The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for work related injuries that occurred on May 20, 2008. The claim for compensation was accepted and benefits were paid to the worker. The decision to accept the claim and to pay benefits to the worker was confirmed by Review Office. The employer’s health and safety coordinator disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission. A hearing was held on October 22, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits after May 22, 2008.

Decision

That the claim is not acceptable; and

That the worker is not entitled to wage loss benefits after May 22, 2008.

Decision: Unanimous

Background

A “Worker Injury Report” dated May 28, 2008 indicated an injury to the worker’s back down the spine. In her application for compensation dated July 14, 2008, the worker claimed that she felt pain in her back and left shoulder after moving a mold at work on May 20, 2008. The employer’s accident report submitted May 22, 2008 indicated that the worker had slipped and twisted her back on May 20, 2008 while moving a mold on a conveyor belt. The worker had commenced her employment with the employer on May 20, 2008. The incident reportedly occurred one to two hours into the worker’s shift, although she did not report the incident until the following day. She attended at work on May 21, 2008, however after one hour she left to seek medical attention.

Medical Treatment

A doctor’s first report showed that the worker sought treatment on May 21, 2008 for a painful low back. The worker’s accident description was “tripped over object at work, hurt her back”. The diagnosis was erector spinae spasm. In a medical certificate dated May 26, 2008, the treating physician noted that the worker was off work as of May 20, 2008 and could return to work on June 2, 2008.

The worker was referred to a chiropractor who diagnosed her on May 21, 2008 as having a subluxation complex of the cervical, thoracic and lumbosacral spine and a severe sprain/strain of the left shoulder and scapula. The worker’s description of the accident to the chiropractor was “Moving a mold and slipped on the floor and twisted my neck down to my hips and left shoulder”. In a medical certificate dated May 21, 2008, the chiropractor indicated that the worker would be incapacitated for a period of one week and that her probable return to work date was May 28, 2008. The worker attended chiropractic treatment two times per week until June 6, 2008 when the treatment terminated as the worker found it to be unhelpful.

On May 26, 2008, primary adjudication accepted the worker’s claim for compensation based on a diagnosis of neck, upper back, low back sprain and left scapular sprain. The worker was paid full wage loss benefits effective May 21, 2008.

Following an examination on May 26, 2008 the worker’s physician noted that the worker was not capable of returning to regular duties until June 2, 2008 but could return to modified duties, for four hours per day. The worker was referred to a physiotherapist who diagnosed her on June 6, 2008, with a thoracic muscle strain. While the physiotherapist initially indicated that the worker was capable of light duties for four hours per day, by June 13, 2008 the physiotherapist reported that the worker was no longer capable of performing modified work, but could return to modified duties on June 23, 2008.

A WCB medical advisor examined the worker on June 23, 2008. He reported “exquisite tenderness” of the left thoracic paraspinal area and decreased forward flexion and abduction of the left shoulder. He concluded that the worker had likely sustained a mild strain and indicated that the normal recovery would be in the order of two weeks. He thought it unlikely that the worker had sustained an injury to the rotator cuff or to the cervical nerve roots or brachial plexus.

On June 24 the worker’s physician opined that the worker could not return to modified work, but that she could do so on June 30.

On June 26, 2008 the worker saw a sports medicine specialist for left shoulder and back pain. An MRI was ordered in respect of a possible cuff tear. The MRI report of the left shoulder and cervical spine dated July 14, 2008 indicated normal results. The WCB Medical Advisor reported on July 19, 2008 that there was no plausible diagnosis relating to the current symptoms, and that there was no basis for restrictions on the basis of the compensable injury.

The Incident

WCB adjudication staff contacted the worker on May 23, 2008 and was advised that the injury occurred when the worker was moving a mold from one rack to another when she slipped and hurt her back and shoulder. She reported hearing a loud crack in her spine and felt immediate shooting pain, which subsided when she stretched her back and it cracked again. She did not report the incident to any supervisors at the time, but reported that the person working with her saw it happen. When adjudication staff contacted the co-worker who had been training the worker on May 20, 2008 she advised that she had not witnessed the injury or seen the worker slip. She reported that the worker was merely a “spectator” and would not have pushed or pulled any of the molds on her first day of employment. She did recall the worker complaining of pain that day and had described what had happened. In a subsequent conversation, however, the co-worker indicated that she did not recall what the worker had said she had done to make her back sore. Another co-worker stated that the worker seemed like she was in pain the day following her injury, although he was not there when the injury was said to have occurred.

In a subsequent communication with WCB adjudication staff on June 4, 2008 the worker advised that the accident was not the result of tripping over anything, but rather it had occurred as she was pushing a mold from one side to another which involved twisting her back. She reported injuring the top of her back, left shoulder and neck and that pain in her low back had now subsided.

Return to Work

The worker initially reported to her employer that she was told to stay off work for two weeks, and that she needed treatment on a daily basis. The employer was prepared to immediately accommodate the worker with light duty work and she was given a work capability form to determine what her restrictions were and what would be appropriate for light or alternate duties. On May 23, 2008 the worker advised WCB adjudication staff that she did not think that was a good idea.

The worker returned to work on June 2, 2008 with notes from her physician and her chiropractor indicating that she was restricted to light duties, four hours per day. She worked on June 3 and 4 but did not report to work on June 5, 2008. On June 5, 2008 her physician called the WCB adjudication staff to advise that the worker was unable to work that week but could return on Monday June 9, 2008 for four hours per day.

