Decision #67/19 - 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 July 11, 2016. A hearing was held on April 16, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after July 11, 2016.
That the worker is not entitled to wage loss benefits after July 11, 2016.
On January 22, 2016, the worker, a truck driver, reported to the WCB that he injured his lower back and sides on January 17, 2016, in an incident which he described as follows:
I was doing the landing gear for the trailer. I needed it to go up and it was jammed. I put it in low gear and I used a lot of force to pull it up. I felt something in my back immediately but there was no pain. The pain started after midnight. Around 2 am I laid down for a sleep and I felt a lot of pain. I stopped for about 10 hours for sleep. The next day I felt pain on both sides and I continued my trip back to [location].
On January 20, 2016, the worker saw his family physician and reported "Acute low back pain while lifting landing gear of trailer." The treating physician noted the worker's subjective complaints of increased pain with walking, bending forward, lifting weight or sitting, and diagnosed the worker with an acute lumbar sprain. The worker returned to see his family physician the following day for completion of a Work Capacity Assessment Form. The physician recommended that the worker remain off work until January 31, 2016. The WCB accepted the worker's claim on January 27, 2016 and payment of wage loss and other benefits started.
The worker saw a chiropractor for an initial appointment on January 27, 2016. The chiropractor ordered an x-ray and diagnosed the worker with L5 Grade II spondylolisthesis. The worker saw a second chiropractor on February 8, 2016, who provided the same diagnosis.
On February 23, 2016, the worker's WCB case manager spoke with the worker's treating chiropractor regarding the worker returning to work. The treating chiropractor advised that he felt that without the lumbar brace which the WCB was asked to fund for the worker, the worker could not return to work "for a while." It was noted by the worker's chiropractor that the brace was needed to stabilize the worker's pre-existing condition.
On March 4, 2016, the WCB spoke with the worker's treating chiropractor regarding the worker's return to work capability, as the employer had advised they would like to accommodate the worker. The treating chiropractor advised that the worker could return to work on sedentary duties, Mondays, Wednesdays and Fridays for three hours per day, as long as he was able to sit and stand as needed. On March 8, 2016, the WCB confirmed with the employer that the worker would return to work on March 9, 2016 for three hours per day.
The employer contacted the WCB on March 9, 2016 to advise that the worker had decided he was unable to perform the modified duties the employer had arranged. The employer further advised that as the worker was to attend a call-in examination with the WCB on March 17, 2016, they were prepared to wait until after that date for return to work planning.
The worker attended the call-in examination with the WCB medical advisor on March 17, 2016. Following that examination, the WCB medical advisor opined that the worker's current diagnosis "…appears to be nonspecific and non-radicular low back pain." When asked if the medical evidence supported the worker being totally disabled from work, the WCB medical advisor stated: "The degree of disability is difficult to assess on today's examination. Again, both pain behaviours and difficulty with cooperation interfered with an accurate clinical assessment in this regard." The WCB medical advisor further opined that "The claimant needs to be more mobile and active. It appears that he is not doing any exercises nor any active ranges of motion. Perhaps a referral to alternate therapy would be appropriate…" The WCB medical advisor further noted that evidence on the worker's file did not reveal the presence of a significant pre-existing condition, but an upcoming MRI study could provide more information.
The MRI was performed on March 21, 2016 and indicated:
Mild anterolisthesis of L5 on S1 secondary to bilateral L5 pars interarticularis defects. Posterior disc bulging and focal annular tear at the L5-S1 disc. There appears to be some contact between the exiting left L5 nerve root and the disc material.
On April 7, 2016, the WCB medical advisor reviewed the MRI results and noted: "MRI reviewed and is abnormal. The annular tear at L5-S1 could be acute. The bilateral pars defects with anterolisthesis is not new and represents a pre-existing condition." A review of the worker's file was conducted on April 21, 2016 by a WCB physiotherapy consultant, in conjunction with the worker's treating physiotherapist. The treating physiotherapist indicated at that time that a return to work would likely fail as the worker had been off work for more than three months. The treating physiotherapist said that he would treat the worker for a few weeks then they could consider a return to work discussion.
On June 3, 2016, a WCB orthopedic specialist reviewed the worker's file. The orthopedic specialist provided that the probable diagnosis related to the workplace injury was a lumbar spine strain, for which the average recovery was six to eight weeks. The specialist noted that the worker's treating physiotherapist had recommended a reconditioning program with pain education for a four to six week period, with the goal of a return to work on full-time regular duties on completion. The WCB orthopedic specialist provided restrictions for the worker of avoid continuous walking over 30 minutes; avoid prolonged crouch, crawl, stoop, kneel activities; no limit on sitting; avoid single lifts floor to shoulder over 30 pounds; avoid repetitive lifts floor to shoulder over 15 pounds; and that the restrictions would not affect full application of the reconditioning program.
The worker attended for an initial assessment for the reconditioning program on June 17, 2016. The worker was advised the that he was to begin the program on June 20, 2016 and the projected end date for the program was July 18, 2016.
