The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his July 18, 2012 compensable injury and was not entitled to further benefits beyond September 26, 2012. A hearing was held via teleconference on June 5, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after September 26, 2012.

Decision

That the worker is entitled to benefits after September 26, 2012.

Decision: Unanimous

Background

The Employer's Incident Report dated July 19, 2012 indicated that the worker injured his knee on July 18, 2012 from the following work-related accident:

[Worker] was walking on fire line and three trees were falling. He tried to back out of the way but caught his knee and knocked him down. Tree hit leg and bounced off.

Initial medical reports showed that the worker sought medical treatment for his left knee on the day of the accident and also on July 22, 2012. He also sought medical treatment on July 25, 2012 when his sister struck him with a piece of wood and on July 31, 2012 after falling backwards on some stairs while wearing a backpack.

In e-mail correspondence dated August 10, 2012, an employer representative indicated that when the worker come off the fire line, his leg was extremely swollen and black in color.

On August 14, 2012, the worker filed a claim with the WCB for a back injury that occurred on July 18, 2012. The worker described the accident as:

I was on the fire line when a tree fell on top of me. I was carrying a back pack when I fell on my back.

In a report to the treating physician dated August 17, 2012, the hospital physician stated that the worker was admitted on August 1, 2012 after he fell backwards at home climbing stairs with a heavy backpack of clothes. He noted that the worker had been drinking and immediately had back pain and left leg weakness with numbness. An MRI showed disc herniations at L4-5 and L5-S1 with suspected left-sided nerve root irritation.

On August 17, 2012, the worker provided the WCB with the following information:

• he was in wheelchair and had numbness in his toes.
• he had no pre-existing condition with his back or left knee.
• he denied falling down stairs on July 31, 2012. The worker indicated that he only had three beers. He said the attending nurse simply charted incorrect information.
• his sister struck him with a piece of wood to his stomach on July 25, 2012.
• he told the attending physician of his back issue but the doctor was not sympathetic. The doctor felt that the pain was simply radiating to his back. The worker felt that the doctor did not have a good grasp of English.

By letter dated August 17, 2012, the worker was advised that the WCB was paying wage loss benefits up to August 31, 2012 with respect to his left knee injury only and that further wage loss benefits would be considered based on updated medical information. The worker was also advised that the WCB would further investigate the cause of his back injury and its relationship to the injury of July 18, 2012.

On August 28, 2012, the claims adjudicator contacted the nurse who saw the worker at the nursing station. The nurse confirmed that the worker had been drinking but he was not intoxicated when seen on August 1, 2012. She explained that a paramedic witnessed the worker sitting on his uncle's steps and requested help. The paramedic arranged for a back board to transfer the worker to the nursing station as the worker indicated that he could not walk. She confirmed that the worker had a small back pack at that time with very few pieces of clothing in it. It was not possible for the back pack to have created more injury involving the back. The nurse stated that the worker had ongoing complications of numbness in his toes and weakness and back pain, over the last few days. The nurse confirmed that the worker was hit with a piece of wood by his sister but it was not to the back or knee. The nurse supported that the worker's back injury was related to the compensable injury. She said the worker was very clear that when the tree top hit him, he had immediate pain in the left knee and also up towards his back and down his leg. She noted that the tree top was quite heavy and could have created the additional injury to the back.

On September 5, 2012, the claims adjudicator spoke with the worker's treating physiotherapist who advised that the worker had pain in his back and knee since the time of the injury on July 18, 2012.

The claims adjudicator spoke with the worker again on September 5, 2012. The worker recalled that a tree fell on his left leg and he fell backwards and he had on a fire pack. The fire pack had hoses inside and the weight was approximately 50 to 60 pounds. The worker said he had to lay down for approximately 15 minutes after he was hit and then managed to get up and walk down to where the supervisor was. The worker indicated that he told his supervisor that he hurt his back and knee and remembered telling her that his toes were numb. The worker indicated that he was taken to the hospital by a ranger.

The claims adjudicator spoke with the ranger on September 5, 2012. He confirmed that the worker was seen on July 18, 2012 after the injury on the fire line. The worker stated that his left foot had no feeling in it and that his left knee was very damaged. The worker appeared to be very weak and was unable to walk.