The worker reported to work on June 6 and again on June 9, 10 and 11, 2008. On June 11 she left after 3 hours for an appointment. The employer reported that the worker was not actively participating in her modified duties while at work. She was required to take a small styrofoam object roughly the size and shape of a steering wheel, inspect it for defects, use a filler to correct any flaws, and then sand it prior to passing it on to another worker for painting. The task would typically take 5 to 10 minutes. On one day the worker completed only six parts. By June 13, 2008 the worker’s physiotherapist had recommended that she be off work completely until June 23, 2008. The worker attended work on June 23, 2008 for light duties. On June 24, 2008 she attended upon her physician who reported that she was not capable of modified work but should be able to return to work on June 30, 2008. In fact June 23, 2008 was the last day on which the worker reported to work.

In a submission to Review Office dated July 23, 2008, the employer’s health and safety coordinator outlined his concerns regarding the WCB’s acceptance of the worker’s claim and payment of wage loss benefits beyond May 22, 2008. He noted that the incident occurred following a 45 minute orientation where the worker was advised of the importance of reporting any and all injuries. After the orientation, the worker was to watch and learn the process she was to perform. At a coffee break at 9:30 a.m. on May 20, 2008, the worker was asked how it was going and she replied “fine”. She completed her shift at 3:18 p.m. without reporting any difficulties or injuries. At 8:15 a.m. on May 21, 2008, the worker stated that she was injured the day before while moving a mold. She was vague about the details of what happened and could not identify when the incident occurred, indicating that it occurred sometime the previous morning.

With regard to the payment of wage loss benefits beyond May 22, 2008, the coordinator noted that the worker claimed and drew benefits from May 22 to July 8, 2008, a total of 34 working days. The worker came to work for 10 of these days at 4 hours a day, except for a 3 hour shift on June 11, 2008. She did not call or show up for work on the balance of the remaining days. The coordinator concluded that the worker made minimal effort to mitigate the losses and made herself unavailable.

The coordinator also made note of an incident that occurred on June 5, 2008. On that day the WCB adjudication staff contacted the worker who advised that she was on her way to attend a chiropractor’s appointment. When the adjudication staff contacted the chiropractor’s office, she was advised that the worker did not in fact have an appointment that day.

Review Office

On August 25, 2008, Review Office confirmed that the worker’s claim for compensation was acceptable. In rendering its decision, Review Office gave weight to the evidence provided by a co-worker who stated she did not witness the injury but confirmed that the worker had complained of pain on May 20, 2008 and that she described what had occurred at work. Review Office also relied on the diagnoses of an “erector spinae spasm” by the treating physician on May 21, 2008 and a “subluxation complex of the C-spine thoracic spine and lumbar spine with concomitant severe sprain/strain of the left shoulder/scapula” by the treating chiropractor on May 21, 2008.

Review Office determined that the worker was entitled to payment of benefits beyond May 22, 2008. Review Office based its decision on the treating physician’s report of May 21, 2008 that the worker would be disabled from work as a result of her injury and would be reassessed on May 26, 2008, and the diagnosis provided by the chiropractor on May 21, 2008. The chiropractor expressed the opinion on May 27, 2008 that the worker could return to modified duties on June 2, 2008. Review Office also noted that the WCB medical consultant would not comment on work capabilities until diagnostic tests had been completed and reviewed.

On September 12, 2008, the employer appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

The worker did not attend the hearing. The employer’s health and safety coordinator attended and made a submission on behalf of the employer. The employer’s representative noted the inconsistencies in the information provided by the worker with respect to the cause of her injury, and the fact that there had been no witnesses to the incident. He suggested that the worker had fabricated the injury, and noted that in the period following the incident the worker had made no meaningful attempts to return to work on a modified basis.

Reasons

We also note the lack of an immediate report of injury to the employer in the face of a contemporaneous explanation of the importance of doing so. This is even more compelling when considered in the context of the worker’s report to the employer’s health and safety coordinator at 9:30 a.m. on May 20, 2008 that she was “fine”, notwithstanding her report that the injury occurred one to two hours into her shift. We were advised by the workplace health and safety coordinator that the worker’s shift commenced at 7:00 a.m. Given that, and the fact that there were no witnesses to the incident, which allegedly occurred at a time that the worker was in training and was to only be observing, persuades us that the incident did not occur as reported. In making this finding we have made particular note of the misinformation provided by the worker to the WCB adjudicator on June 5, 2008 with respect to an appointment with the chiropractor.

Finally we note that Review Office took into account the June 26, 2008 examination by a WCB medical advisor and her refusal to comment on work capabilities until diagnostic tests had been completed and reviewed. Their ruling however failed to take into account the medical advisor’s August 12, 2008 further conclusions after reviewing the MRI. After noting that the cervical spine and left shoulder MRI were normal, the medical advisor reported that “no plausible diagnosis relating to the current signs and symptoms constellation and the reported mechanism of injury is found”. We think these findings are significant when considered in the context of the worker’s claim of an injury which cannot be substantiated.

In all of these circumstances, we are not persuaded that the incident occurred on May 20, 2008 as alleged by the worker. Without a workplace accident, there is also no basis to provide the worker with wage loss benefits, being the second issue under appeal. The employer’s appeal on both issues is allowed.

Panel Members

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

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 20th day of November, 2008