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 full wage loss benefits for the period April 11, 2018 to April 20, 2018 and that he is not entitled to wage loss benefits after April 20, 2018. A hearing was held on February 27, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits for the period April 11, 2018 to April 20, 2018; and

Whether or not the worker is entitled to wage loss benefits after April 20, 2018.

Decision

The worker is not entitled to full wage loss benefits for the period April 11, 2018 to April 20, 2018; and

The worker is not entitled to wage loss benefits after April 20, 2018.

Background

The worker reported injuring his lower and middle back in a workplace accident that occurred on October 16, 2017, which was reported to his employer the same day. On his Worker Incident Report received by the WCB on October 24, 2017, the worker described the incident as:

I was filling up a drywall cart with heavy gauge 6 inch track and I had to roll it into the building and was trying to lift it up the stair to get into the building. Was just one step about 4 - 5 inches. Trying to lift it up and in that one step and hurt my back. Felt a pull and heat in my back.

The worker attended for medical treatment at his family physician's office on October 16, 2017. He reported sudden onset of mid and low back pain after lifting a heavy object. The physician diagnosed the worker with "Mechanical Back pain/strain, non-radicular", referred him for physiotherapy and recommended he be off work.

On October 31, 2017, the worker attended for his initial treatment with the physiotherapist. The worker reported left sacroiliac pain that travels up the left side of his thoracic spine and across the L5-S1 area and that the pain is worse with prolonged sitting, standing, bending and when he gets up from a seated position. The physiotherapist diagnosed the worker with a left sacroiliac sprain.

At a follow-up appointment with his family physician on November 9, 2017, the worker was diagnosed with right cervical radiculopathy in addition to the earlier diagnosis of mechanical back pain/strain. At the worker's following appointment on November 20, 2017, noting an improvement in the worker's reported lower and upper back complaints, the worker's physician recommended that the worker could return to work with restrictions of sedentary duties, no lifting/pushing/pulling, with the freedom to sit or stand when needed. On November 30, 2017, the employer advised the WCB that they were unable to accommodate the worker's restrictions.

The worker attended a call-in examination with a WCB sports medicine advisor on January 5, 2018. The WCB sports medicine advisor opined that the worker's presentation was consistent with "non-specific low back pain", which was medically accounted for in relation to his workplace accident. It was noted that the worker's therapy program should be increased to include lifting, core stabilization and to introduce free weights as these activities would increase the worker's functional activity, physically and psychologically. The restrictions recommended by the WCB sports medicine specialist were: no repetitive resisted flexion, extension and rotation of the lumbar spine; no heavy lifting greater than 25 pounds from floor to waist; and positional changes every 15 minutes. These restrictions were to be reviewed after one month and after the worker had participated in an aggressive function-based therapy program. The employer was advised of the worker's restrictions on January 8, 2018 but advised the WCB on January 9, 2018 that they could not accommodate those restrictions.

On February 22, 2018, the worker's file was reviewed by a WCB sports medicine consultant. The WCB sports medicine consultant noted the "Worker's presentation in terms of level of length of symptoms and overall activity intolerance is somewhat atypical for non-specific low back pain, as the diagnosis is not usually on the basis of structural change or damage." The WCB sports medicine consultant recommended workplace restrictions, to be in place for six to eight weeks, of:

Avoid lifting greater than 20-25 lbs. 

Avoid repetitive low back movements 

Avoid pronged (sic) continuous sitting and standing.

A further review of the worker's file by a WCB medical advisor was conducted on March 2, 2018. The WCB medical advisor noted that the worker's diagnosis was non-specific low back pain arising from a strain injury and that the treatment received by the worker since the date of the workplace accident had not been effective in the worker's recovery. A recommendation was made for the worker to attend a "focused strengthening program with physiotherapists at a different facility with aim of optimizing core/spinal strength, mobility and function."

The worker attended for an initial assessment for the reconditioning program with a physiotherapist on March 21, 2018. In a letter to the WCB on March 23, 2018, the physiotherapist confirmed that the worker would start the reconditioning program on March 26, 2018 and it would end on April 20, 2018.

