The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

The issue before the panel was whether or not the worker is entitled to wage loss benefits beyond December 31, 2008.

The Workers Compensation Act (“the Act”) provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB. Specifically, subsection 39(2) reads as follows:

39(2) Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

In this case, the WCB determined that the worker’s loss of earning capacity ended as of December 31, 2008. Accordingly, the Board determined that the worker was not entitled to wage loss benefits beyond that date.

After reviewing all the evidence in this matter, including the file material and listening to the oral testimony of both the worker and a representative of the employer, the panel is in agreement with the Board's determination.

The worker’s position in his appeal is that the medical symptoms he experienced after December 31, 2008 are causally related to the compensable injury. We find, however, that the evidence as a whole does not support such a causal connection.

We further find that the medical evidence does not support a finding that any symptoms experienced by the worker subsequent to December 31, 2008 are, on a balance of probabilities, causally connected to the accident of October 24, 2008.

Evidence

In the accident report filled out by the worker on October 28, 2008, he stated that the area of injury was his back. He also stated that he was uncertain if the injury had happened at work or at home.

At the hearing of this appeal, the worker testified that he had been doing more manual lifting than usual at work, just prior to the onset of his symptoms. The WCB file contains handwritten notes made by the worker in which he documented that he had been doing a fair amount of lifting in the days just prior to October 24, 2008, which is the date he sustained the compensable injury.

The worker’s handwritten notes also indicate that on October 27, 2008 he went to see his doctor and “got one week off”. Then on October 28, 2008 the worker’s notes document that he went to see a chiropractor and was told that he would have to see the chiropractor for 3 times per week for the following 3 months and that he should not be doing heavy lifting during that period.

The first report from the worker’s chiropractor is dated November 4, 2008. The WCB medical report form which the chiropractor filled out, lists three options under the heading “Indicate Area of Injury, Back -- Cervical; Thoracic; or Lumbar Sacral”. The chiropractor checked off the box opposite the option “Thoracic” indicating that was the area of the worker’s injury. The chiropractor noted in his report that the worker’s description of the incident involved “lifting at work – hurt mid-back”.

The chiropractor prescribed a series of regularly scheduled appointments involving chiropractic adjustments 3 times per week for a duration of 12 weeks. The diagnosis set out in his report was: T-4 - T-5 - T-6 disc Facet irritation. The report listed the patient's subjective complaints as described involving mid back pain, mid back spasms, and right shoulder blade pain. The chiropractor answered “yes” to the question “is Worker capable of alternate or modified work?” and indicated “no lifting”. The duration of these restrictions was listed as being 2-4 weeks.

On November 10, 2008, the chiropractor filled out a Worker Capabilities Form for the worker to provide to his employer. The chiropractor indicated complete restrictions against working with hands above shoulders: reaching above shoulders; bending; twisting; and squatting. He indicated that the employee could return to modified or alternate duties 5 days a week for 4 hours per day. The worker signed the form indicating that he had reviewed the restrictions and return to work plan and that he agreed to participate in same.

A second report was provided by the worker’s chiropractor on November 20, 2008. The area of injury in that report continued to be described as “Thoracic”. There was no change in the diagnosis. Subjective complaints were listed as mid back pain. The treatment plan was described at that point to be adjustments 3 times per week for 8 weeks. The worker was described as being capable of alternate or modified work with the restrictions being “no lifting/using right arm”. The duration of the restrictions was one week.

On November 24, 2008, the WCB claims adjudicator spoke with the chiropractor to confirm the diagnosis. The chiropractor indicated he believed the worker would probably be able to return to work by the middle of the following week.

On that same day, November 24, 2008, the WCB wrote a letter to the worker, with a copy to his chiropractor, in which the Board confirmed acceptance of responsibility for chiropractic treatment for a maximum period of 14 weeks from the date of injury, or to January 29, 2009 inclusive.

The claims adjudicator also made a note in the file on November 24, 2008 after speaking with the worker. The note indicated that the worker stated that he was at about 25% of recovery and that while his back was still sore it was improving.

On November 26, 2008, the adjudicator spoke again with the worker by phone. The worker confirmed he was still off work and was receiving chiropractic treatments 3 times per week. He stated that he was seeing a physician as well but had decided to see only his chiropractor and that he felt he was getting better with treatment.

