Decision #125/99 - Type: Workers Compensation
An Appeal Panel hearing was held on June 16, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 16, 1999, and on August 23, 1999.
Whether the claimant is entitled to benefits for back problems which prompted an absence from work beginning July 28, 1998 in relation to his compensable injury of April 17, 1998.
That the claimant is not entitled to benefits for back problems which prompted an absence from work beginning July 28, 1998 in relation to his compensable injury of April 17, 1998.
While performing the duties of a labourer on April 17, 1998, the claimant was dragging a hog weighing approximately 200-250 lbs. when he injured his back. On April 20, 1998, the attending physician diagnosed acute sprain with spasm. The claimant also attended a chiropractor and a sports medicine specialist who noted the claimant had pain in the scapular region and through his chest.
On June 12, 1998, a medical advisor from the Workers Compensation Board (WCB) reviewed the case and he was of the view that the reported pain in the scapula and chest was consistent with the mechanism of injury and was likely due to muscle spasm. The medical advisor also agreed with the sports medicine specialist that the claimant could return to work as of June 15, 1998, performing modified duties on a graduated basis.
Subsequent reports showed that the claimant returned to work on June 29, 1998, at time and by July 6, 1998, was working full time performing his regular duties.
On July 29, 1998, the employer wrote to a WCB claims adjudicator indicating that the claimant was involved in a motor vehicle accident (MVA) over the weekend and that he telephoned the office nurse to advise he would not be coming to work as his back was stiff and sore. According to the employer, the claimant made no mention that his soreness was a result of his work duties. The claimant missed his complete shift on July 27, 1998. On July 28, 1998, the claimant contacted the health nurse to advise he was still stiff and sore from the MVA and that he would be coming to pick up group insurance forms and would be seeing his doctor. Around 11:35 the same day the claimant advised he would be making a claim with WCB as a recurrence of his previous back problems.
At the request of primary adjudication, signed statements were obtained from the claimant and five co-workers. Information from the Manitoba Public Insurance Corporation (MPIC) was also obtained which indicated that the claimant did not file any MPIC injury claim form.
Up-dated medical information dated July 28, 1998, indicated that the claimant's back condition had deteriorated. On August 31, 1998, a WCB medical advisor spoke with the sports medicine specialist who advised he was not aware of the MVA prior to the claimant's deterioration of July 28, 1998. The specialist stated he was concerned that the claimant had some form of "inflammatory" back disease, i.e. ankylosing spondylitis. (Subsequent investigations including blood work and a bone scan proved to be negative for this type of condition.)
In September 1998, a WCB medical advisor reviewed the file contents and was of the following opinion:
- there was no ongoing cause/effect relationship between the results of the current findings and the original injury of April 17, 1998;
- further investigations to determine the possibility of an inflammatory condition was not the responsibility of the WCB;
- the claimant would have had considerable time to recover from the sprain injury prior to returning to work in early July, 1998.
Based on the above comments, the claimant was advised by Claims Services on September 14, 1998, that his request for further wage loss benefits was denied. The letter stated, in part, “It was the opinion of Claims Services, the weight of evidence, including the history of your original injury, the diagnosis of muscle strain, expected symptom durations, and current clinical findings, support that you had essentially recovered from your workplace accident when you returned to work on June 29, 1998.”
On October 26, 1998, a union representative appealed Claims Services’ decision to the Review Office. Prior to considering the appeal, Review Office obtained an opinion from a WCB orthopaedic consultant on November 17, 1998.
On November 27, 1998, the Review Office determined the claimant was not entitled to benefits for the back problems which prompted his absence from work beginning July 27, 1998. The Review Office stated that the weight of evidence failed to establish that the claimant’s back complaints about July 24, 1998, were reasonably caused by an accident arising out of and in the course of employment. The Review Office noted the following when rendering its decision:
- a causal connection between the April 1998, work place accident was not supported by historical evidence of continuity or by medical evidence.
- the claimant did not mention any ongoing back problems to his employer between June 29th and July 24th. His contentions of ongoing and/or increased back problems throughout this period were not generally supported by medical examination on July 10th.
- current information did not show that the claimant’s back problem on July 24th was precipitated by an accident at work or was reasonably explained by his specific job activities.
- there was no objective clinical findings to indicate that the claimant had a back problem on or after July 24th which was attributable to an accident at work or was likely to explain disablement from normal activities.
On June 16, 1999, an Appeal Panel hearing was held at the request of the union representative. Prior to deciding whether the claimant was entitled to benefits beginning July 27, 1998, additional medical information was requested and obtained from the sports medicine specialist dated June 30, 1999. A copy of the report was distributed to the interested parties for comment. On August 23, 1999, the Panel met to render its final decision.
The issue in this appeal is whether or not the claimant is entitled to benefits for back problems which prompted an absence from work beginning July 27, 1998 in relation to his compensable injury of April 17, 1998.
The relevant subsection of the Workers Compensation Act (the Act) is 39(2) which provides for the duration of wage loss benefits.
