Decision #97/12 - Type: Workers Compensation
Preamble
The worker is appealing two decisions made by Review Office of the Workers Compensation Board ("WCB") dated May 6, 2010 and November 8, 2011. The worker contends that his foot, back and neck symptoms were related to his June 2, 2009 work accident and that he was entitled to further wage loss benefits beyond January 29, 2010. The worker also contends that his medical condition post January 30, 2010 and his resulting loss of earning capacity were related to his general job duties separately or in combination with his prior compensable claims. A hearing was held on March 20, 2012 to consider the appeals and the hearing reconvened on July 18, 2012.Issue
2009 ClaimWhether or not the worker's foot, back and neck symptoms beyond March 14, 2010 are related to the compensable injury of June 2, 2009; and
Whether or not the worker is entitled to wage loss benefits beyond January 29, 2010.
All Claims
Whether or not the worker's post-January 30, 2010 complaints and resultant loss of earning capacity is related to his general work duties separately or together with any or any combination of his prior compensable claims.
Decision
2009 ClaimThat the worker's foot, back and neck symptoms beyond March 14, 2010 are not related to the compensable injury of June 2, 2009; and
That the worker is not entitled to wage loss benefits beyond January 29, 2010.
All Claims
That the worker's post-January 30, 2010 complaints and resultant loss of earning capacity are not related to his general work duties separately or together with any or any combination of his prior compensable claims.
Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to his lumbar spine, right heel and triceps which he related to an accident that occurred on June 2, 2009, when he was launched out of his seat after the fire truck he was in hit a dip on a road intersection.
The employer's report of injury noted that the worker's vehicle hit a very bad dip in the road on June 2, 2009 which caused injury to his right foot and across his low back.
On June 8, 2009, the worker advised the WCB that he was not belted in and was thrown out of his passenger seat when he hit a heave in the road. He then struck his heel on something in the cab and noticed a mark on his tricep a few days later. When he was treated on June 3, 2009, he did not see the bruising at first on the tricep. The worker noted that he was attending a chiropractor and was getting hot laser therapy for his heel, adjustments for his low back and no treatment for the tricep as it was only a contusion.
A chiropractor's first report confirmed that the worker attended for treatment on June 3, 2009 for right heel and lumbar pain. The diagnosis was a right heel contusion and an x-ray was ordered. The x-ray of the right calcaneous dated June 8, 2009 identified no abnormality.
On June 23, 2009, a WCB chiropractic advisor reviewed the file with a WCB case manager and six weeks of chiropractic treatment were authorized.
On June 25, 2009, the WCB chiropractic advisor noted to the file that the worker could return to modified duties with specific work restrictions.
The worker sought treatment from a general practitioner on June 30, 2009 for heel pain. The diagnosis was heel contusion/plantar fasciitis.
A progress report received from the treating chiropractor dated July 3, 2009 noted that the worker complained of back and neck pain. A bone scan was ordered. On July 6, 2009, the worker returned to modified duties with the accident employer.
On July 14, 2009, the WCB chiropractic advisor noted to the file that the claim was not approved for cervical treatment.
A bone scan performed on July 13, 2009 was read as follows: "While the scan is not entirely normal, it does not strongly suggest the presence of a recent fracture to the right heel. Plantar fascitis (sic) is however suspected."
On September 9, 2009, the treating chiropractor advised the WCB chiropractic advisor that the worker was reporting cervical discomfort shortly after the onset of his injury and that the worker had ongoing lumbosacral and heel discomfort as well. It was agreed that a referral to a sports medicine specialist would be beneficial.
In a letter to the WCB dated September 28, 2009, the treating physician reported that he reviewed the worker's entire medical chart dating back to December 11, 1984 and found no indication of heel or foot pain prior to the worker's visit to him on June 30, 2009.
On September 15, 2009, a WCB case manager contacted the worker to discuss his work injuries. The worker said his heel hurt more than anything else but this had improved and now it was his low back and neck that were bothering him the most. The worker also indicated that he had plantar fasciitis. The case manager advised the worker that his compensation claim was accepted for a heel contusion and low back sprain and that his plantar fasciitis was not considered compensable.
