The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker, a truck driver, injured his back at work on November 14, 2004. On December 10, 2004 he was cleared by his chiropractor for a return to regular duties. On January 3, 2005 the worker was involved in an incident which resulted in damage to a trailer that he had hitched to his tractor. On January 5, 2005, the worker was terminated from his employment. The worker states that as a result of his work activities on January 3, 2005, his workplace injury worsened. He maintains that he has not recovered from the workplace injury and seeks wage loss and other benefits. The Workers Compensation Board (WCB) determined that the worker had recovered from the effects of the workplace injury and was not entitled to further benefits.

An appeal panel hearing was held on May 24, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on May 24, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond December 10, 2004; and

Whether or not the worker is entitled to medical aid benefits beyond February 14, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond December 10, 2004; and

That the worker is not entitled to medical aid benefits beyond February 14, 2005.

Decision: Unanimous

Background

On November 14, 2004, the worker was cranking dolly legs on a trailer when he felt a twinge in his lower back and right hip. He continued working following the incident as he thought he was going to be okay. A few hours after his shift, he again experienced severe pain in his lower back and right hip when he went to reach for groceries on a bottom store shelf. The next morning his pain was worse and he was unable to get out of bed.

The worker attended a chiropractor for treatment on November 15, 2004. He was found to have lower back pain with neuralgia into his posterior right leg. The diagnosis rendered by the chiropractor was "lumbosacral subluxation complex/attendant torsional sprain strain mechanism". The claim was accepted by the WCB based on this diagnosis and benefits were paid to the worker while he attended chiropractic treatments.

On December 7, 2004, the worker told his WCB case manager that most of his mobility had returned and the shooting pains in his lower back and right leg had ceased.

The treating chiropractor reported on December 10, 2004 that the worker "appears to be able to return to full duties". The WCB paid the worker wage loss benefits to December 11, 2004 inclusive and the worker returned to work.

On December 17, 2004, an employer representative advised the WCB that the worker came back from his first driving trip and said he felt a bit sore but was able to continue. In early January 2005, the accident employer terminated the worker's employment.

In a report dated January 12, 2005, the treating chiropractor noted that the worker's driving duties had slowed his progress and that he was currently "unable to take pounding of Semi with degree of lower back pain." The report noted that the worker was capable of alternate or modified duties.

On May 3, 2005, the worker provided his WCB case manager with information regarding his termination from employment and asked that the WCB re-open his claim. On May 5, 2005, the case manager determined that the worker was not entitled to further wage loss benefits as his loss of earnings was due to termination from employment and was not the result of his compensable injury.

In a letter to Review Office dated May 31, 2005, the worker contended that his ongoing back pain and depression was due to his compensable injury and that he should be placed back on WCB benefits retroactively to January 3, 2005. As the worker submitted additional medical evidence in support of his contention, Review Office referred the case back to primary adjudication for further handling.

In a May 19, 2005 report, the treating physician indicated that the worker suffered an acute lower back injury at work in November 2004 and the diagnosis was an L4-L5 lumbar disc herniation which had created an impingement syndrome on the left leg. He felt the worker to be capable of desk work with no lifting and that the expected recovery period may be 2 or 3 months.

On June 22, 2005, the worker indicated that his depression was a combination of being fired unjustly and having no income as a result. He was pursuing his WCB claim at the direction of the Manitoba Labour Board. The worker also described an incident that occurred at work on January 3, 2005 when he was helping staff members to crank up a trailer that had dropped, following which he was too sore to drive.

In a July 8, 2005 decision, a WCB case manager denied responsibility for the worker's wage loss and medical aid benefits. It was the case manager's opinion that the worker had recovered from the effects of his workplace injury and that his depression was related to factors other than his workplace. On August 30, 2005, a worker advisor appealed this decision to Review Office.

On November 5, 2005, Review Office reviewed the file information together with an appeal submission by the worker advisor and the employer's advocate. The following decisions were rendered:

• That the worker's anxiety disorder with depression was not related to his November 14, 2004 compensable injury but was more likely due to his employer's decision to terminate his employment;
  
  
• That the worker had recovered from the effects of his compensable injury and was not entitled to further wage loss or medical aid benefits. Review Office's opinion was that the worker's time loss on January 3 and January 5, 2005 onward was related to the interactions with his employer (a property damage incident on January 3, 2005) and consequent fall-out or termination from employment on January 5, 2005.

