Decision #90/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the duration of the worker's benefits is appropriate. A hearing was held on March 28, 2018 to consider the employer's appeal.
Whether or not the duration of the worker's benefits is appropriate.
The duration of the worker's benefits is not appropriate. The worker is entitled to benefits up to July 4, 2017.
In a Worker Incident Report filed with the WCB on October 17, 2016, the worker reported injuring his lower back on the right side in an incident he described as:
I was at the shear position cutting up scrap which goes into rail cars. There is a cable which has a hook on it and we have to pull out the cable and I lift up the hook and pull the cable forward. (it is heavy)
When I pulled and lifted the hook, I felt a pain in my lower back and it got worse. This happened about 3:30. By 5:00 it was really sore. I had to leave early when I reported this to my employer. I went to the hospital.
The Employer's Accident Report filed with the WCB on October 19, 2016 noted the worker's report of the incident as:
I was working at shear 3 as the shaker man. I was pulling the cable out to hook onto the next car and I felt a sharp pain to my lower back on the right side and down my leg. I reported to the supervisor, was given an FAF and sent to the hospital in a taxi.
The worker was seen at the emergency room of the hospital on October 14, 2016 and diagnosed with lower back pain. A Functional Assessment Form completed for the worker on October 14, 2016, noted that he was unfit for any work at that time.
On October 20, 2016, the worker attended for his first appointment with the physiotherapist. The worker's description of the injury to the physiotherapist was, "Bent down to lift heavy cable and hook twisted to his left felt pain in low back." The physiotherapist diagnosed the worker with "Discogenic low back pain, limited assessment due to severity/acute symptoms."
The worker attended an initial appointment with his family doctor on October 21, 2016. The worker's doctor diagnosed acute back pain, sciatica and right hip pain and referred the worker for a right hip x-ray and a lumbar spine x-ray. At a follow-up appointment with his doctor on October 25, 2016, after a review of the x-rays, the worker's doctor completed a further Functional Assessment Form noting the worker was unfit for any work for four weeks at which time he would be reassessed and referred the worker for an MRI. Additional follow-up appointments with the worker's doctor were attended and Functional Assessment Forms completed on December 16, 2016 and January 20, 2017, provided that the worker was unfit for any work until March 21, 2017.
The employer filed a request for reconsideration of the severity and duration of the worker's claim on January 26, 2017 to Review Office, with further information added to their request on March 17, 2017. The employer felt that the worker had a pre-existing back condition that was interfering with his recovery progress. The employer also felt that the worker's mechanism of injury did not seem consistent with the length of the worker's recovery.
On April 4, 2017, the worker had a further follow-up appointment with his family doctor where he was cleared to return to work, with modified duties, starting on April 10, 2017. The worker was cleared for four hour shifts, three days per week, for eight weeks.
The worker's representative submitted information on May 3, 2017 in response to the employer's request for reconsideration. The worker's representative disagreed with the employer's position regarding the duration of the worker's benefits. The worker's representative noted that a WCB medical advisor's opinion, based on a review of the worker's file on January 25, 2017, provided that the x-rays and MRIs conducted on the worker noted degenerative changes at his lower lumbar spine levels that are likely contributing to a delay in the worker's recovery. The WCB's pre-existing condition policy notes that if 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 a relationship between the two, the WCB will accept responsibility for the claim.
At the request of Review Office, a WCB medical advisor reviewed the worker's claim on June 1, 2017. The WCB medical advisor provided the opinion that the probably diagnosis of the worker's injury from the workplace accident was non-specific low back pain with right L4 or L5 radicular features and provided that there was submitted medical evidence of a pre-existing condition of the worker's lumbar spine. The WCB medical advisor provided recommended restrictions, to be reviewed in three months, of:
a) No prolonged sitting or standing postures without opportunity to move around
b) No heavy lifting or carrying
c) No heavy pushing and pulling
d) No repetitive kneeling, squatting or crawling
The WCB medical advisor's report was shared with all parties.
On June 19, 2017, Review Office upheld the WCB's decision that the worker's claim was acceptable and the duration of his benefits were appropriate at that point in time. Review Office accepted the WCB medical advisor's June 1, 2017 opinion that there was a need, at the time, for restrictions in relation to the worker's compensable injury, indicating that the worker was still dealing with symptoms from the workplace accident. In addition, Review Office noted the WCB's policy on pre-existing conditions and determined that the worker having a pre-existing condition or prior difficulties does not preclude an accident from being established or the worker being entitled to benefits.
The employer filed an application with the Appeal Commission on July 20, 2017. An oral hearing was held on March 28, 2018.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 17, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
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 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
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.
The employer was represented by its Occupational Health Nurse and a co-worker. The employer has appealed the Review Office decision that the duration of the worker's benefits was appropriate.
The employer representative advised that the worker was hired April 2015. In October 2016, he had a workplace injury. She advised that he was pulling a fairly heavy cable, approximately 50 pounds of force. He was working at the time as a shaker man, he felt sharp pain in his lower back, and was sent to the local hospital. He returned with restrictions. He worked for a few days.
