The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for a work related injury to his back that occurred in August 2000. The claim for compensation was accepted based on an aggravation of a pre-existing condition and the worker was paid benefits to May 16, 2001. The worker is appealing a decision made by the WCB’s Review Office that his continued back complaints were not related to his compensable injury and that he was not entitled to further benefits. A hearing was held on November 26, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and medical treatment beyond May 16, 2001.

Decision

That the worker is entitled to wage loss benefits and medical treatment beyond May 16, 2001.

Decision: Unanimous

Background

In August 2001, the worker filed a claim with the WCB for a work related injury to his back that occurred on August 13, 2000. On the date of accident, the worker reported that he fell and struck his back on a rear tire of a combine while using a rotor wrench that slipped off a nut. He stated that when the accident happened he was not aware that his back would be an issue but by Christmas his back was still a problem. He then sought medical attention and was referred to a specialist for treatment.

File records indicate that the worker was seen by an orthopaedic specialist on May 16, 2001 and July 23, 2001. In a report dated November 1, 2001, the specialist stated that his initial diagnosis was degenerative changes in the worker’s spine and he thought there may be a chronic myofascial injury. From x-ray and bone scan reports, it appeared that the worker may also have an old compression fracture of the vertebral bodies of T7 to T11.

On November 19, 2001, a WCB medical advisor reviewed the file and stated: Based on mechanism of injury and pre x condition of spine it is acceptable that C [claimant] was still symptomatic from CI [compensable injury] of Aug 2000 (possible aggravation of pre x which has now resolved).”

In a decision letter dated November 20, 2001, it was determined by a WCB case manager that based on the weight of evidence, the worker had recovered from the effects of his August 13, 2000 compensable back injury by the time he attended the specialist on May 16, 2001. The worker was therefore not entitled to further wage loss, mileage or prescription reimbursement after May 16, 2001.

On September 5, 2003, the worker contacted the WCB to advise that he was still experiencing ongoing back problems. On November 4, 2003, the worker was advised that there was no change to their November 20, 2001 decision.

The worker next contacted the WCB in February 2007 to advise that he was still having back problems and that he required surgery.

In a letter dated February 26, 2007, the treating physician indicated that the worker saw a spinal surgeon who diagnosed a T6-T7 disc lesion. He indicated that the worker was waiting for a thoracotomy and removal of the disc and fixation of the vertebrae. He indicated that the worker was laid up and was unable to perform his duties from February 9, 2007 until further notice.

On May 3, 2007, the worker was advised that the new medical information had been reviewed however no change would be made to the WCB’s previous decision. The worker was advised that based on the weight of evidence he had recovered from the effects of his August 13, 2000 back injury by the time he attended the specialist on May 16, 2001 and that he was not entitled to further benefits.

On October 15, 2007, a lawyer representing the worker appealed the above decision to Review Office and provided additional information for its consideration. She stated that the treating surgeon was best able to determine the source of the worker’s ongoing difficulties given the fact that he performed the surgery. She referenced the treating surgeon’s opinion that the worker’s ongoing difficulties “could certainly be the result of his initial fall from the combine” and his further comments that it was “quite clear that the accident alone was responsible for his subsequent surgery.”

In a decision dated October 23, 2007, Review Office determined that the worker was not entitled to wage loss benefits or medical treatment beyond May 16, 2001. In reaching its decision, Review Office stated the following:

• in his report of August 15, 2007, the orthopaedic specialist indicated that the worker provided a history of having a severe fall. Review Office found no information on file to support that the worker sustained a severe fall. It noted that the worker did not seek immediate medical treatment and was able to continue working.
• the orthopaedic specialist’s opinions were based on a history provided by the worker which appeared to be inconsistent with the information on file. The worker indicated that he sought medical treatment in January 2001 but the first medical reports on file were for treatment sought in May 2001. It noted that the worker’s treatment was rather sporadic with large periods of time where no treatment was sought.
• the September 24, 2007 physician’s report noted that the worker injured his back in early 2001 and immediately sought medical treatment. This was inconsistent with the information on file as the accident was August 13, 2000 and according to the worker, he first sought medical treatment in January 2001 although no reports for this treatment are on file.
• the evidence on file which included the initial diagnosis, the minimal clinical findings reported in 2001, the time that had passed and the limited treatment sought over the past seven years did not support a causal relationship between the worker’s current back difficulties and the August 13, 2000 compensable injury.

On July 29, 2008, the worker’s lawyer appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged. On November 18, 2008, the worker’s lawyer provided the Appeal Commission with further medical documentation for consideration.

