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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury. Medical aid payments for expenses such as physiotherapy treatments are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. In making such a determination, the nature of the injury, the treatment provided and the worker’s response to the treatment may be considered.

Worker's Position

The worker was self represented at the hearing. She submitted that even though she did not attend her chiropractor regularly, she continued to suffer pain from her compensable low back injury. The pain was described as a muscle tightening with sharp pain across from the left side to the right side. It did not matter if she was sitting, lying down or walking, there was sharp pain. The reason she did not attend the chiropractor for more treatments was for financial reasons. She could not afford to attend the chiropractor regularly and she hoped that the pain would just ease on its own. The worker also noted that on May 31, 2010, her partner had to be rushed to hospital and he remained hospitalized for most of the month of June. During that time, the worker put her own aches and pains aside and her focus was on her partner's condition. Being at the hospital all day left her with no time or opportunity to attend chiropractic treatments.

With respect to wage loss, the worker submitted that by June 4, 2010, she was still not fit to resume her regular duties and in any event, she had no job to return to as she had been provided with a Record of Employment on April 5, 2010. The worker acknowledged that if shifts had been available, she could have returned to work on light duties but her employer had informed her that there were no light duties available. She said that she could not have performed any waitressing work as she could not carry the heavy trays or reach and bend over the tables.

Analysis:

The issues before the panel are whether or not the worker is entitled to chiropractic treatment beyond June 30, 2010 and whether or not the worker is entitled to wage loss benefits beyond June 4, 2010. We will address each issue separately.

Chiropractic Treatment

The worker has requested that the WCB accept continuing responsibility for further chiropractic treatment beyond June 30. 2010. She continued to receive periodic chiropractic treatment from July 1, 2010 until April 20, 2011. Her evidence was that when she had a flare-up and the pain got too severe, she would return to the chiropractor for treatment. The chiropractor would put a salve on her back and then heat and vibration would be applied to her back for approximately ten minutes. Following that, the chiropractor would put pressure on her back with his hands and perform a "crack" of her back. The worker said that the pain would be greatly reduced after this treatment, and that there was no other way that she could relieve the pain. The pain relief would last for the day, but that the next day it would return. If it was really severe, she would go back and visit the chiropractor again.

The panel has determined on a balance of probabilities that further chiropractic treatment is not necessary to cure and provide relief from the compensable back strain. In coming to this decision, we rely on the following evidence:

• The compensable injury for which the worker received coverage was a muscular strain-type injury to the lumbar spine. This was caused by a day at work when she overexerted herself due to short staffing. The worker acknowledged, however, that prior to that period of overexertion, she did experience a slowly increasing pain in her low back. This would suggest that the worker had a pre-existing mechanical low back pain condition;
• The worker's evidence was that after June 30, 2010, her low back condition fluctuated and it was only when her pain became too severe, she would seek chiropractic treatment for the "flare-up";
• A muscular strain-type injury would be expected to have resolved within weeks of the accident date. The waxing and waning nature of her condition is not consistent with a muscle strain injury and suggests that her pre-existing condition was responsible for the pain after the acute period was over;
• It is apparent that at a certain point, the chiropractic treatment being received by the worker was not curative, and was given for maintenance purposes only. While the treatments provided relief to the worker, the relief was only temporary and never lasted more than one day;
• The opinion of the WCB chiropractic consultant was that by June 30, 2010, the worker should have achieved her pre-accident status and any ongoing issues were not directly related to the compensable injury of March 13, 2010.