Decision #32/99 - Type: Workers Compensation
An Appeal Panel review was held on February 5, 1999, following receipt of an appeal from a worker advisor, acting on behalf of the claimant.
Whether the claimant is entitled to workers compensation benefits or services beyond June 29, 1997.
That the claimant is not entitled to workers compensation benefits or services beyond June 29, 1997.
While employed as a diamond driller on April 5, 1997, the claimant was bending down to use a pipe wrench to tighten rods when he injured the muscles of his upper back on the right side and between his shoulders. Two days following the accident, the claimant attended his physician for treatment and later started physiotherapy treatments of his mid thoracic spine. On June 24, 1997, the attending physician indicated that the claimant would be returning to work in one week's time. The claim was accepted as Workers Compensation Board (WCB) responsibility and wage loss benefits and medical treatment costs were paid up to June 29, 1997.
In July 1998, the claimant contacted the WCB indicating that he was unable to work due to a recurrence of symptoms which he related to the 1997 accident. On July 23, 1998, a sworn statement was taken from the claimant by a WCB field representative and the following information was obtained:
- his major problem was "pain with any kind of physical activity which affects the area of my upper back between the shoulders blades. ....I have also been having problems with my R hip feeling like it is popping out of place which just started last winter..".
- the claimant advised that he never had any problem with this area before and recalled an accident in late February 1988 when he slipped on some hard snow falling backwards at a drill site. He stated that he never bothered to file a claim for this as he did not miss time from work.
- the claimant described his activities over the years which included raising cattle, working a section of farm, commercial fishing, and hunting.
- the claimant stated that he returned to work for approximately three weeks into August 1997 and saw a doctor as he was experiencing back pain. The claimant advised he did not file a claim as there was no new accident. He stated that he was given the choice of being fired or laid off so he laid off and started attending classes at an adult learning center.
- the claimant clarified that there was no one accident that happened to cause the area of his upper back to get sore. He was getting soreness from bending and lifting rods and pulling on levers which he was doing almost daily throughout the period February 12, 1997, up until he could no longer take it anymore on April 4, 1997.
- the claimant indicated that when discharged from physiotherapy in June 1997, the area of his upper back felt okay and this was why he never bothered to see any doctors.
- the claimant also mentioned a motor vehicle accident that had occurred 2 years earlier when he re-injured his back, however he did not seek medical treatment at the time.
In a letter dated July 22, 1998, the attending physician reiterated that he saw the claimant in the middle of June 1997, when he indicated his back was better and he was ready to work. When seen again on June 29, 1998, one year later, the claimant told him that his back only pains him when he works and that he wanted to go on compensation. The physician stated that he advised the claimant that he would refer him to a compensation doctor or to the WCB but thought it was unlikely he would be put back onto compensation as he had had no doctor follow-ups.
On July 27, 1998, the claimant was advised by Claims Services that it was unable to establish a cause-effect relationship between the workplace injury and his ongoing difficulties. This decision was reached based on several factors: on June 30, 1997, the attending physician noted that the claimant was capable of returning to work and the claimant did not attend for regular medical treatment confirming ongoing back difficulties.
On September 8, 1998, a worker advisor appealed the above decision and submitted a medical report dated August 24, 1998 from a second physician. The worker advisor contended that this report confirmed that the claimant's ongoing problems were the result of his April 5, 1997, work injury.
Prior to considering the appeal, the Review Office wrote to the second physician to obtain additional information as it was noted that the claimant was undergoing further tests. Consequently, the Review Office obtained the results of x-rays dated August 12, 1998, and a copy of a CAT scan dated October 14, 1998, of the thoracic spine of the T5 and T9 areas. The physician also provided the Review Office with an up-dated report dated October 23, 1998.
On November 6, 1998, the Review Office determined that the claimant was not entitled to any form of workers' compensation benefits or services subsequent to June 29, 1997. In reaching this conclusion, the Review Office made reference to the claimant's statement of July 23, 1998, and to medical reports dated August 6, 1998, and October 23, 1998, from the second physician. The Review Office was of the opinion that the claimant had a back at risk which was aggravated by various activities. "Once the activity is ceased, the claimant's back eventually returns to its "normal" state. It is considered that the claimant's usual work activities aggravated his back to the point where he was forced to cease working in April 1997. It is also considered that the claimant's back had returned to "normal" by June 29, 1998." The Review Office concluded that the claimant did not have a loss of earning capacity subsequent to June 29, 1997, as a result of a compensable injury.
The Review Office's decision was appealed by the worker advisor on December 8, 1998. A further medical report dated November 27, 1998, was submitted by the worker advisor and on February 4, 1999, a non-oral file review was held.
