Decision #92/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 11, 2000, at the request of the claimant. Following the hearing, the Panel requested that the case be referred back to Review Office to make a determination with respect to chiropractic treatment beyond December 15, 1998 as this issue had not been addressed by Review Office in their decision of March 24, 2000, Order No. 217/2000. On July 24, 2000, Review Office determined there was no basis to extend financial responsibility for chiropractic treatment beyond December 15, 1998. On August 22, 2000, the Panel met to discuss the case and made decisions on the issues as noted below.

Issue

Whether or not the claimant is entitled to the payment of wage loss benefits for time loss from work commencing October 1, 1998; and

Whether or not responsibility should be accepted for chiropractic treatment beyond December 15, 1998.

Decision

That the claimant is not entitled to the payment of wage loss benefits for time loss from work commencing October 1, 1998; and

That responsibility should not be accepted for chiropractic treatment beyond December 15, 1998.

Background

A complete background concerning the details of this claim can be found in Appeal Panel Decision No. 8/00 dated January 27, 2000, and will not be repeated in its entirety at this time.

In brief, the claimant submitted an application for compensation benefits indicating that he injured his neck, right elbow and back on June 2, 1998, while lifting heavy paper products on an ongoing basis. On October 1, 1998, the claimant quit working for the company due to his injuries.

In February 1999, the claim was denied by primary adjudication as it could not be substantiated that the claimant sustained a personal injury or accident which both arose out of and in the course of his employment and that he delayed in reporting a work related incident to his employer. The claimant appealed this decision to Review Office and then to an Appeal Panel who ultimately determined that the claimant did incur an accident arising out of and in the course of his employment, which resulted in injury.

Following the Appeal Panel's decision, the case was referred back to primary adjudication to determine the extent of the claimant's entitlement to benefits. In a letter dated February 25, 2000, the claimant was informed that responsibility was being accepted for all chiropractic treatments from June 3, 1998, to September 8, 1998, and from September 9, 1998 to December 15, 1998, inclusive and final. The claimant was advised that he was not entitled to payment of any wage loss benefits due to the fact that he stopped working for the accident employer on October 1, 1998, at his own initiative and because his attending chiropractor did not provide any authorization for him to remain off work as a result of his back difficulties.

On February 28, 2000, the claimant appealed the adjudicator's decision of February 25, 2000. The claimant made reference to the following portion of a letter by his treating chiropractor dated February 22, 1999: "I advised Mr. [the claimant] in October and December of 1998 that the type of physical work he was involved with could result in further aggravation to his lower back. I advised the patient to seek other type of employment due to his continuing back pain in October and November of 1998." The claimant indicated in his appeal "No doctor to my knowledge can order any patient to anything against his will. The doctor can only recommend or suggest a course of action for treatment. Dr. [chiropractor's name] advised me to seek a different type of work. We took his advice and quit, rather than run the risk of further injuring my back." The claimant later submitted a list of dates he was treated by the chiropractor between June 3, 1998 and December 31, 1999.

In a decision dated March 24, 2000, Review Office indicated there was no medical substantiation to indicate that the claimant was totally disabled by reason of the compensable injury. There was no indication that the claimant was required to be off work beyond October 1, 1998. Review Office made note of the treating chiropractor's comments of February 22, 1999, as stated by the claimant in his appeal submission. Review Office indicated that the statement made by the chiropractor "in and of itself does not substantiate that the claimant was totally disabled by reason of his work activities. It does state the claimant should look to other forms of employment in order to avoid further aggravation. There is no substantiation in this statement that the chiropractor has authorized the claimant to be absent from work commencing October 1, 1998."

Review Office commented that although the claimant had not worked since October 1, 1998, it appeared that he had not been treated by any person on a regular continual basis. On February 1, 1999, the chiropractor advised a WCB adjudicator that no time loss from work was authorized as a result of the claimant's work activity. Review Office said the claimant was informed that he should consider an alternate form of employment in order to avoid further occurrences where treatment may be required.

Review Office concluded from the file documentation that there was no justification to warrant the claimant being absent from work on September 1, 1998 (sic - should have been October 1, 1998), on a regular continuous basis and there was no authorization by any physician or chiropractor to substantiate absenteeism. In May 2000, the claimant appealed Review Office's decision and an oral hearing was held on July 11, 2000.

As noted in the preamble, the Appeal Panel requested that the case be referred back to Review Office to make a determination with respect to chiropractic treatment beyond December 15, 1998 as this issue had not been addressed by Review Office in their decision of March 24, 2000. On July 24, 2000, Review Office determined there was no basis to extend financial responsibility for chiropractic treatment beyond December 15, 1998. On August 22, 2000, the Panel met to render its final decision on the issues under appeal.

