The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Issue

Decision

Decision: Unanimous

Background

On February 13, 2007, the worker reported that he was helping to unload a trailer full of cabinets and was taking one cabinet off the top and as he tipped it over, another cabinet came over it and fell on his head. He said he called a dispatcher who told him to get himself checked out before he continued on with his job. The worker indicated that the hospital said he had a cervical sprain. When he went back to the warehouse, the trailer had been unloaded and he continued on his trip. The worker reported the February 13, 2007 accident to the WCB on July 12, 2007.

The employer’s accident report confirmed the description of injury as noted above. It stated that the worker’s neck and jaw were injured when the cabinet fell on his head.

Medical information consisted of reports from an American hospital emergency facility which showed that the worker was treated on February 13, 2007. He was diagnosed with a head contusion and a cervical strain.

On March 9, 2007, the worker filed a WCB claim for pain he experienced in both of his legs on February 26, 2007. He attributed the pain to using the clutch, throttle and brake while driving his truck. He noted that he first began to notice symptoms in October 2006. When he had three weeks off in January 2007, his legs did not bother him at all. When he returned to work he could feel the pain again in his legs.

Medical reports on file revealed that the worker sought medical treatment on March 9, 2007 for complaints of pain in the sole of his feet to his legs. The area of injury was reported as being “both legs”.

In a progress report dated March 30, 2007, the treating physician noted he had referred the worker to a neurologist for low back pain in the lumbar and thoracic regions.

In correspondence dated April 3, 2007, the neurologist reported that he saw the worker on March 22, 2007. The worker complained of intermittent and fluctuating pain in the back of his right thigh that progressed to his lower limb and he was now developing similar symptoms in his left lower limb. Upon questioning, the worker indicated that he did have low back pain across the T3 level. The neurologist indicated that his findings were suggestive of a medullary lesion in the lower thoracic spine region. An MRI examination was suggested.

An MRI of the thoracic and lumbar spine was done on March 28, 2007. The thoracic spine showed a shallow right lateral disc protrusion at the T9-T10 level. The lumbar spine revealed no significant evidence for central canal stenosis.

On April 25, 2007, the worker was seen by a physiotherapist for pain in his right leg and back. Subjective complaints were pain in the right leg with increased driving, a sore mid back and pain radiating down to the pelvis. The diagnosis rendered was disc protrusion with sciatica causing back and right L/E with myofascial dysfunction.

In a May 31, 2007 report, the neurologist indicated that the worker continued to complain of symptoms extending down the right leg posteriorly down the sciatic distribution, particularly when the worker had been sitting while driving for some time. He suggested that an EMG and nerve conduction studies should be done to exclude the possibility of a “sciatic notch or piriformis sciatic compressive nerve syndrome.”

The worker was examined by a WCB medical advisor on July 3, 2007. At the conclusion of his examination, the medical advisor stated he was unable to find a plausible anatomical mechanism to account for the worker’s right leg symptoms.

The worker underwent EMG and nerve conduction studies on June 7, 2007 and had x-rays of his pelvis, both hips and right foot taken on July 16, 2007. All tests were considered as being normal.

On July 12, 2007, a WCB adjudicator contacted the dispatcher. He confirmed that he was aware that the worker had a specific injury when a cabinet fell on his head. He said the worker mentioned his head, neck and low back were sore and he was experiencing sharp pain up into his neck and low back with numbness.

In a decision dated July 23, 2007, the worker’s claim for compensation was denied as it was felt that his leg symptoms were inconsistent with the mechanism of injury, i.e. the repetitive operation of the clutch, throttle and brake.

On July 24, 2007, the worker spoke with a WCB adjudicator stating that he was talking with his physiotherapist and they discussed the fact that she had been treating his back as well as his leg symptoms. They discussed the fact that the worker had an onset of low back symptoms following the February 13, 2007 cabinet incident, which preceded his requirement for physiotherapy treatment. The worker wanted the WCB to consider paying for his physiotherapy pertaining to his back region under the February 13, 2007 accident claim.

On August 1, 2007, primary adjudication asked a WCB physiotherapy consultant to review both of the worker’s compensation claims regarding the need for physiotherapy treatment. In his response dated August 23, 2007, the physiotherapy consultant stated:

“The diagnosis, based on the WCB exam and reports on [the February 26, 2007 claim], is non specific back pain. The mechanism of injury and dx [diagnosis] from the American hospital report is cervical strain. There was no mention of the back in the reports. The only mention of the back is in the July 12, 07 memo outlining the discussion with the dispatcher. The memo notes that the worker mentioned his head, neck and lower back was sore, he was experiencing sharp pain up into his neck and lower back with numbness.

