Decision #160/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his continued back complaints were not related to the compensable accident and therefore he was not entitled to benefits after July 29, 2015. A hearing was held on October 25, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 29, 2015.

Decision

That the worker is entitled to benefits until August 22, 2016.

Background

While employed as a shuttle bus driver on February 23, 2015, the worker injured his low back when he lifted some luggage "about 4 feet from the ground to the rack in the van."

A Chiropractor's First Report for an examination on February 23, 2015 diagnosed the worker with an acute unilateral (left) severe constant lumbar radiculopathy radiating into the left anterior thigh, due to a lumbar disc (L3) protrusion. The claim for compensation was accepted based on the diagnosis of an acute lumbar radiculopathy and benefits and services were paid to the worker.

On May 25, 2015, the worker underwent an MRI of his lumbar spine which showed "right L4-5 paracentral disc protrusion and annular tearing resulting in posterior displacement right L5 root."

In June and July 2015, the worker was seen by an orthopedic surgeon. In a report to the WCB dated July 22, 2015, the orthopedic surgeon said he did not find any evidence of nerve root deficit and that the worker would benefit from physiotherapy treatment. He stated that the worker should be able to return to work in the not too distant future and that he did not require surgery.

The worker attended physiotherapy treatments and also a reconditioning program to prepare him for a return to work; however, the accident employer was unable to accommodate him with any modified duties.

In a memo to file dated March 4, 2016, the WCB case manager noted that the worker had a recent flare-up of low back pain according to the treating physiotherapist. The case manager stated: "[Physiotherapist] said the flare up of back pain occurred at the same time as a possible return to work was being discussed."

On May 4, 2016, the worker was seen by a WCB medical advisor for a call-in assessment. The medical advisor commented that the examination did not reveal evidence of radiculopathy and it was likely that the back injury sustained on February 22, 2015 had essentially resolved. The primary treatment at this point was to resume normal function.

In a consultation report dated May 31, 2016, a neurosurgeon reported, in part:

The submitted MRI of the lumbosacral spine shows evidence of a right medial lateral disc protrusion at L4-5 impinging upon the right-sided L5 root.

The clinical presentation suggests some mechanical low back pain that accounts for the proximal lumbosacral and gluteal discomfort, but probably the component extending to the thighs as well. The initial pain further distally into the left lower extremity may be radiculopathic. The MRI does not provide any obvious radiological correlate (the protrusion is contralateral).

Given the clinical evolution, I would recommend the patient continues his present conservative treating and goes back to a regular physiotherapy program with a goal of stabilizing and reconditioning the lumbosacral segment.

A WCB physiotherapy consultant, on June 20, 2016, anticipated that the worker would be capable of a return to full work duties in four weeks' time based on the findings outlined in the May 4, 2016 WCB call in examination notes.

In a memo to file dated August 8, 2016, the WCB case manager recorded that she spoke with the treating physiotherapist who reported that the worker's signs and symptoms had not resolved and that he was still experiencing back pain. The case manager approved treatment for 6 more sessions and anticipated that the worker would be able to return to work on August 23, 2016 to his full regular duties.

In a letter dated August 16, 2016, Compensation Services advised the worker that wage loss benefits would be paid to August 22, 2016 inclusive as it was felt that he would be capable of returning to his full regular duties following the completion of his reconditioning program.

File records show that the worker did not return to work on August 23, 2016 and the employer was not able to provide him with his pre-injury position as the company had changed ownership. The worker advised the WCB that he continued to look for work but was unable to secure employment.

On December 14, 2016 a WCB medical advisor reviewed the file and stated, in part:

From an objective stand point, including structurally based range of motion, neurological integrity, and repeat MRI testing, there is no material objective medical finding to account for the worker's current low back presentation in regard to the workplace injury from 2015, with his presentation mostly based upon subjective complaints and again, decreased tolerance to low back based movements and activities.

Based on the WCB medical opinion outlined on December 14, 2016, Compensation Services wrote the worker on January 13, 2017 to advise that the WCB was unable to support that he was incapable of returning to work on August 23, 2016 and that the medical information did not support a level of total disability related to the workplace injury. On January 16, 2017, the worker appealed the decision to Review Office.

On February 6, 2017, Review Office determined that the worker was not entitled to benefits beyond July 29, 2015.