On September 10, 2012, the worker's supervisor advised the claims adjudicator that the worker had crawled back to the fire site after the accident. She recalled cutting the worker's pants at the left knee. She said the worker could not lay on his left side and was in pain. The worker kept saying that the pain was shooting up his leg. The worker's primary issues were the left side of his body and numbness in his left foot.

A WCB medical advisor reviewed all the medical information on the worker's claim and responded to questions posed by the claims adjudicator. The medical advisor opined that the initial diagnosis was a soft tissue injury to the left leg and it was consistent with the reported mechanism of injury. An uncomplicated soft tissue injury would resolve over one to two weeks. The current diagnosis was peripheral neuropathy involving the legs and possibly the upper extremities. The medical evidence of a cervical or lumbar spine condition which would account for the current symptoms was absent. Nerve conduction studies of the lower extremities failed to identify a specific patho-anatomic diagnosis which could explain the worker's current symptoms. No correlation to a specific workplace injury was apparent on CT, MRI, nerve conduction studies or on multiple clinical examinations reported by a variety of medical consultants. The medical advisor said there was no information to suggest the presence of a significant pre-existing condition influencing the recovery from the workplace incident. He said an aggravation from the fall onto a back pack containing clothes was not responsible for any of the current complaints nor did it appear to have aggravated the initial left leg injury.

By letter dated September 14, 2012, the WCB advised the worker that there was no medical evidence to support that his back injury was related to the compensable injury on July 18, 2012. It was the adjudicator's opinion that the worker's back condition was more likely related to his non-work related fall on July 31, 2012. The worker was advised that in the WCB's opinion, he had essentially recovered from his workplace injury of July 18, 2012 and that wage loss benefits were payable from July 19, 2012 to September 19, 2012 only. On December 10, 2012, the worker appealed the decision to Review Office and submitted a witness statement.

On February 14, 2013, Review Office found that the worker was entitled to benefits to September 26, 2012 inclusive. Review Office conceded that it was possible that the worker sustained an injury to his low back while in the course of his work duties on July 18, 2012 and that the injury was of an undetermined nature. Review Office indicated that there was no patho-anatomical evidence of a back injury despite numerous medical tests and examinations. Review Office felt that the worker had recovered from the effects of his compensable injury by September 19, 2012 and that he was entitled to benefits to September 26, 2012 as adequate notice was not provided to the worker as per WCB policy and legislation. On February 25, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from the worker's treating neurologist. A response from the treating neurologist was later received and was forwarded to the interested parties for comment. On September 17, 2013, the panel met further to discuss the case and to render a decision.

Reasons

Applicable Legislation and Policies

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. 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.

Worker’s Position

The worker was assisted by an advocate at the hearing and participated via teleconference. The worker's treating physiotherapist also participated in the hearing via teleconference. The position put forward on behalf of the worker was that the WCB made a mistake in failing to include the worker's back injury in his original claim. The WCB also made a mistake in finding that there was a secondary injury when the worker fell down some steps. This was not accurate. What actually occurred was that the worker had been on crutches and was in a lot of pain and felt weak. When he came towards the house he sat down on the steps and asked a family member to phone the nursing station for medical assistance. A letter from the nurse confirmed that although there was the scent of alcohol, the worker was not intoxicated at the time. Other letters on file from family members who were actually at the scene confirmed the worker did not fall at all and that there was no secondary injury.

The advocate provided the panel with a report from a neurologist who had been treating the worker. It was submitted that the neurologist had been strongly suggesting that the worker's condition was due to a spinal cord injury. The worker was a very hard-working man who earned income as a trapper and fisherman, in addition to the emergency firefighting work. He would not be sitting in a wheelchair for any reason other than a very real injury.

Employer's Position

The employer was represented by its benefits administration coordinator. The employer's position was that it was in agreement with the WCB's determination that the worker was only entitled to benefits until September 26, 2012. It was submitted that a link between the worker's current health issues could not be made to the compensable injury of July 18, 2012. The employer's representative provided some information about the emergency firefighting position and confirmed that the worker was qualified and passed the physical testing on June 22, 2012. It was noted that there had been several medical investigations conducted but the findings were not able to support a connection with the ongoing issues the worker had been identifying.

