The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On December 1, 1998, an Appeal Panel review was held at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether the claimant is entitled to medical aid benefits for the effects of back, shoulder and neck problems which prompted medical treatment beginning about November 1994.

Decision

That the claimant is entitled to medical aid benefits for the effects of back, shoulder and neck problems which prompted medical treatment beginning about November 1994.

Background

While performing the duties of a healthcare assistant on May 12, 1994, the claimant was helping to transfer a male patient when the patient lifted both feet off the ground. This resulted in the claimant's injuring both wrists, the lower back, shoulder and neck. At the time of the incident, the claimant did not miss time from work as she thought her condition would get better.

Medical information was received from the attending physician, dated March 30, 1995. The physician stated that in May 1994 the claimant had been lifting patients and had hurt her back. Examination revealed tenderness in the right low back and flexion was slightly limited. The claimant was advised to take Tylenol, to apply heat to the affected area and to observe proper lifting techniques. On June 21, 1994, the claimant indicated that her back was sore off and on but she still continued working. Her back continued to be aggravated and she was advised on November 21, 1994, to try a brace, to rest and apply heat. On December 13, 1994, x-rays of the lumbosacral spine and sacroiliac joints showed no disc narrowing and normal sacroiliac joints.

A Doctor's First Report dated December 13, 1994, diagnosed the claimant with having acute lumbar back strain, soft tissue strain of the right shoulder and upper back and bilateral carpal tunnel syndrome (CTS). Arrangements were made for the claimant to attend physiotherapy in January 1995 regarding her back and shoulder. The claimant was advised to remain off work from January through to April 1995.

The claimant provided a statement to a WCB field representative on February 20, 1995. Briefly, the claimant described the incident which occurred on May 12, 1994. She stated that she experienced pain and stiffness in her neck, shoulder and lower back. The claimant filled out a green card but did not take time off work as she thought she would improve. Ever since the accident she progressively got worse. The claimant clarified that she ceased work in January 1995, in order to have her left wrist problem taken care of and that she was to have her right wrist problem attended to in March 1995. She had been attending physiotherapy 3 times per week for the other injured areas and was not taken off work for her back and neck until three weeks after her CTS surgery. The claimant stated she expected to be off work until late March or early April.

On April 19, 1995, the case was reviewed by a WCB medical advisor at the request of Primary Adjudication. In response to questions that were posed, the medical advisor stated that in his opinion the claimant sustained a back strain - soft tissue injury in the May 12, 1994, accident. The medical advisor was of the further opinion that on a balance of probabilities, treatment and time loss from November 1994 to date were directly related to the May 12, 1994, injury.

In a decision, dated May 3, 1995, the claimant was advised by the WCB that responsibility was being accepted for her low back injury sustained on May 12, 1994, and for subsequent medical treatment in May and June 1994. No responsibility, however, would be accepted for ongoing treatment and time loss effective November 1994. Claims Services stated that there had been no record of any ongoing medical treatment between June 1994 and November 1994. Her symptoms worsened around November and December 1994, although there was no secondary traumatic accident or other known cause. The May 12, 1994, injury had resulted in a soft tissue strain and on a balance of probabilities, Claims Services determined that treatment in December 1994 and subsequent time loss were unrelated to the incident.

A worker advisor appealed the decision made by Claims Services to the Review Office. The three issues argued in the worker advisor's submission of May 7, 1998, dealt with whether the recurrence was acceptable, whether wage loss was payable from January 9, 1995, to March 6, 1995, and whether physiotherapy treatments should be covered between January 30, 1995, and March 30, 1995.

In a decision, dated May 29, 1998, the Review Office confirmed the initial decision by Claims Services that the claimant was not entitled to benefits for the effects of her back, shoulder, and neck problems which had prompted medical treatment beginning about November 1994. The reasons for this decision were listed by Review Office as follows:

• the available evidence was insufficient to establish, on a balance of probabilities, that the aggravation of back and shoulder problems in November 1994 were a result of a work related accident.
• The Review Office was not satisfied that the claimant's employment activities of November 1994 involved significant increased risk to result in injury to the back, neck or shoulder, or that this type of injury would even be seen peculiar to or characteristic of her occupation at that time. The physical demands of the claimant's job had actually been reduced after August 1994 because of problems with her wrist.
• The current evidence generally supported the earlier decision made by Claims Services, i.e. that there had not been a substantiated chain of causation between the claimant's original accident of May 1994 and subsequent problems in November 1994.
• Review Office considered that the injuries to the upper back and shoulder were more likely to be consistent with the claimant's fall from a horse in May 1994, than the mechanism of her work-related accident of May 12, 1994.

On October 8, 1998, the worker advisor appealed the Review Office's decision and requested a non-oral file review.

A written submission was received from the accident employer dated November 16, 1998. The employer advised the Appeal Commission that physiotherapy treatments from January 30, 1995, to March 30, 1995, should be covered by the WCB. The employer also indicated that since compensation for wages had already been paid out for the period January 9, 1995, through April 3, 1995, no subsequent wage benefits would be warranted for this injury.

A non-oral file review was held on December 1, 1998.

Reasons

A review of the file reveals that a WCB medical advisor considered the claimant's treatment and time loss during the period of November 1994 to April 1995 to be directly related to the May 12,1994, compensable injury. In a memorandum, dated April 19,1995, the medical advisor responded affirmatively to the following question posed to him by an adjudicator. "On a balance of probabilities is treatment and time loss from Nov 94 to date directly related to the May 12 injury?" For some unknown reason, the adjudicator chose to ignore this response and decided, "On a balance of probabilities, treatment in December 1994 and subsequent time loss are unrelated."

We note with particular interest certain comments contained in a letter to the Appeal Commission, dated November 16,1998, from the accident employer. In that letter, the Occupational Health & Safety Coordinator states as follows: "We at [name of employer] have reviewed the file of [the claimant], Claim # 9402 5301 and concur that the physiotherapy treatments from January 30, 1995 to March 30, 1995 should be covered by Workers Compensation Board."

In light of the foregoing evidence, we have no hesitation in accepting the claimant's appeal and find that she is entitled to medical aid benefits for the effects of the back, shoulder and neck problems which prompted medical treatment beginning about November 1994. We also note that the claimant was able to return to full pre-accident status and resume her normal work duties on April 4, 1995.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of January, 1999