The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she did not have a loss of earning capacity beyond June 28, 2016 as a result of her compensable injury. A hearing was held on March 16, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 28, 2016.

Decision

That the worker is not entitled to wage loss benefits after June 28, 2016.

Background

On November 26, 2015, the worker was cleaning a washroom when her feet slipped out from under her and she fell, landing on her buttocks. On November 30, 2015, the worker was diagnosed with coccodynia/coccalgia and shoulder pain by the attending physician. On January 7, 2016, the treating physiotherapist diagnosed the worker with an acute lumbar strain/tailbone injury. The WCB accepted the worker's claim and benefits and services were paid.

In a doctor progress report dated March 28, 2016, the attending physician reported that the worker saw a specialist (anesthesiologist) who wanted to do bilateral multiple injections, as there was also nerve damage. He noted that physiotherapy was helping and that the worker complained of shooting pains down both legs when she raised her legs. The worker was assessed with coccalgia, coccodynia, chronic back pain, neuralgia/neuropathy (diagnosed by the anesthesiologist) and radiculopathy bilaterally.

On March 29, 2016, the worker was seen at the WCB offices for a call-in assessment. The examining WCB medical advisor stated, in part:

Typically when someone slips and falls, they will have soft tissue injury/non-specific pain, although injury to coccyx (tailbone) is also possible.  Recovery may take a few days or weeks.  There is typically gradual improvement with time.  It is clear that this worker is not following this natural history as it has now been four months and she has not noticed any improvement…This presentation is not consistent with a patho-anatomic diagnosis…The worker has pre-existing chronic low back pain along with psychiatric diagnoses.  These are likely contributing to her current presentation.  It would be difficult to say whether or not there is a relationship between her current presentation and the compensable injury based on her history and response to examination.

In a report dated March 24, 2016, the treating anesthesiologist stated that the worker continued to experience bilateral back pain and that she was agreeable to a trial of bilateral sacroiliac joint injections to manage her symptoms. By letter dated April 8, 2016, the WCB accepted responsibility for a trial of the injection to the left SI joint.

On May 15, 2016, the WCB medical advisor outlined the opinion that a return to work at six months post injury would be therapeutic for the worker.

On May 24, 2016, the worker was advised by Compensation Services that based on the accident description, the accepted diagnosis of a strain which was a temporary injury, the typical recovery time for a strain injury (a few days or weeks), the length of time it had been since the worker's injury (6 months), and the medical opinion from the examination at the WCB, a gradual return to work would be therapeutic and would aid in her return to work. The worker was advised that wage loss benefits would be paid during the period of the graduated return to work program which was to commence on June 1, 2016.

In e-mail correspondence dated August 12, 2016, the worker asked Review Office to reconsider the decision made on her claim. The worker contended that she was not ready for a return to work based on the recommendations of her treating physician and anesthesiologist. The worker noted that her injury was not a muscle strain, but an injury to her tailbone, and there was nerve damage.

On October 7, 2016, Review Office determined that the worker was not entitled to wage loss benefits beyond June 28, 2016.

From its review of the file evidence, Review Office concluded that the recommendation made by the treating physician and anesthesiologist that the worker remain off work was based solely on

the worker's reported complaints. Review Office accepted the findings of the WCB medical advisor dated March 29, 2016, that her testing of the worker at the examination revealed no nerve-related issues, and the worker's presentation was not consistent with a patho-anatomic diagnosis. Review Office also determined that the return to work schedule proposed to begin on June 1, 2016 was reasonable.

On November 1, 2016, 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 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) of the Act 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy"), addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Pre-existing Conditions Policy states:

(a) When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy provides that most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

The Return to Work Policy describes suitable modified or alternative work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

Worker's Position

The worker was self-represented and provided a written submission in advance of the hearing.

The worker stated that the injury she suffered was not a muscle sprain, as the WCB seemed to believe, but nerve damage and pain. She injured her left SI joint. She has nerve damage in many areas and a bulging, herniated disc. Injections into her SI joints had given her some relief from the nerve pain, but they were no longer effective. The worker said that the WCB did not even wait for the results of her MRI before deciding she was not entitled to further benefits. Even though it was taken almost a year after her fall, a September 19, 2016 MRI showed that she had a definite injury.

The worker submitted that while the WCB wanted her to return to work, she could not do so, as this would have been against the advice and findings of her attending physician, physiotherapist and specialist. Her physician told her that there was no way she was able to go back to work at

that time, even with modified duties. The worker said that her doctors, physiotherapist and specialist have confirmed that she has an ongoing permanent disability. Her condition has not improved; it is worse than before. She is in too much pain, and her attending physician has recommended that she is no longer capable of working in any job.

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 June 28, 2016. For the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity beyond June 28, 2016 as a result of her November 26, 2015 workplace injury. The panel is unable to make that finding, for the reasons that follow.

Based on our review of the evidence in its totality, the panel finds that the worker's ongoing difficulties and inability to work after June 28, 2016 were due to non-work related conditions, as opposed to her November 26, 2015 workplace accident.

The worker has an accepted compensable diagnosis of an acute lumbar strain/tailbone injury.

