The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on March 9, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on March 9, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 30, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond June 30, 2005.

Background

On January 21, 2005, the worker injured his lower back and buttocks when he slipped while exiting his truck.

Following the accident, the worker attended a chiropractor for treatment and was diagnosed with a lumbosacral subluxation strain/sprain with sciatica. On January 24, 2005, the family physician's diagnosis was a low back strain.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing January 24, 2005.

On February 22, 2005, the worker returned to alternate duties with temporary restrictions to avoid lifting greater than 10 lbs., to avoid prolonged work in a flexed position and to be able to sit or stand when required. During the time he performed alternate duties, the worker underwent both chiropractic and physiotherapy treatments.

On May 26, 2005, the worker advised his case manager that he was told by his doctor to gradually increase his activities so that he could resume his regular duties in a month's time. He stated that he was still in a lot of pain and that he had problems with sitting, lifting and climbing. The worker noted that he continued to perform alternate duties. The worker expressed concerns that he was not confident about returning to his regular duties.

Effective June 14, 2005, the worker began working 8 hours per day. A Return-to-Work Agreement is on file which listed job duties that the worker was to perform during the periods June 13-17, 2005, June 20-24, 2005 and June 27-July 8, 2005. On June 27, 2005, the worker was advised that his partial wage loss benefits would end on June 30, 2005 which was the time he was expected to be back at his regular duties.

On July 5, 2005, the worker contacted his case manager to report a recurrence of his back injury. The worker began driving the week before and was not responsible for any loading or unloading. He did not have another accident. There was no particular time when he felt pain but when he woke up on Friday he was 'bent out of shape' and in a lot of pain. He had to roll out of bed and crawled down the stairs. The pain was in his low back and hip region.

In a report dated July 1, 2005, the treating chiropractor noted that the worker complained of severe low back pain after 3 days of full duties. The diagnosis rendered was a lumbosacral strain/sprain with sciatica.

On August 11, 2005, the family physician advised the WCB that the worker re-injured his back at the beginning of July 2005. On July 4, 2005, he complained of stiffness and soreness which developed from his duties several days prior. He could not recall an acute injury or episode to account for his symptoms. The worker was encouraged to take three weeks off work to avoid re-aggravating his back.

The worker was examined by a WCB medical advisor on August 16, 2005. Following the examination, the medical advisor found the worker's current condition was consistent with a diagnosis of a lumbar strain. He stated, "Given that he was not completely asymptomatic at the time of his recurrence of lower back pain, it is conceivable that they are related without any further incident." The medical advisor found the worker to be capable of performing lighter duties.

In a letter to the WCB dated August 12, 2005, the employer documented that there was nothing in their records to support the worker's claim of a recurrence with his back injury. He did not advise the workplace of any concerns with his physical ability to perform the duties he was assigned nor did he report any incident or injury event while working through to the end of June 30, 2005.

On August 23, 2005, a WCB case manager determined that the information on file did not support the worker's contention that his work activities were responsible for his recurrence of back difficulties. On September 20, 2005, a worker advisor appealed this decision to Review Office on the worker's behalf.

On October 19, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits beyond June 30, 2005. On November 28, 2005, a different worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Chairperson Scramstad and Commissioner MacKay:

The issue before the panel is whether the worker is entitled to wage loss benefits beyond June 30, 2005. Wage loss benefits are payable where a worker is injured in a workplace accident and suffers a loss of earning capacity as a result of the injury, or in other words is unable to work due to the injury. For this appeal to succeed, the panel must find that the worker was unable to work after June 30, 2005 due to the January 2005 injury.

The majority finds, on a balance of probabilities, that the worker's loss of earning capacity is not due to the worker's January 2005 workplace injury and accordingly the worker is not entitled to wage loss benefits beyond June 30, 2005.

Applicable Legislation and Policy

Wage loss benefits are payable in accordance with subsections 4(1), 39(1) and (2) of The Workers Compensation Act (the Act).

The WCB Board of Directors has enacted WCB Policy 44.10.20.50, Recurring Effects of Injuries, which is applicable in cases where workers return to work and subsequently discover that their original injury has not healed.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel. The employer was represented by a staff person and an advocate who made a presentation on the employer's behalf. The employer representatives answered questions posed by the panel.

The worker's representative submitted that WCB Policy 44.10.20.50 is applicable to this case. He submitted that, on a balance of probabilities, the evidence supports that the worker suffered a recurrence. He noted that the injury was to the same anatomical site as the compensable injury, there was no intervening incident or accident that could be considered a new accident. He also noted that the opinion of the WCB medical advisor in a report dated August 18, 2005 supported the existence of a relationship between the January 2005 injury and the worker's 2005 condition after June 30, 2005.

The worker described the workplace accident of January 2005, the symptoms he experienced, and the medical treatment he received. He also described the return to work program with the employer.

The worker advised that by the end of June he was feeling much better but was not 100 percent recovered. He described the symptoms that he had when he woke up on July 1, 2005. He stated that the symptoms were in the same location and of the same intensity as he felt with the January 2005 accident.

Regarding the events of June 30, 2005 the worker advised that he was driving the truck pin to pin, which he explained meant that he did not unload the truck. He described an incident that occurred on June 30, 2005 where he had to climb into the back of the trailer because a loading dock area was flooded.

When asked further about this incident he provided this description:

"-where I had to, unfortunately, because if I can't pull into the dock, they unload it with a forklift, so they drive right into the trailer. What they did was I got into the back of the trailer. They took a forklift and lifted up a hand jack. I was unloading stacked boxes of boxes, which is crated boxes.