The WCB case manager spoke with the treating chiropractor regarding the worker's neck complaints. The treating chiropractor read his notes and confirmed that the worker complained of neck/trapezius pain on June 8, 2009, five days past the injury date, and that the worker's primary focus was on his heel.
A narrative report was received from a sports medicine specialist dated September 28, 2009. His impression of the worker's condition was mechanical neck pain consistent with a whiplash kind of injury. He noted the worker had degenerative changes in his cervical spine which predated the injury and that this may predispose him to the neck pain which developed following the injury. Regarding the mid and low back pain, the specialist was concerned about the possibility of a compression fracture being present. It was felt that the described mechanism of injury would be consistent with the development of a compression fracture. Regarding the worker's right heel pain, the specialist could not define a specific etiology for this condition. The worker did not appear to have neuropathic pain symptoms and his investigations to date had been normal. The specialist could not readily explain the symptom complex affecting the right ankle.
On October 14, 2009, a WCB orthopaedic consultant stated, in part: "Contusion of the spine and contusion of the right heel are the probable diagnoses of the CI [compensable injury]. Resolution of symptoms would reasonably be expected within one month of the injury. Pre-existing DJD [degenerative joint disease] of the spine would prolong the spine pain."
An MRI was done on November 4, 2009. The L5-S1 level demonstrated a moderate left paracentral extrusion associated with mild caudal migration of disc material. This contacted and resulted in a slight posterior deviation of the left S1 root. The foramen and central canal were well-maintained. Regarding the low thoracic spine, there was some mild end plate irregularity and disc space narrowing. This could be consistent with minimal Schuermann's disease. There was no significant disc protrusion or evidence of a compression fracture.
The worker was seen on December 14, 2009 by a WCB sports medicine consultant for a medical assessment. The diagnoses outlined following the assessment were as follows:
- Whiplash-associated disorder of the cervical spine.
- Non-specific low back pain with no ominous or neurogenic features.
- Resolved plantar fasciopathy as evidenced by decreased symptoms and increased function.
The consultant outlined work restrictions and said there was no medical contraindication to introduce the recommended functional physiotherapy program focusing on active-based exercise rather than modality treatment.
On December 30, 2009, the WCB referred the worker to a rehabilitation and sports injury clinic to undergo a 4 week strengthening program and instructions on a home exercise program.
On January 4, 2010, the WCB authorized an additional 4 weeks of chiropractor treatment from January 4 to 29, 2010 at once a week.
On January 7, 2010, the WCB case manager spoke with the treating physiotherapist. It was reported that the worker's strength was good but he had some spasm symptoms on the left side that represented a whiplash type injury.
On January 25, 2010, the worker advised the WCB that he was doing some stretches at physiotherapy on January 20, 2010 which hurt at the time and then progressively worsened. As a result, he missed some time from work and attended his chiropractor who advised him to remain off work for the entire week. The worker noted that his pain was mostly in his neck but it also travelled down his spine to the mid back.
On January 28, 2010, the treating physiotherapist advised the WCB that the worker had 8 treatments but recently started to get less range of motion in his neck and it seemed to stiffen up. Treatment was discontinued as a result.
On January 29, 2010, the WCB sports medicine consultant commented that the worker's symptoms had persisted longer than would be expected for the noted diagnosis of whiplash associated disorder. A Functional Capacity Evaluation ("FCE") was recommended to determine his objective functional capability.
The FCE report of February 10, 2010 indicated that the worker's participation was a maximal effort passing 5.5 of 6 validity checks. The worker demonstrated a functional capacity within the "Medium" strength demand level.