The representative advised that she went to check on him, and he seemed to be in severe pain, and his gait was leaning to the right. She said that she advised him to leave work and get a further medical assessment. She said that he stopped working and saw his physician, who took him off work.
She noted that on October 21, 2016, he had an x-ray of the lumbosacral spine. In December 2016, he had a CT, which revealed some degenerative disc disease, L1 to L5 and L5 to S1, with a disc bulge. In February 2017 while still off work and he had a MRI, which showed osteoarthritis, L4 to L5, L5 to S1.
She noted that although the worker's advocate indicated that the worker had no prior back claims, the WCB confirmed that he had two prior back claims.
In May 2017, he returned to work but claimed that he exacerbated his back injury. She said he picked up something that weighed less than a pound while he was standing, and placed it in a bin. He claimed this exacerbated his injury.
She described the accident as:
He was lifting a hollow brass tube, the size of this pen, and moving it. His task was to stand and cut these small brass tubing with a saw, and place them in his bin and drop them, and he reported he injured himself.
The employer representative noted that the worker attended a specialist in October 26 2017 at a spine assessment clinic. The physician indicated that the worker's presentation in the examination was not accounted for medically.
She advised that the WCB ended the worker's claim as of November 9, 2017, and that the worker resigned his employment on November 14, 2017.
The employer representative advised that the employer is seeking to have the claim costs incurred after March 9, 2017 reimbursed based upon the March 9, 2017 letter from a specialist. She noted that the specialist found the worker's straight leg lift was negative for reproduction of lower leg symptoms.
In response to a question about when the worker's condition would have resolved, the employer noted that a WCB orthopedic specialist commented that recovery typically should occur within four months. She said the employer would say four to eight months based on the worker's claim.
In response to a request for information from the panel, the employer provided additional information after the oral hearing.
The worker did not participate in the hearing.
The employer is appealing the WCB decision that the worker was entitled to benefits until November 2017. The employer submitted that the worker was not entitled to benefits after March 9, 2017. For the employer's appeal to be approved, the panel must find that the worker's loss of earning capacity after March 9, 2017 was no longer due to the compensable injury.
The panel was unable to find that the worker's loss of earning capacity ended in March 2017 but finds that he worker's loss of earning capacity ended as of July 4, 2017 when he ceased working. The panel finds that the evidence supports that the worker continued to be disabled after March 9, 2017 but by July 4, 2017 when he ceased work, his loss of earning capacity was no longer due to the workplace accident. Accordingly the worker was not entitled to benefits after July 4, 2017.
The panel notes that on March 9, 2017 a physiotherapist reported that there were no neurological symptoms present. The physiotherapist noted, in part that:
This patient has no motor, sensory, reflex changes noted with objective exam. Imaging from February 2017 demonstrates a small focal left disc protrusion with annular tear at L5-S1 without nerve root compression and mild OA at L5-S1. There is no explanation for this report of right S1 radicular symptoms.
The panel also notes that the worker was examined by a WCB physiotherapy consultant on October 26, 2017. He opined that he worker's current diagnosis was non-specific, non-radicular low back pain. The worker's neurological exam was normal. The physiotherapy consultant opined that the worker's current symptoms were not medically accounted for in relation to the October 14, 2106 accident.
The panel accepts the June 1, 2017 opinion of WCB orthopedic consultant who reviewed the medical evidence, including the March 9, 2017 physiotherapy report. He opined that, in part:
1. The probable diagnosis of the workplace injury of October 14, 2016, was non-specific low back pain with right L4-L5 radicular features.
2. There is evidence of a pre-existing condition of the lumbar spine…
e). On 9-March-2017, the assessing physiotherapist noted that left lower limb pain (noted in [name] E.R. on 14-Oct-2016) had resolved but there was still some radiating pain in the right lower limb. In the absence of any motor defects, it would not have been possible to distinguish which nerve root would have been responsible, L4 or L5 or S1. Such persistent symptoms are considered to be continuation of the diagnosis of workplace injury, as in (1) above.
3. There is probably a combined effect of the workplace injury and the pre-existing lumbar pathology….
4. Currently recommended physical restrictions, to be reviewed in three months…
The panel notes the WCB orthopedic consultant was commenting on the March 9, 2017 physiotherapy report. The panel finds that the worker's injury had improved when he started a graduated return to work program in April 2017, where he participated in modified duties. By June 1, 2017 the three month period referenced by the orthopedic consultant had expired. The panel finds that worker had recovered by the date that the orthopedic consultant provided his opinion.
The panel notes the worker then stopped working on July 4, 2017, after what appears to be an innocuous event when the worker moved a very small item and placed it in a bin. The panel finds that this event was not a reoccurrence or exacerbation of the original injury. The worker's inability to work after that date cannot be related to the compensable injury. It finds that the worker had recovered from his workplace injury and that no further benefits were payable after this date. The worker's inability to work after this date, July 4, 2017, is not related to the workplace accident, on a balance of probabilities.
The employer's appeal is allowed in part.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of June, 2018