The issue in this appeal is whether the claimant is entitled to workers compensation benefits or services beyond June 29, 1997. The relevant subsection of The Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.
Subsection 39(2) states:
Duration of wage loss benefits
39(2) Subsequent to subsection (3), wage loss benefits are payable until
a) the loss of earning capacity ends, as determined by the board; or
b) the worker attains the age of 65 years.
The claimant injured his back on April 5, 1997 while working as a driller. At that time the claimant injured a muscle of the upper back, right side between the shoulders. WCB accepted responsibility and subsequently the claimant was found capable of returning to work by his attending physician as of June 20, 1997. The claimant did not return to work as there was no work available. In July 1998 the claimant contacted the WCB indicating he was unable to work due to a recurrence of problems which he related to the April 1997 injury.
We reviewed all the evidence on file and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant did not have a loss of earning capacity subsequent to June 29, 1997 as a result of the compensable injury of April 5, 1997 and that any on-going symptoms are not related to the compensable event of April 5, 1997. In reaching this conclusion we placed weight on the following evidence:
- the claimant indicated he injured a muscle on his upper back, right side between the shoulders when he was bending down to use pipe wrenches to tighten rods and operating levers for hoisting rods on April 5, 1997;
- the claimant was seen by his attending physician on April 7, 1998 who records the claimant was injured lifting a heavy object and had presented with pain in the mid scapular region. The attending physician sent the claimant for physiotherapy and saw him on a number of occasions and found him fit to return to work at the end of June 1997;
- In or about July 1998 the claimant contacted the WCB indicating he could not work as he was suffering from ongoing problems from a recurrence of back symptoms related to his compensable injury of April 5, 1997;
- WCB asked the attending physician to provide ongoing medical reports since the claimant returned to work in June 1997. The attending physician indicated that he had seen the claimant once since June 1997 - a year later on June 29, 1998 - when the claimant advised him that he was not able to work as his back only hurt when he worked and that he would like to go on compensation. The attending physician notes the lack of medical follow-up since the claimant's return to work:
“ I have advised him that I would refer him to a Compensation Doctor or to the Compensation board as I think its unlikely he would be put back onto compensation as he had no doctors follow-up.”
- a second attending physician submitted a report dated August 24, 1997 indicating that he had treated the claimant but that it was difficult for him to assess how the claimant's ongoing problems were related to the injury of April 5, 1997 as he did not examine the claimant until August 6, 1998 some sixteen months following the injury;
- diagnostic tests of the thoracic spine taken on August 12, 1998 indicate "minimal loss of height of many of the dorsal vertebral bodies, the age of which is not entirely certain but could all be old. There is marginal osteophyte formation. Alignment appears good. There is minimal loss of height of a few of the lower dorsal vertebral bodies, probably unchanged since the previous examination on April 7, 1997 but difficult to compare as prior report ... technically unsatisfactory;"
- CT scan of the thoracic spine (T5 through T9) dated October 13, 1998 reveal no central or lateral disc herniation or spinal stenosis and lateral alignment within normal limits;
- the second attending physician indicates in a report dated October 6, 1998 that the claimant had been diagnosed as having suffered an acute ligamentous strain of his mid-thoracic spine in April 1997 and that he had recurrent musculoligamentous strain of his mid thoracic spine brought on by attempts at moderate or heavier physical work. The physician indicates that although the claimant had a history of back problems going back to 1988 his recurrent musculoligamentous thoracic spine was felt to have been aggravated and remained more severe since his re-injury in April 1997;
- in his sworn statement of July 23, 1998 the claimant indicates he was under the care of his physician and attending physiotherapy until about June/97 following which his back felt OK so he never bothered to see any M.Ds. He further states that his upper back area even bothered him when he was attending school during the period November 10, 1997 until June 15, 1998. The claimant also indicates that he was involved in a motor vehicle accident where he totalled his truck about two years before when he hit a ditch and re-injured his back. The claimant also indicates that at various times he has been involved with other work activities such as farming, fishing and hunting.
We find that the claimant was discharged from medical treatment in June 1997 and was considered fit to return to work. We also note that the claimant did not seek any medical treatment from June 1997 until July 1998. We find, based on file information that for reasons not related to the April 5, 1997 compensable injury, the claimant appears generally susceptible to mid back pain which he reports can be caused by day to day activities. The claimant had a workplace injury in April 1997 which was diagnosed as a soft tissue strain injury. There is medical evidence that he recovered by June 29, 1997, which is consistent with a soft tissue strain injury and expected recovery norms. The weight of evidence, on a balance of probabilities, suggests that the claimant had fully recovered from the effects of his compensable injury by June 29, 1997. We find therefore that the claimant is not entitled to benefits or services beyond June 29, 1997. The claimant's appeal is therefore 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 16th day of February, 1999