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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 ends.

The Worker's Position

The worker was self-represented at the hearing. She provided the panel with her recollections of the original 1999 workplace accident. She worked as a unit assistant in a healthcare facility, and heard a crack in her back as she was leaning over to transfer a patient, holding his legs while another worker was holding the upper body. She indicated that the "crack" was located in the middle of her back, at the equivalent height of the bottom of her chest.

Later, in response to questions by the panel, the worker confirmed that she did eventually return to work with the employer in 2003, at a different location although there was considerable difficulty in establishing exactly when that had taken place. She returned after receiving medical clearance from her attending physician.

The Employer's Position

The employer was represented at the hearing by an advocate and by the manager of its disability management program. The employer's position is that the worker had recovered from the February 3, 1999 accident by May 26, 1999, relying particularly on an April 21, 1999 examination by a WCB medical advisor which concluded that the worker was making a good functional recovery.

Analysis

For the worker to be successful in her appeal, the panel would have to find that the worker's ongoing medical complaints after May 26, 1999 were causally related to her workplace accident of February 3, 1999. After an extensive review of all the evidence on file and as presented at the hearing, we were unable to make this finding. Our reasons follow.

At the outset of our analysis, the panel notes that the worker is seeking the restoration of benefits for a time period that starts over 12 years ago. This is a significant passage of time which has created some challenges for the panel in determining exactly what happened in the 1999 to 2004 period. The time gap issue has been exacerbated because the worker's evidence regarding past events, even significant events, is not consistent with contemporaneous evidence on the file from that particular time period, and was also internally inconsistent at the hearing. At times, and on important points, the worker's evidence varied significantly from the earlier record, and the panel has therefore chosen to rely on the file evidence as being more reliable where these differences occur. These discrepancies and our findings in those areas will be more thoroughly discussed in the analysis that follows. The panel wishes to emphasize that these comments refer only to the quality of the worker's memory of events and not to her integrity.

The panel finds, on a balance of probabilities, that the worker had recovered from the February 1999 accident by May 26, 1999, based on the following findings:

As to the worker's back condition:

• At the hearing, the worker placed considerable emphasis on the mechanism of injury causing a "crack" sound in her back that she could hear, located in the middle of her back, essentially in the mid or lower thoracic spine area. This would presumably suggest a significant acute event that would be of lengthy duration. The panel notes, however, that this cracking sensation did not show up on the file until the worker's attendance at her first physiatrist appointment on September 10, 2001, about 2.5 years after the workplace accident. We place greater weight on the February 15, 1999 diagnosis provided by her doctor, as a strain of the left shoulder and low back, which was confirmed by the WCB medical advisor in his examination of the worker on April 21, 1999. The panel notes that a "strain" injury suggests something muscular in nature, and is not consistent with the "cracking" symptoms later described. In this regard, the panel notes that the WCB medical advisor's comments in April 1999 that, "Objective medical findings on today's examination are indicative of a good functional recovery" are consistent with the recovery pattern of a strain-type injury, approximately 2.5 months post-injury.
• The panel further notes that the WCB medical advisor specifically tested for a number of other potential diagnoses before making his findings. In particular, neurological testing did not disclose any nerve root impingement or dural impingement of the lumbosacral nerve roots, there were no findings consistent with a sacroiliac joint sprain nor of a diagnosis of myofascial pain syndrome.
• While the worker points to other diagnoses put forward by her treating physiatrist, including sprained ligaments around the sacroiliac joint on the left and the quadratus lumborum and spinalis muscles in the low back, the panel does not accept these diagnoses as being related to the worker's 1999 injury. We note that these conditions were specifically tested for and not found by the WCB medical advisor in April 1999. As well, there is a significant 28 month gap (to September 2001) when these new diagnoses were first established, and the worker had not been working through that period of time. We also note that the worker's description of the original "crack" in the mid back area is also at a different location in the spine than the areas being treated by the physiatrist in 2001. As such, the onset of these new diagnosed conditions is not related to the original injury, in the view of the panel.
• While the worker indicated at the hearing that her pain never dissipated until she was cleared to return to work, the panel notes that the WCB medical advisor noted that the worker complained of ongoing discomfort in her shoulder and low back, and made his findings of good functional recovery notwithstanding those complaints. The panel notes that even so soon after the injury, the medical advisor wrote that "history taking was difficult due to vagueness." Again, the panel notes that it questioned the worker extensively as to the areas of treatments to various parts of the body (low back, mid back, and shoulder), when, where, and the effect of the treatments, and as well the status of each of these conditions, and her functional capabilities at various points of time, when the worker worked or was on disability benefits or leaves of absences. The worker was simply unable to recall these major events with any certainty. The panel concurs with the medical advisor's earlier comments regarding vagueness in history taking, and we place little weight on the worker's subjective complaints, choosing instead the objective testing done at that time.