The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after November 27, 2023. A hearing was held on September 17, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 27, 2023.

Decision

The worker is not entitled to wage loss benefits after November 27, 2023.

Background

The worker attended a local urgent care centre on September 16, 2022, reporting to the treating physician that after lifting at work they had worsening sharp lower back pain and lower buttock pain radiating down the back of their leg and into their calf. After examining the worker, the physician found tenderness over the worker’s right buttock and a positive straight leg raise test on the right. The worker was diagnosed with lower back pain and radiculopathy. Stretching, physiotherapy and massage were recommended. On September 19, 2022, the worker sought medical treatment from their family physician reporting a history of lower back pain from lifting, which worsened to having shooting pain down their right leg. The worker reported difficulty with weightbearing and sleeping. The treating family physician indicated straight leg raise testing was reduced on both sides due to pain on the right side, with pain induced by hip and neck flexion. A diagnosis of sciatic nerve lesion was provided, and the worker was referred for an MRI study. On September 21, 2022, the worker attended an initial physiotherapy assessment reporting they injured their right upper leg after a lifting accident at work. The worker described pain when sitting, transferring from sitting to standing and walking. On examining the worker, the treating physiotherapist recorded decreased hip mobility in all directions and pain on palpitation to the worker’s gluteal and lower back areas. The worker was diagnosed with an acute low back strain.

On September 27, 2022, the employer submitted an Employer’s Accident Report to the WCB reporting the worker injured their hamstring muscles at work on September 13, 2022. The incident was described as “Bending at the waist may have put stress on hamstring muscles and caused soreness of hamstring muscles.” The worker provided a Worker Incident Report to the WCB on September 29, 2022. The worker noted they injured their right upper leg on September 13, 2022, after lifting a ladder out of a truck and felt a pull in their right upper leg. The worker further noted they worked the following day but were limping and therefore reported the incident to their supervisor at the end of their shift. The following day, the worker reported an increase in their symptoms and was sent home. The worker attended a follow-up appointment with their treating family physician on October 3, 2022 and was provided with a sick note for two weeks off work.

In a discussion with the WCB on October 4, 2022, the worker confirmed the mechanism of injury as noted on their Worker Incident Report was correct. The worker advised they were feeling better and their current symptoms were in their hamstring and upper leg just above their buttock. The worker further advised they had not returned to work but they would be contacting the employer to discuss returning to work. The WCB advised the worker their claim was accepted. On October 27, 2022, the worker contacted the WCB to advise they were returning to their full regular duties on that date. The worker contacted the WCB on November 29, 2022 to advise that due to increasing symptoms, they had discontinued work and sought medical treatment.

A copy of the November 28, 2022 doctor’s report was received by the WCB on November 30, 2022 noting the worker’s complaints of low back pain radiating down their right leg and numbness. On examining the worker, the treating physician noted the worker was limping, had a tender low spine and was in too much pain for an extensive examination. It was recommended that the worker remain off work due to pain. At a follow-up appointment on December 12, 2022, the worker’s treating family physician noted ongoing symptoms and placed the worker off work until December 31, 2022. The worker underwent a lumbosacral spine MRI on January 10, 2023 which indicated “Disc extrusion at L5-S1 that compresses the right S1 nerve root.”

Due to ongoing symptoms, the WCB requested the worker attend a call-in examination with a WCB medical advisor, which took place on January 13, 2023. The WCB medical advisor opined the worker’s current diagnosis was an L4-L5 disc protrusion and extrusion with right-sided radiculopathy, with the medical evidence on file supporting that diagnosis was medically accounted for in relation to the September 13, 2022 workplace accident. Temporary restrictions of no ladder climbing, avoid lifting more than 20 pounds, and avoid repetitive bending, twisting of the lower spine for a period of two months. The advisor further provided the worker’s diagnosis was associated with prolonged disability and may require surgical intervention. On January 27, 2023, the worker’s treating family physician referred the worker to a spinal surgeon, which consultation was expedited by the WCB.

On February 1, 2023, the worker was seen by the spine surgeon. The surgeon recorded the worker’s reporting of back pain and right lower extremity pain since September 2022 due to a work injury. The worker described immediate pain that radiated into their posterior thigh and calf down to the lateral part of their right foot. The worker advised the surgeon the pain subsided after a few weeks, and they returned to work but suffered an exacerbation and went off work in November 2022. The worker described improvement in their symptoms however, noted their belief was that this was due to their inactivity. After examining the worker, the surgeon recommended decompression, microdiscectomy and uninstrumented fusion at L5-S1 on the right side. The proposed surgery was approved by the WCB on February 24, 2023. The worker underwent the surgery on March 4, 2023. At a post-surgery follow-up appointment on April 21, 2023, the surgeon recommended the worker attend physiotherapy.