On January 23, 2006, a different worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel.

The worker's representative submitted that the worker suffered a L4-L5 lumbar disc herniation on November 14, 2004 and that with treatment he was able to return to full duties. However, the return to work aggravated the worker's back symptoms to the point that he was not able to perform his duties and directly led to his termination. The representative submitted that the loss of earning capacity after January 3, 2005 is directly related to the workplace injury.

The worker advised that although he returned to full duties on December 11, 2004, his back symptoms were worsening. He described his activities and symptoms on January 3, 2005. In reply to a question about how his back was on that day he replied "Excruciating. At the beginning of the day it wasn't too bad, but I was there six hours trying to get that unit up and running and out of the yard and by the time I left I was in severe pain." He advised that he attended his chiropractor after the incident.

Regarding the termination of his employment, the worker advised that the reason given by his supervisor was that "…before my accident I was doing a good job and able to work hard and that since my accident I just wasn't able to work hard anymore." He advised that he sought assistance from his union regarding the termination but was told his grievance had no merit.

He advised that he continues to have problems with his back and is awaiting a CT scan. He also advised that he was told by his treating physician not to work as a truck driver. The worker indicated that he tried working as a delivery person for a flower shop but could not perform these duties due to his back condition. He has found employment but noted that it does not pay as much as his former position.

At one point at the hearing the worker referred to symptoms in his left leg. He subsequently confirmed that he intended to refer to his right leg.

Employer's Position

The employer was represented by an advocate and staff person. The advocate made a presentation on behalf of the employer. Both representatives answered questions posed by the panel.

The advocate submitted that the worker has been fairly compensated for the workplace injury. She noted that the January 3, 2005 incident, which occurred while the worker was in his probation period, contributed to the termination of this employment and that the worker should not be provided wage loss after this date.

Applicable Legislation

In this case the worker is seeking wage loss and medical aid benefits. Under The Worker's Compensation Act (the Act) the worker is entitled to wage loss benefits if he has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

Medical aid payments, such as physician, chiropractor or physiotherapist fees, are payable in accordance with subsection 27(1). The WCB makes these payments where it determines that the symptoms/conditions being treated are caused by the workplace injury.

Analysis

The first issue refers to wage loss benefits after December 10, 2004. At the hearing the worker advised that he returned to regular duties on December 11, 2004 and was paid to January 3, 2005. Accordingly the worker sought wage loss benefits commencing after January 3, 2005.

The panel has considered both issues and has determined, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond January 3, 2005 and is not entitled to medical aid benefits beyond February 14, 2005.

The panel accepts the worker's evidence that on January 3, 2005, his symptoms worsened. However; the panel notes that the worker was provided with chiropractic care until February 14, 2005 and finds that with this care the worker returned to a condition where he could perform his regular duties. At the hearing the worker was asked to compare his condition on February 14, 2005 with his condition on January 3, 2005 and December 10, 2004. This is recorded in the transcript as follows:

With respect to the worker’s request for medical aid benefits after February 14, 2005, the panel notes that chiropractic services had been extended to February 14, 2005 and that no further requests for extension of chiropractic services was received. The panel finds that any physical symptoms after this date are not related to the workplace injury.

Regarding wage loss benefits, the panel finds that the worker did not have a loss of earning capacity after he returned to regular duties on December 11, 2004 and is not entitled to receive wage loss benefits. The panel is aware that on January 5, 2005, the worker was terminated from his employment during his probationary period, for reasons unrelated to his workplace injury. The panel finds that the worker’s loss of earning capacity after January 3, 2005 is due to his loss of employment and not his workplace injury. The panel finds that had the worker not been terminated from his employment, the employer would have been able to accommodate the worker with modified duties until he was able to return to regular duties thereby eliminating any loss of earning capacity. Information on the file confirms that the employer offered to accommodate the worker with modified duties on a prior occasion.

The worker’s appeal on both issues is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 14th day of July, 2006