Decision #26/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after March 8, 2018. A hearing was held on January 15, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after March 8, 2018.
The worker is not entitled to wage loss benefits after March 8, 2018.
This claim has been subject to two previous appeals before the Appeal Commission, and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision Nos. 63/16 dated May 3, 2016 and 14/18 dated January 25, 2018.
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.
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.
The worker appealed the Review Office decision to the Appeal Commission, and on January 25, 2018, the Appeal Commission determined that the worker was entitled to wage loss benefits after October 20, 2016.
An FCE was arranged for the worker on February 23, 2018. The WCB orthopedic consultant who arranged the FCE was advised that the FCE was not completed by the WCB physiotherapy consultant as "It appeared that the FCE activity results would be incomplete and not able to be interpreted."
On February 27, 2018, the WCB orthopedic consultant wrote a memorandum to file noting:
Report of the FCE now on file. The hand strength vs position tests were invalid, in the absence of evidence of upper limb dysfunction.
Regarding attempted physical activities with respect to range of motion and strength lumbar spine, lower limbs, the claimant declined to proceed, because of apparent disabling level of pain.
Note that he informed the examiner that he had two hours' sleep the previous night, which does not agree with his statement at the call-in examination that he was in bed by 12:30 am and woke at 7:00 am.
Note that every effort was made by WCB Healthcare to provide the claimant with adequate rest in order to be able to undergo an FCE. Note also the emphasis placed upon his prior complaint to the Appeal Commission that he was unable to attempt an FCE because of pain and exhaustion from a prior long car journey. WCB made every effort to provide accommodation for adequate rest for the worker in compliance with the Appeal Commission comments in this regard.
Note that this assessment, if completed, could have provided information regarding the need for workplace restrictions. Failure to even attempt activities upon which a decision could have been made, raises doubts regarding mitigation. The worker's performance during the orthopaedic examination did not in my opinion confirm that he was unable to be involved in any of the FCE activities.
The WCB advised the worker on March 2, 2018, that he was entitled to wage loss benefits from October 21, 2016 to February 14, 2017 inclusive. He was advised that he was not entitled to wage loss benefits beyond February 14, 2017. The WCB noted that the WCB orthopedic consultant's opinion from the worker's February 23, 2018 call-in examination indicated that there was "no ongoing pathoanatomic or clinical diagnosis" which would prevent the worker from participating in workplace activities. It was noted that the February 14, 2017 opinion of the worker's treating orthopedic surgeon was "significantly similar" to the WCB orthopedic consultant's and as such, it was the opinion of the WCB that the worker no longer had a loss of earning capacity related to the workplace accident as of February 14, 2017.
The worker requested reconsideration of the WCB's decision to Review Office on April 23, 2018.
On May 2, 2018, Review Office determined, based on its discretionary powers under the Act, that the worker was entitled to benefits to March 8, 2018. Review Office found, after review of the medical evidence and on a balance of probabilities, that a loss of earning capacity in relation to the workplace accident was not supported. Review Office further found that the worker's reported functional limitations and symptoms complaints were not related to his workplace injury. Review Office noted that there had been significant delays for further medical investigations and decisions on the worker's file and determined that these were administrative delays in the adjudicative process that extended the duration of wage loss benefits payable to the worker.
The worker filed an appeal with the Appeal Commission on July 10, 2018. An oral hearing was arranged.
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.
The worker was injured in 2013. He is appealing the WCB decision that he is not eligible to wage loss benefits after March 8, 2018.
The worker was represented by his brother who made an oral presentation on the issue before the panel and answered questions from the panel. The worker answered questions from the panel.
The worker's representative reviewed the claim and advised that the diagnosis that was accepted as compensable was multiple compression fractures, multiple contusions to the right side of the body, neck, back and right knee.
The worker's representative referred to Appeal Commission Decision 14/18 that was signed January 25, 2018 which stated:
the panel was unable to find, however, that there was 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.
He noted that nothing has changed with regards to the compensable injury since the decision was made.
He said that the worker saw an orthopedic surgeon January 17, 2017, and provided a report dated February 14, 2017. He submitted that the orthopedic surgeon studied all the medical documentation since the incident occurred, and noted that the patient’s history of his back problem indicated that after discharge from the hospital, the patient had persistent and constant pain in spite of multiple attempts at treatment.
