The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after June 15, 2012 in relation to her low back injury that she suffered on June 15, 2012. A hearing was held on April 22, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after June 15, 2012.

Decision

That the worker is not entitled to wage loss and medical aid benefits after June 15, 2012.

Decision: Unanimous

Background

On July 9, 2012, the worker filed a claim with the WCB for a low back injury that occurred at work on June 15, 2012. The worker described the accident as follows to the WCB's call centre:

I was transferring a patient from commode to chair with another health care aide worker. We did the 1-2-3 and over transfer and the other aide got hooked on the commode somehow and then I ended up with all the weight of the patient. I felt a pull in my lower back.

The worker indicated that her injury happened on a Friday and she had the next week off as she worked every second week. She attended for medical treatment on July 9, 2012 as she had hoped her condition would go away. She self-treated with ice, rest, Tylenol and Advil.

A chiropractor's first report dated August 5, 2012 outlined the worker's diagnosis as post-traumatic lumbo-sacral subluxation-sprain associated with discal instability; reactive myofascial hypertonicity and facilitated nerve roots. The chiropractor also stated in his report: The initial low back pain-injury report was filed the same day as the injury date on June 15, 2012 that is a consistent pain pattern throughout this period. The patient thought the injury would resolve on her off duty days but progressively worsened upon return to work.

On July 17, 2012, the worker spoke with a WCB adjudicator regarding her back difficulties. The worker said she reported her injury to the charge nurse on the day of accident, June 15, 2012, and an incident tracker was completed. She was off work from June 16 to 22, 2012 which were her regular days off. She took it easy and used ice and extra strength Tylenol. There were no new accidents at home or work at any point. The worker noted that she worked June 23 and 24, 2012 and made no mention of her ongoing difficulties. The worker noted that June 25 and 26, 2012 were her regular days off. She worked her shifts on June 27, 28 and 29 and made no mention at work about her ongoing difficulties or the discomfort that she had had. She worked through the pain. The worker indicated that she awoke on July 7, 2012 with severe back pain. She called in sick on that day stating that her back was sore. She did not indicate that it was related to the injury of June 15, 2012 or to work duties.

By letter dated July 19, 2012, the worker was advised that the WCB was accepting that a workplace incident occurred on June 15, 2012, however, no responsibility would be accepted for any lost wages or medical care beyond that date. The decision was based on the worker's ability to continue with her work duties from the date of accident without any complaint until her first missed shift on July 7, 2012 and the delay in seeking medical care until July 9, 2012. This activity demonstrated to the WCB that there was no relationship between her current back difficulties and the accident of June 15, 2012.

On August 15, 2012, the worker's advocate provided the WCB with the following information to support that the worker was entitled to benefits:

• the worker was a long time employee with no WCB claim history and was someone who did not want to miss time from work.
• the worker only worked 5 days between the date of accident and date of her first treatment. She worked part-time and floated to different departments. The worker did not always know her co-workers and was not a complainer.
• the worker phoned in with back pain on July 7 and 8, 2012. Although she did not relate it to a workplace accident, the employer knew she had an injury at work because she reported it and knew without her telling them that if she missed time due to back pain that it would be related to her June 15, 2012 work injury.
• the worker's claim was a "no brainer" to relate her ongoing difficulties to her workplace injury of June 15, 2012 given the information provided and the information already on the claim.

On August 21, 2012, the advocate was advised that no change would be made to the WCB decision of July 19, 2012. The adjudicator commented that many of the points presented by the advocate were valid, however, the worker continued to perform her regular work duties without complaint until her first missed shift on July 7, 2012 and the first medical treatment on July 9, 2012. Given the significant period that passed and the numerous potential non-work related causes for the worker's difficulties, the WCB could not, on a balance of probabilities, relate the worker's workplace accident of June 15, 2012 to her subsequent time loss and medical attention. On September 4, 2012, the advocate appealed the decision to Review Office. A submission was also sent to Review Office by the employer's advocate dated November 16, 2012.

On November 23, 2012 Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits after June 15, 2012. Review Office indicated that the worker reported an accident to her employer on June 15, 2012 which was accepted by the WCB as a low back strain. The worker then had a week off work, followed by full duties for five shifts in a seven day period, followed by a week off work, followed by two sick days. The worker did not seek medical attention, did not report to the WCB and did not inform her employer or any co-worker of any ongoing issues for a period of three weeks following her compensable injury.

Review Office stated that there was no continuity to establish that the back pain suffered by the worker when she awoke on July 7, 2012 had any connection to the June 15, 2012 compensable low back injury. With no information to establish a causal relationship between the two, Review Office found no entitlement to wage loss and medical aid benefits after June 15, 2012. On November 29, 2012, the worker's advocate appealed the decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

The worker is seeking wage loss and medical aid benefits on an accepted claim. 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) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was represented by a union representative who made a submission on the worker's behalf. The worker answered questions from her representative and the panel.

