The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by the Workers Compensation Board ("WCB") which determined that the worker had recovered from the effects of the compensable injuries he sustained in a work-related injury on July 24, 2012. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on April 11, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after September 25, 2012.

Decision

That the worker is not entitled to wage loss benefits after September 25, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries to his arms, elbows, low back and legs which he attributed to the following work-related incident that took place on July 24, 2012:

I was putting away things left behind when I pulled up with both hands a pipe, which was about 150 lbs. and it is about 8 feet long and had liquid concrete inside it, that was stuck in the ground and then what happened was that the pipe came out of the ground suddenly and it threw me to the ground.

Behind me was a pile of heavy metal pieces that are used to help plant trees and I fell on the side of the metal pieces, hitting my lower back and both elbows.

I had a hard hat on and when falling I tried to stop myself by putting out my left hand behind me; I felt like I broke my elbows and I had bad pain to my lower arms.

I am not sure why my legs are hurting; the doctor thinks that it is because of my back.

I had x-rays done on my knees and elbows, awaiting for results.

The employer's incident report noted that the worker was pulling on a stuck pipe and something popped in both arms.

On July 27, 2012, a WCB adjudicator spoke with the worker to obtain further information on the accident that occurred on July 24, 2012 and details of his symptoms. The worker reported that he was pulling hard on a pipe and it unexpectedly gave way. He fell backwards with force and landed onto both of his elbows and he struck his back on a pile of corrugated metal. His symptoms consisted of pain in his back, elbows and left leg. He also incurred a scratch on his right arm and his pointer finger hurt.

A doctor's first report showed that the worker attended for medical treatment on July 24, 2012 complaining of pain in his right hip, arms and decreased strength in his hands. He also had pain on the lateral epicondyle area of both elbows. In response to the question of "What diagnosis accounts for your patient's pain?", the doctor stated "multiple contusions and sprains."

On August 7, 2012, the worker advised the WCB that he had severe pain in his low back, both elbows and legs.

On August 27, 2012, the worker was seen at a call-in examination by a WCB sports medicine consultant. The worker reported that at the time of his injury he had low back, upper back and neck pain. The pain would radiate into his left hand and arm. When he walked he felt like he was "losing his legs." The pain was in the centre of his back and radiated to his neck and left arm. He had bilateral elbow pain. Following the examination, the WCB consultant said he was unable to establish a pathoanatomical diagnosis to explain the worker's presentation and that he was unable to relate the current presentation to the fall on July 24, 2012.

By letter dated September 18, 2012, the worker was advised that based on the WCB call-in examination of August 27, 2012, the WCB was unable to accept further responsibility for his claim as it was felt that his current conditions were not medically accounted for in relation to his workplace injury and that he was functionally capable of returning to work.

On October 4, 2012, the worker's doctor provided a progress report stating that the worker was not yet able to return to work. In response to the question of "What diagnosis accounts for your patient's pain?", the doctor stated "sprain on both elbows; sprain and contusion of lower back."

On October 15, 2012 a WCB medical advisor reviewed the new information and stated that there was no objective medical evidence provided by the treating physician to account for an injury in the workplace. On October 16, 2012, the worker was advised by the WCB that the decision made on September 18, 2012 would remain unchanged as it felt that his current condition was unrelated to the workplace injury occurring on July 24, 2012. On October 22, 2012, the worker appealed the decision and his file was referred to Review Office for consideration.

On December 3, 2012, an MRI report of the left elbow was read as showing no abnormalities.

In a decision dated December 20, 2012, Review Office confirmed that the worker was not entitled to benefits beyond September 25, 2012 as it was felt that he had recovered from the effects of his compensable injury by September 18, 2012. Review Office placed weight on the following evidence in making its decision:

• at the time of claim acceptance, there was no medical information on file. The adjudicator assumed the worker sustained soft tissue injuries to his elbows and low back.
• the WCB medical advisor noted a number of inconsistencies in the worker's presentation during the WCB examination on August 27, 2012. He was unable to establish a pathoanatomical diagnosis to explain the worker's presentation.
• most soft tissue injuries resolve within an eight week period.
• the opinion expressed by the WCB medical advisor on October 16, 2012.
• the December 3, 2012 MRI of the left elbow did not identify any abnormalities.

On February 4, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged. Included with his appeal was a report from a chiropractor dated February 4, 2013 for the panel's consideration.

Reasons

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.

Worker’s Position

The worker was self-represented at the hearing. The Appeal of Claims Decision form filed by the worker submitted that he should be entitled to benefits beyond September 25, 2012 as he was not medically cleared to return to work until January 23, 2013.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue before this panel is whether or not the worker is entitled to wage loss benefits after September 25, 2012.

For the worker’s appeal to be successful, the panel must find that the worker continued to have a loss of earning capacity after September 25, 2012, as a result of the workplace injury. For the reasons that follow, we were not able to make this finding.

The panel specifically relied on the following information:

1.The opinion of a WCB sports medicine consultant who examined the worker on August 27, 2012. Following that examination, the consultant stated that he was unable to establish a pathoanatomical diagnosis to explain the workers presentation and that he was unable to relate the worker’s then current presentation to the accident of July 24, 2012.

In arriving at his conclusions, the consultant noted that the worker complained that “he had pain when standing up from a seated position for walking. He report[ed] that when he walks he feels like he is “losing his legs” and the pain goes to the centre of his back and radiates to his neck area and to the left arm area. He report[ed] bilateral elbow pain, as well with use. He report[ed] that he cannot sit correctly now.”

