The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

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.

The worker’s position:

The worker was self represented at the hearing. He submitted that his claim for compensation benefits for his back was rejected due to lack of communication. The worker noted that at the beginning of his claim, the focus of the attention was on his elbow. After the fall, he felt general pain in his body as a result of the physical trauma he had endured. He did not think to report the back pain at that time because he thought his body just needed time to heal and the main priority was the fracture to his elbow. The worker also described a poor working relationship with his case manager and stated that he was led to believe that any other complications which did not relate to his elbow were irrelevant. As a result, he did not report the back pain he was experiencing. He noted that his mother did communicate the problems he was having with his back, but that she did not use the term "moderate." As a result, the reported back pain was minimized as being normal and no further investigation was made into his back condition. The worker indicated that after his elbow started to improve, he began to pay more attention to the back pain. He had always been a physically strong and active person, so he thought he just needed to become more active. He purchased a new bed believing that this might also be the cause. Unfortunately, he continued to have problems with his back and eventually he went to seek treatment from a chiropractor.

The worker felt that his claim had been disregarded based on his lack of assertiveness and knowledge of proper procedures. He felt that the burden of communicating and advocating for his benefits had been regarded as his sole responsibility and that this was not right. Given his poor relationship with his case manager, he never felt comfortable with expressing his problems to her. By the time he did say something about his back pain, it was too late and his claim was therefore rejected. The worker felt that the denial of his back claim could have been avoided if he had a more open relationship with his case manager and had sought treatment for his back condition earlier.

The employer’s position:

A safety coordinator appeared on behalf of the employer at the hearing. The employer was in support of the Review Office decision. It was noted that a medical report indicated that the worker's injuries should have healed in three months, after which time he could return to work. The employer's representative also noted that there were three separate instances where the worker was contacted about the importance of telling his case worker about what was happening with him. There was opportunity for communication to occur. Finally, it was noted that there were indications that the worker was feeling better, such as the discontinuance of physiotherapy and the worker moving out from home and living with friends (which fact the worker subsequently denied; he only ever moved out of his home and into his own place by himself). Overall, the employer was in support of the WCB's determination that the current back problems were not related to the workplace accident.

Analysis:

The issue before the panel is whether the worker's back complaints are related to the April 23, 2008 compensable injury. In order for the appeal to be successful, the panel must find that when the worker fell in the workplace injury, he suffered an injury to his back which is causing his current complaints. After reviewing the evidence as a whole, we find on a balance of probabilities that the worker’s back complaints are not related to the April 23, 2008 compensable injury.

At the hearing, the worker described his current back symptoms as back pain which made it difficult to do just the basic tasks of daily living. His mobility was greatly decreased. He had difficulty with stairs and would sometimes have to stop halfway because of the pain. Bending over, for example to put on socks, would also cause increased pain. The pain was located primarily in upper and lower back. He first began to notice the back pain after his elbow fracture healed and his arm pain started to subside.

The challenge the panel faced in considering this appeal was the indeterminate nature of the worker's back complaints. Following the hearing, the panel requested updated information regarding the worker's condition. The treating orthopedic surgeon provided a report dated June 3, 2010. In the report, the orthopedic surgeon noted subjective complaints and examination findings similar to those described in his report of December 14, 2009. The surgeon concluded with the following:

• It is my impression that subjectively, the patient demonstrates a greater degree of disability than I would expect from the objective findings;
• It is my impression that the patient may benefit from a work hardening program. The patient does state that nothing makes the pain better;
• It is my impression that the patient does demonstrate findings consistent with a chronic regional pain syndrome… any treatment should be geared towards treating a chronic regional pain syndrome … the patient's subjective complaints are greater than I would expect from the objective findings … the patient does not require physiotherapy at this time;
• There is no indication for surgery.

A copy of a bone scan report dated January 27, 2010 was also provided by the treating orthopedic surgeon. The results showed no abnormalities.

Following the hearing, the panel requested an independent physical medicine and rehabilitation specialist (physiatrist) with no prior involvement in the claim to conduct a comprehensive review of the medical file, physically examine the worker and provide his opinion. The independent physiatrist produced a 10 page report dated September 8, 2010 which concluded:

1. The most probable diagnosis of the worker's current back condition is a non-specific clinical presentation with no ominous or neurogenic features. The best that is possible from the information available is to classify the claimant's spinal condition as being non-ominous (no evidence of fracture, tumor, infection, etc.) and non-neurogenic (improbably related to spinal nerve/spinal cord dysfunction and related conditions including disc herniation and spinal stenosis). It is also possible that there is a chronic pain disorder component to the clinical presentation. Specifically, symptoms have persisted for several months and are associated with a substantial reduction in activity in the absence of a correspondingly objectively demonstrable anatomic lesion.