On April 5, 2018, the employer contacted the worker to advise that there were modified job duties, within his restrictions, available for him beginning on April 9, 2018. The employer advised the WCB on April 10, 2018 that the worker did not return to work on April 9, 2018. On April 11, 2018, the WCB advised the worker of his responsibilities to mitigate his claim. The worker's case manager advised the worker that his employer had offered him appropriate modified duties, within his restrictions, but as he has chosen not to participate, his claim would be reviewed on his next payment date.

The physiotherapist provided a two week update of the worker's progress to the WCB on April 12, 2018. The physiotherapist provided updated restrictions for the worker of no lifting greater than 30 pounds, allowing frequent position changes, avoiding negotiating the stairs and avoiding frequent or repetitive bending and lifting. The employer was advised of the updated restrictions.

The WCB extended the worker's reconditioning program for two weeks on April 13, 2018, to prepare the worker for a full return to work. On April 20, 2018, the worker advised the WCB that despite the employer advising him that there was work available for him, he stated that his "back is especially sore" after he attends the reconditioning program. WCB advised the worker on April 23, 2018 that he would not be receiving any further wage loss benefits if he was not participating in the modified duties offered by his employer and it was expected that he would return to his regular job duties on May 7, 2018. He advised the WCB that he was unable to work as he was in too much pain. The physiotherapist advised the WCB on April 26, 2018 that the worker was no longer attending for treatment. The worker had not shown up for the previous two appointments and declined an offer to reschedule one of the appointments.

On May 17, 2018, the worker attended for a call-in examination with a WCB medical advisor. The WCB medical advisor confirmed the worker's initial diagnosis as "non-specific, non-radicular low back pain" and current diagnosis as a "non-specific low back pain and non-specific right upper thigh pain." The WCB medical advisor opined:

The natural history for recovery from mechanical low back pain with a strain-type mechanism as was experienced by [the worker] on October 16, 2017, would typically occur over the course of four to eight weeks with slightly longer durations known in the presence of significant pre-existing conditions.

The features of [the worker's] reported low back pain described above that are not accounted for pathoanatomically in combination with the findings of today's call-in examination that are not accounted for pathoanatomically would not support that [the worker's] current low back symptoms are accounted for on the basis of the October 16, 2017, workplace accident.

[The worker's] reported right proximal lower limb pain has features that are not accounted for pathoanatomically and began one to two weeks after the October 16, 2017, workplace incident. As such, it is unlikely that [the worker's] right "hip"/right lower limb symptoms are accounted for on the basis of the aforementioned compensable injury.

The WCB advised the worker on May 24, 2018 that no further responsibility would be accepted for his claim as it had been determined he had recovered from his compensable injury.

On July 5, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker disagreed with the WCB's decision to end his wage loss benefits as he felt that he remained unable to work due to pain.

Review Office determined on July 12, 2018 that the worker was entitled to full wage loss benefits for April 9, 2018 and April 10, 2018, partial wage loss benefits from April 11, 2018 to April 20, 2018 but was not entitled to wage loss benefits after April 20, 2018. Review Office found that the WCB did not discuss details of the return to work plan with the worker until April 10, 2018 and as such, April 11, 2018 would have been an appropriate start date for the return to work plan and the worker was entitled to full wage loss benefits for April 9, 2018 and April 10, 2018. Review Office considered the worker's accepted diagnosis of a back strain and the restrictions that were in place and concluded that the modified job duties offered by the employer were appropriate. Review Office further found that the worker was entitled to partial wage loss benefits for April 11, 2018 to April 20, 2018 being the amount the worker would have earned had he participated in the modified job duties offered by the employer. Review Office determined the worker stopped attending the reconditioning program on April 20, 2018 and accordingly, was not entitled to wage loss benefits after that date.

The worker filed an appeal with the Appeal Commission on September 26, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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: Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. 

"Accident" is defined in subsection 1(1) of the Act, which provides as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured;

Subsection 4(2) provides: Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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.