The worker was then seen by the WCB sports medicine consultant on February 12, 2010 for another medical assessment. The worker said he was sore after the FCE but his biggest issue was his neck with some mid low back pain. The worker reported that he has not returned to modified or regular work duties since January 21, 2009. The consultant stated following the assessment that he was unable to relate a particular pathoanatomical diagnosis to the worker's continuing symptoms. He noted that the worker's neck pain at this time could not be related to a particular anatomical lesion and could be described as non-specific. Given the worker's age and the noted degenerative changes in his cervical spine on imaging, it was possible that the persisting symptoms would be related to the degenerative changes rather than related to the mechanism of injury some nine months after the compensable injury. He noted no consistent tenderness in the cervical spine examination. The consultant indicated that the restrictions outlined on page 2 of the FCE results were related to degenerative changes. He stated that it did not appear that the worker sustained benefit from the current treatment regime.
In a decision dated March 3, 2010, the WCB case manager informed the worker that he would be paid time loss for the period January 22 to 29, 2010 based on his chiropractor's recommendation that he take a week off work due to a flare up that happened on January 20, 2010. The worker was advised that he would not be paid for the period January 30, 2010 to February 22, 2010 based on the following rationale: his treating physiotherapist felt he could continue in his modified duty position; the worker went away on a vacation the following week; the worker attended the FCE and call-in examination both of which demonstrated his ability to do his modified duty position.
The worker was further advised that the WCB would support the modified duty role until March 14, 2010. As of March 15, 2010, if the worker required further restrictions they would not be considered related to the compensable injury of June 2, 2009. Any difficulties experienced by the worker in regard to his right foot, his back or his neck as of March 15, 2010, would not be considered related to the June 2, 2009 accident.
Subsequent file information showed that the worker's treating chiropractor wrote the WCB case manager to provide a medical summary of file evidence to support that the worker's accident of June 2, 2009 caused an enhancement of the worker's pre-existing degenerative condition and that he had not returned to his pre-accident occupational status. This report was reviewed by the WCB sports medicine consultant on March 12, 2010 and he commented as follows:
"…Given the previous examination and the inconsistent findings among multiple heath care providers, the writer is unable to establish a clinical correlate to the degenerative changes or establish a pathoanatomical diagnosis to explain the persisting symptoms. Although the degenerative changes may possibly be related to the symptoms, this would be in the realm of possibility rather than probability as would the presumption of multiple injuries or biomechanical changes playing a role in persisting symptoms. [The worker's] presentation can be opined to be nonspecific, multifactorial and possibly (rather than probably) related to degenerative changes without a specific pathoanatomical diagnosis.
The noted FCE restrictions at this time would represent [the worker's] current capabilities and again may possibly be related to degenerative change. The noted FCE would not be evidence of causation or provide a particular pathoanatomical diagnosis.
In regards to causation, as the writer is unable to determine on the basis of objective consistent medical evidence a probable pathoanatomical lesion, the writer is unable to establish a relationship to the noted mechanism of injury. The opined temporal relationship would discount the evidence presented above or in the noted call-in examination."
On March 26, 2010, the WCB case manager wrote to the worker to advise that the WCB remained of the view that his ongoing health issues or need for workplace restrictions were not related to the June 2, 2009 compensable accident.
The above decision was appealed by the worker and his union representative to Review Office. It was their position that the worker had not recovered from the effects of his June 2009 accident and that the worker was entitled to further testing/treatment and was entitled to further compensable benefits.
A submission was made by the employer's representative to Review Office dated April 9, 2010, in response. It was the employer's position that the worker had been adequately compensated for the residual effects of the June 2009 compensable accident and that the decision made on March 3, 2010 was appropriate.
On May 20, 2010 Review Office determined that time loss after January 29, 2010 was not authorized and that the worker's foot, back and neck symptoms beyond March 14, 2010 had no relationship to the June 2, 2009 compensable injury. Review Office accepted the WCB medical advisor's position that since he was not able to determine, on the basis of objective consistent medical evidence, a probable pathoanatomical lesion, he was unable to establish a relationship between the worker's ongoing signs and symptoms and the original mechanism of injury.
Review Office stated that although the FCE provided evidence that the worker may not be able to perform his full-time regular duties, it was not the injury of June 2, 2009 that led to these findings. It was felt that the causes of the worker's subjective presentation were multi-factorial in nature. Based on a balance of probabilities and the length of time that had expired, Review Office found that the worker had recovered from the June 2009 accident.
