The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 3, 2003, at the request of a worker advisor acting on behalf of the claimant. The Panel discussed this appeal on December 3, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 13, 2002.

Decision

That the worker is entitled to wage loss benefits beyond September 13, 2002.

Decision: Unanimous

Background

The claimant submitted an application for compensation benefits with respect to a lower back injury that occurred on February 20, 2002 when he was felling a tree and his feet slipped from underneath him. The next day, the claimant attended a local hospital for treatment and was diagnosed with an acute back sprain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid between February 21, 2002 and March 8, 2002 when the claimant returned to his regular duties.

He was laid off from the end of March 2002 to July 2002 due to a work shortage. He then received employment insurance benefits. The claimant resumed working when called back by his employer in July 2002. He stopped work again, however, in September 2002, due to continued pain in his back. The claimant did not see any doctors for treatment between March and September 2002. On October 1, 2002, the claimant advised a WCB adjudicator that his back still bothered him when he returned to work in March 2002 but that he had continued working. The claimant was then advised by his WCB adjudicator that a new claim would have to be made up as the problems he was having seemed to be non-specific and could not be considered a recurrence of his February 2002 injury.

On October 2, 2002, the claimant filed a second claim for WCB benefits indicating that he originally injured his back in February 2002 and that his back was still sore when he returned to work.

During a telephone conversation with a WCB adjudicator on October 3, 2002, the claimant denied any new accidents and stated that he was unable to work beyond September 13, 2002. There were no changes to his work duties. The claimant felt that his current problems were due to his February 20, 2002 work accident.

Up-dated medical information was received from attending physicians. The reports revealed that the claimant was assessed in September 2002 for back complaints.

On January 22, 2003, the claimant was advised by primary adjudication that his claim for compensation had been denied as it was unable to establish that an accident as described in section 1(1) of The Workers Compensation Act (the Act) had arisen out of and in the course of his employment, pursuant to section 4(1) of the Act.

Primary adjudication noted that when considering a claim where there had been no further injury or accident at work, entitlement to benefits depended on medical evidence and other information providing that the recent disability was related to a previous injury which "arose out of and in the course" of a worker's employment. In this instance, primary adjudication was unable to establish a relationship between the claimant's current difficulties and the compensable accident of February 2002.

In a submission dated March 26, 2003, the worker advisor appealed the WCB's decision that was rendered on January 22, 2003. The worker advisor submitted and made reference to several medical reports on file dated October 28, 2002 and June 18, 2003 which he felt supported the position that the claimant's time loss from work was related to the injuries he sustained while at work on February 20, 2002.

On June 9, 2003, primary adjudication wrote to the worker advisor to indicate that after a review of the new medical information that was submitted, no change would be made to the previous decision to deny benefits to the claimant beyond March 8, 2002 inclusive.

On June 10, 2003, the supervisor of Short Term Claims wrote to the worker advisor to advise that there was no basis to convene a Medical Review Panel (MRP). The supervisor was of the position that the reason for denial of benefits to the worker on his claim was not due to a difference in medical opinion but rather had a foundation in the adjudicative process.

The case was then considered by Review Office on July 4, 2003. Review Office confirmed that the claimant was not entitled to wage loss benefits beyond September 13, 2002. Review Office felt there was no evidence to support the claimant's belief that his current back problems were a continuance of his February 2002 work injury.

Review Office also stated that its decision was based upon adjudicative principles and not on a medical opinion. As neither the adjudicator nor Review Office consulted with a board physician in determining the case, there was no difference in medical opinion and therefore a MRP would not be convened. In September 2003, the worker advisor appealed Review Office's decision and an oral hearing was requested.

On November 3, 2003, the worker advisor provided the Appeal Commission with additional medical information for consideration. These reports were dated January 3, 2003, May 21, 2003, June 18, 2003, September 16 & 17, 2003 and October 31, 2003. A further medical report was submitted dated November 18, 2003. On December 3, 2003, an oral hearing was held.

Reasons

The issue on this appeal is whether the claimant is entitled to wage loss benefits after September 13, 2002.

Section 39(2) of the Act provides that wage loss benefits are payable until "(a) the loss of earning capacity ends, as determined by the board". In its decision dated July 4, 2003, the Review Office determined that the claimant was not entitled to compensation benefits after September 13, 2002 because there was no evidence to support the claimant's position that his back problems were a continuance of his February 2002 work injury.

