Decision #63/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after May 14, 2018. A hearing was held on April 17, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after May 14, 2018.
The worker is not entitled to wage loss and medical aid benefits after May 14, 2018.
On September 20, 2017, the worker, a carpenter, reported to the WCB that he injured his lower middle back at work on September 17, 2017, when he "…attempted to pull the bush hammer up and over the cable tray…" and the bit got caught on the tray forcing him "to complete a twisted/jerking motion to hoist the bush hammer over the elevated cable tray."
The worker attended for an initial appointment with a physician on September 18, 2017. He reported to the physician that when he was jack hammering, he lifted a weight and felt pain in his back. The physician noted subjective complaints of "pain in lower back with radiation to rt (right) buttock" and diagnosed the worker with a musculoskeletal backache. It was recommended that the worker rest for two days. The WCB advised the worker on October 2, 2017 that his claim was accepted.
In a Physiotherapy Initial Assessment report dated October 12, 2017, the physiotherapist noted the worker's subjective complaints of low back pain with radiating symptoms down his right leg past the knee. The physiotherapist diagnosed a suspected L5-S1 disc bulge and recommended light duties of no lifting, bending or twisting for one to two weeks.
At a follow-up appointment with a physician on October 17, 2017, the worker reported that his back pain had improved but that the pain is "radiating down his leg into his foot with occasional foot numbness." The physician diagnosed the worker with right sciatic low back pain and recommended he continue with modified duties for a further two weeks.
On October 26, 2017, the employer advised the WCB that the worker had been suspended from his job duties due to a non-WCB related issue. The WCB advised the worker that, due to his suspension from his job duties, he was not entitled to wage loss benefits after October 24, 2017. The worker requested reconsideration of this decision to Review Office on November 9, 2017. On January 19, 2018, after speaking to the worker, the employer and a medical facility, Review Office determined the worker was entitled to wage loss benefits after October 24, 2017.
The worker continued to seek medical treatment including appointments with his family physician on December 14, 2017, January 10, 2018 and February 7, 2018 when an MRI was requested as the worker's back pain was not improving. The worker attended for physiotherapy treatments on January 16, 2018, where restrictions of avoiding bending, lifting from low heights and twisting were recommended and a follow-up appointment on February 13, 2018 was scheduled. The worker's claim was reviewed by a WCB medical advisor on March 15, 2018. The WCB medical advisor opined that the worker's diagnosis was right lumbar radiculopathy, which resolves gradually over a period of a few weeks to months. The WCB medical advisor recommended restrictions, to be reviewed after four weeks, of:
• Avoid repetitive or sustained bent, flexed or stooped postures
• Avoid heavy lifting or push/pull greater than 10 pounds
• Allow opportunity to change position and stretch as required
The employer was advised of the worker's temporary restrictions on April 4, 2018.
The worker's MRI study, conducted on March 23, 2018, indicating "No evidence of significant degenerative change. No evidence for significant spinal canal stenosis, significant neural foraminal narrowing, or nerve root impingement" was reviewed by the WCB medical advisor on April 24, 2018. The WCB medical advisor opined there was no MRI/radiologic correlate for the reported right leg symptoms and any need for restrictions at that point, seven months post reported injury, "would be based only on reported symptoms and perceived functional limitations."
On May 7, 2018, the worker was advised that the WCB had determined he no longer required restrictions for his compensable injury and as such, the WCB would not accept responsibility for any further benefits after May 14, 2018.
The worker requested reconsideration of the WCB's decision to Review Office on July 19, 2018. The worker advised that he was still being treated for his workplace injury and the medication provided by his healthcare providers restricted his ability to drive and he felt dizzy and unable to perform his job duties. He felt that as a result of the pain from his injury and the effects of his medications, he could only perform his job duties with restrictions and should be entitled to wage loss benefits. The worker provided additional medical evidence on August 23, 2018 and September 4, 2018. Review Office requested further information from the worker's treating physician on October 4, 2018, which was received on October 11, 2018.
Review Office determined, on October 12, 2018, that the worker was not entitled to wage loss or medical aid benefits beyond May 14, 2018. Review Office found that the medical evidence on the file did not support that the worker continued to suffer the effects of the workplace injury. The worker complained of low back pain radiating down his right buttock and leg but the MRI study did not support these symptoms. Review Office noted that the clinical findings from February 2018 found that the worker had full range of motion, pain with flexion and negative straight leg raise tests and did not support that the worker was unable to work due to nerve damage resulting from the workplace injury. As such, Review Office concluded that the worker did not have a loss of earning capacity or require medical aid related to the workplace injury after May 14, 2018.
The worker filed an appeal with the Appeal Commission on November 6, 2018. An oral hearing was scheduled that took place on April 17, 2019.
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.
Payment of wage loss benefits
4(2) 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.
Provision of medical aid
27(1) The board 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.
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years.
Policy 44.40.10 Evidence of Disability
Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition
The Worker's Position
The worker participated in the hearing via video-conference.
The worker provided an oral presentation to the panel and answered questions from the panel.
