The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their graduated return to work plan was appropriate. A videoconference hearing was held on May 2, 2024 to consider the worker's appeal.

Issue

Whether or not the worker’s graduated return to work plan was appropriate.

Decision

The worker’s graduated return to work plan was not appropriate.

Background

An Employer’s Accident Report was provided to the WCB on August 18, 2023, reporting the worker injured their back in an incident at work on August 13, 2023, when they were moving items off a pallet and felt a sudden, sharp pain in the lower back. The employer noted on the Report they were able to accommodate the worker with modified/alternate duties involving limited or team lifting.

The WCB spoke with the worker on August 21, 2023 to discuss their claim and gather further information. The worker advised the WCB they were lifting a case of items when they felt a “pop” in their lower back. They noted they were able to move around but they were experiencing spasms in their back. The worker reported taking over the counter pain medication after work and returning for their shift the following day, noting their job duties that day did not involve receiving merchandise and were not as hard as the previous day. The following day, the worker was not scheduled to work and woke up with their back being very sore. They contacted the employer to report the injury on August 15, 2023. The worker described their current symptoms as improving but they were unable to stand or walk for prolonged periods and their back was still tender with occasional spasms. The worker sought medical treatment on August 17, 2023 at a local emergency department. The treating physician diagnosed the worker with low back pain after examining the worker. The physician recorded the worker’s reporting of low back pain with lower limbs tingling and numbness and found the worker had limited range of motion in their back, a limping gait, tenderness to palpitation at L3-L5 and positive straight leg raise testing bilaterally. The physician provided a sick note for the worker to remain off work.

On September 5, 2023, the worker attended an initial physiotherapy assessment reporting they “Lifted a box of produce and twisted with it. felt a pop in low back and immediate pain.” The worker’s complaints of a constant dull ache, intermittent stabbing feeling and spasms in their central low back, increased pain with prolonged standing, sitting and bending, and occasional tingling in their legs were noted by the treating physiotherapist. After examining the worker, the physiotherapist found the worker had an antalgic gait and walked in hip flexion with lumbar extension, had limited range of motion in their low back and positive low back testing was noted to be positive in the L4/L5 area. An L4/5 joint sprain was diagnosed by the physiotherapist. Ongoing time off work was recommended due to total disability.

The employer advised the WCB on November 2, 2023 they were working on a gradual return to work plan for the worker based on the restrictions provided by the worker’s treating physiotherapist on the same date, which included no repetitive or sustained full forward bending and reduced hours. On November 9, 2023, the employer provided the WCB with a Return to Work Program Offer and Outline, noting the worker would begin with two hour shifts, for three days per week to commence on November 9, 2023. The worker confirmed on the same date they actually returned to work on November 8, 2023.

The worker attended a follow-up appointment with their treating physiotherapist on November 23, 2023 reporting ongoing difficulties including tightness in their mid-back and occasional burning feeling in their lower back. Pain with increased overuse was also noted. The treating physiotherapist recorded the worker attended the appointment with a slight limp, with the limp becoming more pronounced after discussion of symptoms and return to work, with a noticeable decrease in gait speed and walking becoming more guarded after discussion. The physiotherapist noted these observations at more than one appointment. The treating physiotherapist indicated the worker was pain focused and noted the worker’s reporting of laying down and staying still for extended periods of time after feeling discomfort and noted the belief the worker was “too self limiting”. The worker’s restrictions were updated to four hours per shift, three days per week with one day between shifts, can lift up to 12 pounds, no full bending and reduced twisting. On November 30, 2023, a WCB physiotherapy consultant spoke with the worker’s treating physiotherapist and discussed the worker’s return to work plan. The physiotherapist confirmed to the consultant they did not see a medical contraindication for a graduated progression in the plan.