The worker contacted the WCB on May 30, 2023, to request a referral to an active-based physiotherapy clinic for treatment. On June 2, 2023, the WCB advised the worker a referral had been made for a post-surgical rehabilitation plan and the worker attended an initial assessment on June 12, 2023. At a further post-surgery follow-up appointment with the surgeon on June 16, 2023, the surgeon recommended 6 weeks of rehabilitation followed with 3 weeks of part time regular duties then full-time regular duties. The worker attended a Functional Capacity Evaluation (“FCE”) with their treating physiotherapist on September 11, 2023. The physiotherapist reported the worker demonstrated a good effort for the testing and based on the results of the evaluation, the worker’s overall strength category was indicated to be heavy. On September 27, 2023, the WCB advised the employer that, based on the results of the FCE, the worker was capable of returning to their pre-accident job duties. The worker was advised by the WCB by way of a formal decision letter that their entitlement to wage loss benefits would end as of October 4, 2023.

On October 6, 2023, the worker contacted the WCB to advise they had spoken with the employer who indicated they believed the worker continued to have work restrictions and they were not able to accommodate the worker. In a discussion with the employer on October 20, 2023, the WCB noted the worker’s treating surgeon’s preference for the worker to return to work on a graduated basis as they had been off work for a period of time. However, the employer advised they were unable to accommodate reduced hours for the worker. The WCB contacted the worker on the same date and advised them of the employer’s concerns and noted the employer required a note from the worker’s treating physician advising the worker was able to return to their full regular duties. Further discussions took place between the worker, the employer and the WCB with the worker’s treating physician providing a note clearing the worker to return to their full regular duties on November 28, 2023. The worker contacted the WCB on December 18, 2023 to advise they did not return to work on November 28, 2023 due to a non-compensable illness and would return to work on December 19, 2023. On December 21, 2023, the WCB provided the worker with a decision letter advising they were not entitled to further wage loss benefits after November 27, 2023 as their need for time off was not related to the workplace accident.

The worker requested reconsideration of the WCB’s decision to Review Office on January 30, 2024. In their submission, the worker indicated they had provided the WCB with a note from their physician advising for them to be off work from November 28, 2023 to December 18, 2023 and as such, should be entitled to further wage loss benefits. On March 12, 2024, Review Office determined the worker was not entitled to wage loss benefits after November 27, 2023. Review Office found the information provided by the worker related their need for further time off work was due to a non work-related illness and not their compensable injury and as such, the worker did not have a loss of earning capacity due to their WCB claim.

The worker filed an appeal with the Appeal Commission on June 3, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 6, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), the regulations under the Act and the policies established by 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 states 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 self-represented at the hearing and made an oral submission. The worker provided testimony in support of their appeal, and in response to questions posed by the members of the appeal panel.

The position of the worker is that they should be entitled to wage loss benefits beyond November 27, 2023, as they continued to experience symptoms arising from the compensable workplace accident which made them unable to return to their pre-accident job duties.

The worker’s evidence is that they have had continuing symptoms related to their back and were on medication after November 27, 2023.

The worker is seeking that the Review Office decision be overturned and states that they are entitled to wage loss benefits after November 27, 2023.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue for the panel to determine is whether or not the worker is entitled to wage loss benefits after November 27, 2023. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity beyond November 27, 2023 as a result of the workplace accident and injury on September 13, 2022. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel has reviewed the medical evidence, and notes that the opinion of the spinal surgeon set out in their report dated June 16, 2023 (which was three months post spinal surgery) was that the worker should complete 6 weeks of physical therapy prior to returning to work with part-time hours for 3 weeks, following which the worker could resume regular duties and hours. The surgeon stated that given the fact that the surgery was minimally invasive, modified duties were not necessary once the worker completed their physical therapy treatment plan.

The panel is of the view that the available medical evidence indicates that the worker had recovered prior to November 27, 2023. The FCE dated September 6, 2023 sets out that the worker’s overall strength category is classified as “HEAVY”. Despite the worker’s expressed concern that there were two separate FCE forms, the panel is satisfied that these FCE forms were both regarding an evaluation of the worker on September 6, 2023 and provided the same strength category classification, even if the formatting was not identical in each form.

The panel relies on the opinion of the treating physician of October 24, 2023, which states that the worker “has recovered and fit for work with no restrictions” with a return-to-work date of October 30, 2023. The physician does mention that the worker would benefit from a gradual return to work with reduced hours for the first 3 weeks.

The panel acknowledges the worker’s evidence that they were still on medication beyond the date of November 27, 2023, however the medical information requested by the panel following the hearing indicates that the treating physician recommended that the worker be weaned off the medication as of October 25, 2023. The panel notes that the MRI imaging of February 18, 2024 references that the worker’s pre-existing degenerative changes at L4-5 were unaltered (from their prior imaging of January 10, 2023).

Based on the evidence before the panel, the panel is satisfied that the worker was recovered from the effects of the compensable workplace injuries by November 27, 2023.

The panel accepts that the worker is indicating that they have continued difficulties however the panel finds, on a balance of probabilities, that any continuing difficulties beyond November 27, 2023 are not causally related to the injury sustained in the compensable workplace accident of September 13, 2022. The worker’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of December, 2024