Following the hearing, the appeal panel requested additional medical information from the worker’s treating surgeon. This information was received and was provided to the interested parties for comment. On January 5, 2009, the panel met to render to its final decision.

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. Subsection 39(2) provides that a worker is entitled to wage loss benefits as long as he continues to have a loss of earning capacity that is causally related to his compensable injury. Subsection 27 (1) provides that medical aid shall be provided to the worker following a compensable injury as long as required to treat the effects of the compensable injury.

The worker’s position:

The worker and his legal counsel described his general job duties with the employer and the specifics of how he fell on August 13, 2000. In particular, the worker described the mechanism of injury as follows: “We were just nicely getting into harvest and simply we plugged up the combine and I was trying to unplug it, And on this particular combine, the wrench is fairly high to loosen the rotors, so I sort of reached up and using my feet for extra leverage, and the combine came loose and I simply fell over the back tire. And it all took place right where the back tire of the combines got lugs on it, it’s not one of them smooth tires, and it was one of the lugs that caught my back as I fell. I didn’t fall on the ground. I fell onto the back tire of the combine…”

The worker also responded to a number of questions from the panel to clarify exactly how the mechanism of injury occurred.

The worker described the progression of his symptoms to the panel. Over the years his symptoms worsened to the point of where he could barely walk. He saw many physicians for treatment and ultimately was surgically treated and testified that he has had resolution of his back pain and has now returned to work.

The employer’s position:

The employer, a farming operation, was represented by the husband and wife who are co-owners of the operation. They were supportive of the worker and noted him to be a very hard worker who rarely complained about his difficulties. They were both aware of his progressing pain, and allowed the worker to adjust his hours or his job duties or leave early on occasion, if he felt necessary to do so. The wife was present on the day the worker’s compensable injury occurred. She did not specifically see where the worker fell, but generally corroborated the worker’s description of the incident and what he was doing at the time.

Analysis:

For the worker to be successful in his appeal, the panel would have to find that the worker’s ongoing back symptoms that eventually required surgery are causally related to worker’s 2000 compensable injury. On a balance of probabilities, the panel was able to make these findings.

The panel found the worker’s description of his injury at the hearing to be particularly helpful in this case. The panel notes that the worker’s treating orthopaedic surgeon supports that there is a causal relationship between the worker’s chronic disc lesions at T6-T7 which in his opinion was caused by a direct blow to the worker’s thoracic spine. This is the only specific medical opinion that forcefully speaks to a causal relationship. The question for the panel to address, then, is whether the mechanism of injury is actually consistent with what the orthopaedic surgeon believes to have occurred.

One of the challenges in the earlier adjudications on the file has focused on whether the mechanism of injury, as described on the file, which only resulted in a short layoff, could have been severe enough to have led to the disc lesion more formally identified in 2006 and operated on in 2007. The panel turned its mind in particular to what exactly happened in 2000, and finds that the description received from the worker at the hearing as to the circumstances and mechanism of his injury are fully consistent with the disc lesion that was identified. In particular, the worker describes how he was hanging from a rung several feet up from the front wheel, with his body essentially horizontal, and his back towards the ground, to unplug the combine. His grip let go, and he fell in a “U” shape (legs and arms up) onto the back tire of the combine. This was a large back tire with large rubber lugs around the tire to give the vehicle traction in wet or muddy fields. The worker described a single point of contact by one of those lugs in the middle of his back. The panel notes that the employer’s wife has corroborated the position that the worker was in at the time of the fall, and that it was not uncommon for the worker to have to perform this particular duty while using the combine.

The panel notes that this is exactly the type of mechanism of injury that the worker’s orthopaedic surgeon had assumed had taken place. The panel further notes that the findings of the disc lesion and other references on the file to disc sequestration (disc fragments) are all consistent with a direct blow to the thoracic spine.Based on the newer and more detailed understanding of the mechanism of the injury, the panel prefers and adopts the opinion of the worker’s surgeon as to the causation of the thoracic disc lesion, over the earlier medical opinions on the file which presumed a more minor incident, and a conclusion that the condition was degenerative in nature.

Finally, the panel accepts the evidence of the worker and the employer as to how the worker’s symptoms gradually increased over the years, all in the same anatomical location, to the point where time loss and medical interventions were eventually required. Accordingly, the panel finds on a balance of probabilities that the worker’s ongoing thoracic spine problems are causally related to the 2000 compensable injury, with wage loss benefits and medical aid benefits to be established accordingly.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 21st day of January, 2009