They were wedged, actually they - one, two, three, there was probably about eight pallets. When I got to about the fourth pallet, trying to take it off the side, and it's a hand jack so I have to use my arms, have to use my legs, I have to - basically the floors in trailers are extremely slippery. It's wood. It's you know, there's steel slots that go down.

I slipped, pulling this - I didn't fall all the way to the ground, but it's, you know, it's the catching motion and it's just a big jerk, kind of a pull like really quick. That's it.

So I was able to get it unloaded. So I'm pulling these pallets to the end of the trailer and they're taking them off with a forklift, so - ."

The worker stated that he told the WCB case manager about the incident. He also stated that the WCB medical advisor who examined him in August did not ask him what had happened to him.

In answer to a question from his representative regarding any prior difficulties with his back the worker responded that he had none. At a later point in the hearing the worker acknowledged that he had an injury about 10 years ago. He later acknowledged that this injury occurred in 1999.

The worker advised that since 1999 he regularly received treatment from his chiropractor. He advised that he has not gone every single week, and may not go for a couple months at a time. He also advised that the chiropractor did not specifically treat his lower back during this period.

Regarding a return to work after June 30, 2005, the worker advised that his employer did not offer him a position and did not contact him. He advised that he kept in contact with staff at the employer's premises.

The employer's advocate suggested that there is a paucity of medical findings on this claim. She noted that the worker's chiropractor and physician diagnosed the original injury as a low back strain/sprain.

The advocate described the employer's return to work program and the worker's involvement in the program.

Regarding the worker's condition, the advocate noted that the worker did not seek medical attention during the month of June 2005. The advocate also advised that the worker did not report any difficulties to the employer while in the return to work program.

The advocate noted that the worker contacted his supervisor on July 4, 2005 and advised that he hurt his back getting out of bed. She noted the worker did not report any specific event as having occurred on June 30, 2005.

Regarding the WCB Policy, 44.10.20.50, the advocate submitted that the incident did not result in a loss of earning capacity as the employer "…was willing and able and prepared to continue the modified duties." The advocate submitted that there are no medical findings to substantiate a time loss from work.

She concluded that there was no recurrence related to the original injury and that there are too many inconsistencies.

Analysis

After having reviewed and considered all of the evidence and considered the submission made at the hearing, the majority finds that the worker is not entitled to wage loss benefits beyond June 30, 2005.

In arriving at this conclusion, the majority do not place any weight on the worker's evidence. The majority finds the worker's evidence to be inconsistent and, at times, irreconcilable with the facts.

The majority notes that the worker gave inconsistent evidence regarding prior problems with his back. He initially indicated that he had no prior difficulties with his back. He later acknowledged that he had an injury in 1999. He also acknowledged that he has seen a chiropractor on a regular basis since 1999, but that the chiropractor did not specifically adjust his lower back.

The majority notes that the worker provided differing accounts regarding an incident on June 30, 2005. Initially the worker told the WCB that nothing happened on June 30, 2005. This is noted in a July 5, 2005 memo from the case manager. She wrote:
"…He said he did not have another accident. There was no particular time when he felt pain however when he woke up on Friday he was "bent out of shape" in a lot of pain and he could hardly move…."

However, at the hearing the worker described incidents that occurred on June 30, 2005. One incident involved climbing into the back of his trailer. The other incident involved slipping while unloading the trailer.

With respect to the memo quoted above, the worker stated that he told the case manager about the incident on June 30, 2005. The majority finds this evidence from the worker to be irreconcilable with the memo which makes no reference to the incident. The majority places significant weight on the case manager's memo and finds that the memo supports the conclusion that the worker did not re-injure his back at work on June 30, 2005 or have a recurrence of his previous injury.

The worker's evidence regarding unloading the trailer is also inconsistent with the evidence that he was driving pin to pin. He indicated that he had done no unloading on that date and that the duties were in accordance with his restrictions. He then described the incident that occurred on June 30, 2005 which involved unloading the trailer and acknowledged that the duties were not within his restrictions.

Regarding the worker's condition in late June and specifically on June 30, 2005, the majority notes that a progress report dated April 28, 2005 from the worker's physician indicated the worker could return to regular duties in 1-2 months. The majority also notes that the worker did not receive medical attention in June 2005. As well, a review of the file does not establish that the worker was experiencing any symptoms or problems with his return to work. The majority notes that on June 29, 2005 a representative of the employer contacted the worker regarding his return to work. The worker did not identify any symptoms or problems related to his injury. The majority finds, on a balance of probabilities, that the worker was not symptomatic in late June 2005, and had recovered from the January 2005 injury.

The worker's representative noted that a WCB medical advisor was supportive of the worker's claim for a recurrence. The medical advisor examined the worker and commented in a report dated August 16, 2005 that "The claimant's current condition is most consistent with a diagnosis of lumbar strain. Given that he was not completely asymptomatic at the time of his recurrence of lower back pain, it is conceivable that they are related without any further incident."

The majority notes that this report is based upon an understanding that the worker was symptomatic at the time of the alleged recurrence. Under the title "History of Injury", the physician notes that the worker was about 60% of his usual level of function. This understanding would appear to be based on the worker's evidence and is not consistent with the preponderance of evidence on the file, that the worker was not symptomatic.

The majority also notes that the medical advisor referred to a "conceivable" relationship while the standard applied under the Act is probability. The majority finds that the evidence, on a balance of probabilities, does not support a finding that the worker's symptoms/condition on July 1, 2005 are related to his January 2005 workplace injury.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of May, 2006

Commissioner's Dissent

Commissioner Leake:

Dissenting.