The worker's representative noted that the denial of the claim was based on two issues:

• the failure of the worker to complain to co-workers after the injury, and
• the worker's delay in seeking medical attention.

Regarding the worker's lack of complaining, the representative said that the worker is not a complainer. He also said that the worker is in a float position and did not know her co-workers so did not complain about personal matters. He said that when she called in on July 7, 2012, she did not know who the supervisor was so did not mention that she was away on a workplace injury.

Regarding the delay in seeking medical attention, he noted the worker's explanation that she thought her injury would improve but when it worsened, she sought medical attention. He noted that the treating chiropractor reported that "the initial low back pain-injury report was filed the same day as the injury date on June 15, 2012 that is a consistent pain pattern throughout the period. The patient thought the injury would resolve on her off duty days, but progressively worsened upon return to work."

The worker advised that the employer's occupational health nurse called her at home on the day of the accident. She reviewed the claim process and provided contact information. The worker said that the nurse contacted her on several occasions and encouraged her to attempt a graduated return to work. She first attempted to return around August 18, 2012 but was only able to work part days for five days. Her chiropractor took her off work at this time.

The worker advised that on September 1, 2012 she had bent over to dry her feet after showering and suffered a sharp pain across the whole back. The pain was so severe she had to go to a hospital emergency ward. The worker said that her pain fluctuates and that she found activity worsens pain and rest settles pain.

The worker advised that she ceased seeing the chiropractor and sought treatment from a physiotherapist. She was able to begin another graduated return to work on October 17, 2012. She is now working her regular duties and her regular shifts.

The worker denied that she had a prior history of back complaints. She said that she had not seen the treating chiropractor for four years before the injury except for two visits related to her neck.

The worker confirmed that she worked at her regular duties on June 23, 24, 27, 28 and 29. She found that her duties were easier that week. She told the panel she worked on several different wards.

Employer's Position

The employer was represented by an employer advocate and its WCB Coordinator.

The employer's advocate noted that after the injury, the employer's occupational health nurse contacted the worker and went through a checklist with the worker including information about filing a WCB claim. The advocate said the worker's conduct in not filing a claim after the injury, suggests that the injury was not serious or long lasting.

She said the worker's conduct after the date of injury includes:

• worker's ability to work her regular 11 hour shifts for five days;
• worker's lack of complaint about the injury to co-workers or the employer;
• worker's delay in seeking medical treatment.

The advocate said that the worker had a history of prior back complaints and had workplace injuries.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after June 15, 2012. In order for the appeal to be successful, the panel must find, on a balance of probabilities, that the worker's loss of earning capacity and need for medical services after June 15, 2012 are related to her June 15, 2012 workplace injury. The panel is not able to make that finding. The panel finds, on a balance of probabilities, that the worker's loss of earning capacity and need for medical treatment after June 15, 2012 and specifically commencing on July 7, 2012, were not related to the June 15, 2012 workplace injury.

At the hearing, the worker said that moving the wrong way could cause pain. She also described four specific times where she had significant pain. The first incident was the workplace accident when she was moving a patient which occurred on June 15, 2012 and had been accepted as a no-time loss claim. She was not able to complete her shift on this date. The panel notes, however, that she did complete her next rotation one week later which included full 11 hour shifts on June 23, 24, 27, 28 and 29. While working these dates she performed her regular duties, did not advise co-workers or supervisors of a problem with her back, did not file a claim with WCB as recommended by the employer's occupational health nurse on June 15, 2012, and did not seek medical treatment. The panel finds that this evidence supports a finding that the worker had recovered from her workplace injury by June 23, 2012, the date she returned to full duties.

The second incident of significant pain occurred three weeks after the incident and after the worker had been away from work on her days off for a second full week. She said that she experienced the slow onset of pain overnight and had significant pain in the morning on July 7, 2012. She was unable to work that day and notified the employer. The panel is not able to relate this incident to the workplace injury given the passage of time and the significant intervening work history as noted. The panel also notes that the worker did not advise the employer on July 7, 2012 that she was away due to a workplace injury.

The third incident of pain occurred when she was attempting a return to work in August 2012. She worked for five days at reduced hours. Her chiropractor then advised her not to continue working. Given the panel's finding that the worker had recovered by June 23, 2012, the panel is not able to relate the worker's pain complaints at that time to the workplace injury of June 15, 2012.

The final incident occurred around September 1, 2012, when she bent over to dry her feet after showering. She said the pain was so bad that she attended a hospital emergency ward. The panel is unable to relate this incident to the workplace injury. The panel does note a recurring problem of back issues that are sudden and then resolve, some at work and some not. In the panel's view, the June 15, 2012 workplace injury was such an incident, which had resolved by the time she had returned to work on June 23, 2012.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of May, 2013