The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after October 20, 2016. A hearing was held on November 27, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after October 20, 2016.

Decision

That the worker is entitled to wage loss benefits after October 20, 2016.

Background

This claim has been subject to a previous appeal before the Appeal Commission, and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision 63/16 dated May 3, 2016.

On December 27, 2013, the worker was involved in a motor vehicle accident in the course of his employment as a truck driver. Initial medical reports showed that the worker underwent medical treatment at two hospital facilities and was discharged on January 21, 2014. A CT scan dated March 27, 2014 showed compression fractures at T8, T9, T11, T12 and L1. The claim for compensation was accepted and benefits were paid accordingly.

The worker attended physiotherapy sessions and a four week reconditioning program starting on September 29, 2014, and was examined by a WCB medical advisor on December 15, 2014. The WCB medical advisor's report stated:

It would be expected that with gradually increasing his sitting, his tolerance will increase and he should be able to return to his full time regular duties. Since he has already had a reconditioning program, he would not require a graduated return to work; however, he should be allowed frequent stretching breaks initially until he can tolerate the full time sitting. It is expected that this would occur over about four weeks.

By letter dated January 21, 2015, the WCB advised the employer that the worker could return to full, regular duties, with a four week temporary restriction of frequent stretching breaks. On February 3, 2015, the WCB advised the worker that his employer had indicated they did not have a truck for him to drive and did not have work for him. The WCB further advised the worker that he was not considered to be competitively disadvantaged due to his workplace injury and was not entitled to wage loss benefits after January 30, 2015. On March 2, 2015, the worker requested reconsideration of the WCB's decision by Review Office.

On April 15, 2015, Review Office determined that the worker had a loss of earning capacity beyond January 30, 2015 as he continued to suffer from the effects of his compensable injury beyond that date. Review Office stated that the worker had a restriction imposed on him when he was advised that he could return to work. The file evidence did not show if a return to work with the restriction of taking frequent breaks would be feasible for him, as the time to complete a run could be extended and there was the potential of him not meeting his employment obligation. Since the employer was not able to accommodate him with a modified position, the worker had a loss of earning capacity related to the compensable injury and was entitled to wage loss benefits to February 27, 2015.

The worker appealed the Review Office decision to the Appeal Commission, and on May 3, 2016, the Appeal Commission determined that the worker was entitled to wage loss benefits after February 27, 2015.

On June 23, 2016, Compensation Services advised the worker that based on a review of medical information to date, there was no indication that the worker continued to have a loss of earning capacity with respect to his compensable injury and that he was therefore not entitled to benefits beyond March 31, 2015.

On August 10, 2016, Review Office determined that the worker was entitled to wage loss benefits beyond March 31, 2015. Review Office noted that decisions as to when a worker's loss of earnings ended, in order to discontinue wage loss benefits, are typically made based on available medical information and in gathering information from the worker. Review Office found that there was not sufficient medical information on the file to determine that the worker had recovered from the workplace accident.

On August 16, 2016, in response to questions posed by Healthcare Services, a WCB medical advisor stated that a functional capacity evaluation ("FCE") would be appropriate to assess the worker's capacity for activity.

An FCE was arranged for August 31, 2016. The worker attended the FCE but was unable to complete it due to reported back pain. The FCE was therefore stopped.

The WCB medical advisor reviewed the claim file on September 22, 2016. On October 14, 2016, the WCB advised the worker that he was entitled to wage loss benefits to June 16, 2015 based on a return to work plan as outlined by the WCB medical advisor. The worker appealed the WCB decision to Review Office on October 24, 2016.

On December 12, 2016, Review Office determined that the worker was entitled to wage loss benefits to October 20, 2016. In arriving at its determination, Review Office relied on the WCB medical advisor's report dated September 22, 2016, which stated, in part:

As per the Appeal Commission decision, any symptoms, findings, or limitations related to the permanent realignment of the thoracic spine from the compression fractures would be related to the C/I [compensable injury].

The doctor's chart notes have been reviewed and there is no specific mention of mid back pain, only low back pain and symptoms to the leg (this was not accepted by the Appeal Commission as related to the C/I). There has been mention of tenderness to the T [thoracic] spine but that is a nonspecific finding, not confirmation that there is any clinical significance to the spine realignment mentioned by the Appeal Commission.

… 

In terms of work abilities in relation to the C/I, these are discussed in the call in notes of December 2014. Nothing has change (sic) in that regard, other than determining that his impaired tolerance for sitting is more likely related to his lumbar issues (not C/I as per Appeal Commission). He has now been off work and more deconditioned. This will lead to more pain.

The cycle will only end when he increases his activity and gets back to work. This should be done on a gradual basis. Since the spinal realignment is not expected to limit his activity, there would be no need for workplace restrictions.

Based on the WCB medical advisor's comments, Review Office found that there was a material change in the worker's work abilities and that he was able to return to work in relation to the workplace accident. The worker was advised of the decision on October 14, 2016, and as the WCB typically provided the worker with seven days' notice of a change in benefits due to a discretionary decision, Review Office found that he was entitled to wage loss benefits to October 20, 2016.

On March 13, 2017, 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 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.

Under subsection 4(2), 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.

Worker's Position

The worker was assisted on his appeal by legal counsel, who made an oral submission on his behalf. The worker responded to questions from the panel.