In January 2011, the worker submitted to the WCB that his current back and neck symptoms were related to the cumulative effects of a number of compensable injuries that he sustained while performing his job duties over the past 33 years.
On May 6, 2011, a WCB medical advisor documented to the file that he reviewed the worker's prior WCB claim files. He noted that the worker asserted that a number of prior workplace accident/injuries in previous years "have had a cumulative effect on my current condition." The current condition appeared to be non-specific neck and back pain. These conditions were among the most common conditions seen in the human experience and in many cases a specific cause cannot reliably be identified.
The medical advisor noted that on February 12, 2010, the examining WCB sports medicine specialist was unable to relate a particular pathoanatomical diagnosis to the worker's continuing symptoms. The medical advisor considered x-ray and MRI results. He stated that the correlation between degenerative changes such as those noted and the presence of back/neck symptoms was highly variable. The specific causes of the development of disc degeneration and facet joint osteoarthritis were not well determined, and these conditions were generally considered normal degenerative 'diseases of life.'
The medical advisor concluded that the worker had recovered from the various incidents that occurred in the 1980s, 1990s and 2000s. He said it was unlikely that the worker's current reported back and neck symptoms were related to the continued effects of his prior injuries or to workplace demands in general.
On May 6, 2011, the worker was issued a decision by a WCB case manager that based on subsection 1(1) and 4(1) of The Workers Compensation Act (the "Act"), the WCB was unable to relate the diagnoses of osteoarthritis and degenerative disc disease to the worker's 33 years of employment and therefore the WCB was unable to determine that a work-related accident occurred. The decision was based on the May 6, 2011 WCB medical advisor's opinion.
On August 10, 2011, the worker's legal representative asked Review Office to reconsider the decision of May 6, 2011. His submission made reference to the compensation claims filed by the worker from 1981 to 2011 regarding his neck and back injuries; specific medical opinions on file; MRI results dated June 15, 2003 and July 16, 2010 compared to MRI results on November 2, 2001 and September 25, 2009, etc, to support the following opinion:
"…circumstantial evidence is as follows: [the worker] has sustained many similar injuries over the years. Each time, the mechanism of injury was known and was work-related. Despite any pre-existing conditions, he recovered each time to the point where he could return to work as a firefighter. But, recovery times have increased and [the worker] has not yet recovered from his most recent injury.
Circumstances indicate, therefore, that repeated trauma has left [the worker] injured or susceptible to injury, resulting in an aggravation or enhancement of a minor pre-existing condition, or a recurrence of some prior injury or injuries. There is no evidence of any other cause, be it an injury or other intervening event.
The Board has accepted that [the worker] sustained a number of similar workplace injuries over his career. Medical evidence has not tied any pre-existing degenerative condition to current symptoms. There has been no evidence of intervening causative events. On a balance of probabilities, [the worker's] condition relates to his workplace injuries. Accordingly, his claim should be accepted."
A copy of the August 10, 2011 submission was provided to the employer's representative for comment. On October 11, 2011, the employer's representative submitted to Review Office that no credible scientific argument was made by the worker's legal counsel to support that repeated traumas had left the worker injured or susceptible to injury and that this had somehow aggravated or enhanced a minor pre-existing condition or led to a recurrence of some prior injuries. He concluded his submission by stating: "..the collective void of all medical evidence fails to establish the necessary nexus between [the worker's] ongoing problems and any workplace injury that he has sustained to date. Accordingly we would call upon the Review Office to deny [the worker's] application for reconsideration." A copy of this submission was forwarded to the worker's legal representative for comment. A response was received dated November 2, 2011.
On November 8, 2011, Review Office provided brief summaries of the worker's compensation claims from 1981 onward. Regarding the claims prior to June 2009, Review Office noted that each was a soft tissue injury that did not prevent the worker from working for a significant length of time. Review Office considered that the worker recovered from each of those accidents in a timely fashion and placed weight on the medical advisor's opinion of May 6, 2011 in this regard.
