Decision #134/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to wage loss benefits after June 25, 2022; and
2. They are not entitled to medical aid benefits after November 15, 2022.
A videoconference hearing was held on November 23, 2023 to consider the worker's appeal.
1. Whether or not the worker is entitled to wage loss benefits after June 25, 2022; and
2. Whether or not the worker is entitled to medical aid benefits after November 15, 2022.
1. The worker is entitled to wage loss benefits after June 25, 2022; and
2. The worker is entitled to medical aid benefits after November 15, 2022.
The worker has an accepted WCB claim for multiple injuries to their right shoulder, right side ribs and mid/lower back as the result of a motor vehicle accident that occurred on November 16, 2021 while at work. After being taken to a local emergency department by ambulance, the worker's compensable injuries were updated to a T-10 vertebral body fracture, right scapular fracture, and right third, sixth and seventh rib fractures. The worker remained in the hospital for several days and was later discharged.
On March 3, 2022, the worker attended for an initial appointment with their family physician. The physician noted the worker's reporting of back pain with walking or changing positions and when sitting for longer than 20 minutes. It was noted they did not examine the worker as the worker was still in the brace from the hospital but indicated the worker could not rise from the chair without arms. The physician recommended the worker remain off work for 4 weeks and to attend physiotherapy/reconditioning.
The worker began physiotherapy treatment on March 11, 2022, reporting lower back and mid back pain between the shoulder blades, right shoulder stiffness, headache, left knee pain, memory loss and general weak hand dexterity. The treating physiotherapist noted full rotation of the worker's cervical spine, pain limiting range of motion in the worker's trunk, decreased range of motion in the worker's right shoulder and thoracic spine regions. The physiotherapist noted the worker's diagnosis of "…several vertebral fractures, several rib fractures, R (right) scapular fracture. Neck strain" as confirmed by the diagnostic imaging. It was noted the worker was capable of regular work duties and hours with restrictions of light sedentary duties; avoid repetitive bend/twist; frequent position changes (every 30 minutes); microbreaks as needed; no driving/riding in a vehicle more than 20 minutes and avoid lifting greater than 10 pounds. On March 25, 2022, the worker's restrictions were updated by the treating physiotherapist to include stairs limited to 5 steps and restriction on hours to half days on alternating days. At the request of the WCB, a call-in examination was arranged to clarify the worker's restrictions.
A WCB medical advisor conducted the call-in examination on April 20, 2022. After examining the worker, the advisor opined "…it is probable that bone healing and healing generally in relation to the effects of the workplace injury has occurred by this time" and noted it was likely the worker, having been away from the workplace for a period of time, had some degree of deconditioning. The WCB medical advisor noted the worker's reporting of being able to lift the weights required to perform their job duties and that while at home, they are able to ascend/descend 10 stairs. The advisor recommended the worker start a return to work program on four hours per day, to be increased by one hour each week and that the worker's work area be modified initially so that they would not have to ascend/descend the 20 stairs, but could start with 10 stairs and gradually increase their tolerance to 20 stairs within several weeks. It was noted under this program, the worker would likely be at their pre-accident work level within approximately 6 weeks. The employer was provided with the restrictions on April 29, 2022 and on May 3, 2022, advised the WCB they could accommodate the worker. The worker returned to work on modified hours and duties on May 17, 2022. On June 22, 2022, after discussing the worker's treatment with their physiotherapist, the WCB provided the employer with updated restrictions of sitting up to 60 minutes; standing 30 to 60 minutes at a time with breaks as needed; limit lifting floor to waist to 70 pounds infrequently; waist to shoulder 25 pounds occasionally; avoid repetitive bend/twist; able to pull and push with arms up to 40 pounds; avoid full body pushing/pulling; and can drive in trucks, limiting sitting to 30 minutes with frequent breaks. The worker advised the WCB on the same date, their first shift with these restrictions would be June 27, 2022.