There was no further mention on file of ongoing neck or upper back complaints. It is unusual for this mechanism of injury to result in lower thoracic/low back problems without associated neck and/or upper thoracic complaints. Based on this, I am unable to directly relate the physiotherapy to the back to the injury of Feb. 13,07.”

In a letter dated September 10, 2007, the worker was advised by the WCB that the evidence did not support a direct relationship between the mechanism of injury he suffered at work on February 13, 2007 and the requirement for physiotherapy treatment in April 2007. As a rationale for the decision, the case manager noted that the mechanism of injury and diagnosis from the American hospital was cervical strain and there was no mention of the back in these reports. There was no further mention of ongoing neck or upper back complaints. The case manager noted that the WCB physiotherapy consultant said it was unusual for this mechanism of injury to result in low thoracic/low back problems without associated neck and/or upper thoracic complaints. The WCB physiotherapist was unable to directly relate the physiotherapy treatment to the work accident of February 13, 2007.

In early October 2007, the WCB received a consultant report from an physical medicine and rehabilitation specialist (a physiatrist) dated September 10, 2007 addressed to the family physician. He noted that he saw the worker on September 6, 2007 with a history of sudden onset of headaches, neck stiffness, back pain and right leg pain after he sustained an injury at work on February 13, 2007. The specialist outlined the accident history as “…The cabinet flipped over and fell on his head and he noticed immediately headache, neck stiffness, pain in the mid and low back and right leg. He may have blacked out for a few moments…X-rays and CT scan of the neck and head were taken and he was informed that they were normal…When he arrived in Winnipeg, the pain in the right leg got worse and he could not walk. At that time, he did not notice any numbness in his right leg. He was seen by yourself and was prescribed anti-inflammatory medications and was referred to Physiotherapy and attended 14 sessions…He was seen by [a neurologist] who ordered MRI of the thoracic and lumbar spine which were done on March 28, 2007 and showed at T9-10 level, shallow right lateral disc protrusion. This may affect the T10 root. MRI of the lumbar spine revealed no significant disc protrusion or herniation. X-rays of the pelvis and both hips from July 4, 2007 did not show any significant abnormality.” After examining the worker, the specialist was of the following impression: “Post injury to the head and spine, he suffered T9-T10 disc herniation with interspinous ligamentous strain at T8-T9 and T9-T10 level and has developed sensitive T9 and T10 spinal segments. At present, he does not have any signs of radiculopathy but may have suffered L4-L5/L5-S1 disc bulging/herniation which has reduced and is not causing any pressure on the nerve roots. He has trigger points of the right quadriceps and gastrocnemius muscles.”

On October 15, 2007, a WCB adjudicator asked the WCB medical advisor who examined the worker on July 3, 2007 to review the report from the physiatrist dated September 10, 2007. The medical advisor stated:

“The only findings found by [the physiatrist] in respect to [the worker’s] right leg are so called trigger points to the thigh and gastrocnemius. [the physiatrist] does not provide an opinion regarding a relationship between these trigger points and the Feb. 26, 2007 workplace injury nor does the report provide clinical findings to suggest a such a relationship (sic). [the physiatrist] states that there are no signs of radiculopathy and it is noted that the recent NCS/EMG test of the legs from the other file was reported as normal.

It is concluded that the new information in the file is not substantially different than that available in July 2007 and, therefore, does not support a need to alter the opinion of the call-in exam of Jul. 3, 2007...”.

On October 18, 2007, the worker was advised that the recent medical information from the specialist had been reviewed in conjunction with both his claims and no change would be made to the previous decision.

A worker advisor submitted on January 23, 2008 that on a balance of probabilities, the worker’s neck, back and right leg symptoms and restrictions were related to his February 13, 2007 compensable injury and that he was entitled to wage loss and medical aid benefits. In support of his position, the worker advisor referred to an opinion expressed by the family physician in a November 1, 2007 report wherein he states,

“Neither the physiotherapist nor myself knew if there was a connection between T9-T10. He went to see [the physiatrist] who put a freezing block on September 6, 2007 at the T9-T10 spot and trigger points of the iliocostalis thoracis and iliocostalis lumborum muscles and he noticed significant reduction in pain.”

The worker advisor also referred to the following opinion expressed by the treating physiatrist in his report dated January 7, 2008:

“In my opinion, the above diagnosis causing [the worker’s] ongoing signs, symptoms and restrictions are on the balance of probability related to his injury which he suffered related to a kitchen cabinet falling on his head on February 13, 2007.”

Following consultation with a WCB medical advisor, it was determined by the WCB case manager, as outlined in a letter dated February 29, 2008, that the physiatrist and treating physician did not provide any new objective medical findings to warrant a change to the initial decision to deny the worker entitlement concerning physiotherapy treatment of his lower back or any time loss.

