The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker and the employer are appealing decisions made by the Workers Compensation Board ("WCB") related to the worker's claim for injuries sustained in a work-related accident on August 5, 2012. A hearing was held on July 30, 2013 to consider these matters.

Issue

Worker's Issue: Whether or not the worker is entitled to wage loss benefits after August 15, 2012.

Employer's Issue: Whether or not the worker is entitled to medical aid benefits after September 7, 2012.

Decision

Worker's Issue: The worker is not entitled to wage loss benefits after August 15, 2012.

Employer's Issue: The worker is not entitled to medical aid benefits beyond September 7, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for left shoulder and low back difficulties that he related to an incident that occurred on August 5, 2012. The worker indicated that an obese man in a wheelchair had tipped over and he and two others were trying to help the man into the upright position. The worker indicated that he could not remember how he got injured but he later felt a tingling in his left hand and severe pain in his left shoulder. The worker noted that he was unable to sit or stand properly and he had tightness all across his low back. He did not finish his work shift on the day of the incident.

Medical reports showed that the worker attended a hospital emergency facility for treatment on August 5, 2012 for his left shoulder and low back. The diagnosis was a cervical spasm. The worker later attended a chiropractor on August 15, 2012 and was treated for symptoms in the cervical, thoracic and lumbosacral regions as well as the shoulder. The chiropractor indicated that the worker was incapable of returning to work.

Information obtained from the accident employer was that the worker returned to work on August 14, 2012 but called in sick for his shift on August 15, 2012 stating that it was related to his WCB claim.

In e-mail correspondence dated August 16, 2012, the employer referred to videotape footage that was taken on August 5 and August 14, 2012. The employer stated: "There is no question that the incident described by [the worker] did, in fact, occur. However, there is no indication that the degree of effort exhibited by [the worker] was sufficient enough to cause the injuries claimed. Furthermore, the video taken on August 14 certainly does not lead one to believe that total disability is imminent."

On August 24, 2012, a WCB chiropractic consultant stated that the compensable injury was a left shoulder and low back strain and there was no evidence of radiculopathy associated with the spinal injury. The consultant indicated that eight weeks of chiropractic treatment was appropriate in his opinion. On August 29, 2012, the WCB case manager authorized 10 multi-site chiropractic treatments.

On August 29, 2012, the worker provided the WCB with information related to his activities from August 10 to August 13, 2012. The worker reported that he suffered no aggravations or new injuries and that he was self-treating his injuries at home with pain killers, ice, heat and muscle ointments. As a result of these self-treatments he felt capable of returning to work on August 14 but during the second half of his shift his symptoms started to get worse. In hindsight, the worker indicated that he should not have returned to work on August 14 because it aggravated his condition.

In a decision dated September 7, 2012, the worker was advised that the WCB was accepting his claim for compensation related to the August 5, 2012 incident; however, he was not entitled to wage loss benefits after August 14, 2012 or to chiropractic treatment beyond September 7, 2012.

The worker was advised that the WCB obtained video footage regarding the initial injury on August 5 and a video of his shift on August 14. It was felt that the worker showed no signs of disability, discomfort or reduced range of motion related to his shoulder or back on his return to work on August 14. With respect to chiropractic treatment, the worker was advised that his claim had been reviewed by a WCB chiropractic advisor and there appeared to be a significant difference between the observations of him performing his regular work duties on August 14 and the medical report of August 15 which indicated total disability. Based on this evidence, the WCB was unable to establish a link between his workplace accident of August 5 and his total disability beyond August 14, 2012. On October 10, 2012, the worker appealed the decision to Review Office stating that he had not yet recovered from his compensable neck, shoulder and back injuries.

On November 21, 2012, Review Office spoke with the worker with respect to his appeal. Review Office then referred the file back to primary adjudication to obtain further medical information and to reconsider the decision of September 7, 2012.

The WCB obtained additional medical information which included MRI and x-ray reports along with medical information from an internal medicine specialist and the treating chiropractor.