Section 22 states:

22(1) Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

Section 37 provides: Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2) provides: Subject to subsection (3), wage loss benefits are payable until the loss of earning capacity ends.

The WCB Board of Directors enacted WCB Policy 43.20.25, Return to Work with the Accident Employer. The policy purpose states: When a worker is injured or becomes ill at work, the goal of the WCB is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

Under the Act, some employers are required to offer to re-employ injured and ill workers. The WCB will provide assistance to all employers, whether or not they are required to offer re-employment, to help them return an injured or ill worker to work.

This policy outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. It also provides guidance and interpretation of the re-employment obligations outlined in section 49.3 of the Act.

Policy 44.10.30.60 refers to Section 22 of the Act which imposes an obligation on workers to participate cooperatively in their recovery and safe return to work. This policy elaborates on the responsibilities of both workers and the WCB in ensuring compliance with section 22 of the Act.

Worker's Position

The worker is appealing the Review Office decision respecting entitlement to full wage loss benefits from April 11, 2018 to April 20, 2018 and to wage loss benefits after April 20, 2018. The worker was self-represented at a hearing before an Appeal Commission panel on February 27, 2019 where he responded to questions from the panel members.

The worker's position was that he hurt his back at work on October 16, 2017 when he tried to lift a heavy cart up one step. He felt a pull and heat in his back. Efforts to strengthen and treat the injury through exercise and physio therapy were unsuccessful due to pain symptoms. The worker complained of pain in both the right hip, leg and lower back areas of his body.

The worker self-managed pain issues and refused to attend to modified duties presented by the employer citing high levels of discomfort and pain. The worker presented MRI evidence of bilateral spondylolysis as a possible source of his pain.

Employer's Position

The employer was represented by an advocate who provided details of the modified duties offered to the worker. The employer's representative acknowledged that a workplace incident occurred, and that the worker injured himself as a result of lifting a heavy cart on October 16, 2017.

The representative confirmed that the worker did not attend the workplace to take on the modified sedentary duties set aside for this employee and as such maintains that the appeal should be denied.

Analysis

The worker is seeking full wage loss benefits for the period April 11 to April 20, 2018 and wage loss benefits after April 20, 2018. For the appeal to be accepted, the panel must find, on a balance of probabilities, that ongoing pain symptoms could be attributed to the workplace incident that resulted in an injury. In addition, the panel must find that the worker was unable to return to work to perform modified sedentary duties. The panel was unable to find the worker’s ongoing difficulties in April 2018 were causally related to the worker’s original sprain/strain injury to his lower back. The panel finds that the worker was cleared to return to work on a restricted sedentary activity role.

In arriving at this conclusion, the panel placed weight on the following evidence:

• Doctor report from November 20, 2017 stated the worker was able to return to work with restrictions of sedentary duties. Subsequent medical and therapist reports support this opinion. 

• Prescribed physiotherapy regimen was abandoned prematurely by the worker and medication to treat pain/swelling was refused. These were construed as self-limiting behaviors. 

• Delayed onset and reporting of hip pain are not congruent with workplace injury. First mention of hip problem December 4, 2017. (49 days post injury) 

• Medical examination by a WCB medical consultant encountered multiple areas of extreme sensitivity and pain that were not pathoanatomically accounted for. The right hip and lower limb symptoms are not able to be accounted for in relation to the compensable injury. 

• The natural history for recovery from mechanical low back pain with a strain-type mechanism would typically occur over a four to eight-week period in the absence of significant pre-existing conditions. 

• MRI from August 24, 2018 did not provide sufficient evidence of an injury attributable to the October 16, 2017 workplace incident. Bilateral spondylolysis is typically viewed as a congenital condition.

The panel was unable to reconcile the ongoing symptoms with the original workplace injury, on a balance of probabilities. The worker is not entitled to full wage loss benefits for the period April 11, 2018 to April 20, 2018 and is not entitled to wage loss benefits after April 20, 2018. The worker’s appeal is denied.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2019