Decision #82/10 - Type: Workers Compensation
Preamble
The worker filed a claim for Workers Compensation Board ("WCB") benefits for a low back injury which occurred on January 2, 2009. The WCB accepted that an accident occurred on January 2, 2009, but did not accept that the worker suffered a loss of wages or required medical aid as a result of the accident. The worker appealed the WCB's decision and a hearing was held on July 14, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits and/or medical treatment.Decision
That the worker is entitled to wage loss benefits and/or medical treatment.Decision: Unanimous
Background
The worker filed a claim with the WCB on February 20, 2009 for a low back injury that occurred on January 2, 2009. The worker indicated that he was carrying drywall into a house and the homeowner grabbed the board with him and it twisted the wrong way and he felt a pain in his low back. He continued working and his upper back became sore around his neck area. The worker reported that he did a lot of twisting, bending and carrying at the job site every day. His last day of work was February 18, 2009.
The employer’s accident report dated February 24, 2009 indicated that the worker never reported an injury and asked the WCB to investigate the claim.
Medical information on file revealed that the worker attended for treatment on January 28, 2009 and was diagnosed with low back pain. Objectively, there were no acute findings. When next seen on February 20, 2009, the physician noted that the worker had pain all over his back and low back. The worker had good muscle tone and was normal neurologically.
Primary adjudication contacted the dispatcher who was identified by the worker as the person to whom he had reported his injury. The dispatcher indicated that he was not at work on January 2, 2009 but had learned of the worker’s back pain on January 5, 2009. He could not remember what the worker said regarding the mechanism of injury because it was so long ago. He stated that the worker complained every second or third day of back pain since January 5, 2009.
On February 24, 2009, the adjudicator spoke with a co-worker who remembered the worker injuring his back while carrying drywall. He did not remember the date but said it was sometime in January 2009.
On February 24, 2009, the WCB adjudicator spoke with the attending physician. The physician advised that his findings were related to osteophytes and arthritis. He provided a medical note dated February 20 for the worker to be off for two weeks and then to be evaluated by a WCB doctor.
In a decision dated February 25, 2009, a WCB adjudicator advised the worker that his claim for the incident that occurred approximately January 2, 2009 had been accepted. However, healthcare and wage loss benefits had not been authorized. The adjudicator noted that the medical information dated January 28, 2009 indicated that there were no findings and that the worker had no restrictions from performing his job duties. The worker did not seek medical attention again until February 19, 2009. Given these findings, the adjudicator concluded that there was no evidence to conclude that the difficulties the worker experienced on February 18, 2009 and the subsequent time loss were related to a work place injury dated approximately January 2, 2009.
On April 21, 2009, a worker advisor appealed the decision to Review Office. The worker advisor noted that the worker sought a second medical opinion when his back symptoms continued to increase on February 19, 2009. The doctor diagnosed the worker with a strain which he attributed to the workplace accident. A report from this particular physician was not on file. The worker advisor indicated that before seeing the physician on February 18, 2009, the worker had been working in a basement carrying drywall down to that location. He performed this work for approximately a half hour during which time his symptoms intensified significantly. It was at this time that the worker found he could no longer continue working and he then went for further medical treatment. The worker advisor’s position was that the worker’s time loss was a direct result of his workplace accident. In the alternative, should Review Office decide to accept the first physician’s opinion instead, it was suggested that the workplace accident, at the minimum, caused an aggravation of the pre-existing conditions which resulted in the worker’s subsequent loss of earning capacity.
On April 23, 2009, Review Office determined that it was premature to consider the worker’s appeal and asked primary adjudication to obtain a report from the physician who saw the worker on February 19, 2009 and to advise the worker of its decision.
Primary adjudication obtained information from the physician who saw the worker on February 19, 2009. The notes indicated that the worker had neck and back pain and no clinical findings were outlined.
On May 26, 2009, primary adjudication advised the worker that after review of the new medical information, it felt that the events leading to any wage loss and medical treatment costs experienced in February 2009 were unrelated to the early January 2009 event. On May 29, 2009, the worker advisor appealed the decision to Review Office.
On July 15, 2009, Review Office determined that there was no entitlement to wage loss benefits or medical treatment. Review Office agreed that the incident of January 2, 2009 met the definition of an accident but was unable to establish that there was a relationship between the time loss, the medical treatment and the compensable injury. Review Office noted that the worker delayed in seeking medical treatment from January 2, 2009 until January 28, 2009 and then again to February 19, 2009. Due to this delay in seeking medical treatment, there was no evidence to support a continuity of signs and symptoms with regard to the worker’s back condition. Review Office stated that none of the medical reports on file provided any clinical findings to support a causal relationship between the worker’s ongoing difficulties, subsequent time loss and the compensable injury. On September 28, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), any supporting Regulations, and policies enacted by the WCB Board of Directors.
This appeal by the worker deals with the worker’s entitlement to wage loss benefits and medical aid services following the low back injury he sustained in January 2009.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
Subsection 27(1) of the Act provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The Worker's Position
The worker was represented at the hearing by a worker advisor. Their position was that the worker suffered an acute injury on January 2, 2009 and that his later need to take time off work and seek chiropractic care was directly related to the injury of that date. In support of their position, they noted that the worker reported a significant increase in symptoms as a result of lifting drywall on January 2, 2009, and continued to complain of those symptoms at work. Co-workers have confirmed the absence of back complaints before the date of accident, the worker's ongoing complaints after that date, and the modifications made to the worker's job duties after that date to accommodate his ongoing back pain.
