The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to full wage loss benefits after April 15, 2020. A videoconference hearing was held on March 25, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits after April 15, 2020.

Decision

That the worker is not entitled to full wage loss benefits after April 15, 2020.

Background

The employer filed an Employer's Accident Report with the WCB on December 30, 2019, indicating the worker injured her lower back at work on December 28, 2019 while helping a client. The worker attended a local hospital emergency room on December 28, 2019, where the attending physician noted the worker had muscle spasms in her left paraspinal muscles and diagnosed her with musculoskeletal/back pain.

On January 6, 2020, the worker attended an initial physiotherapy assessment, complaining of constant dull pain with occasional sharp pain in her lower spine and left low back, and increased pain with bending, going from sitting to standing, and twisting. On examination, the physiotherapist noted pain and tightness on palpation of the worker's paraspinals, and negative slump and straight leg raise tests. The physiotherapist diagnosed the worker with an L3/4 facet sprain and recommended restrictions of no flexion, twist, or extension; frequent position changes; and no lift/push/pull greater than 8 lbs, with 2 shifts per week, at 2 hours per shift, on non-consecutive days for a period of 3 weeks. The restrictions were provided to the employer, who advised that they could accommodate the worker, and on January 10, 2020, the worker returned to work with modified duties.

On February 26, 2020, the treating physiotherapist recommended an increase to 3 shifts per week, at 4 hours per shift, with no lift/push/pull greater than 20 lbs. A plan to gradually increase the worker's hours and duties was outlined by the WCB's Compensation Services and provided on March 10, 2020, consisting of:

March 9 – 14 4 hour shifts No excessive or sustained flex/twist. No lift greater than 20 lbs 

March 15 – 21 6 hour shifts Occasional flex/twist. No lift greater than 25-30 lbs 

March 22 – 28 8 hour shifts No lift greater than 30-35 lbs 

Full Return to work (14 weeks post injury)

On April 1, 2020, the worker's file was reviewed by a WCB medical advisor, who noted the worker's diagnosis, as provided by her treating healthcare providers, was of a strain/sprain or non-specific pain, with no evidence of structural damage to her back and recovery expected in 6 to 8 weeks. The medical advisor noted the worker had recently experienced an increase in pain and had seen her family physician, who noted painful range of motion and tenderness in her low back, and recommended reducing her hours of work for a period of 10 days. The medical advisor opined that the increased symptoms were medically accounted for in relation to the compensable injury and a brief reduction in the return to work program was reasonable. The medical advisor went on to note, however, that the overall progress should be toward the worker returning to her regular hours and duties, and that recurrent setbacks were not expected with a strain/sprain injury.

On April 2, 2020, Compensation Services provided the employer with updated temporary restrictions consisting of occasional bend, twist, squat and kneel, with lift/carry/push/pull limited to 35 lbs. The worker's graduated schedule was also updated to 8-hour shifts at no more than 3 shifts for one week, then 8-hour shifts at no more than 4 shifts for one week, with the worker returning to pre-injury hours and duties effective April 17, 2020.

On April 3, 2020, the worker advised the WCB that she had worked an 8-hour shift that day and was very sore. The worker reported she was struggling at work without physiotherapy support. On April 6, 2020, the worker attended a virtual appointment with her family physician, who placed her off work until April 15, 2020.

On April 13, 2020, the WCB medical advisor reviewed the worker's file and provided a note to file. The medical advisor referred to her previous opinion, and added that while the worker might have a mild increase in pain as she increased her activity, that pain would not be expected to cause total disability. The medical advisor opined that the worker should be able to progress with her return to work plan and return to her full regular duties within the next couple of weeks, and that if she was not able to tolerate a return to full duties, it could not be medically accounted for in relation to the strain/sprain injury.

On April 20, 2020, the WCB's Compensation Services advised the worker that she would be entitled to full wage loss benefits to April 15, 2020. Compensation Services further advised that partial wage loss benefits would be paid based on a graduated return to work program effective April 16, 2020, with a return to full hours and pre-injury duties by May 10, 2020.

On May 7, 2020, the worker provided the WCB with an updated return to work capabilities form from a walk-in clinic physician, who noted that the worker was hurting, her shifts were "…too long and too labourous [sic]," and her hours and workload needed to be reduced.

