Decision #139/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no relationship between his current low back complaints and his compensable accident. A hearing was held on September 19, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after July 15, 2016.
Decision
That the worker is not entitled to benefits after July 15, 2016.
Background
The worker has an accepted claim with the WCB for injuries he sustained on March 22, 2015 to his right shoulder and back when he slipped and fell on ice.
On October 19, 2015, a WCB medical advisor reviewed the file information at the request of initial adjudication and opined that the diagnoses related to the workplace accident of March 22, 2015 were as follows:
• Resolved right shoulder small partial articular surface supraspinatus muscle tendon tear
• Resolved cervical and thoracic spine sprain
• Nonspecific low back pain (lumbosacral spine sprain).
The medical advisor also stated:
Typical recovery for uncomplicated strains are expected over a period of days to weeks. The recovery appear (sic) to have exceeded the typical recovery norms. However, there has been improvement of the low back symptoms and resolution of the right shoulder symptoms based on the treating physiotherapist reports documenting improvement of the i) recorded outcome measures, ii) pain scores and iii) the documented improvement of range of motion. Furthermore [worker] has MS. As such in the environment of MS, the recovery although slower than expected is likely still within reasonable limits.
The medical advisor outlined work restrictions for the worker with a review of same in 4 to 6 weeks. He noted that the graduated return to work as outlined in the October 15, 2015 physiotherapy report was reasonable.
A WCB physiotherapy consultant noted to the file on October 21, 2015 that additional therapy was not approved. He stated:
At 6 months post soft tissue injury and an extensive course of treatment, the worker should be well educated in self-management and a home based program. He will continue to improve with time and activity.
On November 20, 2015, Compensation Services wrote the worker to confirm that based on a review of his file which included the WCB medical opinions of October 19 and 21, 2015, it was determined that he had recovered from the effects of the March 22, 2015 workplace injury and that wage loss benefits would be paid to November 27, 2015 inclusive and final. On December 7, 2015, the worker appealed the decision to Review Office.
On January 13, 2016, Review Office determined that the worker's ongoing loss of earning capacity was related to the effects of the workplace accident and that he was entitled to benefits beyond November 27, 2015. Review Office's decision was based on the WCB medical opinion outlined on October 19, 2015 as well as reports from the treating sports medicine physician dated November 16, 2015 and January 8, 2016 which suggested that the worker continued to suffer from significant back pain (diagnosed as mechanical back pain) that was related to the effects of the March 22, 2015 workplace accident.
On February 2, 2016, the worker was seen at the WCB offices for an examination by a WCB physiotherapy consultant.
In a decision dated March 2, 2016, the worker was advised that the WCB was not able to accept further responsibility for his claim based on the WCB examination findings that he had recovered from the effects of his workplace injury and that his ongoing complaints were related to his pre-existing condition.
On May 3, 2016, a worker advisor, acting on the worker's behalf, asked the case manager to reconsider her decision based on new evidence that was attached to the submission. The worker advisor contended that the medical reports supported that the worker had not recovered from the effects of his low back injury by March 9, 2016. He noted that the effects of the worker's low back injury created an ongoing requirement for medical treatment, and also caused a loss of earning capacity.
On May 6, 2016, a WCB medical advisor was asked to review the file information which included the worker advisor's submission of May 3, 2016 and new medical reports dated March 18 and April 11, 2016. In a response dated June 23, 2016, the WCB orthopedic consultant stated:
• The current medical presentation was not accounted for by the workplace injury.
• The worker's current complaints are explained entirely by pre-existing and co-existing pathology.
• There was no evidence that further chiropractic interventions would lead to sustained improvement in function.
• It was usual for workers who have been off work for a considerable time, to advise a gradual return to full duties. Recommendations were made for commencing with four hours daily, five days a week. This could be increased by one hour every two weeks.
In a decision dated July 12, 2016, the worker was advised by his case manager that following a review of his claim including the opinion offered by the WCB orthopedic consultant, Compensation Services found the weight of evidence including history of the injury, diagnosis, expected symptom duration, and the current clinical findings support that he had recovered from the effects of the workplace injury. As such, partial wage loss benefits and chiropractic treatment were payable to July 15, 2016 inclusive and final. The worker was also provided with the details of a proposed "Graduated Return to Work Schedule" starting July 4, 2016 which would result in working full duties as of July 18, 2016. On September 29, 2016, the decision was appealed to Review Office by the worker advisor on behalf of the worker.
On November 4, 2016, Review Office determined that the worker was not entitled to benefits beyond July 15, 2016.
Review Office stated, in part, that the worker experienced a sprain/strain and contusion injury to his low back when he fell on March 22, 2015. It stated that an injury of this sort would typically heal on its own within a few weeks to months. It was acknowledged that the worker would not experience a typical recovery due to his pre-existing MS.
Review Office accepted that the worker's MS delayed his recovery from a sprain/strain injury as was noted in its previous decision of January 13, 2016 but at 16 months post injury, Review Office was no longer able to find an ongoing cause and effect relationship. Review Office also stated in its decision that the worker's lack of progress in his work hardening/graduated return to work for a year and the proposed protracted graduated return to work was not supported as a consequence of the compensable injury.
On March 29, 2017, the worker advisor 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 WCB 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 the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work 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 on March 22, 2015. He is appealing the WCB decision that he is not entitled to benefits after July 15, 2016.
Worker's Position
The worker was represented by a worker advisor who made a presentation on the worker's behalf. The worker and his representative answered questions from the panel.