While the worker has submitted that she suffered nerve damage as a result of her injury, the panel is unable to make that finding. The panel notes and places significant weight on the fact that specific tests for nerve-related issues were conducted by the WCB medical advisor at the March 29, 2016 call-in examination, and none were found. From the history and the physical examination, the medical advisor found that the description of the worker's pain was not consistent with nerve root irritation, and that hard neurological findings were normal. The panel accepts these findings of the WCB medical advisor.

The panel reviewed the September 19, 2016 MRI report which had been submitted by the worker prior to the hearing. The MRI findings revealed moderate to severe osteoarthritis in several discs, and included:

At L4-5, there is a mild broad-based disc bulge. There is severe bilateral facet osteoarthritis with thickening of the ligamentum flavum. Findings result in moderate spinal canal narrowing...

IMPRESSION:

Degenerative changes of the lumbar spine, progressed in the interval with resulting spinal canal narrowing at L4-5…

In the panel's opinion, the MRI results confirm ongoing multi-level degenerative changes in the worker's back which are consistent with the worker's pain complaints. The panel finds that these are pre-existing conditions, and is unable to relate these changes to the worker's 2015 workplace accident.

The panel further notes that reports from the attending physician in March 2016 indicate that he was seeing changes over time in the worker's symptoms and complaints. Reference is made, for example, to the worker's left side being affected in addition to the right side, and to the worker having buttock and thigh pain as well. In response to questions from the panel, the worker acknowledged that in March 2016 she was starting to have more problems in other areas of her back and body than she had been having right after the accident. The panel is unable to relate these changes and symptoms, which only started to appear more than three months after the worker's fall, to the November 26, 2015 workplace accident.

The panel also places significant weight on the opinion of the WCB medical advisor dated May 15, 2016. File information shows that the medical advisor had previously reviewed the worker's file and had conducted a call-in examination of the worker on March 29, 2016. In her May 15 report, the medical advisor opined, in part, that:

The worker's capacity for activity cannot be determined as clinical findings cannot be interpreted due to her pain presentation. Her tolerance for activity cannot be accurately provided again due to her pain presentation. So restrictions would be based on what is normal for a return to work after soft tissue injury. A schedule such as below would be appropriate but could be modified to fit what the employer is able to accommodate.

The proposed schedule contemplated a graduated return to work over a period of six weeks, with restrictions. It provided that in Week 1, the worker would work "½ time hours - be able to work in position of comfort with no lifting > 10 lbs." By Week 5, the worker would be at "full hours - work in positions required - lifting up to 15 lbs."

The medical advisor specifically noted that:

This opinion is provided based only on the effects of this 2015 C/I [compensable injury]. If the injury caused a soft tissue injury, the recommendations should lead to a sustained improvement in symptoms and function. If not, then that cannot be medically accounted for and would be related to other factors (pre-x and pain presentation).

Based on our review of all of the evidence, both on file and at the hearing, the panel finds that the proposed graduated return to work schedule and the restrictions, as identified by the WCB medical consultant, were appropriate based on the effects of the worker's compensable injury. File information further shows that the employer had confirmed that they would accommodate the worker with the current restrictions effective June 1, 2016.

The evidence shows and the worker confirmed at the hearing, however, that she did not return to work or try to return to work at that time or thereafter.

In addressing the worker's ability to work, the panel considered but was unable to attach weight to the report of the attending physician dated May 27, 2016, as being based on what the worker had told the physician. That report states, for example, that the worker is "willing to return to light duties in September. [Worker] worried that with the summer…coming up she knows there is no light duties …[Worker] claims cannot walk or stand for 4 hours without rest but that is not included in the return to work restrictions. [Worker] claims not ready but should be ready by Sept. [Worker] will have to lift furniture and packages and do repetitive motions all the time which will aggrevate (sic) her pain." The panel notes that these statements are inconsistent with other information on file and with our findings with respect to the nature of the modified duties and the appropriateness of the proposed restrictions.

The May 27 report refers to the return to work date, restrictions and graduated work plan as "pending," and notes that the worker "is requesting to implement the restricted return to work program as suggested by WCB starting at the beginning of…September 2016…this way she will not be expected to do the heavy lifting and constant repetitive motion work that will set her back."

The panel also notes that approximately three weeks later, in a report dated June 16, 2016, the attending physician provided restrictions for a graduated return to work which included "no load bearing > 10 kg", or 22 lbs, which is significantly higher than the 10 lb weight which the WCB medical advisor had identified as appropriate at the beginning of the proposed return to work. In our view, this supports that the restrictions which had previously been identified by the WCB medical advisor were appropriate.

Based on the foregoing, the panel finds that the worker was capable of returning to work as planned, on June 1, 2016, and her loss of earning capacity ended at the beginning of the fifth week of the plan (June 29), when she could have returned to full-time duties. The panel finds that the worker's difficulties and any inability to work after June 28, 2016 were due to her non-work related conditions, and not to her November 26, 2015 workplace accident.

The panel therefore finds that the worker did not suffer a loss of earning capacity beyond June 28, 2016 as a result of her November 26, 2015 workplace injury, and the worker is not entitled to wage loss benefits after June 28, 2016.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of May, 2017