The consultant stated that he met the worker in the waiting room and walked with him to the examination room. The consultant noted that “He was able to rise in a pain free manner. He was able to walk with the examiner to the examination room without any noted pain behaviors or antalgic gait. He was able to sit for approximately 20 minutes during the interview portion of the examination without any pain behaviors. He was able to move from position to position without any noted pain behaviors during the examination.”

The consultant’s report set forth several examples where the worker’s “pain responses” were not consistent during repetitive testing. The consultant concluded that the worker’s reported pain could not be explained via pathoanatomical lesion; i.e. as a consequence of an injury or wound.

2. The WCB medical advisor who reviewed the worker’s file and provided his opinion on October 15, 2012. He concluded that there was no objective medical evidence of the worker having sustained an injury with functional evidence of restriction of work ability as a consequence. He further stated that there was no medical evidence to account for an injury having occurred in the workplace.

3. The worker’s x-ray and MRI tests disclosed the following:

• July 25, 2012: X-rays of both knees did not reveal a bone, soft tissue or articular abnormality. The right elbow was normal in appearance. The left elbow was normal in appearance, except that a small linear bone density was seen. The report stated that this appeared chronic and was possibly associated with a chronic ligamentous or tendinous injury in the medial elbow joints. The report suggested that if there were clinical symptoms to suggest a medial ligamentous elbow injury in the left elbow, an MRI could be performed for further evaluation.
• September 13, 2012: X-rays taken of “Radiology, Spine and Pelvis, Lumbo-Sacral, Routine Views, Radiology, Spine and Pelvis, Sacroiliac Joints”. The radiology report stated:

Alignment unremarkable. Disc spaces and vertebral heights are well maintained. Degenerative changes are present in the facets at L5-S1. There is minor spurring at L3-4. No fractures seen.
No abnormalities are demonstrated.

• December 3, 2012: An MRI of the worker’s left elbow was conducted at St Boniface Hospital. It disclosed that there was no demonstrated abnormality of that elbow.
• January 7, 2013: Spinal x-rays taken at a chiropractic centre were unremarkable.

The worker attended at a chiropractor on January 7, 2013 with a series of complaints that he attributed to the workplace accident that had occurred approximately 5 ½ months earlier. The chiropractor concluded that the worker had suffered a series of contusion injuries and spinal subluxation injuries along with strains and sprains. The worker underwent a series of adjustments, and by February 4, 2013, the chiropractor declared the worker fit to return to full-time unrestricted work.

The panel placed no weight on the chiropractor’s report. The chiropractic initial examination was conducted 5 ½ months after the accident. The chiropractor did not have access to any of the earlier medical reports or diagnostic tests. The chiropractor did not draw a causal connection between the worker’s reported injuries and the accident of July 24, 2012, nor did he provide an opinion that the worker had been unable to work at the time that he presented in his clinic. The panel further accepts that any reported strains, sprains and contusion injuries that were incurred some 5 ½ months earlier would have resolved themselves well in advance of the initial chiropractic appointment. The panel notes that a spinal subluxation injury is generally attributable to one vertebrae in the spine that is out of line with the others. In contrast, the radiologist’s report of September 13, 2012 stated that the worker’s spinal alignment was unremarkable and that no abnormalities were demonstrated. This appears to be consistent with the x-rays that were taken by the chiropractor on January 7, 2013.

Finally, while the worker presented as a sincere individual, his evidence was at times inconsistent and difficult to reconcile. By way of example:

(i)The Worker Incident Report stated “I felt like I broke my elbows and I had bad pain to my lower arms.” The Employer’s Incident Report stated that the worker had been pulling on a pipe “and something popped in both arms.” The worker advised his family doctor that he was experiencing pain in both arms, and x-rays were ordered for both his left and right elbow. Similarly, he subsequently advised the sports medicine consultant on August 27, 2012 that he was experiencing bi-lateral elbow pain with use. However, in response to questions from the panel, the worker stated that the report that he gave to his treating physician on July 24, 2012 concerned only the left side of his body, and that he had no idea why his physician had referred to complaints concerning both his left and right side. He said that he had no memory of having advised the employer that something had popped in both arms,

(ii) The worker advised the panel that he experienced a significant headache every single morning subsequent to the accident, with such headaches continuing up until he was treated by the chiropractor. That symptom was not however identified in any of the reports made by or with respect to the worker. That includes the report of symptoms that he provided to the chiropractor on his initial appointment on January 7, 2013.

(iii) Finally, by way of further example, the worker advised that his family physician prescribed Naproxen and Tylenol 3 to address the pain from the injuries he suffered in the accident of July 24, 2012. He advised that he took both drugs three times per day; that he took the Naproxen on a continuous basis up to and including his initial visit with the chiropractor; and that he discontinued taking the Tylenol 3s after six weeks. He then revised his evidence to state that he had only taken the Tylenol 3s for five days; that he still had “some left”; and that he had taken Naproxen only when he was experiencing significant pain. Despite advising that he had only taken the Tylenol 3s for five days, he then informed the panel that he had twice filled both prescriptions.

In light of all of the foregoing, the panel concludes that the evidence does not establish, on a balance of probabilities, that the worker was suffering from a compensable injury that prevented him from working beyond September 25, 2012.

The worker’s appeal is therefore dismissed.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 6th day of June, 2013