The worker advisor also noted that the worker did have an acute increase of symptoms following the January injury for which he received specific and directed treatment by a chiropractor. This resulted in a medical clearance by the chiropractor for the worker to return to his full pre-accident duties as of March 16, 2009, which is the date to which the worker is seeking wage loss and medical aid benefits.
The worker's evidence at the hearing was that he is currently employed full time in an extremely heavy work environment without any back difficulties. The worker advisor argued that the worker's recovery to full time heavy duty work after a short period of focused medical treatment is more suggestive of an acute injury having been suffered in January 2009 from which full recovery was obtained, rather than the worker's ongoing back pain being due to a pre-existing and non-compensable lower back pathology as had been suggested by a WCB doctor who had reviewed the file.
The employer did not participate at the hearing.
Analysis
For the worker to be successful in his appeal, the panel would need to find on a balance of probabilities that the worker's time loss and medical aid were causally related to the worker's injury of January 2, 2009. The panel was able to make this finding, for the reasons that follow.
As noted in the background, the worker formally reported his low back injury to the WCB on February 20, 2009, two days after he left work on February 18. A dispatcher confirmed that he became aware of the injury on January 5, 2009, and recalled the worker complaining about his back every two or three days on an ongoing basis. The worker's claim was eventually accepted by the WCB. However, the worker did not leave work immediately nor seek immediate medical attention, and when he finally left work on February 18, 2009, the WCB was unable to relate his medical difficulties at that date (and the consequent time loss and medical aid) to his January 2, 2009 claim. In the panel's view, the primary question that needs to be addressed is the time gap between the worker's compensable injury of January 2, 2009 and his subsequent time loss and medical treatment, and whether there is or is not a causal relationship between his later difficulties and the original drywall incident.
In our review of the evidence, we are satisfied on a balance of probabilities that the worker's time loss after he left work on February 18, 2009 to March 15, 2009 and medical aid to that date were causally related to his compensable injury. We rely particularly on the following findings in support of our conclusion:
· As to the delay between the date of accident (January 2, 2009) and the worker finally leaving work on February 18, 2009, the panel notes that between those dates, there was a continuity of low back symptoms reported by the worker to his dispatcher and co-workers, who independently confirmed those complaints in conversations with the WCB adjudicator. The worker's evidence (again corroborated by the co-workers) was that his crew made internal accommodations or modifications in the worker's job duties because of the ongoing difficulties he was having with his low back, following the drywall incident on January 2, 2009.
· Further, the panel accepts the worker's evidence that he worked in an extremely heavy work environment in a lumber yard, loading and unloading and delivering extremely large and cumbersome products such as drywall in and out of difficult places, where aches and pains were common and which, in his experience, would take care of themselves over time. He described his work as being on the "bullsh--crew" which took on the biggest and toughest and dirtiest jobs with the employer, and it was evident to the panel that the worker took pride in his ability to perform that work.
· The worker did not complain of low back symptoms prior to the January 2, 2009 incident, only as of that date and beyond. Again, this was the worker's evidence on file and at the hearing, and it was confirmed by his co -workers. The panel also notes that the worker did respond fairly quickly to the chiropractic treatment provided to him for his lower back condition, and cleared him for a return to work to his regular full time work without any restrictions. The worker has in fact returned to another job that would be classified as heavy work, and has done so without any further back difficulties. In the panel's view, this history is strongly suggestive of the worker having suffered an acute injury on January 2, 2009 which fully resolved after appropriate medical treatment, rather than the parallel onset of a degenerative low back condition as proposed by the first physician seen by the worker on January 28, 2009. The panel notes that on February 19, 2009, the day following his departure from work, the worker attended another physician who, from file notes, diagnosed the worker with a strain attributed to a work injury. The worker also attended a chiropractor starting February 26, 2009 who noted a history of "carrying drywall with homeowner, jarred back" and diagnosed low back and upper back pain with a number of supporting objective findings. She found the worker to be disabled from work, proposed a treatment plan, and anticipated the worker being able to return to regular duties on March 16, 2009. It is the view of the panel that the worker's job duties are fully consistent with the development of a low back strain-type injury, which could be chronic in nature and finally increasing to the point of requiring focused medical treatment with the expectation of a full recovery.
· As for the delays in medical treatment noted by various adjudicators, the panel notes that the worker had a continuity of pain complaints at work since the January 2, 2009 accident. In the midst of these complaints, he finally visited a physician on January 28, 2009 who confirmed the patient's low back complaints, and he again visited a doctor on February 19 and later a chiropractor on February 26, after he had to leave work. It is the panel's view that the worker had been trying to self-manage a chronic injury and to stay on the job through this period of time, and only sought medical attention when the problem flared. In this regard, the panel notes that it was very impressed with the work ethic and commitment to keep at his job, without reliance on outside resources. As such, the panel is disinclined to place significant weight on the delays in the worker seeking medical treatment, especially given that the worker only finally left work on February 18, 2009 when he was maneuvering a load of drywall down into a basement and his back gave out. This, in the panel's view, was the proverbial last straw where the chronic low back injury finally required him to leave work and seek overdue medical treatment.
· The panel notes that the worker's chiropractor signed a note dated March 16, 2009 indicating that the worker was able to return to normal work on March 16, 2009. The worker and his worker advisor both confirmed at the hearing that they were only seeking benefits to that date. The panel concurs, in its review of the evidence, that this is an appropriate end date for the payment of wage loss and medical aid benefits.
Based on these findings, the panel finds that there was a causal relationship between the worker's compensable injury and his subsequent absence of work and medical treatment for his low back. Accordingly, the panel finds that the worker is entitled to wage loss and medical aid benefits to March 15, 2009, the day prior to the date which the worker's chiropractor cleared the worker for a return to work. The worker is therefore successful in his appeal.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 1st day of September, 2010