On January 28, 2013, primary adjudication determined that the new medical information showed that the worker may be experiencing mechanical neck pain/myofascial pain and that the MRIs and chiropractic x-rays contained no abnormalities. Given these findings, the WCB could not establish a relationship between the workplace accident of August 5, 2012 and the worker's current diagnosis and ongoing symptoms. On February 5, 2013, the worker appealed the decision to Review Office.

On March 1, 2013, the employer's representative submitted to Review Office that the decisions made by the WCB dated September 7, 2012 and January 28, 2013 should be confirmed. The employer indicated that the evidence on file contradicted the severity of the injuries claimed by the worker and that the recorded activities of the worker on August 14, 2012 left little doubt that the problems identified by the chiropractor on August 15, 2012, although largely subjective, were unrelated to the compensable incident of August 5, 2012.

In its decision dated April 6, 2013, Review Office determined that the worker was entitled to medical aid benefits after September 7, 2012 in accordance with subsection 27(1) of The Workers Compensation Act (the "Act"). Review Office indicated because the worker remained under active treatment and investigation for his injuries, he was entitled to medical aid benefits.

Review Office also determined that there was no entitlement to wage loss benefits after August 14, 2012 as it was felt that the worker was capable of performing his work duties without a loss of earning capacity. Review Office considered the video evidence. Review Office indicated that although it did not see the worker drive and shoulder check, he demonstrated fluid movement in all extremities, no pain behaviors and unrestricted function despite his continuing complaints and ongoing medical investigations. It noted that the worker's doctor indicated that the worker complained of prolonged sitting positions; however, during his shift, Review Office indicated that the worker would have the opportunity to get up from his seat and stretch.

On April 25, 2012 the worker appealed the decision that he was not entitled to wage loss benefits after August 14, 2012. The employer also appealed the decision that the worker was entitled to further medical aid benefits. A hearing was arranged at the Appeal Commission to consider both appeals.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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. Provision of medical aid to injured workers is payable in accordance with subsection 27(1) of the Act.

Worker’s Position

The worker was assisted by a union representative at the hearing. It was submitted that the injury the worker suffered in the workplace accident of August 5, 2012 had not resolved by August 15, 2012 and as a result, the worker was not able to return to modified work until early 2013. At the time of the hearing, was still not back to his full regular duties. The worker reviewed the circumstances surrounding the accident and during his return to regular duties on August 14, 2012. The worker's evidence was that although he did not appear to have any problems in the video clip, he had taken pain killers and anti-inflammatories that day which masked the pain and it was not in his nature to show a lot of pain. He was able to hide any stress he was under and just put a smile on his face to hide the pain and finish his shift.

It was submitted that the worker had been seen by numerous physicians who identified ongoing problems with his shoulder and back. The report of the supervisor also noted that the worker appeared to be in pain on the day of the accident. He also went to the hospital that day. Overall, it was clear that the worker was suffering from pain and he had continued to receive medical treatment for that pain, much of which had been paid out of his own pocket. There was an ongoing condition which started after the accident at work. At the end of the day, the panel had to look at the medical attention, prescription drugs, and treatments the worker had been receiving since August and see that he had not fully recovered from the effects of his injury.

Employer’s Position

A representative from the employer was present at the hearing. The employer submitted that the best evidence on file clearly contradicted any relationship between the time loss and treatment commencing August 15, 2012 and the compensable accident of August 5, 2012. The employer noted a number of inconsistencies in the worker's evidence and in particular, relied heavily on the video footage from August 14, 2012 which did not show the picture of a totally disabled person. With respect to the worker's ongoing difficulties, the employer noted that to date, there was no diagnosis and the worker's description of coming and going discomforts were more indicative of a degenerative problem than that of an acute injury. Overall, the employer's position was that the worker's compensable injury was a minor sprain/strain which had resolved by August 15, 2012 and the employer urged the panel to consider the best evidence on the file, which would be the initial findings at the hospital, the demonstrated fitness capabilities in the August 14, 2012 video and the opinions of the two WCB chiropractic advisors who viewed the video.

