The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

“4(1) Where, in any industry, within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund…”

The WCB Board of Directors enacted WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") which applies to a separate injury after the compensable injury which may be causally related to the compensable injury.

The issue before this panel is whether there is sufficient evidence to establish, on a balance of probabilities, that the worker’s left hip/thigh complaints are causally related to the worker’s 2012 compensable injury.

Worker's Position

The worker was represented at the hearing by an advocate who made a presentation on her behalf. He noted that the worker was hit twice by a motorized scooter driven by a 270 pound male. He noted that the worker has had no time loss and is seeking payment of her physiotherapy costs. He reviewed the circumstance surrounding the injury, return to work and medical treatment. He advised that the worker used her left leg to help compensate for her right hip injury.

The worker answered questions posed by the panel. She advised that she has a new family physician and that he gave her a cortisone shot in her left hip. She said that she received about 1 - 2 weeks of relief from the injection. She had only seen this physician once but has an appointment later in the week, subsequent to the hearing. The worker also said that she has obtained some relief from physiotherapy treatments.

The worker said that after the accident she went home and iced her hip. She did not work on the Wednesday or Thursday so she applied ice and heat to her injury. She worked on Friday but other staff helped with some duties. She used Tylenol.

The worker said she travelled by car to Texas on vacation. The drive took 2.5 days. She drove for about two hours and sat in the back seat for the balance of the trip. While on vacation, she took it easy, using a golf cart to travel around the resort. She used the hot tub and pool.

The worker feels she injured her left side at the time of the accident. She did not notice the left side because of the intensity of the right side pain. She said her weight was on her right leg and was leaning over sideways when she was hit by the scooter. She said she braced herself so she would not fall and put weight on the left leg to prevent the fall. When hit by the scooter she was pushed to the left.

The worker demonstrated the mechanics of the accident and showed the panel where the left sided pain is located.

Employer's Position

The employer was represented by an advocate. The employer representative advised that the employer supported the worker's position. The representative said that the WCB has not provided any valid alternate non-occupational cause for the worker's left sided injury. He noted that the worker has not had any other accidents at work besides the January 2012 injury nor has she had any non-work accidents or injuries. He said there is simply no other explanation for the worker's left-sided injury.

Analysis

For the worker's appeal to be accepted, the panel must find that the worker's left hip/thigh complaints are causally related to the worker's 2012 workplace accident. The panel was not able to make this finding.

In reaching our conclusion the panel relies upon the following:

• The worker did not feel any left-sided symptoms at the time of the incident or immediately thereafter.
• The worker continued working her scheduled shifts until February 10, 2012 and did not complain about left-sided symptoms. Co-workers assisted the worker with her regular duties.
• The worker did not participate in physical activity while off work after the injury. She iced her right hip injury and rested when not at work.
• The worker did not report the left sided symptoms to her employer.
• After February 10, 2012 the worker travelled by car to Texas on vacation. She was away for 17 days, returning to her regular duties on February 28, 2012.
• The worker did not participate in any physical activity while on vacation. She walked very little, using a golf cart for transportation and a hot tub for relief.
• The worker did not seek medical attention until March 15, 2012. She reported to the physician that "She went on holidays but after returning back to work she still had some problems with the hip but then also started having problems with pain in the left hip."
• She advised the WCB claims manager that left sided symptoms developed about one to two weeks after the accident.

Two explanations were provided regarding the cause of the worker's left hip injury. The first is that both right and left sides were injured in the accident, but that the right hip pain was more pronounced so that the worker did not initially feel the left hip pain. Once the right hip pain subsided, left hip pain became more noticeable and worsened.

The evidence does not support this theory. As noted, the worker was not hit on the left side, did not have any left hip pain or symptoms at the time of the injury, and the left hip symptoms did not develop until about a week or two after the injury. The panel is not able to relate the left-sided medical condition to the initial accident.

The second explanation is that the left hip pain developed as a result of the worker compensating for the right hip injury. The worker advised that after the injury her lifestyle was very sedentary as she limited her activity, including when she was on vacation. She said she rested and used ice and heat on her right hip injury while at home. While travelling to Texas, she drove only a short distance and mainly rested in the back seat of the vehicle. While at the resort the worker used a golf cart for transportation and the hot tub and pool for relief. The panel finds that the worker's activities were limited and did not require significant compensatory involvement of the left hip or leg. The panel finds, on a balance of probabilities, that the left hip/thigh injury was not caused by compensating for the right hip injury. The left hip/thigh complaints are not predominantly attributable to the right hip injury and are therefore not acceptable under the Further Injuries Policy.

The panel also notes that the medical evidence does not support a causal relationship between the worker's current condition and the original workplace accident. The first physician's examination notes dated March 15, 2012 found no trochanteric tenderness. This was about seven weeks after the January 24, 2012 accident. This contrasts with the findings of the second physician who reports tenderness over the left trochanteric bursa in his examination dated June 22, 2012, and establishes a diagnosis of a left hip bursitis. The panel is not able to find a work- related cause for the worker's left hip/thigh problems and her changing left sided symptoms.