On March 11, 2008, the worker advisor contended to Review Office that the worker’s back and leg difficulties were causally related to his compensable injury. The worker advisor noted that the worker had continuity of symptoms since his compensable injury. He noted that the dispatcher confirmed that following his workplace accident, the worker mentioned “his head, neck and lower back was sore, he was experiencing sharp pain in his neck and lower back with numbness”. Subsequent to the physiatrist’s injection treatment, the worker sufficiently recovered to return to work.

In a submission to Review Office dated May 12, 2008, an advocate for the employer concurred with the WCB case manager’s decisions of September 10, 2007, October 18, 2007 and February 29, 2008 that the evidence did not support a direct relationship between the mechanism of injury at work on February 13, 2007 and the requirement for time loss or physiotherapy treatment in April 2007.

On May 20, 2008, Review Office determined that the worker was not entitled to particular workers’ compensation benefits. Review Office stated that when the worker ceased working, he sought medical attention and contacted the WCB but did not mention the February 2007 accident. When seen by a neurologist on April 3, 2007, it was only when questioned did the worker report back pain and on examination the findings were limited tenderness. There were no findings in the upper limbs, neck or head which, as per the reports from the American hospital, were what he reported as being originally injured. This suggested to Review Office that the worker had recovered from the February 2007 accident.

Review Office considered the T9-T10 disc protrusion as being a “red herring”. It was an unexpected finding inconsistent with the mechanism of injury of the February 2007 accident and the evidence was equivocal that it caused nerve root compression. The T10 nerve root had no effect on the back or legs.

Review Office noted that the worker saw the physiatrist seven months after the February 2007 accident. The doctor’s findings and diagnosis were far more extensive than those found by the neurologist and the WCB medical advisor. Review Office stated that it had difficulty relating them to the worker’s January 2007 accident. It did not accept the specialist’s hypothesis concerning the worker injuring a lumbosacral disc in his February 2007 accident.

On June 6, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

This appeal deals with the provision of wage loss and medical aid benefits on an existing claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. Subsection 27(1) provides that the WCB may provide a worker with medical aid to cure or provide relief from a workplace injury.

Worker’s Position

The worker was represented by a worker advisor who made a submission on his behalf. The worker answered questions from his representative and the panel.

The worker’s representative confirmed that the appeal was in relation to the worker’s accident on February 13, 2007. He noted that while the WCB accepted the worker’s claim, it would not accept responsibility for the subsequent treatment and restrictions that arose as a result of the February 13, 2007 injury. He submitted that the evidence on file and the worker’s testimony will establish, on a balance of probabilities, that his symptoms and restrictions are related to this accident.

The worker explained that prior to the accident, before Christmas, he had a mild cramping pain in the thigh area. He said that this resolved and was no longer an issue when he had the accident.

The worker advised that on February 13, 2007 he was unloading kitchen cabinets which were packed in cardboard boxes. He was moving a box when another box slipped out and struck him on the head. He estimated the box to weigh between 125 and 150 pounds. He said the warehouse manager saw the accident. He was driven to the hospital by a warehouse employee.

The worker did not know if he lost consciousness. He said his head, neck and back were sore. He described the pain as numbing. At the hospital he was advised that he had a cervical strain and would have a headache for a couple days. When he started driving his right leg pain became unbearable. He described his right leg pain as starting near the mid upper thigh, then in the back of the calf, shin and part of the foot.

The worker explained that he saw his physician about the symptoms and that his physician was concerned that the leg pain might be related to an unrelated prescription medication. This proved not to be the case. He explained that he also had stomach problems while working in March but these were not related to the February injury.

The worker advised that he stopped work and obtained medical treatments. He saw a physiotherapist and chiropractor. He also saw a physiatrist who injected freezing into his back muscles. He said this resolved his pain and he returned to his pre-accident duties in January 2008. He suggested that had he taken time off work after the February accident, he might have recovered but instead kept working and worsened his injury.

The worker’s representative noted that an MRI scan performed on March 28, 2007 revealed a shallow right lateral disc protrusion at the T9-10 level. He submitted that the preponderance of evidence supports that, while the disc protrusion did not directly irritate any nerve root, the compensable accident caused a significant muscular injury which was only resolved with appropriate treatment.

Employer’s Position

The employer did not attend the hearing but had previously noted its position that the evidence does not support a direct relationship between the mechanism of injury at work on February 13, 2007, and the requirement for time loss or physiotherapy treatment in April 2007.

Analysis

The issue before the panel was whether the worker is entitled to wage loss and medical aid benefits. For the appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and required medical treatment as a result of the February 13, 2007 accident. The panel did make this finding.

In arriving at its decision that the worker is entitled to wage loss and medical aid benefits arising from the February 13, 2007 injury, the panel attaches significant weight to the following:

Panel Members

A. Scramstad - Presiding Officer

Signed at Winnipeg this 4th day of November, 2008