On December 1, 2008, the adjudicator spoke with the worker’s chiropractor again. The chiropractor indicated he believed the worker needed at least 1 more week before re-evaluating his restrictions but that he felt the worker was at about 60% of recovery.

On December 10, 2008, the adjudicator spoke again with the worker’s chiropractor. The chiropractor agreed that the worker was able to return to light duties. The adjudicator then followed up with the worker to update him on that information and to advise that he was to return the next day to light duties now that his restrictions had been confirmed. The adjudicator so advised the employer as well.

The adjudicator’s notes to file indicate that when she spoke with the worker to discuss his physical abilities and the fact that the employer was able to provide light duties consistent with those abilities, the worker stated he believed he should still be off work for the week.

However, the worker did return to modified duties on December 11, 2008. His evidence at the hearing was that not all of the duties that were offered to him fit within his restrictions. In particular, he felt that some of the duties involved bending which was something he was restricted from doing.

He said he felt sore after returning to work. The next day when he returned to work he was laid off midway through the day.

Before being advised of the layoff, the worker called the claims adjudicator and indicated that his back was very sore. He said that he believed the problem came from having to bend down to pick bolts up off the floor and that he was going to talk to his employer about working at waist level only. He was also going to follow up with his chiropractor.

In a memorandum to file dated December 15, 2008, the adjudicator noted that the worker advised he would be seeing his chiropractor up until January 29, 2009 and that he may have irritated his neck on his first day of returning to work but that he was improving.

The next chiropractor’s progress report is dated December 15, 2008. The report makes no mention of any irritation of or injury to the worker’s neck. The area of injury was still indicated on the report to be “Thoracic”. The box opposite the word “Cervical” was not checked off. The report indicates that there was no change in diagnosis and that the subjective complaints of the worker were still listed as “mid back pain”.

The report indicated the worker was capable of alternate or modified work with the restriction of no heavy lifting. The duration of the restriction was 1-2 weeks.

In that same report the chiropractor indicated he felt the patient was making good progress and was at 70% pre-accident status. The chiropractor also requested an extension of treatment.

As a result, the worker was advised that because his chiropractor had asked for an extension of treatment, the WCB would carry out a medical review. In the telephone conversation in which he was so advised, the worker confirmed that he had received the letter of November 24, 2008 which indicated that chiropractic treatment was authorized to January 29. He said he would ensure his chiropractor had a copy of same.

Accordingly, on December 16, 2008, a WCB chiropractic advisor was asked his opinion as to whether the request for chiropractic treatment beyond January 29, 2009 was warranted.

In his response, the WCB chiropractic advisor indicated that the reported findings were similar to those reported initially and that they continued to relate to the compensable injury. He was also of the view that there were no reported impairments to physical function that would preclude performance of full workplace activities and that given the minimal objective findings and length of time since the injury the worker was fit for unrestricted return to work. He confirmed that treatment to January 29, 2009 should be sufficient.

The worker continued to attend his regularly scheduled chiropractic treatments. By December 19, 2008, the chiropractor who had been assessing and treating the worker from the time of his injury had changed locations. The worker was, therefore, seen by the chiropractor's partner. This second chiropractor wrote a report on December 19, 2008. He confirmed there was no change in diagnosis and he continued to indicate that the area of injury was thoracic. He recommended a treatment plan of treatments 3 times per week for 5 weeks. He also stated that the worker was not capable of modified work.

Wage loss benefits were paid to the worker until December 31, 2008.

Unfortunately, on December 31, 2008, coincidentally, the worker had a slip and fall incident. He testified at the hearing that he slipped and fell on his grandmother's deck and in doing so bumped down 4 stairs on his bottom. He indicated, however, that he did not have any adverse effects as the result of this accident and did not seek out specific treatment other than continuing to attend his regularly scheduled chiropractic treatments. His evidence was that the incident had no impact on his condition.

The panel notes, however, that the worker’s second chiropractor telephoned the WCB on January 12, 2009 to advise that the worker had aggravated his back when he slipped leaving a house during the Christmas holidays. The chiropractor also asked if further treatment coverage would be allowed by the WCB.