On September 3, 2022, the WCB received a follow-up report from the worker's treating physiotherapist recording the worker's complaints of ongoing low back pain that goes away with pain medication but comes back after a few hours. The physiotherapist noted decreased and painful range of motion in the worker's trunk but was unable to reproduce the low back pain on testing. The worker was seen by a sports medicine physician on September 20, 2022 reporting ongoing lumbar and left leg discomfort. Upon examining the worker, the physician noted the worker's lumbar range of motion was good with some mild discomfort at the end range, "…some mild thoracolumbar point tenderness" and good neurologic examination. Straight leg raise testing was noted to be to 45 degrees bilaterally. The treating sports medicine physician reviewed a recent MRI study with the worker, which study indicated the previous fractures "…as well as some relatively minor degenerative changes. There is no frank nerve root entrapment but some mild foraminal stenosis Of (sic) the left L4 nerve root related to L3-4 disc changes. Nothing strongly correlated with his left leg neuropathic findings." The treating physician related the worker's mechanical pain to the November 16, 2021 workplace accident noting the left leg radicular symptoms were possibly exacerbated by treatment the worker was receiving for a non-compensable health issue. The physician recommended the worker continue with light core strengthening exercises and light traction and to self-evaluate their tolerance for their job duties. The worker also attended for a follow-up appointment with their family physician on September 29, 2022 reporting back pain radiating to their buttocks and back of legs, which was worse when driving over bumps. Difficulty shoulder checking and decreased range of motion was noted. Continued physiotherapy and medications were recommended with the worker off work for 2 weeks.
In a discussion with the WCB on October 7, 2022, the worker's representative advised that the worker had been off work since approximately September 29, 2022 due to back spasms, numbness in their left leg and they were barely able to walk. The representative noted the worker had been working 4 to 5 hour shifts, up to 6 hours when the employer requested they return to their previous pre-accident work as they were short-staffed and the worker began working 12 to 13 hour shifts and began to have constant back pain all day. In addition, the representative noted the worker reported numbness in their left leg requiring them to use a handrail when going up stairs. The worker attended for a further follow-up appointment with their physician on October 11, 2022 noting a slight improvement with medication but still unable to tolerate bouncing in the truck and weakness in their left leg. The physician recommended ongoing physiotherapy, continuation of the medication as tolerated by the worker and a restriction of no driving/riding in the truck was placed. A WCB physiotherapy consultant spoke with the worker's treating physiotherapist on October 13, 2022. The treating physiotherapist advised the consultant they had been treating the worker since the workplace accident and noted the worker's main complaint of ongoing back pain. It was noted the worker had more recently presented with a new onset of left-sided hip/leg weakness and the physiotherapist had observed a trendelenberg gait on the worker's right side, which was exacerbated when the worker was holding 5 to 10 pounds of weight. The physiotherapist also noted a "…limited ability to bear weight through the left leg…" while assessing other movements during treatment.
The worker attended for an appointment with a new family physician on October 24, 2022 and reported ongoing back pain and difficulty tolerating a return to their full job duties. The worker advised the physician of worsening back pain, with “…electric shock sensation into legs bilaterally though greatest on the left”, difficulty walking distances, getting up from a seated position and managing stairs. The treating physician reviewed the diagnostic imaging on file and noted degenerative changes in the worker’s back. On examining the worker, the physician found tenderness to the lower spine, decreased range of motion with flexion and extension at the lumbar spine and pain through all ranges. Straight leg and cross leg raise testing was noted to be negative. The worker was diagnosed with back pain related to the workplace accident and a functional assessment was recommended. On November 7, 2022, the worker’s file was reviewed by a WCB medical advisor. The advisor noted recent reporting on the worker’s file indicated the worker had suffered a significant increase in symptoms and decrease in functioning to the point where the worker could barely tolerate walking. The advisor opined the worker’s current difficulties were not medically accounted for in relation to the November 16, 2021 workplace accident as while the worker sustained a number of injuries as a result of the accident, during the April 20, 2022 call-in examination, it was determined that healing had occurred and the worker had indicated they were capable of resuming their job duties, except for stairs, which the worker had increased their tolerance for and had been managing without difficulty. As the worker had essentially recovered by April 2022, a significant increase in symptoms and decrease in function could not be accounted for by September 2022. It was noted a lumbar spine MRI study conducted on September 11, 2022 found healed fractures and degenerative changes but did not note any acute findings. On November 10, 2022, the worker was advised it had been determined by the WCB their current difficulties were not related to the November 16, 2021 workplace accident and as such, their entitlement to wage loss benefits ended on June 25, 2022 and their entitlement to medical aid benefits would end as of November 15, 2022.