Reasons

The issues in this appeal are whether or not the claimant is entitled to the payment of wage loss benefits commencing October 1, 1998 and whether or not the claimant is entitled to chiropractic treatments beyond December 15, 1998.

The relevant subsections of the Workers Compensation Act (the Act) are subsection 39(2) which provides for the duration of wage loss benefits and subsection 27(1) which provides for medical aid benefits.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

    a) the loss of earning capacity ends, as determined by the board; or

    b) the worker attains the age of 65 years.

Subsection 27(1) states:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Appeal Panel Decision No. 8/00 dated January 27, 2000 found this claim to be acceptable as work related and the file was returned to the WCB for a determination of entitlement to benefits. Claims (February 25, 2000) and Review Office (March 24, 2000 and July 24, 2000) subsequently both ruled respectively that the claimant was not entitled to any wage loss benefits with respect to the claim but that the claimant was entitled to chiropractic treatment to December 15, 1998. The claimant has appealed these decisions on entitlement to benefits and services.

In this appeal we reviewed all the evidence on file and given and received during the hearing process. We find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is not entitled to wage loss benefits from October 1, 1998 and that responsibility for chiropractic treatments (medical aid) should not extend beyond December 15, 1998.

In reaching this decision we note that the claimant contends that his injury began on or around June 2, 1998 and continued in the absence of a specific reported incident until he left his employment on October 1, 1998. However, we note that during this time the claimant continued to work at his regular duties and did not attend for medical/chiropractic treatment on a timely or regular basis. In a report from the claimant's treating chiropractor dated October 27, 1998, where dates of first treatments are indicated to be June 3, 1998 and October 15, 1998 the chiropractor also indicated that the claimant had "no work loss." In a WCB memorandum to file dated February 1, 1999 the attending chiropractor confirmed that the claimant had been seen prior to May 1998 for back difficulties in 1996 and 1997. As recorded in the same memorandum, the chiropractor further indicated that no time loss from work had been authorized in October 1998.

In a further WCB memorandum to file, dated February 9, 1998, the claimant's attending physician indicated that he believed the claimant attended a chiropractor for back treatment. The physician further indicated that he had not seen the claimant for any back difficulties until October 20, 1998, when the claimant related his difficulties to heavy lifting at work between May and October 1, 1998.

We note the significant delay between the claimant terminating his employment and seeking any medical or chiropractic treatment. We also note throughout the evidence the sporadic nature of the claimant's attendance for treatment during the time he was working from June to October 1, 1998. We find this speaks to the relatively minor nature of the injury and supports a finding of no time loss.

In a subsequent report dated February 22, 1999 the claimant's attending chiropractor indicated that the claimant had seen him for two injuries respectively June 3, 1998 and October 15, 1998. In the same report the attending chiropractor stated in part:

    "I advised Mr. [the claimant] in October and December of 1998 that the type of physical work he was involved with could result in further aggravation to this lower back. I advised the claimant to seek other type of employment due to his continuing back pain in October and November of 1998."

We find that this does not indicate that the claimant was totally disabled from his employment as a result of his injury. We also note with respect to the above reports that the claimant had actually terminated his employment with the accident employer on October 1, 1998.

In a subsequent report dated March 9, 2000 the attending chiropractor indicated that he had continued to see the claimant on a regular basis and also that:

    "I have recently treated him [the claimant] on an extensive basis due to an increase in back pain."

In our view this suggests that the claimant's symptoms appear to be increasing with no causal connection to employment activities/workplace. We find that the claimant was not totally disabled from the compensable injury and that the evidence does not support a requirement to be off work from October 1, 1998.

We therefore find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is not entitled to wage loss benefits for time loss commencing October 1, 1998, as a result of the compensable injury.

With respect to the second issue of the claimant's entitlement to medical aid (chiropractic treatments) we find no reason to change the decision of the Review Office of July 24, 2000 that there was no basis to extend financial responsibility beyond December 15, 1998. We note that initial responsibility was accepted for chiropractic treatment from June 3, 1998 to September 8, 1998. This was extended for a further 14 weeks from September 9, 1998 to December 15, 1998.

In our view, taking into account the nature of the injury and the sporadic nature of the claimant's attendance for treatment, that this length of time would have been sufficient to treat the claimant for the June 1998 incident and the further exacerbation that the claimant experienced in October 1998. While we note the claimant's argument that this was a decision taken in hindsight nevertheless we consider that the decision was reasonable in light of the nature of the injury and in light of the sporadic treatment that the claimant elected to seek following the injury.

The claimant's appeal on both issues is therefore denied.

Panel Members

D.A. Vivian, Presiding Officer
P. Challoner, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of September, 2000

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