The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on July 5, 2006, at the request of the worker. The panel discussed this appeal following the hearing.

Issue

Whether or not responsibility should be accepted for chiropractic treatment beyond December 5, 2003, in relation to the October 7, 2003 compensable injury.

Decision

That responsibility should not be accepted for chiropractic treatment beyond December 5, 2003 in relation to the October 7, 2003 compensable injury.

Decision: Unanimous

Background

On October 23, 2003, the worker contacted the Claims Information Centre at the Manitoba Workers Compensation Board (WCB) to report an injury that he sustained on October 7, 2003 to his ribs and spine. The worker indicated that while removing an engine from a vehicle, he experienced a "twinge" and "pressure" in his back. He stated that he was in a bent over position in the engine compartment and was guiding the engine out with both hands. He further stated that he experienced pain from the base of his neck to approximately half way down his back. A few hours later, the worker reported that he felt fine however, the following morning he was experiencing back pain that woke him up.

The pain continued to increase and he was finding that he was short of breath, so he sought chiropractic treatment on October 15, 2003. The diagnosis provided was that of an acute left multiple rib severe strain/mild sprain. Subjectively, the chiropractor noted sharp left mid to lower rib/chest pain, swelling over the mid/lower left rib cage, tight chest/neck muscles and an antalgic list forward. He recommended a treatment plan requiring chiropractic adjustments for a period of eight weeks. He restricted the worker to supervisory duties only, with no lifting, carrying or overhead work.

The worker attended on a physician on October 23, 2003 who diagnosed a strain to the thoracic spine. The physician prescribed Ibuprofen and recommended the worker continue with chiropractic treatment.

The claim was accepted by the WCB on October 25, 2003 as a no time loss claim and the worker continued to seek chiropractic treatment. According to the reports provided, the worker's condition was improving. On October 27, 2003 his chiropractor stated that he was capable of returning to supervisory work, with no lifting, carrying or overhead work for a period of two weeks. On October 31 his physician reported that the worker stated his pain was improving and was no longer constant. On November 14, 2003 his physician noted objective improvement and that subjectively pain was "much improved". On that same date his chiropractor noted that he was capable of returning to regular duties on November 17, 2003 and the only restrictions on the worker were a rib belt to be worn half days for the next two weeks. By November 28, 2003 the chiropractor imposed no further restrictions, however on December 5, 2003 he noted that for a period of two weeks the worker should perform no overhead work.

At the request of primary adjudication, the file was reviewed by a WCB chiropractic consultant on January 28, 2004. Based on the diagnosis, the consultant indicated that only 8 weeks of treatment would be authorized in this case. He further stated, based on the December 5, 2003 report from the treating chiropractor, that an extension of treatment would not be indicated as there had been minimal change in the worker's status (based on submitted reports) and that the residual symptoms were mild in nature.

The adjudicator spoke with the treating chiropractor on February 13, 2004. During that conversation, the chiropractor confirmed that he had discharged the worker from treatment effective December 5, 2003.

On February 14, 2004, primary adjudication wrote to the worker to advise that the WCB would accept financial responsibility for chiropractic treatment for a period of 8 weeks, or to December 10, 2003 inclusive. This authorized period of treatment was in keeping with WCB chiropractic guidelines which assist the WCB with the supervision and control of chiropractic treatment.

The worker contacted the WCB on July 28, 2004 to report a recurrence of symptoms that he attributed to the compensable injury. In his conversation with the WCB, he indicated that he had continued to see his chiropractor until about February or March 2004. He also continued to work at light duties until the company closed in February. After collecting Employment Insurance benefits for a short period, he upgraded his skills and secured employment as a long haul driver. He further reported that subsequent to February/March 2004, he would see his chiropractor at least once a month for what he described as "tune-ups". He stated that he felt his driving duties had aggravated his symptoms. Concerning treatment, the worker indicated that in addition to chiropractic treatment, he was also seeing his family physician and a physiotherapist.

The WCB requested further information from the treating chiropractor and physician. By letter dated July 30, 2004 the treating chiropractor indicated that subsequent to December 5, 2003, the worker had attended for treatment once per month in January and February 2004 and then twice in May. It was reported that the worker had seen another chiropractor on two occasions in April 2004. With respect to diagnosis, it was stated that the worker had an acute recurrent left trapezius/latissimus dorsi strain as a primary diagnosis and an acute recurrent left lumbosacral/thoracic joint strain as a secondary diagnosis. The chiropractor reported the following history of entrance complaints:

"January 5 - shoveled snow felt pull in left low back to mid-back causing moderate mid/low back pain.
February 24 - shoveled snow felt pull in left low back to mid-back causing moderate mil/low back pain.
May 3 - truck driving (started April/04) aggravates mid-back region from prolonged sitting causing mild to moderate constant mid-back pain.
May 31 - turning truck crank pulled left low/mid-back causing moderate mid/low back pain."

On August 17, 2004, the treating chiropractor requested that the WCB authorize an extension to allow for continued chiropractic treatment in order to address the worker's physical complaints. This request was reviewed by a WCB chiropractic consultant on August 26, 2004. The consultant opined that ongoing treatment after December 5, 2003 was not related to the compensable injury of October 7, 2003. Accordingly, by way of letter dated August 27, 2004, the case manager wrote to the treating chiropractor and worker to advise that an extension for treatment beyond December 5, 2003 was not being granted. A subsequent request for an extension of treatment was also considered by the WCB and denied. The treating chiropractor and worker were advised of this decision by way of letter dated October 6, 2004. The worker sought a review of that determination and by letter dated January 4, 2005 his case manager advised that he had reviewed the request for coverage of chiropractic treatment and that there was no basis for responsibility. He relied upon two x-rays which showed degenerative changes, and the advice of the WCB chiropractic advisor who opined that the worker's ongoing injuries were not related to the October 7, 2003 injury.