On November 24, 2022, the worker requested reconsideration of the WCB’s decision to Review Office providing a chronology of their treatment since the workplace accident and noting they continued to experience difficulties as a result of that accident. In addition, the worker enclosed a medical chart note dated November 16, 2022 from their treating sports medicine physician. Review Office returned the worker’s file to the WCB’s Compensation Services on November 25, 2022 for further investigation. Additional medical information was placed to the worker’s file. A November 16, 2022 x-ray report from the worker’s treating sports medicine physician indicated moderate degenerative changes and a December 2, 2022 thoracic spine MRI also noted degenerative changes. The new medical information was reviewed by a WCB medical advisor on December 13, 2022, who opined the worker’s current difficulties were not accounted for in relation to the November 16, 2021 workplace accident. The WCB advised the worker on December 16, 2022 the worker’s current difficulties were not medically accounted for in relation to the workplace accident and the earlier decision regarding entitlement to wage loss benefits to June 25, 2022 and medical aid benefits to November 15, 2022 remained unchanged.
The worker requested reconsideration of the WCB’s decision to Review Office on January 4, 2023. The worker provided a detailed chronology of the events of their workplace accident, along with the treatment they received and the difficulties they experienced after returning to work and provided medical documentation from their treating healthcare providers supporting they required ongoing medical aid due to those difficulties. On January 8, 2023, the worker submitted a chart note from their treating sports medicine physician supporting their difficulties were related to the workplace accident. On February 9, 2023, a February 1, 2023 chart note from the sports medicine physician was submitted by the worker. On March 1, 2023, a letter in support of the worker’s request for reconsideration from the worker’s treating family physician was received by Review Office. Review Office determined on March 2, 2023 the worker was not entitled to wage loss benefits after June 25, 2022 and medical aid benefits after November 15, 2022. Review Office accepted and placed weight on the opinions of the WCB medical advisor that functional recovery had occurred by the call-in examination in April 2022, with the worker returning to their full regular duties for over 3 months before reported significant difficulties and reduction in functioning. Additionally, Review Office notes the later reports from the worker’s sports medicine physician and nerve conduction studies noted difficulties in the L4-L5 region of the worker’s lumbar spine, which differed from the L1 and L3 fractures the worker sustained as a result of the workplace accident. Review Office found the worker’s current difficulties could not be related to the November 16, 2021 workplace accident and as such, there was no entitlement to wage loss benefits after June 25, 2022. As well, as a cause and effect relationship between the worker’s current difficulties and the workplace accident could not be established, Review Office found the worker was not entitled to medical aid benefits after November 15, 2022.
On March 13, 2023, the worker submitted their treating physiotherapist’s chart notes and asked Review Office to reconsider the previous decision. On March 23, 2023, Review Office requested chart notes from the worker’s previous family physician from November 16, 2021 to September 2022, which were received by Review Office on March 30, 2023. On April 17, 2023, Review Office again determined the worker was not entitled to wage loss benefits after June 25, 2022 and medical aid benefits after November 15, 2022. Review Office found the new medical information submitted did not support a relationship between the worker’s current difficulties and the November 16, 2021 workplace accident.
The worker’s representative filed an appeal with the Appeal Commission on August 22, 2023 and a hearing was arranged.
