The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on December 3, 1999, at the request of the employer's representative.

Issue

Whether or not the claimant is entitled to wage loss benefits from February 23, 1999 to March 2, 1999.

Decision

The claimant was not entitled to wage loss benefits from February 23, 1999 to March 2, 1999.

Background

On February 1, 1999, the claimant injured his left lower back from lifting a wheel onto the hub of his truck. When examined by a chiropractor on the same day, the diagnosis was an L5 area subluxation/strain with left SI joint involvement. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on February 2, 1999. On February 5, 1999, the chiropractor determined that the claimant was fit for light duties with restrictions of no heavy lifting or forward bending for one week. The claimant then returned to light duties on February 8, 1999.

In a progress report dated February 19, 1999, the treating chiropractor noted that after the 2nd week of light duties the claimant had a mild re-injury with increased pain and discomfort. It was recommended that the claimant remain on light duties for at least one more week.

On February 26, 1999, the claimant contacted the WCB indicating that he worked light duties between February 8th and February 19th inclusive. Due to the flu, which set back his recovery, the claimant advised he did not report for work on February 22nd and was to stay off work until March 3, 1999.

On March 10, 1999, the treating chiropractor reported that the claimant suffered an attack of influenza while on light duties and was required to remain horizontal for some four days which in effect increased his symptoms and required him to be maintained on light duties a little more than initially anticipated. The chiropractor indicated that an increase in recumbency of a healing lower back injury often flared up the intensity of the lower back symptoms.

The chiropractor stated that he saw the claimant on February 23, 1999, and he was still recovering from the flu and presented with acute lower back symptoms. The claimant was then examined and treated on February 23, 24, 25, and 26 and was determined to be capable of light duties as of March 3, 1999.

On March 17, 1999, a WCB adjudicator asked a WCB chiropractic consultant to review the file. On March 19, 1999, the chiropractic consultant stated the following:

"It is not likely that the bed rest required of Mr. [the claimant] would have caused back pain to an uninjured back. Therefore, in my opinion, the extra treatment over his post-recumbering period should be related to his CI, as there is evidence in the bio-medical literature supporting the deleterious effect of bed rest on low back pain."

On March 22, 1999, the claimant was informed by primary adjudication that the WCB was unable to accept responsibility for his time loss from work between February 22 - March 2, 1999. The rationale for this decision was based on the fact that the claimant's time loss during this period related to influenza and was not due to his workplace injury.

In a memo dated April 14, 1999, a WCB chiropractic consultant indicated that he spoke with the treating chiropractor by phone. In this regard, the WCB chiropractor consultant documented the following:

"As noted previously Mr. [the claimant's] low back flared due to recumbency secondary to flu. He missed February 22/99 due to flu. He saw Dr. [treating chiropractor] February 23/99. His flu symptoms that day were minimal, but flared-up low back prohibited RTW until March 3/99. It is not likely that his back would have reacted in the way it did in the absence of the compensable injury. Therefore, in my opinion, time loss to March 3/99 was due to CI rather than flu."

Following the above telephone conversation, primary adjudication wrote to the claimant on April 22, 1999. Primary adjudication stated that the disability commencing February 22, 1999, was the result of a secondary incident, specifically influenza, which did not arise out of and in the course of employment. It was considered that the claimant's back symptoms had improved to the point where he was capable of performing light duties as of February 8, 1999, until such time as he came down with the flu. It was the opinion of primary adjudication that if the claimant did not have the flu, he would have been capable of continuing to perform light duties until he was considered fit for his pre-accident employment.

On July 15, 1999, a union representative contended that the WCB erred in denying benefits to the claimant for the period February 23 through March 2, 1999, inclusive. In part, the union representative stated that the claimant was not disabled from performing the modified/light duties between February 23 and March 2, 1999 by the flu. He was disabled from the modified /light duty due to the compensable injury from which he had not recovered and which was aggravated by bed rest. In support of his position, the union representative relied on a June 15, 1999, report from the attending chiropractor and referred to Board Policy 44.10.20.50, Recurrent Effects of Injuries and text from Workers Compensation in Canada, under Chapter 5, subsection 5.4.2.