On May 11, 2020, the form and the worker's file were reviewed by the WCB medical advisor, who referred to her previous opinions and opined that "Ongoing back pain leading to loss of function over 4 months later is not consistent with this natural history and cannot be medically accounted for in relation to the C/I (compensable injury)." The medical advisor further noted that an April 15, 2020 report from the walk-in clinic physician indicated the worker had increased pain when lifting, and the medical advisor queried whether the worker had sustained a new injury. The medical advisor noted that increased pain from the worker performing her modified or regular duties in April 2020 could not be accounted for in relation to the December 2019 workplace accident. On May 12, 2020, Compensation Services advised the worker that there would be no change to their April 20, 2020 decision.

On June 9, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative noted that the worker had been unable to attend in-clinic physiotherapy treatment due to COVID-19 restrictions, and the combination of her physical duties and increased hours of work, without the support of in-clinic physiotherapy, likely contributed to a delay in the worker's expected recovery. The representative submitted that the worker continued to require workplace restrictions due to symptoms which were directly attributable to her compensable injury, and that she was entitled to further wage loss benefits. On July 8, 2020, the employer's representative provided a submission in support of Compensation Services' decision, and the worker's representative provided a response to that submission on July 27, 2020.

On July 29, 2020, Review Office determined that the worker was not entitled to full wage loss benefits beyond April 15, 2020. Review Office noted that the worker was diagnosed with a strain type injury, which would typically recover in days to weeks. Review Office acknowledged that this was just a norm and that everyone recovers differently. Review Office stated that they were unable to explain the worker's reports of pain and disability in relation to the workplace injury, and noted that the treating physicians had not suggested the injury was more sinister than a strain type injury. Review Office found that the worker was working minimal hours in her return to work and was unable to find that the duties she performed would be likely to aggravate a strain type injury months after it occurred.

On August 18, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation

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.

Subsection 4(2) provides that 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.

Worker's Position

The worker was represented by her union's Workers Compensation Specialist, who provided two written submissions in advance of the hearing, and made an oral presentation to the panel. The worker responded to questions from her union representative and from the panel.

The worker's position was that the evidence supports she is entitled to further benefits because she continued to experience symptoms and restrictions beyond April 15, 2020 which were a direct result of her compensable back injury and resulted in a loss of earning capacity.

The worker's representative submitted that the evidence demonstrates the WCB failed to appreciate a number of factors that prolonged the worker's recovery, and prematurely ended responsibility for her claim. It was noted that the worker injured her back at work, reported her injury immediately, sought prompt medical attention, and was diagnosed with a musculoskeletal injury to her lumbar spine.

The worker's representative noted that the worker began a graduated return to work after less than 2 weeks off work. The representative submitted that while the worker's progress was slow, she reported incremental improvement with conservative treatment and working two 2-hour shifts per week. Precisely when the WCB expected the worker to increase her hours and duties, however, her access to physiotherapy was suspended due to restrictions related to the emerging COVID-19 pandemic.

The worker's representative submitted that as a result of the increased work demands without supportive care, the worker experienced an increase in her symptoms associated with her compensable injury. While the WCB allowed a modest extension of the return to work plan, they did not recognize that the combination of the worker's inability to continue with in-clinic treatment, the increased hours associated with the graduated return to work plan, the physical demands of the work and pre-existing deconditioning made adherence to the return to work schedule unattainable.

It was further submitted that while the WCB maintained their position that the worker was capable of performing her full pre-accident duties and hours and denied any further benefits, the worker carried on with a graduated return to work with modified duties with the support of her treatment providers and the assistance of another benefits provider. The representative noted that subsequently, while attempting to continue with her gradual return to work, the worker experienced an allergic reaction to personal protective equipment required due to COVID-19, which delayed her progress and severely hindered her return to work.

Referring to further and more recent medical reports provided to the panel in advance of the hearing, the worker's representative submitted that the available medical evidence supports that the worker continued to suffer low back symptoms and restrictions that are a direct result of her compensable injury and that these persistent difficulties prevented her adhering to the WCB's return to work schedule, resulting in a loss of earning capacity.