Review Office confirmed its previous decision that the worker had recovered from the effects of his June 2, 2009 compensable accident.
Review Office outlined the view that the development of the worker's extensive degenerative changes throughout his spine was in no way causative or enhancing the result of any of the worker's accidents singularly or in combination with his general work duties. Any aggravation of the worker's accidents singularly or in combination with his general work duties had long since resolved.
It was concluded by Review Office based on the above findings that the weight of evidence did not establish, on a balance of probabilities, that the worker's post-January 30, 2010 complaints and any resultant loss of earning capacity were causally related to his general work duties separately or together with any one of or any combination of his accepted claims. The requirements of subsection 4(1) had not been met as the worker did not have an accident as defined in subsection 1(1) and the claim was not acceptable. On December 20, 2011, the worker's legal representative appealed the decisions made by Review Office to the Appeal Commission and a hearing was arranged.
Following the hearing held on March 20, 2012, the appeal panel requested additional medical information from two treating physicians. The requested medical information was later received and copies were forwarded to the interested parties for information purposes. The hearing reconvened on July 18, 2012.
Reasons
Applicable Legislation
In deciding appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
This appeal deals with three issues, the first two issues relate to the worker's entitlement to benefits arising from his 2009 workplace injury. The third issue deals with whether the worker's post January 2010 complaints and loss of earning capacity are due to his general work duties and/or his prior workplace injury claims.
Subsection 4(2) of the Act provides that a worker who is injured in an accident, as defined under subsection 1(1) 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.
Subsection 4(5) of the Act sets out a presumption to assist in determining whether an accident arose, both out of and in the course of the worker's employment.
Subsection 60(2) provides that the WCB and the Appeal Commission have exclusive jurisdiction to determine:
(a) whether any injury… in respect of which compensation is claimed was caused by an accident…
(b) the question whether any injury has arisen out of or in the course of an employment …
The WCB's Board of Directors established WCB Policy 44.10.20.10, Pre-existing Conditions, which deals with situations in which a workplace injury affects a condition which the worker had prior to the injury.
Worker's Position
The worker attended with legal counsel who made a presentation on his behalf. He answered questions posed by his representative and by the panel.
The worker called his treating chiropractor as a witness. In his evidence, the chiropractor also referred to journal articles that had previously been provided to the panel.
The chiropractor opined that the worker had not recovered from his June 2, 2009 injury. He stated that on a balance of probabilities, the worker's workplace injuries are more likely the cause of the worker's condition than his degenerative condition and that there is no link between his degenerative condition and his symptoms. He also opined that the worker never fully recovered from his prior workplace injuries and, that it is his 2009 injury which continues to this day.
In answer to questions from his representative, the worker provided a detailed description of his duties as a firefighter. He described the equipment worn by a firefighter at a fire, the equipment used at a fire, the various techniques used and procedures that are followed at a fire. He also described the means of travel to a fire and some of the incidents that can occur at a fire. The worker described his June 2009 workplace injury and resulting symptoms and treatments. He answered questions regarding his other workplace injuries and symptoms. He also explained the problems he experienced on his return to work and his reasons for retiring from his position.
The worker's representative submitted that the worker's ongoing back and neck symptoms beyond March 14, 2011 are related to the compensable injury of June 2, 2009. The representative reviewed the evidence provided by the chiropractor and the worker on March 20, 2012. He noted that the chiropractor's evidence that the permanent injuries to the worker's neck and lower back were from bouncing in the fire truck and that on a balance of probabilities the injuries are more likely the cause of the worker's condition than the degenerative condition. He also reviewed the other medical information on file including that of the WCB medical advisors.
The worker's representative referred to court and tribunal decisions regarding the application of the presumption under subsection 4(5). He suggested that the presumption was applicable in relation to the adjudication under Issue 1 and in relation to the worker's claim under Issue 3.
