The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current back difficulties are not related to her compensable injury of March 2, 2009.

A hearing was held on January 21, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Decision: Unanimous

Background

In March 2009, the worker filed a claim with the WCB for injury to her neck and back which she related to the following work activities on March 2, 2009:

I was fabricating parts for ladders…part of the fabrication process was to half cut 3/8" flat bar so it could be bent into a 90 degree angle. I placed the part into the vice so I could bend it, I did several pieces before I came to one that must not have been half cut as deep as the other ones. As I leant in to push the bar which was at chest height in the vice, it did not bend like the other ones, it stayed as stiff. I immediately felt pain shoot up from my hips to my neck. I took a little break and went and got some water, then returned to bending the rest of the pieces.

The worker sought treatment from a chiropractor and two physicians following the accident of March 2, 2009. The diagnosis rendered by the chiropractor was a cervical, thoracic and lumbosacral sprain/strain. The first treating physician diagnosed the worker with a back strain and the second physician reported that the worker's back strain had settled by April 21, 2009. The worker's claim for compensation was accepted based on the diagnosis of a cervical and lumbosacral strain.

On April 21, 2009, the worker returned to her regular duties while attending chiropractic and massage treatments for her neck and back.

In a chiropractic progress report dated June 5, 2009, it was reported that the worker's cervical and lumbar range of motion was full and she was discharged from treatment on June 2, 2009.

On September 27, 2011, the worker contacted the WCB to advise that she was experiencing further difficulties which she related to her compensable injuries. The worker reported that she continued to experience minor symptoms following her return to work due to heavy lifting, prolonged periods of flexion, sitting or standing and that the symptoms would resolve by the following day. About 6 to 8 months ago, the flare-ups worsened and she was advised by her treating chiropractor to stay off work as of July 19, 2011.

In the chiropractic report dated August 3, 2011, it was reported that the worker complained of low back pain radiating to the right upper leg. The worker indicated that she had initially hurt her low back two years ago while welding at work and that she had recurrent episodes of back pain. The chiropractor indicated that the results of a CT scan dated August 12, 2011 showed minimal posterior disc bulges at the L4-L5 and L5-S1 levels. The chiropractor stated that he made arrangements for the worker to undergo further imaging studies and for her to see a specialist for a second opinion.

On September 29, 2011, the WCB determined that the worker's current back difficulties were not related to her low back injury of March 29, 2009 as there was no new accident, no ongoing medical treatment, no ongoing complaints to her employer and the fact that the worker continued to perform her regular work duties.

On February 7, 2012, the worker appealed the September 27, 2011 decision to Review Office. The worker indicated that she was scheduled for an MRI in February and was given a referral for physiotherapy treatments. The worker said she was experiencing extreme numbness down her right leg and was scheduled to return to work on May 3, 2012. The worker provided the names of four witnesses who were aware of her back difficulties.

On April 23, 2012, Review Office determined that the worker was not entitled to further benefits as she had recovered from the effects of her compensable injury by June 2, 2009. The decision was based on medical information from 2009 which showed that the worker had full range of motion and normal straight leg raising. Review Office felt that the difficulties reported by the worker to her chiropractor in July 2011 were not related to the compensable injury and it placed minimal weight to the worker's report that she advised co-workers of her ongoing difficulties. On August 22, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on January 21, 2014.

Following the hearing, the appeal panel met to discuss the case and requested medical information from the worker's treating chiropractor and a sports medicine specialist. The worker was also asked to provide the Appeal Commission with co-worker statements that she referred to at the hearing. On March 28, 2014, the interested parties to the appeal were provided with the information that the panel obtained and were asked to provide comment. On April 15, 2014, the panel met further to discuss the case and to render its decision on the issue under appeal.

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.

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 was self-represented at the hearing. The worker described her work history with the employer. She was first hired in 2008 as an apprentice and completed her welding apprenticeship in 2009. The worker was proud (and rightfully so) of the success she had achieved in her occupation, which is largely male dominated. On the date of her accident on March 2, 2009 she was bending pieces of 3/8 inch metal flat bar. There was a half cut in the bar which the worker would place horizontally in a vise and then push away from her to make it into a 90 degree angle. The bar was at about chest height and her hand was in a vertical position against the bar with her elbow bent. She had completed approximately 25 pieces when she went to push on a bar which did not bend at all. The worker felt a shock-like feeling from her right leg up to the top of her neck and immediately stopped what she was doing. After taking a break, she returned to her work but knew that something was not right. Over the next several days, the worker felt discomfort in her back and bad migraine headaches but tried to push through it as she was not one to complain. Eventually she told her supervisor, a WCB report was completed, and she sought medical attention.