The worker’s file was reviewed by a WCB medical advisor on December 4, 2023. The medical advisor spoke with the worker’s treating physiotherapist who recommended the following graduated return to work schedule, which the advisor opined was reasonable:

• December 7, 2023: increase to 5 four-hour shifts per week; limit lifting to 20 pounds 

• December 14, 2023: increase to 5 six-hour shifts per week; limit lifting to 20 pounds 

• December 21, 2023: increase to full hours; limit lifting to 20 pounds 

• December 28, 2023: Allow lifting of up to 35 pounds 

• January 4, 2024: full regular duties

The restrictions were provided to the employer on December 6, 2023. On December 15, 2023, the WCB provided the restrictions to the worker in a formal decision letter. In an email discussion with the worker on December 22, 2023, the WCB advised the return to work plan developed by their treating physiotherapist was appropriate and as their gradual return to work plan indicated they were returning to their full duties by December 21, 2023, they would not be entitled to wage loss benefits after that date.

The worker requested reconsideration of the WCB’s decision to the Review Office on December 22, 2023. In their submission, the worker noted they had been advised of the end to their wage loss benefits that day and that they had reaggravated their low back injury at work on December 16, 2023. As such, the worker noted their belief the graduated return to work plan would be difficult as they were experiencing ongoing symptoms, and the increased hours of the plan would worsen the symptoms. Further, the worker noted their entitlement to physiotherapy treatments, which had been helping them recover, had ended. The worker also advised they had an upcoming MRI study scheduled by their orthopedic surgeon to determine what further medical treatment was required. On January 18, 2024, the Review Office determined the worker’s gradual return to work plan was appropriate. The Review Office acknowledged the worker’s complaints of increased symptoms as they were increasing their hours at work however, noted the medical information at the time did support the worker experienced a worsening or change in their low back injury that would have required a change or modification to the return to work plan. The Review Office found the return to plan was appropriate and the duties offered were suitable and within the worker’s restrictions.

The worker filed an appeal with the Appeal Commission on February 8, 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 December 10, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are 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.

Under Section 4(1) of the Act, a worker is entitled to benefits 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 under Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB has established a policy outlining their approach for the return to work of injured workers through modified or alternate duties with the accident employer. Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) sets out that employers are expected to consider the following objectives in the following sequence: 

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer.

The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity and outlines that the WCB will only become involved when either the worker or the employer requires financial or technical support to help the worker return to work or when the worker and the employer disagree about whether the modified work placement is appropriate.

The Return to Work Policy goes on to define suitable work as work that:

…the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The Return to Work Policy also set outs that if there is a dispute about whether the modified or alternate duties are suitable, or whether a worker is medically able to perform the essential duties of the pre-accident job or suitable work, the WCB will make the final determination and may arrange for a worksite analysis.

Worker’s Position

The worker was self-represented at the hearing and provided testimony through answers to questions posed by the panel members.

The worker’s position is that the graduated return to work plan was not appropriate.

The worker states that they were injured at work on August 13, 2023 while moving pallets. The worker noted an intense pain in their lower back. The worker’s evidence was that they started the return to work program in early November 2023. The worker stated that they were still in pain, but they were working through the pain. The worker further stated that they injured their back again at work on December 16, 2023, and at that point their treating physiotherapist suggested they scale back on their treatment until the scheduled MRI results. The worker’s evidence is that their treating physician contacted them in January 2024 to advise that the MRI results indicated that they had a herniated disc with a partial tear.

The worker submits that the fact that they were waiting for a scheduled MRI on their back should have been an indication that they had ongoing symptoms and could not return to work. The worker states that the WCB did not consider the severity of their ongoing symptoms and their repeated request to wait to review the MRI results.

The worker indicated that they still take pain medication some days to deal with their ongoing back pain or to be able to sleep at night. The worker says they do exercises to strengthen their back. The worker submits that the timeline for recovery with a disc herniation and an annulus tear is much longer than what it would be for a back strain or sprain.

