The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after July 26, 2012 with respect to his compensable injury of July 25, 2012. A hearing was held on October 9, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond July 26, 2012.

Decision

That the worker is entitled to benefits from July 27, 2012 to January 7, 2013 inclusive.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his right shoulder, arm and side that occurred on July 25, 2012 from the following work-related accident:

I was painting the floor in the carpenters shop and I had to crawl under the workers bench and I had to reach over and felt something in the right side in the rib area. I finished my day. The following day I didn't come in because I was really sore.

When speaking with a WCB adjudicator on August 7, 2012, the worker stated that he was reaching and he felt a strain on his right side (chest and rib area). It was a nagging pain and he only missed one day of work. He was self-treating his injury. The worker noted that he saw his physician as a precaution and no future treatments were planned. He was working and managing okay but was being careful at work. His symptoms were decreasing.

A report from the treating physician showed that the worker attended for treatment on August 2, 2012. The physician stated: "Diagnosis: soft tissue tender on right side of the body. Doing well. Return to work full time."

On September 14, 2012, the worker advised the WCB that he was still having problems with his injury and he was not getting better.

On September 18, 2012, the worker advised his adjudicator that he had ongoing pain on the right side of his back and shoulder. On July 25, 2012 he was painting and crawling on the floor and reaching to do the edge of the wall and felt a tug underneath his right shoulder/armpit. He said his shoulder had been irritating him on and off. When he stretched or lifted something, he feels sharp pain. The worker said he had not recovered from his original injury but has not missed any additional time from work.

The worker was seen on September 21, 2012 for an initial assessment by a sports therapist. The therapist reported that the worker had increased pain with reaching, overhead activity, reaching behind his back and pushing. The diagnosis was an intercostal strain, and questionable rotator cuff. The WCB authorized 14 physiotherapy treatments for the worker.

On October 1, 2012, the worker advised the WCB that he had ongoing issues related to his compensable injury and that he felt shooting pain or spasm in his back when going down stairs.

On October 2, 2012, x-rays taken of the cervical spine were reported as showing multi-level degenerative changes.

In an October 3, 2012 report, the treating physician authorized the worker to be off work until October 9, 2012 due to medical concerns.

On October 25, 2012, the treating physician reported that the worker's right chest pain was improving but now the left side of his chest wall was hurting. It was felt that the worker could return to his regular duties by November 5, 2012 and that he was presently capable of alternate or modified duties.

In a November 1, 2012 report, the treating physician stated that he advised the worker to return to work on a graduated basis starting at 4 hours per day for one week, then 6 hours per day the next week and then back to his full time duties.

On November 7, 2012, a WCB medical advisor stated that it was not clear how the cervical spine x-ray was related to the original injury. He noted that the worker was now on a graduated return to work and there was no clear medical evidence outlining his status.

On November 15, 2012, the sports therapist noted that the worker had minor discomfort when reaching with his arm overhead. He had 4+/5 strength with minor discomfort with shoulder adduction.

On November 22, 2012, the treating physician recommended that the worker continue with light duties for one month and arm restrictions were outlined.

On January 9, 2013, a WCB medical advisor commented that the worker sustained a soft tissue injury to his body at the time of his initial injury. The natural history of this condition was recovery in 6 to 8 weeks. Any subsequent complaints were related to the worker's pre-existing condition.

On January 9, 2013, the worker was advised that he was not entitled to wage loss coverage beyond November 5, 2012. The case manager noted that he consulted with a WCB medical advisor and it was determined that there was no longer a cause and effect relationship between the soft tissue injury he sustained on July 25, 2012 and any current issues that he may be having. The case manager noted that the worker's treating physician had provided objective medical evidence to October 25, 2012 to support that his current presentation was related to the original noted mechanism of injury sustained in July 2012. The physician suggested a graduated return to work at that time with a return to full regular duties as of November 5, 2012.

On February 10, 2013, the worker outlined his position that he was entitled to wage loss benefits from December 21, 2012 to January 7, 2013. He stated that he was painting within a small space on December 20, 2012 with not much room to move around. This was when he again pulled his right side. He said that he saw his doctor the same day and was given a sickness certificate to be off work until January 7, 2013. The worker indicated that he was following his doctor's advice.

In a second decision dated February 14, 2013, the case manager advised the worker that he was unable to establish that his time loss beyond the November 2012 graduated return to work was related to the overall effects of his compensable injury. He noted that the treating physician did state on November 22, 2012, that the worker should perform modified duties for another month. The physician, however, did not make a formal submission to the WCB or give any indication as to how or if this remained related to the specifics of his compensable event on July 25, 2012. The case manager also commented that claims for recurrent or subsequent disability where there have been no new accidents or injuries at work were dependent upon relating his current problems to the previous accident at work. On March 3, 2013, the worker appealed the case manager's decision to Review Office.

On April 24, 2013, the employer's representative submitted that there was no objective evidence provided by the treating physician to substantiate that any time loss as of October 2, 2012 onward was directly related to the worker's compensable injury. He stated that the physician's medical note did not speak to the actual diagnosis that was initially accepted by the WCB. "Given the uncertainty, of the actual injury causing the ongoing problems and time loss from work (right ribs vs. right shoulder vs. issues with left shoulder vs. degenerative changes in the C Spine), it is our view that, at the very least no further benefits should have been accepted as of October 2, 2012." Based on the January 9, 2013 WCB medical opinion, the representative outlined the view that the work injury should have resolved somewhere between mid to the latter part of September 2012. He stated that the worker should not be entitled to any additional wage loss benefits beyond that paid to him in July 2012 as he did not sustain further time loss until October 2012, a period beyond which the WCB medical advisor indicated was no longer related to the compensable injury.