Review Office concluded that the worker recovered to his pre-accident functioning with regards to the compensable injury by July 22, 2015. It did not accept the worker's varied, inconsistent and medically unexplained symptoms beyond this date. Though the orthopedic consultant recommended further physiotherapy on July 22, 2015 prior to a return to work, this was based on the worker's continued subjective complaints which were not accepted by Review Office given the numerous inconsistent findings on manual examination. Review Office found the worker's current health complaints were not related to his compensable accident and that he was not entitled to benefits beyond July 29, 2015.

On March 5, 2017, the worker appealed the 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 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. He is appealing the WCB decision that he is not entitled to benefits after July 29, 2015.

Worker's Position

The worker was represented by legal counsel.

The worker's representative provided copies of a medical report from the worker's family doctor which indicated that the worker is on some specific medications for pain control and has been suffering nerve issues and pain which prevent him from going back to work. She also provided a copy of a letter from the worker's chiropractor dated October 20, 2017 indicating that the worker was experiencing lower back pain radiating into the hamstrings and left foot. The letter included radiographs dated February 15, 2015.

The worker's counsel submitted that the medical notes make it more clear on an objective basis that the worker is still experiencing symptoms of his injury that are preventing him from returning to work, and that it’s not just subjective complaints of pain.

In reply to a question about his current condition, the worker replied:

When I first injured it, I couldn’t move, like, I was barely able to and I had a severe limp on my left side. Right now, I can’t really lean forward, I have constant, like it feels like something’s pinching me in my back pretty badly.

The worker advised that the pain is in his spine, and goes from the spine to the left side, all the way down to his foot. He acknowledged that "for the whole history from the beginning, I’ve had it all on the left side."

Since his benefits were terminated, he has been seeing a chiropractor. He could not identify the type of treatment but said that it hurts, but afterwards, it felt good. He agreed that the treatment was spinal manipulations. 

In response to a question about what treatment helped, the worker advised that physiotherapy worked well but that when he stopped receiving treatment his condition "…slowly starts reverting back."

Regarding the physiotherapy treatment and work hardening, the worker advised that:

By the time it ended, I would say I was 70, 80 percent ready to go back, and I tried to go back to work, but they said that there’s no positions for me there. And they would call me when the position would open back up. 

The worker acknowledged at the point that he completed the work hardening, around August 2016 that: 

I thought I was, I thought I was perfect, because I was pretty much back to, like, normal, pretty much.

The worker said that now his back is slowly getting worse. He acknowledged that he has not worked.

The worker's representative noted that: 

• worker has been attending regular appointments with the family doctor and the chiropractor, and experiencing ongoing symptoms 

• the symptoms started at the time of the accident, and have been ongoing since then, and that’s been consistent throughout the claim

Employer's Positon

The employer did not participate in the appeal.

Analysis

The issue before the panel was whether the worker is entitled to benefits after July 29, 2015.

For the worker's appeal of this matter to be approved the panel must find that the worker continued to sustain a loss of earning capacity and/or require medical aid after July 29, 2015, due to the 2015 workplace injury. The panel found that the worker sustained a loss of earning capacity and required medical aid benefits until August 22, 2016 as a result of the accident. The panel notes that this is the date that the worker's benefits were discontinued by the case manager. The worker has already received benefits up to that date but is not entitled to further benefits.

In determining that the worker's entitlement to benefits ended as of August 22, 2016, the panel relied upon: 

o Physiotherapy Discharge summary dated August 22, 2016 which indicated that:

Patient objectively demonstrated an ability to work within his job demands (no push, pull, lift > 50 lbs), but subjective complaint remain.

o the worker's evidence at the hearing that when he completed the work hardening program on August 22, 2016 he was "… perfect, because I was pretty much back to, like, normal…"

The panel notes that the worker's complaints have related to pain on his left side but that the March 31, 2016 MRI had only right sided findings. The panel also notes that a neurosurgeon commented on May 31, 2016 that:

The MRI does not provide any obvious radiological correlate (the protrusion is contralateral).

In addition, the panel notes that a bone scan taken on July 6, 2015 provided the impression of "normal bone scan of the lumbosacral spine and pelvis."

In conclusion, the panel finds, on a balance of probabilities that the worker had recovered from the workplace accident by August 22, 2016.

The panel has approved benefits until August 22, 2016, but as the worker has already been paid to this date, no further benefits are payable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2017

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