The worker's representative advised that currently, the worker cannot sit for more than an hour, drive for three hours, and has difficulty turning over in bed at night. He noted before his incident, the worker was a long-haul truck driver for 22 years and drove "…12, 13 hours a day, five, six, seven, 10 days in a row, hour after hour."
Regarding the worker's medical condition, the worker's representative referred to a February 14, 2017 medical report from the orthopedic surgeon who examined the worker on February 11, 2017. He noted the orthopedic surgeon advised:
• recent x-ray shows further collapse of the L5/S1 disc space, which would indicate progression of his disc injury.
• there is currently no restriction of his movement and the only restriction is on prolonged sitting.
• the prognosis for the patient is "probably not great."
• patient can probably be expected to do modified duties with a short stint of activity, alternating with sitting, standing or walking.
• if he ever returns for surgery, he will probably require a fusion and fixation of his disc that will leave him with approximately 15 percent permanent disability.
The worker's representative stated;
I would like to add that we agree that multiple doctors have indicated, in multiple reports, that he could return to the workforce. However, no doctor has ever indicated that this individual could sit for a period of 12 hours.
The worker's representative stated that it is their contention that nothing has changed to indicate that the worker could sit for more than a period of 12 hours, or return to work.
The worker's representative referred to the functional capacity evaluations of August 31, 2016 and February 23, 2018 which showed that the worker had pain symptoms of 8.5 - 9 out of 10 on the VAS pain scale. He noted that the evaluator reported that the worker was not able to complete either of the evaluations due to pain.
He also commented that the WCB physician who examined the worker noted that he appeared to be in significant to extreme pain, with facial expressions, postural and positional changes, especially from standing to seated and lying positions. The WCB physician also did not state that the worker can return to work for a period of sitting for 12 hours.
Regarding the opinions of the WCB physician and the orthopedic surgeon, the worker's representative stated that the orthopedic surgeon is a third party, totally independent physician, is not employed by the WCB, and should be given greater weight.
The worker's representative referred to the WCB's decision to terminate benefits on March 8th rather than February 23rd, the date of the examination by the WCB physician, and stated:
…by extending his claim to March 8th, two weeks past the examination date, that they are accepting that this compensable injury, even after examination by two orthopedic consultants, is still not healed to the point where he can return to work as a long-haul-distance truck driver.
The worker's representative stated that:
It’s also indisputable, from the MRIs, from the CAT scans, from the x-rays, that there is calcification and deterioration of the vertebrae occurring, it is not getting better.
He submitted that there has not been any offer of retraining or medical intervention to help relieve the worker's problem.
The worker's representative said that it is necessary to consider the mental health aspect of this claim. He said that arbitrarily cutting off the worker's benefits could lead to depression and anxiety. He said the worker is not exaggerating or faking.
The worker's representative submitted that if the panel agrees with the worker's appeal, he would propose yearly visits to the orthopedic specialist who is a third party independent physician.
In answer to questions from the panel, the worker advised that:
• he sees his physician every three months for a check-up.
• he has not received any referrals nor had any diagnostic tests recently.
• his condition remains the same.
• he has not looked for work.
In reply to a question, the worker provided an example of his usual daily activities:
Well, it starts at, wake up about 9:00, lay in bed until about 11:00-ish, get up, have a dinner. Then I usually, if it’s the summertime, I got a quad, I go for a drive to my cabin to maintain the grass that is there, split firewood. Usually do that for a couple hours in the day, then the pain, I have to go home, lay down. I’ll lay down from about 2:00 in the afternoon until about 5:00 when suppertime rolls around, have supper. Then after supper, I’ll go visit a neighbour for an hour or two, whatever, and have a visit with him, and that’s my day. Come home and some days, I could fall asleep by midnight.
The worker's representative advised that the worker relies on Appeal Commission Decision 14/18 in support of his appeal. He noted that in this decision the panel allowed the appeal because there was not sufficient evidence to say that the worker had recovered from the effects of his compensable injury. He said that this situation holds true today.