The worker's representative referred in particular to the report of a CT scan performed December 13, 2020 which, he submitted, provides evidence of a more significant problem with the worker's lumbar spine that the WCB would obviously not have been aware of or recognized. The representative submitted that a March 18, 2021 report from the walk-in clinic physician further supports that the worker's December 2019 accident contributed to progressive changes which are seen on the CT scan and are responsible for her persistent low back pain.

In conclusion, the worker's representative submitted that the worker is entitled to further benefits because the WCB cut her off prematurely based on their view that the worker sustained a simple strain. The WCB failed to recognize the lack of in-clinic treatment and physical demands of the work which contributed to the worker's increased symptoms, causing her to go off work then restart the graduated return to work process.

The worker's representative further submitted that the walk-in physician's March 18, 2021 opinion that the changes on the CT scan are at least in part attributable to the workplace accident is a reasonable explanation for the worker's ongoing symptoms. The representative asked that the panel place weight on the walk-in clinic physician's opinion, and acknowledge that the WCB relied on the expectations of the WCB medical advisor without adequate appreciation of the impact of the workplace accident and the worker's actual experience. It was therefore submitted that the worker's appeal should be allowed and her entitlement to benefits reinstated.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing. The employer's position was that they agreed with the WCB's decisions to end responsibility for full wage loss benefits after April 15, 2020.

The employer's advocate acknowledged that the worker had a legitimate claim for a workplace injury, which was compensable under the Act. The advocate submitted that the evidence indicated the worker sustained a soft tissue injury as a result of the workplace accident on December 28, 2019.

The employer's advocate submitted that the evidence also supported that the worker was capable of a graduated return to work program, with modified duties, within a couple of months after the injury occurred. The employer demonstrated their willingness and ability to accommodate the worker with duties which were safely within her physical restrictions and capabilities. The advocate noted that the employer provided accommodated modified duties on a graduated basis based on information they received from the WCB, and they believe the worker was accommodated within her restrictions.

The employer's advocate stated that they agree with the WCB's determination that the worker was fit for at least modified duties as of April 15, 2020. The advocate stated that they do not believe the worker was totally disabled from the time she went off work in April 2020, and submitted that the evidence shows the worker was physically capable of performing the modified duties on a graduated basis. It was submitted that as such, there was no loss of earning capacity beyond that point, and the worker should not be eligible for further or full WCB wage loss benefits past April 15, 2020.

In conclusion, the employer's advocate submitted that there is insufficient evidence to support that the worker was eligible for full WCB wage loss benefits or that she suffered a loss of earning capacity beyond April 15, 2020. The advocate stated that the employer recognizes the worker had a legitimate claim and was eligible for a partial wage loss at one point, but does not believe the evidence supports she could not have continued in the graduated modified return to work program after mid-April 2020.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits after April 15, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity beyond April 15, 2020 as a result of her December 28, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

There is no dispute that the worker suffered a workplace injury on December 28, 2019 when she was assisting a client. The worker's claim has been accepted for a low back strain injury. In response to questions from her union representative and from the panel at the hearing, the worker described the incident in further detail. Based on our review of the mechanism of injury, and of the totality of the information which is before us, on file and as presented at the hearing, the panel is not satisfied that the worker suffered anything more sinister than a strain/sprain injury as a result of her workplace accident. The panel is further unable to account for the worker's ongoing complaints and low back difficulties, or any further loss of earning capacity beyond April 15, 2020, as a result of the worker's December 28, 2019 workplace accident and compensable injury.

The panel notes that the evidence shows that the worker returned to work on January 10, 2020, approximately 2 weeks after the workplace accident, with very limited hours and duties, and continued working on that basis for several weeks, while also receiving physiotherapy treatment. A note to file dated February 12, 2020, documents that in response to an inquiry from the WCB adjudicator as to why the return to work had remained at 2 hours, twice a week for 5 weeks, the treating physiotherapist advised that he had been progressing the worker's home exercise program quite a bit and had increased her capabilities, but not the hours, and was increasing the restrictions first. The physiotherapist further indicated that he would be increasing the worker's hours to begin doing 4 hours the following week, and that the worker had been "stuck" for quite some time but was past that now and seemed to be moving forward.

