The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her ongoing back difficulties were not related to her compensable accident and therefore she was not entitled to coverage for physiotherapy treatment or for wage loss benefits. A hearing was held via teleconference on June 26, 2013.

Issue

Whether or not the worker is entitled to further coverage for physiotherapy treatment and associated wage loss benefits in relation to her back injury of August 5, 2011.

Decision

That the worker is not entitled to further coverage for physiotherapy treatment and associated wage loss benefits in relation to her back injury of August 5, 2011.

Decision: Unanimous

Background

The worker sustained an injury to her back on August 5, 2011 during the course of her work duties. The claim for compensation was accepted based on the diagnosis of a low back muscle sprain. The worker returned to her regular work duties on August 11, 2011 while attending physiotherapy treatments.

On December 20, 2011, the treating physiotherapist requested additional funding for physiotherapy treatment. It was reported that the worker had ongoing right low back pain, muscle tightness and spasms. On January 3, 2012, the physiotherapist was advised by the WCB that there was no evidence that further in-clinic treatment was warranted and that a home program and/or self pain management techniques would suffice.

On August 8, 2012, the treating physician reported that the worker was seen for a follow-up assessment. He noted that the worker had a very good response and had recovered pretty well after the injury in August 2011. In the last month, however, the worker's back had been flaring up and she started to have symptoms down her right leg in the L4-5 distribution. The physician noted that he was again referring the worker for physiotherapy treatments.

On August 23, 2012, the worker was advised by the WCB that given the gap in medical treatment between January 12 and August 5, 2012 and no confirmation from co-workers to support her ongoing difficulties, the WCB was unable to establish a relationship between the recurrence of her back problems and the August 5, 2011 accident.

In September 2012, the worker appealed the above decision to Review Office. The worker indicated that she did not feel her ongoing back difficulties were a recurrence but were related to her original injury. The worker noted that her back condition had been improving with physiotherapy but after the WCB refused to continue treatment, the pain in her back became worse as time went on.

On October 25, 2012, Review Office advised the worker that primary adjudication was conducting a further review of her claim and that she could expect to hear directly from her adjudicator.

In a letter to the WCB dated February 15, 2013, the treating physiotherapist stated the following:

"[The worker] attended our clinic for an assessment right sided low back and right leg pain/tingling on Oct. 3, 2012. She reported that over the previous 2 months symptoms similar to what she has experienced in 2011 has returned. She was not able to indicate a specific time or mechanism of onset, but did mention that lifting some of the heavier equipment at work was becoming more and more difficult. She also mentioned that the prolonged standing and walking at work (sic) bothersome. These symptoms were consistent with those demonstrated and documented in 2011 for the back injury she sustained at work. She has been followed with treatment on and off since Oct 2012 …"

In a decision dated February 26, 2013, the WCB case manager determined that the latest medical information from the treating physiotherapist indicated that the worker was first treated on October 3, 2012. It was felt that this information did not address the gap in treatment between January 12, 2012 and August 3, 2012 and therefore the decision to deny the recurrence would stand.

On March 11, 2013, Review Office held that responsibility would not be accepted for the worker's further back difficulties and that she was not entitled to coverage for her physiotherapy treatment or for wage loss benefits to attend those treatments. Review Office placed weight on the following evidence in reaching its decision:

· The treating physiotherapist's report of December 20, 2011 that the worker was making gradual progress with her therapy. This suggested that the injury was resolving and treatment at a clinic was not required.

· The treating physician's comments on August 8, 2012 that the worker "was seen last year in August […]. We sent her to physiotherapy, and she had a very good response and recovered pretty well. However in the last couple months her back has been flaring up and it actually has started causing some symptoms down her right leg in the L4-5 distribution." This suggested to Review Office that this was not the same injury as in August 2011 as the worker had flare-ups in the months before returning to her doctor (which she said she attempted to do in July 2012) and was now having pain down her leg. This suggested a June 2012 onset.