Regarding the WCB decision that the worker's symptoms were not related to the workplace injury, the worker's representative stated that;
"In the absence of medical evidence, in light of the continuity of symptoms, it stretches believability to suggest that his injuries -- the cause of his injuries has shifted from a workplace accident to some other cause -- some other unknown cause."
Employer's Position
The employer was represented by its compensation coordinator. Prior to the hearing the employer's representative submitted materials including articles dealing with smoking and back pain and degenerative disc disease.
With respect to the worker's 2009 claim, the employer representative submitted that the weight of evidence, on a balance of probabilities, fails to establish a relationship between the compensable incident of June 2, 2009 and the worker's symptomatology beyond March 15, 2010.
With respect to the claim that the worker's post January 30, 2010 complaints and resultant loss of earning capacity is related to the worker's general work duties and separately or together with any of his prior compensable claims, the employer representative submitted that the preponderance of evidence, on a balance of probabilities, fails to satisfy the pre-requisites of subsection 1(1) of the Act. He asked that the panel confirm the Review Office decision.
The employer's representative reviewed the evidence provided by the worker's chiropractor at the March 20, 2012 hearing. He disagreed with the positions advanced by the chiropractor and outlined concerns regarding the chiropractor's evidence.
Analysis
Issue 1: Whether or not the worker's foot, back, and neck symptoms beyond March 14, 2010 are related to the compensable injury of June 2, 2009.
As a preliminary matter within this issue, the panel confirms the worker's evidence at the hearing, that his foot condition had resolved prior to March 2010, and that he is not seeking benefits in relation to his foot injury. Accordingly, the panel makes a finding that the worker's foot injury has resolved and is not a factor in the worker's ongoing loss of earning capacity.
For the worker's appeal of this issue to be successful, the panel must find that the worker's back and neck symptoms after this date were caused by his workplace injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's back and neck symptoms after March 14, 2010 are not related to the June 2, 2009 compensable injury.
In making this decision, the panel notes that the worker had a well documented pre-existing degenerative condition affecting his cervical spine, which is the area he described as his "biggest problem." This condition has been confirmed by two MRIs and is not in dispute.
The worker relied primarily upon the evidence of his treating chiropractor in support of his position that he had not recovered. The chiropractor testified that the worker did not recover from the 2009 workplace injury and that the worker's ongoing symptoms are caused by the workplace injury. The chiropractor also stated that the worker never recovered from his prior injuries and that these play a role in the worker's ongoing symptoms; however, the 2009 injury was the "straw that broke the camel's back." The chiropractor stated that he had reviewed the MRI reports and that it was his view that the worker's degenerative condition had not changed over the years. He concluded that the worker's degenerative condition did not cause pain and was not the cause of his symptoms.
The panel considered the chiropractor's opinion but is not able to attach significant weight to the opinion. In particular, the panel found that the chiropractor's opinion that the worker did not recover from a series of minor injuries sustained over a period of almost 30 years is not consistent with the evidence, which demonstrates that the worker was able to return to full duties after each of the injuries and that the worker went for long periods without treatment. The panel also finds the chiropractor's insistence that the worker's degenerative condition did not cause pain, to be inconsistent with the accepted medical view that such conditions can cause pain. More specifically, the panel agrees with the position that degenerative conditions are not an accurate predictor of accompanying pain. This does not equate with the proposition that degenerative conditions do not cause pain; rather, this is variable from one individual to the next.
The panel attaches greater weight to the opinion of the WCB sports medicine consultant who examined the worker on February 12, 2010 after the completion of the FCE. The medical advisor stated that he was "…unable to relate a particular pathoanatomical diagnosis to [the worker's] continuing symptoms. This is not to discount [the worker's] symptoms; however his neck pain at this time cannot be related to a particular anatomical lesion and can be described as nonspecific. Given [the worker's] age and noted degenerative changes in his cervical spine on imaging, it is possible that the persisting symptoms would be related to the degenerative changes rather than related to the noted mechanism of injury some 9 months after the noted compensable injury."