The WCB adjudicator noted in the worker’s file that he spoke with the worker on January 29, 2009, at which time the worker confirmed that on December 31, 2008 he slipped on a snowy deck step, rode down 4 steps on his back and went home shortly after. The memorandum of this conversation indicates that the worker said he had back pain in the injury area and perhaps a little lower and that he reported same to his chiropractor.

The chiropractor's report dated January 29, 2009 requested an extension of treatment. The rationale for the extension indicated that the worker was having difficulties bending and twisting and that he had “slipped and fallen two times in early January '09 on ice, landing hard both times”.

On February 4, 2009, the WCB chiropractic advisor was asked for his opinion as to whether the worker’s ongoing symptoms related to the compensable injury. The advisor stated that in his view the worker’s symptoms related to the slip and fall accident the worker sustained on December 31 rather than to the compensable injury.

On March 9, 2009, the worker was seen by a physician who specializes in sports medicine. In a letter dated March 17, 2009 which was addressed to the worker’s advisor, the physician reported that the worker presented with a complaint of scapular and mid back pain subsequent to a work related injury. Based on his physical exam the physician made a diagnosis of cervical segmental dysfunction and regional myofascial pain. The physician indicated in the letter that with respect to causation of the worker’s present symptoms, since he had only seen him on a single occasion his ability to assess that issue fully was limited. He did go on, however, to indicate that it would appear based on the history provided by the patient that there was a relationship between his lifting event at work and his present symptoms.

Analysis

Based on a review of the evidence as set out above, the panel finds, on a balance of probabilities, that the worker had recovered from the effects of the compensable injury by December 31, 2008.

In support of our findings we place reliance on the evidence of the first chiropractor who treated the worker from the time the accident occurred up to and including December 15, 2008. The reports prepared by this chiropractor clearly show that the worker was progressing towards making a full recovery and return to work without restrictions, by December 31, 2008. In particular we note that the chiropractor's report of December 15, 2008 indicates that the worker had reached 70% recovery as of that date and that the restrictions regarding the worker’s return to work were to last 1-2 more weeks.

Although the second chiropractor's report of December 19, 2008 indicated that the worker was not capable of performing modified duties, the panel prefers the work capability assessment of the first chiropractor who treated and assessed the worker from the time the injury first occurred. We note, in any event, that in all other aspects the report of the second chiropractor dated December 19, 2008 is the same in terms of subjective findings, treatment and diagnosis.

We also note that although the worker advised and testified that he had hurt his neck during his return to work on December 11, 2008 there is no mention of neck complaints in the chiropractors' reports of either December 15 or December 19. Nor is there any note in either of those reports relating to any potential aggravation of symptoms resulting from the return to work.

We find that the medical evidence regarding the worker’s condition after December 31, 2008 does not support the finding of a causal relationship between those symptoms and the original compensable injury. For example, the report which was prepared by the sports medicine specialist on March 17, 2009, indicates a different diagnosis than the diagnosis reported for the original compensable injury. Specifically, this physician describes a diagnosis of “cervical segmental dysfunction and regional myofascial pain”. This is in contrast to the original diagnosis which related to a different portion of the spine, specifically the T-4, T-5 and T-6 area of the back. The medical reports which were submitted from the time the accident occurred to the time benefits were discontinued, consistently listed the only area of injury as being thoracic. The area of the injury was not described as being “cervical”, prior to December 31, 2008.

We also note that although the sports medicine specialist stated in his report that based on the history provided by the patient there appeared to be a causal relationship between the work event and the present symptoms, the physician also admitted his ability to assess causation was limited since he had only seen the worker on one occasion – March 9, 2009.

The panel agrees that the physician's ability to assess causation was limited and places more weight on the evidence of the first chiropractor whose reports, we find, show that the worker was progressing towards making a full recovery and ending his loss of earning capacity, by December 31, 2008.

The panel also finds that the most likely cause of the worker’s ongoing symptoms after December 31, 2008 was the fall he sustained on December 31, 2008. Although the worker’s evidence at the hearing was that he was unaffected by the fall, we find that the evidence as a whole does not support this position. In particular, we point to the following evidence: