The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagrees with the decision made by the Workers Compensation Board ("WCB") that the worker's thoracic spine difficulties were related to his compensable accident of December 6, 2002. A hearing was held on January 13, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's thoracic back difficulties.

Decision

That responsibility should be accepted for the worker's thoracic back difficulties.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a mid back injury that occurred on December 6, 2002 while operating an excavator at work. The worker reported:

I pulled in to the pit to get a load of dirt. There was a large rock under the peat moss. I bounced over the rock and it threw me up and down in my seat. When I came down in the seat, I felt pain to my middle back. I fractured my vertebrae.

On December 10, 2002, x-rays were taken of the worker's lumbosacral spine, thoracic spine and cervical spine. The results revealed generalized osteopenia and a very mild anterior wedge compression deformity involving the T8 vertebral body. No other abnormality was identified.

The claim for compensation was accepted based on the diagnosis of a T8 fracture and the worker was paid wage loss benefits to March 2, 2003 when it was determined by his treating physician that he was capable of returning to work.

In February 2006, the worker contacted the WCB to advise that he was experiencing mid back pain which he related to his compensable accident of December 6, 2002.

On May 12, 2006, the worker was advised that the WCB was unable to establish a relationship between his multi-level spinal complaints and his compensable accident of December 6, 2002. The adjudicator based his decision on the opinion expressed by a WCB medical advisor dated March 17, 2006 and the results of a December 22, 2005 CT scan of the thoracic spine which stated: "The thoracic spine has been scanned from T1-12. There is no significant disc herniation or protrusion. A definite fracture is not evident (more subtle compression fractures are likely better assessed with radiography)." The worker was advised that the WCB would review his case again if he underwent updated thoracic spine x-rays.

On May 18, 2006, the worker underwent x-rays of his thoracic and lumbar spines. The report stated: "Minor compression of one of the mid thoracic vertebral bodies. It is not known whether this is recent or old."

The WCB obtained chart notes from the treating physician which showed that the worker was first seen for back difficulties on November 23, 2005.

On February 16, 2007, a WCB medical advisor reviewed the worker's file and in summary he stated:

[The worker] has evidence of a minor T8 compression # (fracture) which likely occurred in relation to the Dec 02 injury. Preexisting osteopenia was a likely contributing factor. With time, physio and medication the condition materially resolved as expected with a minor compression fracture, and [the worker] returned to full duties. Subsequent investigations have not revealed any evidence of change or progression at the T8 vertebral body.

[The worker] apparently has a history of several other injuries including a MVA (motor vehicle accident) with lower back injury. Since 2005 he has attended his physician who documents diffuse pain and aches (1/2/06 report) which are attributed to "widespread OA (osteoarthritis) secondary to multiple injuries."

On balance, the minor T8 compression fracture appeared to resolve and it is unlikely the current symptoms are materially related to this injury. This is substantiated by the widespread nature of reported symptoms and history of other injuries.

[The worker's] May 29 06 correspondence refers to neck and shoulder pain in addition to back pain. It is not clear how neck and shoulder symptoms are related to the T8 compression fracture.

On April 3, 2007, the worker was advised that based on the WCB medical opinion of February 16, 2007, the WCB was unable to relate his current back symptoms to his December 2002 workplace injury. On May 8, 2007, the worker appealed the decision to Review Office.

On June 5, 2007, Review Office determined that no responsibility should be accepted for the worker's current back difficulties based on the opinion outlined by the WCB medical advisor dated February 16, 2007.

In September 2008, the Worker Advisor Office asked Review Office to reconsider its decision of June 5, 2007 based on additional medical information which consisted of a report from an occupational health physician dated June 25, 2008, a report from a physical medicine and rehabilitation specialist dated August 21, 2008 and a report from a neurologist dated January 16, 2008.

Prior to considering the worker advisor's appeal, Review Office sought medical advice from a WCB medical consultant on November 10, 2008.

On December 2, 2008, Review Office concluded, based on the WCB medical opinion of November 10, 2008, that there was a causal relationship between the worker's thoracic spine difficulties and his compensable injury of December 6, 2002. On August 27, 2013, the employer appealed Review Office's decision of December 2, 2008 to the Appeal Commission and an oral 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.

Relevant provisions of the Act include:

• ss. 4(1) 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.

• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

• ss. 39(2) 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.

• ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

This is an employer appeal. The worker has an accepted claim for a workplace injury which occurred in 2002. The employer is appealing the WCB decision that the worker's thoracic back condition is related to the worker's 2002 workplace accident.

Employer's Position

The employer was represented by its Safety, Health and Environment Manager. Two other staff were in attendance.

The employer representative acknowledged that the worker was injured while working for the employer in 2002. He noted that the worker returned to work after the accident and has not worked for the employer since 2003. He said the employer did not hear from the worker between 2003 and 2006. He also indicated the employer did not hear from the WCB about this claim during this time and had no opportunity to participate in the claim. He advised the employer wants all claim costs beyond 2003 removed from its records.