· On August 23, 2012, the case manager formally notified the worker that they were unable to accept a recurrence of her back problems as they could not establish a relationship between them and the August 5, 2011 accident. There was a gap in treatment between January 12, 2012, when she last attended physiotherapy and August 5, 2012, when she attended a doctor. The WCB was unable to confirm any ongoing complaints.

· On September 17, 2012 the worker had written to Review Office requesting reconsideration of the decision. On the one hand, she asserted that her problems were not a recurrence but a continuation of her August 2011 injury, that her pain had worsened when the physiotherapy treatment ended, that she had an appointment with her doctor in July 2012 that was rescheduled to August 2012 and that it was not her fault that her co-workers that purportedly knew of continuing complaints chose not to come forward to provide confirmation.

· The treating physician's report of September 28, 2012 that: "Since she had such a good response to physiotherapy after initial injury in August of last year." This suggested to Review Office that the statement supported satisfactory recovery from the initial injury.

· The treating physiotherapist's report of February 15, 2013 that: "She (the worker) reported that over the previous 2 months symptoms similar to what she experienced in 2011 has returned. She was not able to indicate a specific time or mechanism of onset…" Review Office stated that "similar" to what one experienced before is not the "same injury". The same applied to the physiotherapist's comments that "these symptoms were consistent with those demonstrated in 2011 for the back injury …"

· The treating physician on August 30, 2011 did not find neurological deficits. When seen in August 2012, the worker described pain down her leg. This was not reported by the worker in August 2011 when seen after the initial injury.

On March 11, 2013, Review Office concluded the evidence did not establish a relationship between what the worker experienced after her initial injury and what she described to her doctor in 2012.

On March 25, 2013 the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The Worker’s Position:

The worker was self represented at the hearing. It was her position that she did not feel her ongoing back difficulties were a recurrence but were related to her original August 5, 2011 injury. The worker noted that her back condition had been improving with physiotherapy but after the WCB refused to continue treatment, the pain in her back became worse as time went on.

The Employer’s Position:

There was no employer representative at the hearing.

Legislation and Policy:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (GECA). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the WCA).

In addition to the foregoing, the Appeal Commission and its panels are bound by the WCA, regulations and policies of the Board of Directors.

Subsection 4(1) of the WCA provides that 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 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.

Subsection 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

The WCB Board of Directors made WCB Policies 44.10.20.10, Pre-Existing Conditions, and 44.120.10, Medical Aid. The panel considered both these policies.

The panel is satisfied that the above noted provisions of the WCA and the policies are applicable to cases under the GECA.

Analysis:

In order to accept the worker’s appeal, this panel must first find the evidence establishes that the worker’s present difficulties are due to the back injury of August 5, 2011. If this finding is made, then this panel must establish that continued treatment is necessary to cure and provide relief from the injury.

The panel was unable to make the first finding. The panel finds that the worker's ongoing difficulties (and the associated treatment) are not related to the compensable injury of August 5, 2011. In coming to this decision, the panel considered the worker’s written and oral submissions and the reports of the treating physician and physiotherapist on file. In that regard, the panel makes note of the following:

· The worker’s August 5, 2011 injury was a lower back injury that was muscular in nature and no radicular symptoms were noted at that time. The worker received treatment until January 12, 2012 consistent with a muscular strain. Her physician indicated in his report of August 8, 2012 that the worker had good recovery from the physiotherapy treatment provided.

· The subsequent reports provided in August 2012 and onward by the worker’s treating physician and treating physiotherapist address a different anatomical area and treat a different set of symptoms. In particular, the doctor's report of August 8, 2012 indicates that the worker was now experiencing symptoms down her right leg in a L4-5 distribution. The panel notes that these neurological symptoms were not present earlier in the file and are not consistent with or related to the earlier compensable diagnosis of a muscular strain.

In light of the above, the panel is unable to make a finding, that on a balance of probabilities, the worker’s current symptoms are related to the injury that occurred on August 5, 2011. Accordingly the worker’s appeal for treatment coverage and associate wage loss benefits is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 23rd day of August, 2013