In his February 26, 2020 report, the treating physiotherapist recommended an increase in the worker's hours to 4 hours per shift and increased capacities, and on March 10, 2020, Compensation Services outlined a plan to gradually increase the worker's hours and duties, with a full return to work by March 29, 2020. The plan was subsequently adjusted and extended.

On April 16, 2020, Compensation Services provided an updated graduated return to work plan effective that day, which provided for a return to full hours/pre-injury duties by May 10, 2020, or approximately 19 weeks post-injury, and the worker was advised that there would be no entitlement to benefits and services beyond May 10, 2020. Partial wage loss benefits were paid to May 9, 2020, inclusive, based on the adjusted plan.

At the hearing, the worker described the modified duties or light duties she performed in the course of her graduated return to work. The panel is satisfied that the evidence shows that the modified duties, as adjusted over time, were suitable and that the worker was able to work within those restrictions. When asked whether she was continually working with those restrictions, she stated that "I was trying to keep the restrictions…at work, and at physio as well, and at home," and that if there was some sort of task that was too difficult or she did not think she could do "I just told them I couldn't do it…normally if I couldn't do something I will tell my coworkers I couldn't do it" and they would help her out or do it for her.

The worker's representative relied on the CT scan as evidence of a more significant problem which was related to the workplace accident. The worker also relied on the opinion of the treating walk-in clinic physician, who noted in his March 18, 2021 report that the CT scan showed multilevel disc degeneration and herniation and opined that "undoubtedly these anatomical changes would have occurred over time and no single injury would account for these findings." The physician went on to state that he believed "the Dec 2019 injury was the first of a series of (lesser) injuries" to the worker's lumbar spine and that "Re-aggravations through 2020 have had an eroding effect on her lumbar spine's health."

While the worker's representative has argued that the physician's opinion provides a reasonable explanation as to how the worker's ongoing difficulties are causally related, in whole or in part, to the workplace accident, the panel is unable to accept that argument. The panel notes that the walk-in clinic physician first saw the worker on April 15, 2020, more than 3½ months after the workplace injury. Further, the physician has provided no clinical findings or explanation to support his belief that the findings on the CT scan or the worker's further difficulties were related to her workplace injury.

The panel notes that while the walk-in clinic physician had also referred to a "new injury" in his April 15, 2020 report, it is noted in a memorandum to file dated April 16, 2020, that the worker confirmed in a conversation with the WCB that there had been no new incident and explained that "she was finding everything she was doing to be too much." In his March 18, 2021 report, the walk-in clinic physician referred to "a series of (lesser) injuries" and "re-aggravations," but the worker was unable at the hearing to identify any incident or anything in particular that caused her to stop working in April 2020 or caused her back pain to get worse, but noted that "I was doing more…within the restrictions I was doing what I was supposed to do within the restrictions, but it was more things than I will do normally when I started…that was why I had more pain, because I was doing more," and that the walk-in clinic doctor recommended that "I slow down at work so that my back will get better."

The panel acknowledges that the worker may have experienced an increase in pain with an increase in her hours or duties, but is of the view that some increase in pain and discomfort would not be unusual in the course of a return to work program.

The panel further acknowledges the worker's argument that her recovery was delayed or compromised due to in-clinic physiotherapy treatment being discontinued in March 2020. The panel notes that the worker had been receiving physiotherapy treatments for at least 2 months prior to her treatments being suspended, and had been provided with a home program. The panel accepts that the suspension of in-clinic treatment may have somewhat delayed the worker's progress or caused her to experience increased some pain or fatigue in the course of the return to work program, but is unable to find that it or the return to work program would have resulted in total disability or had an "eroding effect" on the worker's lumbar spine's health.

In conclusion, the panel is unable to find that the worker was totally disabled as at April 15, 2020 or that she was unable to return to her full regular duties as of May 10, 2020 as a result of the workplace accident or compensable injury. The panel acknowledges the worker's complaints of ongoing pain and difficulties, but is unable to unable to account for such symptoms beyond April 15, 2020 in relation to her December 28, 2019 workplace accident or compensable injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity beyond April 15, 2020 as a result of her December 28, 2019 workplace accident. The worker is therefore not entitled to full wage loss benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of May, 2021