On July 4, 2016, the WCB was notified by the reconditioning program physiotherapist that the worker called to say he would not be attending the program that day. The WCB case manager contacted the worker and advised that he would not receive wage loss benefits for any days of the reconditioning program that he missed. On July 8, 2016, the worker contacted his WCB case manager to advise that he would return to work, on light modified duties on July 11, 2016 in conjunction with his reconditioning program. On July 11, 2016, the reconditioning program physiotherapist the advised the WCB that the worker's updated restrictions would be: able to lift and carry up to 20 pounds; able to pull/push over 50 pounds; able to drive according to the return to work schedule. The physiotherapist recommended a graduated return to work schedule as follows:
• For the week of July 11/16, [the worker] works 3 hour shifts 8am-11am and attends reconditioning at 11:30 am daily.
• For the week of July 18/16, [the worker] works 5 hour shifts 7am-12pm and attends reconditioning at 12:30pm daily.
• For the week of July 25/16, [the worker] attends reconditioning at 8am and works 8 hour shifts from 9:30pm (sic) - 5:30pm.
• July 29/16 [the worker] will be discharged from reconditioning and resume full duties and hours Aug 1/16.
The worker's graduated return to work schedule and restrictions were provided to the employer on July 11, 2016. In a discussion with his WCB case manager on July 11, 2016, the worker advised that he was having issues with the reconditioning program and that he was in too much pain and would be seeing his doctor. The WCB case manager advised the worker that his claim was scheduled to end on August 1, 2016 and if he did not attend the reconditioning program or participate in the graduated return to work program, his entitlement to benefits would end. On July 11, 2016, the reconditioning program clinic advised the WCB that the worker did not attend for treatment, and on July 12, 2016, the employer advised that the worker did not attend for his graduated return to work shift.
On July 12, 2016, the Compensation Services advised the worker that his wage loss benefits were suspended as of July 12, 2016 due to his non-participation in the reconditioning and graduated return to work programs. The employer advised the WCB on July 13, 2016 to advise that they had contacted the worker to ask if he was going to participate in the return to work program and advised they had light sedentary duties available for him but the worker refused and said he was in too much pain.
On August 5, 2016, the worker's claim and a medical report from the worker's family physician dated July 11, 2016 were reviewed by the WCB orthopedic specialist. The WCB orthopedic specialist opined that the medical information received did not contain any new clinical information, and his previous opinion that the worker would be capable of returning to full regular duties, with no restrictions, on completion of the reconditioning program remained. The orthopedic specialist noted that the restrictions stated in his June 3, 2016 opinion were rescinded.
On August 24, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decision to suspend wage loss benefits. The representative noted that the worker participated in the reconditioning program but had an increase in pain as a result. The worker's representative further noted that the worker wanted to return to work "as soon as he can" and had left the country to get treatment. On August 29, 2016, Review Office notified the worker that they had withdrawn his appeal as his employer wished to participate in the appeal, but his claim information could not be released without his signature on an authorization form.
On November 23, 2016, the worker advised that he had returned to the country and requested reconsideration of Compensation Services' decision to suspend his wage loss benefits. The employer participated in the appeal and provided a submission supporting the Compensation Services' decision on January 3, 2017. A copy of the submission was provided to the worker who provided a submission in response on January 18, 2017.
On January 18, 2017, Review Office determined that the worker was not entitled to benefits beyond July 11, 2016. Review Office noted the WCB medical advisor's opinion that the worker's diagnosis was non-specific and non-radicular low back pain and reference was made to the worker's pain behaviour and difficulty cooperating, which made assessing his degree of disability difficult. Review Office agreed with the implementation of a reconditioning program in conjunction with a graduated return to work program to ensure the worker's successful return to full time regular duties. Review Office further noted that the worker's benefits were suspended effective July 12, 2016, as he chose not to continue with the rehabilitation plan to its conclusion on July 29, 2016. Review Office concluded that the worker failed to mitigate the consequences of his workplace accident and agreed with the suspension of his benefits effective July 12, 2016.
On April 12, 2018, the worker's representative submitted a medical report by an occupational health physician dated March 1, 2018 and requested that Review Office reconsider their January 18, 2017 decision.
On May 30, 2018, Review Office upheld their previous decision that the worker was not entitled to benefits after July 12, 2016. Review Office reviewed the new medical evidence submitted and found it did not support a change in their prior decision that a reconditioning program in conjunction with a graduated return to work was appropriate and the worker was not totally disabled. Review Office placed more weight on the medical evidence referred to in their prior decision as it was closer in proximity to the time of the issue. Review Office did not accept the position of the worker's representative that the worker should have been entitled to wage loss benefits based on the graduated return to work schedule and noted there were several occasions on the file where the WCB case manager, the worker's physiotherapist and the employer attempted to "motivate and assist the worker" to participate in the reconditioning and graduated return to work program. Despite their attempts, the worker was unwilling to participate fully in either program.