The worker's position was that he is unable to return to work as a result of ongoing medical and lifestyle issues which are related to his workplace accident, and is therefore entitled to an extension of his wage loss benefits.

Counsel challenged the Appeal Commission's May 3, 2016 decision and its finding that the worker's low back pain was not related to his compensable injury, noting that this was a major part of their appeal. When it was put to counsel that the Appeal Commission was bound by that earlier decision, he suggested that the Commission could rely on new evidence or put different weight on existing information which was perhaps overlooked or not appreciated before, and noted that the worker has to be treated fairly.

Counsel submitted that a report from a consulting orthopedic surgeon dated February 14, 2017 contained new evidence which contradicted the Appeal Commission findings. Counsel noted that the writer of the report was a well-respected and experienced orthopedic surgeon, and asked that the Commission put considerable weight on that report.

Counsel noted that the worker did not have back pain and or any problem sitting or standing for long periods of time prior to the accident. In their view, it was significant that the accident was very violent; the worker was ejected from the truck, and suffered severe injuries.

Counsel submitted that it was also very significant that the treating physiotherapist said that he could not reproduce the sitting activity which was required in the worker's job as a long distance trucker. Counsel noted that the worker could not sit for longer than about one hour at a time, and submitted that it was not reasonable to expect him to return to work when it was impossible for him to do 12 hours of anything, whether sitting, standing or driving.

Counsel took the position that the worker's whole structure is deteriorating functionally. He noted that the WCB has to take the worker as they find him. It was submitted that pre-existing degenerative changes are likely playing a significant role in the worker's described mobility deficits. Counsel noted that medical information indicated that the worker's disc spaces are collapsing and referred to the consulting orthopedic surgeon's comments that "further x-rays today confirm further collapse of the disc spaces which would indicate this is an active process which certainly could have been initiated by his original accident."

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 October 20, 2016. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after October 20, 2016 as a result of his December 27, 2013 workplace accident. The panel is able to make that finding, for the reasons that follow.

The panel notes at the outset that the worker's legal counsel has challenged the Appeal Commission's decision of May 3, 2016 and its finding that the worker's low back pain was not related to his compensable injury. The panel notes that while section 60.10 of the Act provides for a reconsideration of a decision of the Appeal Commission, no application for reconsideration has been made. Subsection 60.10(4) specifically provides that "Except as provided in this section, the appeal commission shall not reconsider any matter or rescind, alter or amend any decision or order previously made by it, or make any further or supplementary order." As previously indicated, the panel is therefore bound by the May 3, 2016 Appeal Commission decision.

Based on our review of the information before us, the panel is not satisfied, on a balance of probabilities, that the worker has recovered from the effects of his compensable injury.

The panel notes that following the Appeal Commission's May 3, 2016 decision, the WCB determined that an FCE would be appropriate to determine the worker's capacity for activity. While the worker attended the FCE which was scheduled for this purpose, the FCE Report on file indicates that after attempting certain activities, he was asked if he wanted to continue and declined to do so, noting pain in his back. The FCE was therefore stopped.

The FCE Report states that the worker had indicated when he arrived that he was having symptoms from his four-hour drive into Winnipeg, and had reported his pain symptoms to be 8.5-9/10. The worker confirmed at the hearing that he had driven several hours that morning to get to Winnipeg for the FCE, and that he told the person who was doing the FCE that he was in a lot of pain.

The panel finds that the worker arrived at the hearing in a heightened state of discomfort and pain as a result of his four-hour drive into the city. File information and the worker's evidence at the previous Appeal Commission hearing, as referenced in the May 3, 2016 decision, had indicated that the worker could not sit for more than three to four hours a day, after which he would have to lie down to relieve the pain and was basically done for the day. The panel finds, on a balance of probabilities, that the worker's inability to do the FCE activities that day was due to his drive into the city and the pain he was experiencing as a result of that drive.

The panel notes that the FCE results were relied upon, in part, by the WCB medical advisor in her September 22, 2016 report, and ultimately in the decision to end the worker's wage loss benefits on October 20, 2016. The WCB medical advisor stated in her September 22 report, in part, that:

In order to determine the worker's capacity for activity, an FCE was attempted. It was not completed due to report of back pain. It is not concordant with this spinal realignment that one would not be able to participate in an FCE. He mentioned pain with pulling the dynamometer toward him. This would not be expected to cause pain from the spinal realignment so the presentation at the FCE cannot be medically accounted for in relation to the C/I.

As previously stated, the panel has found, however, that the worker's inability to do the FCE activities was due to his long drive into the city that morning, not his spinal realignment. The panel notes that no further FCE or investigation into the worker's capacity for activity was undertaken.

The panel is satisfied, based on the information which is before us, that the worker is not totally disabled or unable to work. The panel is unable to find, however, that there is sufficient evidence as to the extent to which the worker has recovered from the effects of his compensable injury, as identified in the May 3, 2016 Appeal Commission decision, and the worker's capacity for activity.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity after October 20, 2016, as a result of his December 27, 2013 workplace. The worker is therefore entitled to wage loss benefits after October 20, 2016.

The worker's appeal is allowed.

Panel Members

M.L. Harrison, Presiding Officer
M. Kernaghan, Commissioner
P. Challoner, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of January, 2018