The worker explained to the panel what had occurred regarding his WCB claim. It was his understanding that benefits were discontinued in May, 2018 because, "…they stated that my injury should be just healed by now."
It is the worker's assertion that his work related injury had not healed and that he remains injured at the date of the hearing. The worker advised the panel that his injury related restrictions on lifting, as well as his ongoing prescription for pain management medication, prohibit him from obtaining employment in his trade as a carpenter.
The worker stated,
…I have my doctors saying that I, like, I’m still getting treated for this illness that happened at work. I don’t understand how they can just say I’m better, like, it makes no sense to me.
It is the panel's understanding that the worker was requesting reinstatement of wage loss and medical aid benefits from when they were discontinued by the WCB in May, 2018 as the worker had not recovered from his compensable injury at that time.
The Employer's Position
The employer did not participate in the appeal hearing.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after May 14, 2018. For the reasons outlined in this decision, it is the panel's finding that the worker is not entitled to wage loss and medical aid benefits after May 14, 2018.
As noted previously, the worker had an accepted WCB claim for an injury he sustained on September 17, 2017.
Wage loss benefits were discontinued by the WCB effective May 14, 2018, as it was determined that the worker no longer required workplace restrictions in relation to his claim and that he had recovered from his lower back injury of September 17, 2017.
In response to questions from the panel, the worker stated that he has ongoing pain that shoots down to his foot and is aggravated when he exerts himself or bends his back. He described the pain as being like "pins and needles" and further that the level of pain has remained the same as it was on the date of the injury. The worker stated that the pain is no better and no worse than when the injury occurred. When the worker was asked as to whether he had had any conversations with his caregivers as to the cause of his ongoing pain, he stated "They think, like, there’s something impaling one of my nerves in my back, that’s what I was told for the longest time." The worker also confirmed to the panel that he has never been referred to an orthopedic surgeon for an assessment of his ongoing back problems.
The panel notes that, at the time that the WCB made the determination to discontinue wage loss benefits, there were a number of medical reports on file relevant to that decision. Specifically:
• A March 15, 2018 opinion from a WCB medical advisor which states, in part:
While the initially reported diagnosis (Sept 18 2017 report) was of MSK backache, subsequent reports note right leg symptoms suggestive of lumbar radiculopathy (Oct 3 2017 report noted inability to walk on toes indicative of S1 weakness, and Oct 17 1017 (sic) report indicated a diagnosis of right sciatica (aka radiculopathy). There have been persistent reports of right leg symptoms and the most recent report from the a/p (Feb 7 2018) notes persistent numbness and tingling at the right foot and describes a positive straight leg raise test. It seems that right lumbar radiculopathy developed in relation to the reported workplace incident.
The WCB medical consultant at that time suggested that most cases of radiculopathy resolve gradually over a period of weeks to months and suggested temporary workplace restrictions.
• An MRI was performed on March 23, 2018. It noted, in part, the following:
… L2/L3: There is a mild diffuse annular disc bulge present. Spinal canal caliber is within limits. Neural foramina are present.
No evidence of significant degenerative change. No evidence for significant spinal canal stenosis, significant neural foraminal narrowing, or nerve root impingement.
• An April 23, 2018 medical opinion from the WCB medical advisor which states, in part:
1) Interestingly, there is no MRI/radiologic correlate for the reported right leg symptoms aka radiculopathy. In the absence of a structural abnormality it is more difficult to account for the reported (A/p's Nov 15 2017 report, Jan 22 108 (sic) chiro report) diagnosis of radiculopathy. In view of the unremarkable MRI findings, a diagnosis beyond non-specific low back pain is not currently apparent…
2) The MRI results are reassuring. Based on the MRI findings, a structural abnormality on which to base placing restrictions is not apparent. Any need for restrictions at this point now seven months post reported injury would be based only on reported symptoms and perceived functional limitations.
The panel also notes that there are medical notes on file from two physicians which appear to be dated May 28, 2018 and August 30, 2018 that suggest the worker should remain on light duties. The reason provided on both documents is because of "…medical reasons." The attending physicians did not provide any clinical foundation for the restrictions or clarification as to how the restrictions would be related to the worker's compensable injury. As a result, the panel places little weight on these notes.
The panel acknowledges that there was an annular disc bulge identified at L2/L3 on the worker's March 23, 2018 MRI. However, there is no nerve root impingement identified on the MRI or clinical correlation of nerve root impingement within the L2-3 distribution area, which the panel understands could cause pain/tingling into the front of the thigh and shin area of the affected leg.
The worker's position is that he continues to experience ongoing back problems and he has never recovered from his September 17, 2017 workplace injury. However, the panel cannot identify any clinical evidence that provides an explanation or identifies a cause for his continuing back problems, or relates those back problems to his 2017 work place injury, which, at the time of the hearing, occurred 19 months previously.
After carefully considering all the evidence available, the panel's decision is that, based on the balance of probabilities, the worker's claim for wage loss and medical aid benefits after May 14, 2018 is denied.
M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. Kernaghan - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of June, 2019