The employer's position is that the worker has been fit for work since he returned to regular duties on March 6, 2003. The employer was concerned that during the gap between 2003 and 2006, the worker could have had other injuries which are the cause of his current condition.

In answer to a question about the existence of the compression fracture today, the employer representative responded that "No, all the assessments still noted that it's still there, it's present. There's no argument there either." The employer representative explained that this is why they did not participate in the permanent partial impairment award appeal.

The employer representative advised that, to the best of his knowledge, the employer did not have to pay costs on the claim during the period that the worker was working. The employer representative provided information on the company operations after 2003.

The employer representative indicated that had the worker or WCB contacted it, the employer may have been able to offer suitable employment to the worker, reducing costs for the WCB and getting the worker back into the workforce.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from his representative and the panel.

The worker advisor reviewed the details of the accident, related treatment and impact of the injury with worker. She noted the worker's evidence that he never fully recovered and continued to have difficulties related to his back injury. She referred to the summary of medical attention that the worker received between 2003 and 2008.

The worker advisor noted that an MRI was performed in January 2008 which found a mild chronic wedge compression of the T8 vertebra. She said that the worker was examined by an occupational health physician in June 2008 who noted that in 2002 the worker suffered a permanent impairment, the T-8 compression and neck trauma. The worker was also seen by a physiatrist who opined that the worker suffered a compression force through his spine while operating an excavator and that the mechanism is in keeping with the cause of a compression of the T8 vertebra.

The worker provided information on his work activities after his return to work in 2003. He said that he continued to have symptoms related to the 2002 injury. He provided information on his treatments and current condition.

The worker advisor also noted that in November 2008, a WCB medical advisor reviewed the worker's file and concluded that the worker's condition was due to the 2002 workplace accident.

Analysis

The employer is appealing the WCB decision that the worker's thoracic back difficulties are related to his 2002 workplace injury. For the employer's appeal to be successful, the panel must find that the worker's current thoracic back difficulties are not related to his 2002 injury. The panel was not able to make this finding.

In determining that the worker's thoracic back injury is related to the 2002 workplace accident and is therefore compensable, the panel relies upon the November 10, 2008 opinion of the WCB medical advisor who reviewed the worker's file including medical reports between 2002 and 2008 and radiographs. He wrote that:

"Considering the last rib bearing vertebra to represent T12, the worker had a probable compression deformity of the 8^th vertebral body in the thoracic region. The anterior aspect of the vertebral body measured about 18 mm. The posterior aspect measured about 23 mm. The surrounding vertebral bodies at T7 and T9, each measured around 22 mm over their anterior aspect and 23 mm over their posterior aspect. The consequent vertebral deformity would not be considered very mild in my opinion. It would be considered to be between mild and moderate. As a result of the vertebral body wedging, there was increasing anterior angulation of the more superior thoracic spine, which would be consistent with an increased thoracic kyphosis. This would represent a permanent anatomic and biomechanical change as a consequence of the compensable injury. From that perspective, the patient would have a permanent partial impairment. Recovery could imply an absence of symptoms, but the patient would always manifest altered spinal biomechanics. Based on review of the claimant's testimony, as well as healthcare records, there does not appear to be evidence that the claimant's symptomatology from the thoracic compression fracture ever completely abated.

In my opinion, there is sufficient medical evidence on file, and in the claimant's plain radiographs to support a probable cause/effect relationship between his current thoracic spine difficulties and the compensable injury of December 6, 2002. The information would be as I previously articulated, and would be as follows:

· Permanent change in the thoracic spinal anatomy, with wedging of T8.

· Permanent change in the thoracic spinal alignment with increased kyphosis,

with its apex at T8 and an increase clinical kyphosis based on physical examination from two physicians.

· Regular documentation of ongoing thoracic pain throughout, between 2002 and the present.

· The claimant's testimony that the pain never abated."

The panel notes that the diagnosis of a compression injury originally made in 2002 when the injury occurred remains the primary diagnosis of the worker's injury.

The employer expressed concern regarding the worker's failure to seek medical attention, to keep involved with the WCB and to keep in touch with the employer. The panel considered these concerns. The panel is satisfied that the evidence establishes that the worker continued to obtain medical treatment, continued to have mid-back symptoms which were documented at the medical treatments and continued to contact the WCB. The panel acknowledges that there is no evidence that the worker remained in contact with the employer. However, the panel does not find this unusual given that his employment ended with the employer and he went on to work for several other employers over the 2003 to 2008 period.

Based on these considerations, the panel accepts the conclusions of the WCB medical advisor, in finding that the worker's current thoracic spine difficulties are related to the worker's 2002 compensable injury.

The employer raised concerns about the worker's current status and his ability to perform work. This issue was not before the panel at the hearing. The only issue before the panel at the hearing was whether responsibility should be accepted for the worker's thoracic back.

Finally, the employer raised concern regarding the ongoing costs of this claim and its impact on the employer's assessment. As this issue was not before the panel, the panel suggested that the employer contact the WCB assessment department to discuss this concern.

The employer's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of February, 2014