On September 27, 2005, the worker wrote to his case manager to appeal the decision to deny responsibility for ongoing chiropractic treatment. The case manager responded to the worker in a letter dated October 13, 2005 at which time he indicated that he was not able to alter his previous decision in this matter. The case manager indicated that he would refer the matter to Review Office for reconsideration.

Review Office considered the worker's appeal and by letter dated October 21, 2005, upheld the lower level decision to deny responsibility for chiropractic treatment beyond December 2003. It was noted that the chiropractor had cleared the worker as fit for regular duties as of November 28, 2003 and had discharged him from treatment effective December 5, 2003. Further, when the worker was seen for chiropractic treatment after December 2003, it was due to symptoms arising from specific actions such as the shoveling of snow, driving long haul, and turning a truck crank.

Review Office concluded that the worker had recovered from the effects of his October 7, 2003 compensable injury and therefore responsibility for chiropractic treatment after December 5, 2003 could not accepted in relation to that incident.

On March 31, 2006, the worker completed an application to appeal requesting consideration by the Appeal Commission with regard to the decision of Review Office. On July 5, 2006, an oral hearing was convened.

Reasons

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

In her submission the worker's spouse noted that when advised by his chiropractor on November 28, 2003 to return to work, the worker had informed him that he should not be discharged from treatment. Notwithstanding, the chiropractor discharged him. The worker says that he never fully recovered from the injuries that he sustained as a result of the incident at work. He says that subsequent to December 5, 2003 he continued to seek chiropractic treatment for injury to the same anatomical site as the compensable injury. He received 23 chiropractic treatments between August 16, 2004 and March 30, 2005, all of which he says were related to the compensable injury.

Compensation is payable pursuant to subsection 4(1) of The Workers Compensation Act (the Act) where personal injury by accident arising out of and in the course of employment is caused to a worker. Subsection 27(1) of the Act allows for the provision of medical aid, such as chiropractic treatment, where it is necessary to cure and provide relief from an injury.

In order for the appeal to be accepted, this panel must accept that subsequent to December 5, 2003 the worker continued to experience the effects of his compensable injury of October 7, 2003, or that increases in symptoms subsequent to that date are causally related to the compensable injury, for which continuing medical aid would be indicated.

After having reviewed and considered all of the evidence and the submissions made on the worker's behalf at the hearing, we find on a balance of probabilities that the worker is not entitled to benefits beyond December 5, 2003. In doing so, we conclude that as of that date the worker had recovered from the effects of the October 7, 2003 compensable injury. As a consequence, any chiropractic treatments received after December 5, 2003 are not related to the October 7, 2003 injury. In arriving at this conclusion we rely upon the following evidence:

• The worker missed minimal time from work after the injury and did not seek treatment for a period of one week following the injury.
  
  
• An x-ray of the worker's thoracic spine taken on July 22, 2004 disclosed mild degenerative disc disease of the thoracic spine, however no other abnormalities were noted in either the thoracic or lumbar spine.
  
  
• An x-ray of the worker's dorsal and lumbar spine taken on September 7, 2004 showed nothing more than minor degenerative changes.
  
  
• In his letter of July 30, 2004 the treating chiropractor indicated that subsequent to December 5, 2003 the worker had attended for further treatment only sporadically, once per month in each of January and February 2004 and then twice in May. More importantly, in each case, the worker was seeking treatment for symptoms subsequent to a specific event, specifically shoveling snow (January 5 and February 24), truck driving (May 3) and turning a truck crank (May 31).
  
  
• In his evidence before the panel in reference to the incident of January 5, 2004 the worker stated "I got about the width of a regular shop door, which is what, 12 feet wide, and about 4 feet out from the door shoveling, with about 6 inches of snow on the ground, heavy, wet snow and my back went out."
  
  
• In a report dated July 19, 2004 the treating physician diagnosed an injury to the back and noted "now that he is driving trucks and binding loads pain has recurred".
  
  
• In a report dated October 4, 2004 the treating chiropractor requested an extension of treatment noting that "continuing driving truck exacerbates".
  
  
• In a report dated December 2, 2004 the treating chiropractor noted "exacerbation through extended longer drive (extra two days)".
  
  
• In his evidence before this panel the worker acknowledged that he worked as a truck driver for the period from April 1, 2004 to March 30, 2005. It was during that same time frame that he sought the chiropractic treatments at issue.

All of the foregoing supports the conclusion of the WCB medical advisor on August 26, 2004 that ongoing therapy was not related to the compensable injury. While the worker may have continued to experience back pain in the same anatomical area, there is a distinction to be made between a continuing injury, recurring injury, and the same injury site becoming reinjured from a separate event. We are satisfied on a balance of probabilities that subsequent to December 5, 2003 there were a series of new intervening events each of which either caused the injury, or aggravated a previous susceptibility to injury. Any related treatment necessitated by those events is therefore not attributable to the compensable injury of October 7, 2003. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of August, 2006