In a decision dated May 14, 2013, Review Office determined that the worker was not entitled to benefits beyond July 26, 2012. Review Office placed weight on the following evidence when making its decision:

• the worker missed one day of work and continued to perform his regular work duties until October 2012. The expected outcome of a soft tissue injury was recovery in 6 to 8 weeks. The worker continued working with no treatment sought or difficulties reported. This suggested that the compensable injury resolved within the expected recovery period.

• the August 2 medical report had no objective or subjective findings. It documented that the worker sustained a soft tissue trauma injury and was doing well with his return to work. This evidence supported that the worker's injury had resolved and ongoing treatment would not be required.

• as of September 2012, the worker's reported pain on the right side of his back and shoulder and left sided chest symptoms. These symptoms were not consistent with the initial reported area of injury (the rib cage).

Review Office commented that worker's reported difficulties from September 2012 onward were more likely the result of new incidents. Review Office concluded that the worker was not entitled to wage loss benefits beyond July 26, 2012 or medical aid benefits beyond August 2, 2012 in relation to the July 25, 2012 work injury.

On June 10, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The worker has an accepted claim. He is seeking wage loss benefits beyond July 26, 2012. 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 attended the hearing with his wife who assisted him with his presentation.

The worker explained that on July 25, 2012 he injured his right rib area while painting a floor in a confined area under a workbench. He said he was laying on his abdomen and stretched ahead when he felt a pain near the middle of his ribs. He said it was uncomfortable but not painful. He reported the incident to his employer and saw his physician as a precaution. He said then that he worked carefully and modified his duties to avoid reaching forward. Notwithstanding these precautions, the injury continued to bother him and flared up after he extended his arm while painting in a washroom cubicle. He was on his knees and was reaching around an object when the pain increased. The pain was in the same area but was much worse.

The worker advised that he returned to see his physician who took him off work and sent him for physiotherapy. He was off work until November 5, 2012 when he began a graduated return to work. By November 19, 2012, he was working full duties.

Another flare-up occurred in December when he was again painting in a small space and reached ahead. He saw a chiropractor and his physician and went off work again. The pain was again in his rib area.

When asked whether he had recovered between incidents, the worker initially replied that he had recovered but, with assistance from his wife, acknowledged that he never fully recovered from the July incident and would feel discomfort and pain in the rib area upon movement. He said it did not go away completely until he finally returned to work in January 2013. He advised that he has not had any further recurrences and is pain free. He is not taking any medications or treatment for his injury.

Employer's Position

The employer was represented by a manager. The manager advised that the employer agrees with the Review Office decision.

The employer representative reviewed the claim history and expressed concern that the injury was changing from that initially identified by the worker. The representative noted that the worker did not miss time from work and had minimal medical involvement until after an incident in September.

The representative agreed with Review Office that the subsequent time off was not related to the initial workplace injury. He also agreed with the WCB medial advisor's opinion that the injury was a soft tissue trauma injury which should be recovered within 6 to 8 weeks.

The representative said there was no evidence linking the worker's time off work in December to the July injury.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond July 26, 2012. Before outlining its reasons, the panel notes that it found the worker is limited in his understanding of medical matters especially in relation to identifying the source of his pain. He is also a poor historian with respect to his ability to recall dates and events, but genuine in his attempts to do so.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity after July 26, 2012 as a result of the workplace injury. For the reasons that follow, the panel was able to make this finding. The panel finds, on a balance of probabilities, that in July 2012 the worker injured his right rib and intrascapular area and as a result sustained a loss of earning capacity on various occasion until he returned to full duties on January 7, 2013.

The panel accepts the worker's evidence that he did not fully recover from the July incident until his return to work in January 2013. The panel also accepts the worker's evidence that his complaints have always related to his right rib area extending from the front rib area around to his back intrascapular area. The panel notes that in an assessment on September 21, 2012, the treating therapist noted the area of injury as right ribs intrascapular region. The panel finds that the worker's complaints have been continuous in respect to that specific anatomical area.

The panel notes the WCB medical advisor on January 9, 2013 opined that "At the time of injury this worker sustained a soft tissue injury to his body based upon the medical report. The natural history of this condition is recovery in 6-8 weeks. Any subsequent complaints are that her (sic) related to this injury and therefore related to his pre-X condition."

The panel agrees that the injury is a soft tissue and that it should resolve in 6-8 weeks, but finds, in this case, the worker suffered various recurrences of the injury while performing his duties. The first significant flare-up occurred when he was reaching to paint around an object in a tight space. This recurrence was within the 6-8 week period noted by the WCB medical advisor.

The panel also finds that the worker suffered a further recurrence of the injury in December 2012. The panel finds incidents in September, October and December are flare-ups or recurrences and not new injuries as the worker continued to have pain and discomfort at the same site, the right rib cage and intrascapular area. Again, the recurrence was close to the approximate recovery period suggested by the WCB medical advisor. The panel further notes that the worker had continued to work through the recovery periods, and that this may have delayed the worker's full recovery. The panel also notes the worker's evidence that he self-modified his regular duties during this period, to work within his body frame.

The panel notes there is a concern that the worker's condition changed over the period from July 2012 to January 2013. The panel finds however that the worker consistently identified an injury in the same area throughout that period. At the hearing, the worker denied that he injured his neck, shoulder, or left chest wall. The panel is unable to relate these areas to the workplace injury. The panel also notes that an x-ray identified certain pre-existing conditions in the cervical spine and finds there was no aggravation or enhancement of these conditions.

The panel accepts the worker's evidence that he was fully recovered by January 7, 2013 and successfully returned to work on this date. The panel notes the worker's evidence that he has worked since January 7, 2013 without any problems, which confirms that the worker recovered from the soft tissue injury.

The worker's appeal is accepted.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of October, 2013