The consultant comments further that the restrictions outlined in the FCE "…likely represents restrictions as related to degenerative change."
The panel also accepts the October 14, 2009 comments of the WCB orthopaedic consultant who noted that "Resolution of symptoms would reasonably be expected within two months of the injury. Pre-existing DJD (Degenerative Joint Disease) of the spine would prolong the spine pain."
The worker's appeal of this issue is dismissed.
Issue 2: Whether or not the worker is entitled to wage loss benefits beyond January 29, 2010
For the worker's appeal of this issue to be successful, the panel must find that his loss of earning capacity after January 29, 2010 was caused by the June 2009 workplace injury and/or prior injuries. The panel was not able to make this finding.
In response to a question about the benefits the worker was seeking, he advised that he would still be working as a firefighter had it not been for the injury.
The record shows that on January 29, 2010, the worker was already being accommodated by his employer in a position which respected the findings of the February 2010 FCE. The restrictions placed by the FCE included a restriction on lifting and carrying amounts greater than 40 lbs.
The worker explained that he had been working light duties for several months but was feeling worse so he saw his chiropractor who took him off work for a week or two. When he returned, he was offered a position in the communications centre. He said that he could not do that job for 12 hour shifts. He was advised by an employer representative that he could work as much as he wanted and be paid the balance as sick leave. He did not feel it was appropriate that he use sick leave to pay for a workplace injury. He continued to receive sick leave for approximately 6 months and then retired.
The worker explained that he retired because he could not perform his job as a firefighter and did not want to use his sick leave as he had planned to commute his accumulated sick leave credits into a payout upon retirement. He said that he did not try the job in the communications centre.
The worker indicated that he had medical approval from his chiropractor for his refusal to work. However, the chiropractor's evidence at the hearing was that the worker could return to work provided he did not lift more that 40 lbs. as recommended by the FCE.
While the panel's conclusions on Issue 1 and 3 preclude a finding that the worker's loss of earning capacity is due to his workplace injuries, the panel did review the facts surrounding the worker's return to work and ultimate decision to retire. The panel concludes that the worker's loss of earning capacity after January 29, 2010 was due to the worker's decision to withdraw from the workforce. The panel finds that an appropriate position was provided for the worker; the worker refused to try the position but instead chose to use sick leave and subsequently retire. The worker did not seek or obtain medical authorization for his refusal to work at the accommodated position nor is there other medical evidence to support that the worker was unable to work. In this regard, the panel notes that the position in the communications centre was sedentary in nature and well within the medical restrictions noted in the February 2010 FCE. The worker's chiropractor also did not consider the worker to be totally disabled at that time. The panel notes that the worker had concerns about depleting his sick leave account and considered it to be more financially advantageous to retire.
The worker's appeal of this issue is dismissed.
Issue 3: Whether or not the worker's post January 30, 2010 complaints and resultant loss of earning capacity is related to his general work duties separately or together with any combination of his prior compensable claims.
While advancing the above issue, the worker's representative noted that:
"We haven’t closed out the notion of a successful cumulative claim, but having heard the testimony, it appears that his current condition results from the final injury, prolonged or aggravated by previous injuries."
This issue considers the effect of the worker's general employment duties and past work injuries on his condition as of January 30, 2010. The issue identifies three possible causes for the worker's complaints and resultant loss of earning capacity: wear and tear, the cumulative effect of prior injuries and/or a combination of prior injuries and duties.
Regarding wear and tear, the worker provided extensive evidence on his general duties as a firefighter. He submitted that these duties may have caused his complaints after January 30, 2010 and contributed to his inability to work. For the wear and tear claim to be acceptable, the evidence must establish that the worker's regular duties caused him to be injured. The evidence on file and that provided at the hearing does not support this conclusion. The evidence establishes that a firefighter can be required to wear heavy protective clothing, carry heavy equipment (ladders and hoses), work in dangerous situations, perform awkward movements (crawl into buildings and climbing on ladders). However, no studies or other medical literature were provided to support that firefighters are intrinsically more susceptible to low back injuries or whiplash type injuries than the general population. The worker's representative agreed that this evidence is not on the file or before the panel.