The worker's representative advised that the worker is seeking to be reimbursed the expense of chiropractic treatments and partial wage loss due to his inability to resume full hours.
The worker's representative noted that the treating chiropractor and physicians have commented that the persistence of his compensable mid back and low back injuries are due to multiple factors including: multiple sclerosis, lumbar arthritic degenerative changes, premature return to work activities, and the performance of physical work activities as a plumber. He said these had the effect of re-aggravating the worker's injuries. He noted that the treating chiropractor's letter of March 23, 2017 reiterates that the worker's presentation for treatment after July 15, 2016 was for mid and low back areas which he believed remained related to the workplace accident.
The representative noted that Review Office and the WCB medical consultants did not address the impact of the worker's job duties on his mid and low back injury.
In answer to a question about whether he returned to work full-time by November 2016, the worker advised that he worked between four to five days a week after his benefits were terminated.
The worker advised that his back problem did not resolve by the date noted in his physician's report of August 16, 2016. This report indicated that "By Nov he can be at full schedule."
The worker advised that after the accident he reduced his hours, turned down work on large projects and refused projects with heavy lifting. He advised that his doctor limited him to lifting a maximum of 50 pounds. He also had an employee who helped at times.
The worker advised that he has not seen any specialists but noted that his physician is a sports medicine specialist. He advised that chiropractic treatments are all that help his condition.
In reply to a question about what he has been told about his injury, the worker responded:
The muscle is ripped, it was strained, it was torn, what have you. And there's a lot of scar tissue in there and it just seems to heal to a point.
He also advised that there is degeneration, probably some arthritis, but confirmed that this is his opinion. He also reported that his whole left leg is just numb and he can barely feel it. He thinks it's due to pinched nerves or inflammation. In reply to a question about what helps with the injury, the worker advised:
Going to the chiropractor. Because after I get movement or manipulation, it relieves the pain and I'm good for two, three days. And then all of a sudden it starts to act up again.
Regarding his use of chiropractic services, he acknowledged that he is a long term user of these services, commencing when he was 20 years old. He said that throughout his life he has "probably gone once every couple of months to a chiropractor." He said that he was not injured but went because "that's what you're supposed to do." He said that his chiropractor advised him that he will need to obtain chiropractic treatment for the rest of his life, although the frequency might lessen. Prior to the accident, the worker was seeing a chiropractor for his mid back, lower back, neck, and hips. He described it as "preventative maintenance."
The worker acknowledged that his pre-existing medical condition has an impact on his recovery. He said it makes him tired and that the medicine he takes on a daily basis has side effects.
The worker's representative submitted that:
It seems to indicate complete recovery hasn't occurred, but the fact that [worker] was able to increase his workdays and hours after July, 2016, suggests to me improvement… I think that's the shortcoming of the WCB's decisions is they do not want to acknowledge the impact on [the worker's] acute back injury of going back to work after and continuing to work and the effect that that has had on his back.
The worker's representative stated that the treating chiropractor is saying the worker has chronic pain from almost two years of continuing to work while injured.
The worker advised the panel that in or around December 2016 or January 2017, he slipped while working and is currently being paid on a WCB claim. He said he injured his knee. The worker's representative advised that the worker is seeking wage loss benefits beyond mid July 2016 probably to the date that he injured his knee.
Employer's Position
The worker was self-employed.
Analysis
The issue before the panel was whether the worker is entitled to benefits after July 15, 2016.
For the worker's appeal of this matter to be approved, the panel must find that after July 15, 2016 the worker continued to sustain a loss of earning capacity and required medical aid as a result of his 2015 workplace injury. The panel was not able to make this finding.
Regarding medical aid benefits, the panel attaches significant weight to the opinion of the WCB chiropractic consultant who examined the worker on February 2, 2016. He opined that:
1. Is the treatment likely to lead to a sustained improvement of worker's function?
Response
There is presently no indication that continued treatment will lead to further improvement or a recapture of function. Chiropractic Treatment has been ongoing since November 2, 2015, and this therapeutically relevant term of care has failed to yield any functional gains…
2. Is the recommended treatment appropriate in relation to the compensable injury?
Response
There is no recommended treatment in relation to an identified ongoing compensable injury. Today's examination results cannot account for [worker's] unremitting lower back pain in terms of an initial low back contusion or sprain/strain. Recovery is extending well beyond an expected natural history for such conditions.
The chiropractic consultant also opined that the worker's demonstrated capacity for only 2 days of work each week cannot be medically reconciled. The panel notes that since January 2017, when the worker injured his right knee, he has not worked and advised that his condition has not improved. The panel notes that this is contrary to the position advanced by the worker's physician and chiropractor that the worker would recover if he was off work for a longer period.
Regarding a loss of earning capacity, the panel finds, on a balance of probabilities, that the worker did not have a loss of earning capacity after July 2015 as a result of the workplace accident. The panel made this decision based upon the worker's evidence that after his benefits were terminated, he increased his hours of work. The worker told the panel that his hours varied but that he did work, between 2 and 6 days each week. He noted in particular that the period from July to November was the busy season so he had to work long hours.
The panel considered the position advanced that the worker needed more treatment to recover to be able to work full-time, the panel notes that the worker returned to essentially full-time work once his benefits were terminated. While we understand that financial circumstances played a factor in his return to work, it is apparent that he was able to work.
The worker also expressed concerns regarding the calculation of his wage loss benefits. The panel did not address this issue, as it was not appealed to the Appeal Commission.
The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss or medical aid benefits beyond July 15, 2016.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of October, 2017