The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 15, 2000, at the request of the claimant. The Panel discussed this appeal on June 15, 2000.

Issue

Whether or not responsibility should be accepted for physiotherapy treatment.

Decision

That responsibility should not be accepted for physiotherapy treatment.

Background

On October 6, 1999, the claimant filed a workers compensation claim with respect to lower back pain which he claimed was due to working in a fuel bay of an aircraft during December of 1998. When speaking with the claimant on February 14, 2000, a Workers Compensation Board (WCB) adjudicator documented the following information:

• date of accident was unknown. No specific accident occurred in December 1998. The claimant claimed no prior problems with his back.
• when getting in and out of the fuel bay, the claimant indicated that your feet go in first, you crouch down, one arm in then the other, tucking your head into your chest. He experienced no sharp pain and nothing was felt. The claimant indicated that he worked in the fuel bay for 2 ½ months at 10 times per shift approximately starting in December 1998.
• the claimant indicated that he had soreness or stretched muscles in his back. He did not attend any doctors and he made no mention of his back problems to anyone at work until September 7, 1999. He made no ongoing complaints as he was not one to complain.
• the claimant advised that he attended a doctor on September 24, 1999. He had back pain off and on until September 24, 1999. He was pain free for days. His left leg was starting to burn with dulling sensation. He took Advil, heat and ice packs prior to medical attention.
• the claimant said he delayed seeking medical attention as he thought the pulled muscle would go away. He stopped working in the fuel bay in February 1999. There were no new accidents, nothing else occurred. He did regular duties until September 1999.
• the claimant said he was relating his difficulties to December 1998 because this was when soreness, and the stretched muscles were felt. The claimant said he was claiming for the costs associated with physiotherapy treatment.

A Doctor's First Report noted that the claimant attended for treatment on September 24, 1999 for pain in the lower lumbar area. A CT scan and physiotherapy was the form of treatment. The physiotherapy referral form indicated a diagnosis of L5-S1 nerve root irritation.

On February 21, 2000, Rehabilitation & Compensation Services wrote to the claimant indicating that it could not be established that an accident occurred on or around December 1998. As there was a delay in reporting to the employer and a delay in seeking medical attention, Rehabilitation & Compensation Services denied the costs associated with physiotherapy treatment. On February 28, 2000, the claimant appealed the decision to Review Office.

On March 24, 2000, Review Office determined that the claim was acceptable as the evidence had established that the worker sustained a personal injury arising out of and in the course of his employment on December 17, 1998; and that no responsibility could be accepted for physiotherapy treatment.

Review Office noted that the worker contended he injured his lower back from getting in and out of the fuel bays on December 17, 1998. The following morning he woke with pain in his back that he attributed to his work activities the previous day. The worker then reported his difficulties to the employer on December 18, 1998, which was confirmed by the Crew Chief. Based on this evidence, Review Office accepted that the worker sustained a personal injury arising out of and in the course of his employment.

Review Office indicated that it was unable to relate the claimant's problems in September 1999 when medical treatment was first sought to the injury that the worker had in December 1998. This was because of the significant time lapse involved in the worker attending for medical treatment. Review Office indicated that there was no diagnosis for the worker's December 1998 injury. It could only be assumed that the injury was minor because the worker continued to perform his regular duties without any evidence to confirm continuity of signs and symptoms. Review Office was unable to accept responsibility for the worker's prescribed physiotherapy treatment which began in October 1999 as it was unable to relate this to the workplace injury of December 1998.

On April 12, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue in this appeal is whether or not responsibility should be accepted for the claimant's physiotherapy treatment. The relevant subsection of The Workers Compensation Act (the Act) is subsection 27(1) which provides for the provision of medical aid treatment.

The claimant has argued that responsibility should be accepted by the WCB for physiotherapy treatments that were ordered by an attending sports medicine physician for L5-S1 nerve root irritation and carried out between September and November 1999. The claimant has argued that as his claim for an injury taking place on December 17, 1998 was approved by the WCB then treatment to resolve the injuries stemming from that accident should also be acceptable.

In this respect we note that the claimant has indicated that he was injured on December 17, 1998 while exiting a fuel cell at work. In his letter to the Review Office dated February 28, 2000 and at the hearing, the claimant indicated as a result of the December 17, 1998 event that he felt he had bruised his shoulder and pulled a muscle in his low back.

At the hearing the claimant advised that this event occurred on the first day that they were working on the fuel cell, that there would have been a Christmas break, but that work on the fuel cell continued until approximately February 1999. We note that the claimant did not miss any time from work and did not seek any medical treatment until September 24, 1999 at which time he was diagnosed with mechanical back pain and a possible disc lesion later confirmed on CT scan examination performed October 20, 1999.

In order to allow the claimant's appeal it must be determined, on a balance of probabilities, that a causal relationship exists between the compensable event of December 17, 1998 and the current diagnosis and need for medical intervention and treatment.

We are unable to attribute the claimant's current diagnosis and need for physiotherapy treatment to the compensable event for the following reasons:

• the claimant did not lose any time from work;
• the claimant continued to carry out the fuel cell work until approximately February 1999;
• the claimant did not seek any medical treatment until nine months post accident which, in light of the current diagnosis and its significance, brings into question a relationship to the compensable event as described;
• at the hearing the claimant gave evidence that subsequent to the December 1998 accident he was able to perform his regular duties as a aircraft maintenance crew chief and continued that summer for extended hours in the day;
• the claimant delayed establishing a claim with the WCB until October 6, 1999.

We find that we cannot attribute the claimant's current diagnosis as confirmed by the CT scan of October 20, 1999 and need for physiotherapy treatment to the compensable injury of December 17, 1998 due to the significant time lapse involved in reporting an injury and seeking medical treatment.

We concur with the Review Office finding that as the claimant was able to continue to perform his regular duties with no need to seek medical attention, and in the absence of medical evidence of a continuity of signs and symptoms that, on a balance of probability, the initial injuries sustained were minor and that the evidence does not support a cause and effect relationship, on a balance of probabilities, between the current diagnosis and need for treatment and the incident at work on December 17, 1998. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2000