We reviewed all the evidence on file, and given or received at the time of the hearing, and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is not entitled to benefits in relation to his absence from work beginning July 27, 1998 in relation to his compensable injury of April 17, 1998.
The evidence reveals that the claimant injured his back at work while dragging a hog on April 17, 1998 which was accepted as a WCB responsibility. The claimant returned to work half time on June 29, 1998 performing light duties for a week with which he reports he had no problem. For the second week the claimant performed his regular job with some reported problems with pain. For the third week, and half of the fourth week the claimant performed a very light duty job which entailed sitting and having to operate only two buttons. During the last half of the fourth week the claimant did light duties until Friday July 24, 1998 when he did his regular duties.
In his sworn statement of August 21, 1998 the claimant indicated that " he was having trouble getting out of bed that whole week, " (i.e. July 20th to 24th, 1998) and that, "I was super sore on the Friday night, when I got home." The claimant further indicates that he did not sleep on the Sunday night due to the pain and that on the Monday "he could hardly get out of bed." We note that the claimant indicated to an adjudicator, as recorded in a memorandum to file dated August 4, 1998, that on July 27, 1998 he was unable to get out of bed. However we note at the hearing the claimant indicated that he was able to take his vehicle to the insurer for an assessment of damage on July 27, 1998. We also note that the claimant indicated at the hearing that on the weekend of July 25 and 26, 1998 he was able to go ahead with plans to visit relatives outside the city.
The file goes on to reveal that the claimant was involved in a motor vehicle accident (MVA) on Friday July 24, 1998 after work and that on July 27, 1998 the claimant did not work, subsequently claiming a recurrence of his work related injury of April 17, 1998. The employer has maintained that on July 27, 1998 and July 28, 1998 the claimant contacted the nurse at the plant informing her that he would not be in to work as he was stiff and sore from the MVA. The claimant has since maintained that he was not injured in the MVA sustaining only vehicular damage of a minor nature and that his ongoing problems were related to the original compensable event.
We note in the week of July 20 to 24, 1998 when the claimant indicated he was having problems at work, the claimant saw his chiropractor on Thursday, July 23, 1998. We note there is no mention of any specific problems or of an increase in problems at work recorded in the report. In a narrative report dated February 8, 1999 the attending chiropractor indicated in part:
- " He stated that he had returned to work on June 29, 1998 and was functioning reasonably well... .
" On examination, Mr. (the claimant) appeared to be in mild discomfort. He had full painless range of motion of his neck and back."
In the same report the chiropractor indicated that "due to the refractory inflammatory symptoms I suggested to Mr. (the claimant) that we needed to rule out a possible seronegative spondyloarthroplasty-which is a form of inflammatory arthritis that affects the spine." We find that this evidence indicates that the chiropractor was concerned about the duration and type of the claimant's symptoms so much so that he felt there may be a systemic cause not related to the compensable event. We note that subsequent tests failed to reveal any systemic problem to account for the claimant's reported symptoms. We also note in this report that the chiropractor indicates at this time that he would refer the claimant back to his attending physician and would continue to see him only on an "as needed basis for supportive care."
The claimant saw his attending physician on July 28, 1998 five days after his last visit to his chiropractor and following the MVA of Friday 24, 1998 and the weekend of July 25 and 26, 1998. We note that at the time of the claimant's reported deterioration, the attending physician has indicated that he was not aware that the claimant had been in an MVA. We note in a narrative report dated March 10, 1999 the physician states:
- " Mr. (the claimant) certainly sustained a sprain, strain injury to his spine in the original event in April of 1998. He had improved with conservative therapy and had returned to work seemingly doing well. On the basis of his history there was deterioration and relapse in July 1998. ...this is probably a relapse of his original injury and symptomatology. Although some features were a bit different from his original injury. " (emphasis ours)
In a subsequent narrative report dated June 30, 1999 the attending physician states:
- " The event where he relapsed had pain in a similar area but the history was strongly suspicious of inflammatory features. With a history of inflammatory features he was subsequently investigated for a spondyloarthropathy including bone scan and serology which were not consistent with a spondyloarthropathy. I hope this clarifies the difference in features from his original injury which showed mostly mechanical and muscular features without inflammatory features."
A WCB orthopaedic consultant reviewed the file and in a memorandum to file dated November 17, 1998 states:
- " There is nothing on file to suggest that the claimant was not capable of returning to regular duties by July 6, 1998 and the condition was not consistent with an acute low back strain."
We unanimously concur with the opinion of the WCB orthopaedic consultant as other evidence on file supports his view. We note many inconsistencies on the file as outlined which undermine the credibility of the claimant and therefore his claim for a recurrence of symptoms related to his compensable event. We find that the claimant's reported symptoms were not related to any event which occurred at work after June 29, 1998 or, in particular, the week of July 20 to 24, 1998. Therefore the claim for a recurrence of back problems and accompanying benefits beginning July 27, 1998 in relation to the compensable injury of April 17, 1998 is denied.
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 27th day of August, 1999