Analysis

The issues before the panel are whether or not the worker is entitled to wage loss benefits after August 15, 2012 and whether or not the worker is entitled to medical aid benefits after September 7, 2012. In order to decide the appeals, the panel must consider the evidence regarding the worker's August 5, 2012 workplace injury and determine whether the injury caused a loss of earning capacity beyond August 15, 2012 and whether the worker required medical aid to cure and provide relief from the injury beyond September 7, 2012. We will address each issue separately.

1. Whether or not the worker is entitled to wage loss benefits after August 15, 2012.

After considering the evidence as a whole, the panel finds on a balance of probabilities that the work-related injury suffered by the worker on August 5, 2012 was limited to a strain-type injury and did not cause a loss of earning capacity beyond August 15, 2012. In coming to this decision, the panel placed significant weight on the following evidence:

• On the day of the accident, the worker was examined at a hospital emergency department. The findings on examination included full range of motion in the cervical spine, no vertebral tenderness, minor left trapezius tenderness, no shoulder tenderness, full (but painful) abduction and normal neurological status. The worker was noted to be showing "no distress." He was diagnosed as having suffered a cervical spasm. The panel finds that the examination findings were minimal thus suggesting that the injury was of a minor nature.
• The emergency room physician authorized the worker to be off work for 5 days until August 10, 2012 inclusive. Due to his shift schedule, the worker in fact was off work for 8 days until August 14, 2012. During that time, the worker's evidence was that he rested at home, applied ice and heat, and massaged the area.
• On August 14, 2012, the worker reported for work and was able to complete the regular split shift which he was scheduled to work. In the panel's opinion, the worker's demonstrated ability to work his regular duties without apparent difficulty is problematic for his claim of loss of earning capacity after August 15, 2012. At the hearing, the worker's evidence was that within 45 minutes into his first shift, he knew he was in trouble. The worker stated that the pain was getting progressively worse and he did not think he would be able to finish his day. This description, however, is not consistent with the presentation seen in the worksite video clippings. In the video, the worker is seen at various points throughout the day and he shows little signs of symptoms which would disable him from his employment. In particular, he appears to move in a fluid manner and is seen reaching up and behind him with his left arm to remove his jacket from a hook, and overhead to secure the vehicle at the end of his shift. The panel feels that the worker's appearance in the video is not consistent with a claim for total disability.
• The panel does not accept the explanation given at the hearing that the worker had taken Tylenol #3 and anti-inflammatory medications which masked his pain. The worker's evidence was that he took three Tylenol #3 tablets and double the anti-inflammatories throughout the course of the day. He characterized his use of medication as being close to an "overdose." This evidence is not consistent with the worker's earlier statement to the WCB that he did not take any pain medications that day. It is also not consistent with the ability to drive his vehicle and fulfill his ancillary duties at the end of his shift. In the video clips, the worker did not appear to be drugged or in any way impaired or lethargic. In fact, the worker was talking on the phone during a break, and was jovial and interactive with other people. We therefore do not accept that pain medications masked his symptoms to a degree that he was able to complete his shifts with no visible symptoms.
• The next day, on August 15, 2012, the worker was seen by a chiropractor. The chiropractor reported multiple sprain/strain injuries on cervical, thoracic, lumbo-pelvic and shoulder areas with associated inflammation and neuralgia. The chiropractor considered the worker to be totally disabled from performing any kind of work. The panel is unable to reconcile this medical report with the worker's presentation at work the day prior. We can only conclude that the worker's presentation on August 15, 2012 was attributable to a non-compensable etiology.

Overall, while the panel accepts that the worker did suffer an injury when assisting the passenger on August 5, 2012, we feel that the injury was limited to a relatively minor strain and that by August 15, 2012, the injury did not cause the worker to suffer a loss of earning capacity. As such, the worker is not entitled to wage loss benefits after August 15, 2012. The worker's appeal is dismissed.

2. Whether or not the worker is entitled to medical aid benefits after September 7, 2012.

In view of our findings set out above, the panel finds on a balance of probabilities that the worker is not entitled to medical aid benefits after September 7, 2012. The evidence does not support a need for medical aid to relieve the effects of the compensable injury beyond that date. The employer's appeal on this issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of September, 2013