The worker was off work for a few weeks, during which time she received chiropractic treatment. When she returned to work, she was put on light duties where she worked on documenting safe-work procedures. After about four weeks, the worker returned to her regular duties and her WCB file was closed. The worker's evidence, however, was that she continued to seek chiropractic treatment. She was able to perform her regular duties, but there was always someone else around to assist her with any heavy lifting which the job may require.

In January 2010, she was transferred to a northern location. At this location, there were not as many co-workers available to assist her with the heavier jobs and the worker's back started bothering her more and more. Finally in July 2011, the worker's mother convinced her to see a chiropractor. The chiropractor was immediately concerned with the worker's back condition and recommended that she stay off work. The worker remained off work until her sick leave ran out in approximately October 2011, at which time she returned to light duties. Even at light duties, the worker continued to experience challenges with her back. She did not have to do any heavy lifting and she could sit to rest when required, but she had problems going up and down stairs or when she had to sit or stand for long periods of time. On one occasion in November 2011, she had an incident when she was at home not doing anything in particular when her whole right leg went numb. Being in a remote location, there was limited access to medical assistance. As a result, the worker decided to take a six month leave of absence to take time to allow herself to feel better. From November 4, 2011 to May 4, 2012 she took leave, and thereafter took some additional time away from work due to an illness in the family. During that period, the worker started seeing a sports medicine specialist for her back and an MRI scan was performed. In September 2012, the employer found the worker a modified position at a southern Manitoba location which the worker accepted and she returned to work on a graduated basis.

At the time of the hearing in January 2014, the worker continued to experience limitations in her back. She was still performing the modified duty position but expressed frustration at her inability to work as a welder which was the occupation for which she had worked so hard to be trained. The worker felt that her back difficulties stemmed back to her March 2009 workplace accident and she asked that the WCB provide her further benefits related to her continuing back condition.

Employer’s position

The employer was represented by an advocate and a corporate safety and health administrator. The employer did not dispute that the worker sustained a workplace injury on March 2, 2009 but submitted that the medical evidence showed that it was a strain injury that resolved with a normal recovery period of less than three months. The worker returned to full duties, with no continuity of medical treatment in the following years and therefore the employer felt that there was no connection between the worker's ongoing back problems and the 2009 claim. The panel was therefore asked to deny the appeal.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that she continued to suffer from the effects of her workplace accident beyond June 2, 2009. We are not able to make that finding.

At the hearing, the worker described the mechanism by which she injured her back. It was a pushing motion with her arm and body against unexpectedly strong resistance. The panel views this mechanism as an isometric-type of injury which did not involve any slipping or twisting or sudden movement. We are of the view that a strain injury would be consistent with the described mechanism. We do not see a disc or neuropathic injury resulting from this action.

The medical reports from the time of the accident all indicate that the injury was in the nature of a strain. The chiropractor's first report of March 11, 2009 diagnosed a cervicothoracic and lumbosacral sprain/strain. The physician's report of March 24, 2009 reported a back strain. He also indicated the neurological findings were normal.

The normal course of a strain injury is to resolve in a period of weeks to months. The medical reports on file appear to reflect this. The April 21, 2009 report from a physician indicated only occasional low back pain with prolonged standing or sitting and cleared the worker for full duties. The recorded diagnostic impression was a settled back strain. Similarly, the chiropractor's report of June 5, 2009 indicated that symptoms had resolved and that the worker's cervical and lumbar range of motion was full. The worker was discharged from treatment on June 2, 2009.

Although the worker provided the panel with an extensive narrative of what transpired between June 2009 and July 2011 when she was taken off work by her chiropractor, the panel is unable to find that there remains a cause and effect relationship between the welding duties the worker was performing on March 2, 2009 and her current back condition, which became disabling in July 2011. There were over two years between the two dates and the worker's evidence at the hearing was that she did feel good when she first returned to welding in June 2009. The panel feels that this essentially indicates a full recovery.

The panel notes that this decision is limited to considering whether or not the worker's activities on March 2, 2009 are the cause of her ongoing back problems. While we have determined that there is no causal relationship, it is still available to the worker to ask the WCB to consider whether the cumulative physical demands of working as a welder, and in particular, the constant forward flexion action identified by her chiropractor, have caused or contributed to the worker's current back condition. This question has not yet been adjudicated.

For the foregoing reasons, the panel finds that the worker is not entitled to further benefits in relation to the March 2, 2009 workplace accident. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 28th day of May, 2014