On July 12, 2018, the worker's representative filed an appeal with the Appeal Commission and an oral hearing was arranged.
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 that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:
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.
Subsection 22(2) of the Act states that if a worker fails to comply with subsection 22(1), the WCB may reduce or suspend the compensation payable to the worker.
WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
The worker was represented by a worker advisor, who made a submission at the hearing, a written copy of which was also provided. The worker responded to questions from his representative and from the panel.
The worker's position was that the WCB prematurely stopped his wage loss benefits and that he is entitled to a lengthy extension of wage loss benefits.
The worker advisor submitted that the evidence shows the worker was able to perform physically demanding job duties for a prolonged period. Following the accident, however, he could not work in any capacity because of new symptoms and clinical findings, which continued well after the current benefit end date. It was submitted that in addition to an accepted lower back strain, the workplace accident aggravated the pre-existing spondylolistheses and disc bulging, which appeared to be the cause of the worker's lower extremity symptoms.
The worker advisor submitted that additional medical information which they had provided showed that while the worker had attained some further improvement and was able to resume working in a modified duty capacity in December 2016, he had not returned to his pre-accident state or pre-accident truck driving duties. He had therefore experienced a long-term loss of earning capacity, and was seeking a lengthy extension of wage loss benefits.
The worker advisor requested that the panel attach weight to the opinion of the occupational health physician who, in their view, conducted the most comprehensive assessment of the worker. In this physician's opinion, the WCB-sponsored reconditioning program was too aggressive, thereby aggravating the worker's lower back injury, and the physician therefore agreed with the worker's treating doctor, who recommended that the worker discontinue the reconditioning program.
The worker advisor submitted that in their opinion, the WCB medical staff provided inconsistent and conflicting medical opinions. The worker advisor went on to describe a number of those perceived inconsistences.
The worker advisor submitted that because the WCB medical advisor was unable to determine a more accurate diagnosis through examination, he had labeled the worker's injury as non-specific, non-radicular low back pain, which is effectively a default diagnosis, and that this then guided the WCB's management of the claim going forward.
In conclusion, the worker advisor stated that whatever diagnosis or diagnoses the panel accepted, they were asking that the panel to grant the worker's appeal based on the continuing, and relatively consistent, clinical signs and symptoms that initially disabled the worker completely, and prevented him thereafter from returning to his pre-accident job and wages.
The employer was represented by a consultant and by its WCB case manager. The employer's position was that they agreed with the Review Office decisions denying entitlement of wage loss benefits beyond July 11, 2016.
The employer's representative identified what he characterized as a significant number of inconsistencies in the information provided by the worker and on file, as well as instances which he described as amplifications. It was noted that many of these perceived inconsistencies and amplifications were early in file. The employer's representative indicated that his intent in raising these was to show a pattern of behavior on the part of the worker right from the beginning of the file.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after July 11, 2016. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity after July 11, 2016 due to his January 17, 2016 workplace accident. The panel is unable to make that finding.
Based on our review of the evidence on file and at the hearing, the panel is satisfied that that the worker did not sustain an ongoing loss of earning capacity due to his January 17, 2016 workplace accident. The panel is further satisfied that the worker failed to co-operate with the WCB in developing and implementing a program for returning to work.
The panel is unable to find any medical basis to show that the worker was unable to continue with a graduated return to work. The panel accepts and adopts the analysis and conclusions provided by two WCB medical advisors on April 7, 2016 and June 3, 2016.
The panel finds that the worker has an accepted claim only for a lumber spine strain. The panel finds that this strain injury had resolved by July 11, 2016, being almost six months after the workplace injury.
As for other potential diagnoses, the worker advisor referred to a medical article which had been provided and was on file where the author discussed how spondylolistheses can result in "atypical radicular pain." The panel finds that this is not a sufficient basis to establish a diagnosis in this case. The panel further notes that the worker's mechanism of injury was non-sinister in nature and not consistent with the known etiologies of this condition.
The panel finds that ongoing issues relating to the worker's spine are not compensable as are any restrictions that might arise from those conditions. In our view, the worker could have participated in a reconditioning program and the graduated return to work program, given the temporary compensable restrictions that had been placed on the worker to facilitate a successful graduated return to work.
The panel further notes information on file indicates that the worker was not willing to participate in the return to work plan or reconditioning program. A memorandum to file of a dated August 3, 2016 indicates, for example, that the worker had called the case manager and advised that he would be going out of the country the following week for two months to receive treatment. In response to a question as what type of treatment he would be receiving, he indicated that he was not sure. The case manager also noted in that memorandum that "I asked the worker again whether or not he would be willing to participate in his RTW plan and TX program. The worker stated he would not."
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity after July 11, 2016 due to his January 17, 2016 workplace accident. The panel therefore finds that the worker is not entitled to wage loss benefits after July 11, 2016.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of June, 2019