With respect to the secondary injury, it was submitted that the information on file would seem to indicate that there were two incidents and it was the second incident on July 31, 2012 which resulted in the worker's admittance to hospital followed by a transfer to a larger medical facility in Winnipeg. Based on the information on file, the employer was in agreement with the WCB's decision, but added that it would be important to review any additional medical information that may become available.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after September 26, 2012. In order for the worker’s appeal to be successful, the panel must find that after that date, the worker continued to suffer from the effects of his compensable injuries. On a balance of probabilities, we are able to make that finding.

At the hearing, the worker described how the accident occurred. The worker's evidence was that he was on the line fighting a forest fire when his crew boss told him to make his way to another group as they were out of water and needed extra hoses. The worker was carrying a fire pack on his back, which he described as a fifty pound packsack which contained four hoses, metal connectors and about sixteen clamps. The packsack had two straps which went over the worker's shoulders and a strap across the front. It sat from just below his collarbones to right above his hips. When he walked, he could feel some of the contents of the packsack digging into his back. As he was making his way through the woods, the worker saw a tree falling in front of him. He took two steps backwards in an attempt to avoid the falling tree when he fell backwards onto his packsack. He hit the ground first, and then the tip of the tree struck his left leg. The worker described being stunned by the fall and for a while, everything went quiet and he was unable to hear anything. He did not know whether or not he lost consciousness. The worker lay on the ground for about fifteen minutes before he was able to gather the energy to get up and walk. He had called for help, but no one could hear him. The worker described falling four times on the way back due to weakness. The worst of his pain was in his back down to his lower legs. He described feeling shockwaves through his body.

The panel accepts that the mechanism of injury described by the worker involved not only a blow to his left leg but also involved a significant blunt trauma to his thoracic spine. We also accept the worker's evidence that he did not suffer a secondary fall on July 31, 2012. This evidence is corroborated by statements from several witnesses. Importantly, the nurse from the nursing station who was involved with the worker confirmed that on July 31, 2012, the worker was seen sitting on the steps requesting help, he was not intoxicated, that he only had a small back pack with a few items of clothing which would not have created more injury, and that he had been experiencing ongoing complications of numbness in the toes and weakness and back pain over the previous few days. The nurse was in support of the finding that the worker had suffered a back injury as a result of his workplace accident.

The specific diagnosis of the worker's back injury is not clear. Diagnostic imaging did not identify any pathology in the brain or spine. Following a review on September 27, 2012, the WCB medical advisor indicated that the current diagnosis appeared to be a peripheral neuropathy involving the legs and possibly the upper extremities. No correlation to a specific workplace injury was apparent and an aggravation from a fall onto a clothes containing backpack was not felt to be responsible for the worker's current complaints. Since the time of review, new medical information from a treating neurologist has been obtained and the panel's finding with respect to mechanism of injury is different than that considered by the WCB medical advisor.

In a report dated November 2, 2012, the neurologist's impression was that it was possible that the worker suffered a non-compressive spinal cord injury which was not seen on MRI. The localization could be lower thoracic level (incomplete) due to absent abdominal reflex. It was noted, however, that some findings on examination did not correlate with the history provided. In a report dated January 14, 2013, the neurologist stated that he thought the weakness in the bilateral lower limbs was because of the post-traumatic concussion of the spinal cord with localization to the thoracic spine. In a subsequent report dated May 30, 2013, the neurologist noted that the possibility of post-traumatic concussion to the spinal cord could not be entirely ruled out but there were some findings which did not point towards severe abnormality. Possibility of underlying functional weakness could not be ruled out.

In his report to the Appeal Commission dated August 16, 2013, the neurologist indicated that according to signs seen on examination, the possibility of spinal cord trauma was kept and was the closest differential diagnosis based on clinical exam. The differential diagnosis of lumbosacral plexopathy secondary to injury was also entertained. The neurologist was not able to document significant abnormality to explain the current clinical examination. His overall observation with respect to diagnosis was: "Trauma in cervical -thoracic area with weakness to both lower limbs - upper limbs improved - presently improving." The prognosis was good.

The treating physiotherapist's evidence at the hearing was that she felt that when the worker fell onto his backpack, he suffered a shear-force injury to his thoracic spine, probably at around T2-3 or T3-4.

Based on the medical evidence from the treating neurologist and physiotherapist, the panel accepts on a balance of probabilities that in addition to the left leg injury, the worker suffered an injury to his thoracic spine and we therefore find that he is entitled to further benefits after September 26, 2012 in respect of this injury.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of November, 2013