The Appeal Commission is bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.
A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under Section 4(2), a worker 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.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable pursuant to Section 37 of the Act. Section 39(2) of the Act states that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”
The worker's spouse was present for the hearing. The worker advisor made an oral submission during the hearing and relied upon a written submission provided to the panel, and shared with the employer, in advance of the hearing. The worker's spouse provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.
The worker’s position is that the evidence confirms the worker was not recovered from the injury sustained in the workplace accident of November 16, 2021. Therefore, the worker should be entitled to wage loss benefits after June 25, 2022 and medical aid benefits after November 15, 2022.
The worker advisor submitted that the WCB decision that the worker was not entitled to further benefits was based on a finding that functional recovery should have occurred by that time, but that there was no actual evidence that the worker was recovered. The worker advisor relied on evidence from the worker's doctors, spouse and written statements from co-workers in support of this argument.
The worker advisor argued that the worker failed his return to work trial and that his symptoms were exacerbated in the process. Further, it was submitted, through reliance on the worker's doctor's report, that the worker suffered significant structural derangement of his spine as a result of the motor vehicle accident and that it is probable that this disruption of his spine could have enhanced his pre-existing degenerative changes in the future.
The employer was represented in the hearing by two representatives who made an oral submission on behalf of the employer.
The employer did not take a position and provided testimony through answers to questions posed by members of the appeal panel.
The questions on appeal are twofold. Firstly, whether the worker is entitled to wage loss benefits after June 25, 2022 and secondly, whether the worker is entitled to medical aid benefits after November 15, 2022. For the worker’s appeal to succeed the panel would have to determine that as a result of the compensable injury sustained in the accident of November 16, 2021, the worker continued to experience a loss of earning capacity beyond June 25, 2022 and to require medical aid beyond November 15, 2022. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.
The spouse's evidence before the panel, which was confirmed by the co-worker statements and, notably, by his employer, was that the worker continued to experience symptoms which he experienced as a result of his compensable injury, including pain in lower back, and difficulties with daily activities.
A gradual return to work plan was developed, commencing with four hour shifts which were to be increased by one hour per week. The worker was able to commence working his regular eight hour shifts (which were often longer due to overtime hours) but eventually experienced a significant increase in symptoms and a downturn in function in September-October 2022. While the worker was highly motivated to return to work, the evidence is such that the worker did not tolerate the increased hours and essentially failed his return to work trial. The evidence from the worker's spouse was that she had to assist the worker in getting his vest and boots off after shifts, that the worker would complain of back pain and that he would often need to lie down for a nap after work and occasionally would remain in bed for the remainder of the evening. The co-workers stated that it was obvious that the worker was in pain after his return to work. The employer’s representative also confirmed this evidence. The panel is satisfied that as the return to work trial progressed the worker deteriorated further.
The panel acknowledges that the worker suffered a significant injury and note the worker's permanent partial impairment rating resulting from this workplace injury was calculated at 24%. Furthermore, the evidence from the physiotherapy progress reports and the reports from the worker's family doctor and sports medicine doctor do not indicate improvement throughout the return to work trial and in fact show the return to work resulted in an exacerbation of symptoms. The panel acknowledges the comments and opinions of the WCB medical advisor but respectfully prefers the medical opinion of the worker's sport medicine doctor, oncologist, family doctor and physiotherapist.
It is also noted that a review of the WCB claim notes refer to a need to continue to monitor the progress of the return to work, and specifically that an analysis of the return to work duties assigned was to be completed. It appears however from the panel's review of the claim notes that this was never completed.
In the circumstances, and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of the compensable injury, and suffered a loss of earning capacity after June 25, 2022 and required medical aid after November 15, 2022 as a result of his November 16, 2021 workplace accident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after June 25, 2022 and medical aid benefits after November 15, 2022, and returns the file to the WCB for further adjudication.
The worker's appeal on both issues is allowed.
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of December, 2023