In a decision dated September 24, 1999, Review Office determined that the claimant was entitled to wage loss benefits between February 23, 1999 to March 2, 1999 based on the following evidence:

• the claimant was still suffering from the effects of his compensable low back injury when he unexpectedly came down with the flu on or around February 21, 1999.
• the period of extended bed rest necessitated by his flu symptoms resulted in a worsening of the symptomatology in his lower back.
• the attending chiropractor expressed his opinion that the flare up in the worker's back condition resulted in him being unable to perform light duty work between February 23, 1999 and March 2, 1999.
• the temporary worsening of the worker's compensable back injury was unfortunate, but was an unavoidable circumstance, which was beyond the control of the worker. It was believed that the claimant's absence from work between February 23, 1999 and March 2, 1999, was considered a "recurrence" rather than a "new accident".

On October 1, 1999, the employer's representative appealed the Review Office's decision and a non-oral file review was held on December 3, 1999.

Reasons

On February 1, 1999 the claimant injured his back while lifting a tire to place it on the hub of a truck. He went to a chiropractor the same day following the gradual onset of symptoms. He was diagnosed as having suffered subluxation/strain of the lumbrosacral area. On February 8, 1999 the claimant returned to work performing light duties which did not require heavy lifting or forward bending. These duties were performed with no apparent difficulty up to February 19, 1999 when the chiropractor reported a mild re-injury and suggested extending the light duties for at least one more week. The claim was accepted by the WCB.

On Saturday, February 20, 1999 the claimant came down with the flu and suffered from this for approximately three days. On Monday February 22, 1999 the claimant reported he would not be in to work as he had the flu.

The claimant was seen by the chiropractor on February 23, 1999 and it was reported that the claimant was recovering from the flu. Chiropractic treatment was also rendered on February 24, 25, 26, 1999.

On March 10, 1999 the chiropractor responded to a WCB request and provided a narrative report. It listed the treatment dates but does not outline findings which would suggest the claimant was totally disabled from the effects of the compensable injury during the period when the claimant was reported to have the flu. However it was the chiropractor's opinion that the claimant would be fit to return to the light duty employment on March 3, 1999. No information has been provided by the attending chiropractor to establish that the claimant suffered any greater level of disability with respect to the compensable component that was reported on February 19, 1999, before the onset of flu symptoms.

It is our view that the claimant contracted the flu which, in the circumstances of this case, is an ordinary disease of life and not a consequence of the compensable injury. It cannot be considered that the flu arose out of or in the course of employment and consequently, cannot be considered compensable. We find there to be no direct relationship between contracting the flu which was an intervening secondary incident and the claimant's earlier compensable back injury. In fact we note the chiropractor's report of March 1, 1999 where he clearly relates the exacerbation of the claimant's low back symptoms to the flu and states:

" -flu- flat on back 21/22 /2/99- caused low back flare-up-"

We also note in the chiropractor's narrative report dated March 10, 1999 where the following is reported:

" while on light duties suffered an attack of influenza and was required to remain horizontal for some four days which in effect increased his symptoms..."

The panel notes the claimant was capable of attending the chiropractor for treatment on a daily basis over the period in question.

The advocate for the employer argued that the issue under appeal should be adjudicated as a new accident. The advocate for the claimant argued that the issue should be adjudicated as a recurrence. It is our view that in the circumstances of this case the claimant did not sustain a new accident as intended by the Act or a recurrence of the compensable injury. We find in the circumstances of this case that contracting the flu is an ordinary disease of life and not an accident as contemplated by the Act. There is no evidence that the low back condition recurred and caused the claimant to be totally disabled over the period in question. At best the evidence suggests that a mild aggravation occurred prior to the claimant's contracting the flu, which prompted the treating chiropractor to recommend an extension of the light duty program. We find that subsequently it was the flu, an intervening secondary incident that was the proximate cause of the exacerbation of the low back condition and associated time loss from work.

In cases such as these the WCB must determine the anticipated period of loss of earning capacity related to the compensable event and would provide benefits only for the foreseeable consequences of the compensable injury. In this case, had the claimant not contracted the flu there would not have been any loss of earning capacity.

We find therefore that the claimant's absence from work for the period February 23, to March 3,1999 cannot be accepted as a WCB responsibility. Therefore the employer's appeal is allowed.

Panel Members

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 20th day of December, 1999