Specifically, the Review Office noted that after the claimant experienced an acute back strain on February 20, 2002, he returned to work on March 11, 2002 and continued working until he was laid off at the end of March 2002 when he went on regular employment benefits, without seeking any medical attention during that time. The Review Office found, therefore, that because the claimant did not return for medical attention it could only assume that the claimant had made a good recovery from his February 2002 work injury. In reaching its decision the Review Office also commented that the primary adjudicator, in finding the claimant was not eligible for wage loss benefits beyond September 13, 2002, was unable to determine a causal relationship between the claimant's problems and the original compensable injury.

It was this specific determination that formed the basis of the claimant's appeal when he appeared before the Panel on December 3, 2003, accompanied by a worker adviser. No one represented the employer's interests at the appeal hearing.

The claimant testified at the hearing, commencing with a description of how his original injury occurred on February 20, 2002. He described how he was working on a steep, sloped hill using a 35 lb. power saw to fell a spruce tree. In the process of sawing it down, he described that his feet slipped from underneath him and he came to a sudden drop, jarring his back. He described the pain feeling like someone had stabbed him with a pitchfork in the middle of his back.

As a result of the accident, he stopped working until March 11, 2002 when he returned to work, having been advised by his physician to give it a try. He testified that when he returned at that time he did complain to his co-worker of steady pain in his back. The tree cutting work which was seasonal, came to an end and the claimant was laid off from the end of March until July. He testified that during that time he simply rested. He testified that he did not attend a physician while he was laid off because he was not doing any heavy work and the pain was not as intense.

He testified that when he returned to work in July of 2002 he was not able to perform his full log production. He continued to have pain in his back and he advised his co-workers of that fact. He testified that he required additional rest breaks after his return to work in July. Finally, by September 13, 2002, he testified that he could no longer stand the pain in his back and therefore stopped working.

He also testified that because he lived in a remote area, he had difficulties getting in to see a physician, and would have to travel at least one hour to the nearest medical office. He did not own a vehicle nor does he have a driver's licence. He would, therefore, have to either pay somebody or depend on someone to get him in to see a physician. Further, when he was working he lived in a camp situation which was again, far from any physician.

The claimant specifically testified that the pain he felt in March and July of 2002 was the same as the pain that he experienced right after the accident occurred in February 2002. In September of 2002 when he stopped working the pain seemed to have got worse. Because the nature of the work he performed was extremely heavy physical work and required traveling on uneven ground, he was simply unable to continue.

The claimant submitted a number of medical reports in support of his appeal. The claimant's general physician, in a letter dated October 28, 2002, advised that he considered the claimant restricted due to the original compensable injury. The physician further advised that he could not see the claimant doing heavy work without a rehabilitation program. This opinion was confirmed by the same physician in a report dated January 3, 2003. The claimant was then referred to a physical medicine specialist. That specialist, in his first report dated May 21, 2003, advised that after examining the claimant, he determined that the claimant suffered pain in his lower back due to muscle strain and ligamentous strain. The specialist also provided treatment in the form of needling and stretching. In a subsequent report dated June 18, 2003 the specialist reported that he saw the claimant again and that the claimant had reported no significant change after his last treatment. The specialist further advised that because he was not able to return to the area where the claimant lived for several months, he was reluctant to perform any further treatment unless he could follow the claimant on a regular basis. This could not be done until the doctor was able to return to the area in September of 2003. The specialist advised that in his opinion the claimant's problem was strictly connected with the fall that he had had and that his symptoms were a direct relationship to that accident.

On September 17, 2003, the specialist provided a further report to the claimant's worker advisor at which time he indicated that he considered the claimant still totally disabled from work beyond September 13, 2002 as a result of the back injury that occurred on February 20, 2002. The physician further advised that the claimant was unable to perform a number of physical tasks all of which he was able to do prior to his February 20, 2002 injury. In answer to the worker advisor's previously posed question: "Would you consider this claimant's back injury the dominant-cause of his present ongoing medical treatment?", the physician answered "Yes". This physician concluded that his diagnosis of the claimant's complaint was a combination of muscular strain and ligamentous sprain with the development of myofascial trigger points in the muscle and posterior spinal ligaments, all of which were a result of the fall which occurred on February 20, 2002.

Finally, in a report dated November 18, 2003, the specialist reported the results of a CT scan performed on the claimant and concluded that in his opinion the claimant's ongoing pain was still due to mechanical problems.

Having listened to the claimant's testimony and having reviewed all of the medical information submitted on the claimant's behalf, the Panel concluded that there was indeed a causal connection between the claimant's problems and his original compensable injury. Therefore, the Panel determined that as the result of the claimant's ongoing medical restrictions, the claimant's loss of earning capacity, arising from the original compensable injury, had not in fact come to an end. The claimant is, therefore, entitled to wage loss benefits after September 13, 2002.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2003