seeking wage loss and medical aid benefits after May 16, 2016.
Worker's Position
The worker was self-represented at the hearing and advised that she remembers very little about the accident.
The worker advised that, after her last appeal to the Appeal Commission, she attended a 4 week reconditioning program in Winnipeg. She said that she was told by the treating physiotherapist that this was a short period and that some injured workers attend the program for up to 90 days. She said that the treating physiotherapist told her she needed more treatments and her program would be extended. However, the program was never extended. She said she needs more assistance.
She referred to the letter from the psychologist who she saw at the reconditioning program. She noted he advised that she needed more treatment.
The worker advised that her treating pain specialist has told her not to work. She said that the pain specialist's letter advised her that she cannot return to work yet. She sees the pain specialist every 3 months or more frequently as needed. The worker said that she has pain in the hips, lower back and upper back and shoulders.
In answer to a question from the panel, the worker listed the medications which she takes. She advised she cannot drive after she takes the medications. She also said that the medications cloud her memory.
The worker described her daily activities which include stretching when she wakes up in the morning. She said that she spends about 15 minutes doing exercises.
Regarding employment, the worker advised that she has applied for shifts subbing at the school and has taken some shifts at the local holding facility. She advised that she lives in a small community and there are few job opportunities in the area.
The worker said that she is very anxious and worried about her health and future. She said that the termination of benefits has resulted in financial hardship for her family.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits after May 16, 2012. As noted in the background, the Appeal Commission previously dealt with an appeal related to this claim from the worker and issued a decision on January 6, 2016. In decision No. 01/16, the Appeal Commission found that:
* the worker's psychological conditions are not causally related to the work accident and are not compensable.
* the following diagnoses are not compensable: o muscle strain/sprain injury o concussion o post concussion syndrome o neurological injury o knee injury o bilateral shoulder and hip pain o dental injury o fibromyalgia
* the worker's compensable diagnosis is non-specific thoracolumbar junction regional pain. * the worker is entitled to wage loss benefits retroactive to October 9, 2014. * the worker is not totally disabled from working due to the diagnosed condition.
* the WCB should develop a reconditioning program for the worker, with the length of the program to be determined by the WCB healthcare department with due regard to the worker's remote location and the nature of the compensable injury including appropriate supportive counseling in respect of the worker's fears of participation in a reconditioning program.
This panel is bound by the findings of the prior panel. The panel has assessed the file to ascertain whether Appeal Commission No. 01/16 has been appropriately implemented or whether the worker is entitled to further benefits.
As noted above, the previous panel directed that the WCB develop a reconditioning program for the worker, with the length of the program to be determined by the WCB's healthcare department.
The information on file indicates that:
* retroactive wage loss benefits have been paid to the worker.
* a WCB medical advisor opined that the duration of a reconditioning program is variable. He noted that a 3 or 4 week program is common. * the worker was provided with a 4 week program at an independent service provider. The treating physiotherapist reported, at the conclusion of the plan, that she would be capable of performing the driving component of her work duties. She has demonstrated the ability to lift and carry loads which would be in the Light to Medium level.
* the worker was provided with supportive counselling while attending the reconditioning program as confirmed by the report dated June 4, 2016 from the treating psychologist.
* a WCB medical advisor reviewed the worker's file and opined in a memo dated May 3, 2016 that:
The recent reconditioning program concluded with demonstration of capabilities rated at the light to medium level. Lifting was not specifically tested beyond a dead lift (knee to hip level). It was noted that carrying was performed with 35 pounds (farmer's carry with both hands). Medium demand level by definition includes lifting of up to 20-50 pounds on an occasional basis. Based on the capabilities demonstrated at the conclusion of the reconditioning program, and considering the lack of any vulnerable structural abnormality on which to base restriction, it is concluded that [worker] would be capable of performing the outlined work duties. No specific workplace restrictions are required in direct relation to effects of the c.i.
After a review of the file, the panel finds that the worker is not entitled to further wage loss and medical aid benefits. The panel finds that Appeal Commission Decision No. 01/16 has been appropriately implemented by the WCB.
At the hearing, the worker expressed the view that she was still unable to work. She relied upon the opinion of her treating pain specialist. The panel notes that the pain specialist is treating the worker for her fibromyalgia condition and that Appeal Commission Decision 01/16 found that this condition was not related to the workplace accident. Accordingly, the panel is not able to provide medical or other benefits in regards to this condition.
The worker also told the panel that the physiotherapist who provided the reconditioning program advised her that she required additional time and that the reconditioning program would be extended. The panel could find no records on the file to support this assertion. However, the treating physiotherapist provided a report indicating that the worker could perform her driving duties and could perform light to medium lifts.
Based on our review, the panel finds that the worker is not entitled to wage loss and medical aid benefits after May 16, 2016.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerP. Challoner, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of October, 2016