The worker is seeking that the decision of the Review Office be overturned.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker’s graduated return to work plan was appropriate. For the worker’s appeal to succeed, the panel would need to find that the graduated return to work plan was not appropriate. The panel was able to make this finding.

The position of the WCB was that the workplace injury resulted in a low back strain. When considering the totality of the medical evidence before the panel, the panel finds that the opinion and diagnosis of low back strain was arrived at without consideration that the worker’s symptoms on the date of injury, and set out in the Doctor First Report dated August 18, 2023, included “low back pain with lower limbs tingling and numbness”. The Outpatient and Emergency Report Form from the date of the injury stated the straight leg raise provokes back pain. Additionally, the Physiotherapy Initial Report (dated September 10, 2023) also indicated that the worker complained of “occasional tingling in legs”.

The panel has reviewed the correspondence between the WCB and the worker and relies on the evidence of the worker that the worker did inform the WCB about the MRI that was scheduled in September 2023. The worker advised the WCB via email on several occasions (December 14, 2023, December 21, 2023). The worker also specifically advised the WCB on December 21, 2023 that the appointment for the MRI imaging would be on December 27, 2023. The worker also confirmed that their physiotherapist was aware of the upcoming MRI.

The WCB medical advisor appears to have relied on the opinion of the treating physiotherapist, who stated that the worker was pain focused, that there were no radicular features and that there were no medical contraindications to a graduated progression of return to work. In a Physiotherapy Progress Report dated January 14, 2024 the physiotherapist stated “MRI looks very good, and shows no significant issue in any way. These are the results expected by the therapist, as well as the WCB doctors given [the worker’s] lack of symptoms into the extremity.” The panel, however, places more weight on the opinion of the treating surgeon than the opinion of the physiotherapist The treating surgeon’s opinion, set out in their letter dated January 15, 2024, is that the worker has an annulus tear of the L3 which explains the acute change in the worker’s pain. The opinion of the treating surgeon is that this tear is related to the worker’s workplace injury. The panel is satisfied that the surgeon reviewed the MRI imaging scans based on their comments in their November 6, 2024 report that the annulus tear is “best seen” on MRI scan #9 of the sagittal views and scan #5 of the coronal views.

It is also noted that in their December 4, 2023 opinion, the WCB medical consultant referenced that the worker was “awaiting a lumbar spine CT this month, which was reportedly ordered prior to the August 13, 2023 workplace accident, apparently in relation to chronic low back pain complaints.” It appears that this information was derived from a memorandum to file dated November 2, 2023 which states “no other medical appts at this time. [Worker] is awaiting a scan in December, but this was ordered prior to the workplace injury.” This is not correct information. The Doctor First Report prepared following an examination on August 17, 2023 notes that a CT scan is to be done as part of the treatment plan. This CT scan was done on August 17, 2023. The panel is of the view that the WCB medical consultant was incorrectly referring to a CT scan when in actuality the worker was waiting on MRI results. The WCB medical advisor ought to have determined whether there were any outstanding test results and not made assumptions as to when these tests were ordered.

The treating surgeon confirms in their letter dated September 11, 2023 that the MRI was being ordered at this time, as a result of the worker advising them of a new injury that occurred lifting a heavy box.

The panel finds that the worker’s injury was more serious than a simple back strain. The WCB was aware of the MRI and ought to have contacted the treating surgeon or awaited the results prior to commencing the return to work program. The panel is of the view that the graduated return to work plan was premature given that the worker was still experiencing symptoms and that the worker’s MRI results had not been reviewed by their treating physician. Also, the restrictions in place did not indicate that the worker should refrain from any lifting but rather that the worker should limit lifting to 20 pounds. These restrictions were not appropriate given that the worker's injury was not simply a back strain.

The panel finds, on a balance of probabilities, that the graduated return to work plan was not appropriate given the ongoing symptoms the worker was experiencing.

The worker’s appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of January, 2025