Therefore, the panel is not able to find that the general duties of a firefighter cause wear and tear on the body which makes firefighters more susceptible to injury. This claim is akin to an occupational disease claim. The panel finds that it does not meet the requirements of an occupational disease.
Regarding the cumulative effect of his prior injuries, the worker's representative said:
"So, my interpretation of what the doctor said was he was recovered enough to go back. The claims were closed; that doesn’t mean he’s one hundred percent. He also said that [the worker] becomes more susceptible to injury with each injury."
The panel considered each of the worker's prior compensable workplace injury claims. The panel notes that in each claim, the worker returned to his full duties, the time loss from work was minimal, the injuries were minor and there were large gaps between the periods when the worker received chiropractic treatments. The panel is unable to find that the worker's complaints and loss of earning capacity after January 29, 2010 were caused by the worker's prior claims or any combination of the prior claims. The evidence does not support a finding that the worker continued to suffer the effects of his prior injuries, either individually or cumulatively.
The third argument was that a combination of the worker's general duties and prior claims caused the worker's complaints and loss of earning capacity. Given the panel's findings on the first two arguments, the panel finds that the evidence does not support a finding that the combination of the worker's general duties and prior workplace claims caused the worker's complaints and loss of earning capacity.
The panel relies upon the opinion of the WCB medical advisor dated May 6, 2011 who opined:
“Review of the previous WCB claims from the 1980s, 1990s and 2000s indicate material recovery from the effects of the various incidents. Based on the information on file, it is not likely that [the worker's] current reported back and neck symptoms can be related to the continued effects of any specific prior injury, to any combined effect of the prior injuries, or to workplace demands in general.”
There was also discussion at the hearing regarding the possible aggravation or enhancement of the worker's pre-existing condition by the workplace injury. This position was not supported by the worker's chiropractor at the hearing. There is also no imaging or other medical evidence on file to support an enhancement of the worker's pre-existing condition. The panel therefore finds that the worker's pre-existing condition has not been aggravated or enhanced by the workplace accident.
Application of Presumption
The worker's counsel advanced two arguments regarding the use of the presumption. Section 4(5) of the Act sets out a presumption where there is evidence available to establish one part of the test and the evidence is inconclusive or there is no evidence on the other part of the test. Under these rare circumstances, the presumption applies and allows for the establishment of a workplace accident.
Issue 1:
The worker's representative suggested that the presumption be applied in determining whether the ongoing symptoms were related to the compensable injury. In the panel's view, the presumption is limited only to the question of claim acceptability under Section 4, that is, in determining whether an accident arose out of and in the course of employment. As this is an accepted claim, the presumption has no application.
Issue 3:
The worker's counsel submitted that the presumption is applicable to the consideration of the cumulative claim. He submitted that:
"I would ask the Panel to take a second look at the cumulative claim, given June 2nd, 2009, and the accident -- well, the personal injury is clear: back and neck. The chance event is actually a package of chance events over many years of firefighting as described by [the worker], and as seen in the various claims. Cumulatively, that provides the chance event. All of those events and the cumulative chance event occurred in the course of employment, and as described by [the worker], and as such, since the claim was never approved, it could be approved on the basis of the presumption.
You have the -- you have the chance events. You have the injury and you be brought (sic) in such that medical evidence is used to disprove the claim rather than prove it."
The panel has considered this submission and has concluded that the statutory presumption is not applicable to the circumstances noted above. Each claim for injury has been accepted, so the question is not whether the injuries arose out of and in the course of employment but rather what is the effect of each compensable injury and whether they have had a cumulative or ongoing effect. This particular issue deals with claim duration and entitlement to benefits and, again, is not a question of claim acceptance under Section 4 of the Act. The question of claim duration is an adjudicative matter to be determined on the balance of probabilities. The panel has considered this issue and concludes, based on the evidence, that the worker has recovered from the various accidents, individually and cumulatively.
The worker's appeal on this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of September, 2012