The worker's representative stated:
I think to be fair though, if you’re going to speak about the original decision, then it’s only fair to look at the last decision that … the panel was unable to find that there was sufficient evidence that he’s recovered from the compensable injury. So at that time, on January 25th, the panel believed that there was a compensable injury that was still occurring, still going on, and nothing has changed medically since that time that anybody has indicated that the compensable injury has, he recovered from it.
The employer was represented by its Office Manager who explained the employer's concerns about the claim. He advised that he is not at the hearing to dispute that the worker hurt his back in this accident and still has back issues.
He expressed concern that the reports don’t show that the worker has followed through and continued with recommendations. He said all the reports indicate that he gets to a certain point and quits. He questioned: Where does the onus of the patient start coming into play?
The employer representative disputed that the comments regarding long haul trucking. He said:
We come back to your long-haul truck drivers and 12 hours sitting, and all that, that's not the case. That's not the rules of how it plays out there, you're up and you're moving around as well.
The employer representative noted that the worker reported that chopping wood, mowing grass, pushing and shoveling snow caused pain. He suggested that the worker needs to participate in activities on a regular basis. He said that he accepts that the worker is not lying about his back, and is in pain. He said there must be a program that can help the worker get back in shape.
The issue before the panel was whether the worker is entitled to benefits after March 8, 2018.
For the worker's appeal to be allowed, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical assistance after March 8, 2018 as a result of his December 2013 workplace accident. The panel is not able to make this finding.
The panel notes that in his February 14, 2017 report, the worker's treating orthopedic surgeon noted that the worker:
…indicates most pain to be in the mid and lower lumbar area and there is no complaints of pain in the thoracic spine at all.
At the hearing, the worker also complained of lower back pain.
In addressing the issue of the worker's lower back pain, the panel finds that it is bound by Appeal Commission Decision 63/16. With respect to the worker's lower back, the decision provided, in part:
The panel would add, however, with respect to the more recent references to complaints of lumbar pain and radicular symptoms, that we are unable to find that these complaints form part of the claim. We note that such complaints were not present at the beginning of the claim, or consistent with a March 27, 2014 CT scan of the lumbar spine, which showed that the lumbar spine was relatively well-maintained. We note that a physiotherapist's report from April 15, 2014 further indicated with respect to the lumbar range of motion that there was "good flexion/extension." In the panel's view, the lack of any benefit from the recent caudal injection, the results of the January 16, 2016 MRI and the second treating physician's recommendation of conservative treatment are also significant in this regard.(underlining added)
The decision of the prior panel is binding on this panel. Given the above, the panel finds that it cannot address the worker's low back concerns as they have already been dealt with by the Appeal Commission and are not before the panel.
The panel notes that Decision 63/16 accepted responsibility for the worker's upper back problems. The panel further notes that that the worker's complaints related to his upper back were addressed by the worker's treating orthopedic surgeon. He examined the worker and noted that:
Therefore in summary the circumstances of his injury was that of a motor vehicle accident when he had a rollover accident in his semi. He was ejected from the vehicle and had a liver rupture from what I read from later reports, treated conservatively, as well as lung contusion. Mild compression fractures of T8 and T12 are noted and there is possible mention of higher fracture in the upper thoracic spine. The patient has not been able to return to work.
The nature of the injury is that of compression fractures which have completely healed in the interim time. [emphasis added]
This opinion indicates that worker has recovered from his upper back injuries. The panel accepts the findings of the orthopedic surgeon regarding the worker's upper back condition.
The panel also reviewed the opinion of the WCB medical advisor who examined the worker on February 23, 2018. The medical advisor examined the worker and made findings similar to those of the orthopedic surgeons regarding the worker's thoracic and lumbar spines. He noted the worker made no complaints regarding his thoracic spine but complained about his lumbar spine. As such, in accordance with this opinion, the panel finds, on a balance of probabilities, that the worker's upper back issues have resolved.
The worker's representative relied upon Appeal Commission Decision 14/18 which concluded that:
Based upon 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 worker's representative submitted that no new information has been provided upon which the panel can make a decision. The panel disagrees. It finds that the examination notes of the WCB medical advisor provide additional information which allows the panel to determine the issue on a balance of probabilities.
Given the above findings, the panel dismisses the worker's appeal.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of February, 2019