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 made a functional recovery from his compensable injury and was not entitled to benefits beyond October 22, 2013. A hearing was held on June 5, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after October 22, 2013.

Decision

That the worker is not entitled to benefits after October 22, 2013.

Decision: Unanimous

Background

On February 13, 2013, the worker injured his back when he was climbing between two trailers to open a tarp. The worker stated that he fell back onto the bar to lock the tarp in place, when he lost his footing and fell 4 to 4 1/4 feet to the cement ground landing on his left side. The worker's claim for compensation was accepted by the WCB and benefits were paid to the worker. The compensable diagnosis was a soft tissue injury to the mid and low back.

On May 8, 2013, the worker underwent an MRI of his lumbar spine. The report indicated that the worker had a disc protrusion at the L4-L5 level on the right side laterally and that this compressed the right L5 nerve root mildly. Minimal inferior extrusion was present most prominent in the left paracentral area. The disc approached the left L5 nerve root without compression. There was a minor central disc bulge at the L5-S1 level.

As the worker's back condition had not improved despite ongoing chiropractic treatment, the worker was seen at the WCB for a call-in assessment on June 10, 2013. The medical advisor outlined his examination findings and stated that the worker complained of restricted range of movement on his lower left side but there were no neurological signs and no evidence of radiculopathy. The worker had good hip movement on the left and limited extension of the left leg in the prone position. There was no evidence of muscle atrophy. Due to the worker's pain complaints, the medical advisor suggested a bone scan and a referral was made for the worker to attend a pain specialist.

On June 12, 2013, the worker underwent a bone scan which identified a fracture of the left 10th rib posteriorly.

On June 25, 2013, the WCB medical advisor indicated that the probable diagnosis related to the compensable injury of February 2013 was a fracture of the 10th left rib and that the rib fracture should be healed by this time. The natural recovery for a rib fracture was within 3 months.

A report from the pain specialist is on file dated August 12, 2013. The worker was assessed with the following conditions:

• Left L4-5 discopathic symptoms
• Sleep disturbance
• Depressive symptoms, with a severe rating on the Beck Depression Inventory

On August 8, 9 and 12, 2013, the worker's activities were recorded by video surveillance.

On October 15, 2013, a WCB medical advisor reviewed the surveillance evidence and compared them with his June 10, 2013 examination findings. The medical advisor stated:

The August 8, 9 and 12, 2013 video indicates considerable improvement of [the worker's] condition, including the presence of good walking ability, good spinal mobility based on his frequent entry and exiting of his vehicle and no indication of loss of lumbar mobility.

With the observed spinal mobility and lack of obvious physical evidence of injury showing limitation to his back, there is no indication to support restrictions at this time. The left 10th rib fracture will have healed satisfactorily based on the natural history of this condition.

The aforementioned evaluation appears to be substantiated by an August 28, 2013 progress report from the treating physician (received on October 7, 2013) indicating that [the worker] has returned to work and is doing well, with no mention of any restrictions.

On October 23, 2013, the WCB medical advisor outlined the opinion that the diagnosis in relation to the February 13, 2013 injury was a left 10th rib fracture and soft tissue injury to the mid/lower back. The medical advisor also commented that the worker's depression, as diagnosed by the pain specialist, was not related to the compensable injury.

By letter dated October 24, 2013, the worker was advised of the WCB's position that he no longer required restrictions in relation to his compensable injury and that he did not have a loss of earning capacity beyond October 22, 2013. The decision was based on the weight of information which included the mechanism of injury, the initial accepted diagnosis, the recovery norms for this diagnosis, the time that had passed, the improvement noted by the doctors who had examined him, and his demonstrated abilities on the surveillance.

On January 9, 2014, the worker appealed the October 24 decision to Review Office. He submitted medical information to support that he was still suffering from the effects of the fall he had in February 2013 and that he was unable to work at his current profession.

On February 10, 2014, Review Office stated that it was unable to find that the worker was still suffering from the effects of his compensable injury and confirmed that the worker was not entitled to benefits after October 22, 2013.

Review Office stated that the worker's subjective complaints noted in the new medical information (documented from September through to December 2013) were similar to the worker's complaints at the June 2013 call-in examination. They were also in contrast to the worker's observed activities in the video footage. Review Office concluded that the worker had achieved a functional recovery from the soft tissue injuries to his back and the fracture to the 10th rib on his left side, based on the WCB medical opinion that soft tissue injuries typically resolve in 3 to 8 weeks and the natural history of a rib fracture is full resolution within 3 months. On April 4, 2014, the worker appealed the decision through the Worker Advisor Office 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.

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.

The Worker’s Position

The worker participated in the hearing via teleconference and was assisted by a worker advisor. It was noted that the WCB determined that the worker suffered soft tissue injuries to his back when he fell on February 13, 2013. It was the worker's position that although soft tissue injuries typically resolve in three to eight weeks, not all soft tissue injuries resolve by typical norms. In the worker's case, his mid, left lower back and left hip injuries continued beyond the norms and he had not achieved a functional recovery. It was submitted that the evidence supported that the worker had not recovered from the effects of his workplace accident and benefits should have remained payable since a loss of earning capacity continued to exist beyond October 22, 2013.

It was noted that medical reports after October 22, 2013 included both subjective and objective examination findings to support the worker had not recovered from the effects of his workplace accident, and that both types of findings should be considered as evidence when confirming disability. With respect to the video surveillance, it was submitted that the WCB medical advisor erred in his review of the surveillance since medical evidence at the time the video was taken continued to support ongoing left lower back and left hip difficulties.

Overall, it was the worker's position that since his symptoms and disability had remained constant to the lower left side, a continued relationship existed with the compensable accident. With medical opinions beyond October 22, 2013 which supported that the worker was not ready to return to his pre-accident employment in truck driving, the worker remained in a loss of earning capacity directly related to his ongoing compensable left-sided mid and low back and left hip muscular difficulties. It was therefore submitted that further benefits should remain as payable.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after October 22, 2013. In order for the appeal to be successful, the panel must find that after that date, the worker continued to suffer from the effects of the injuries he sustained in the February 13, 2013 work-related accident. On a balance of probabilities, we are not able to make that finding.

The WCB's decision to end the worker's entitlement to benefits was influenced by video surveillance captured on August 8, 9 and 12, 2013 which was characterized by Review Office as showing: "the worker going about day to day activities without any apparent discomfort or limitation." The panel has considered the worker’s activities recorded on video surveillance and we are of the opinion that there is not enough footage to allow us to draw any real conclusions about the worker's overall status as at those dates. While the video surveillance raises some legitimate doubt as to the true extent of the worker’s level of discomfort and disability, we find that the video is not sufficient to allow us to draw the conclusion that the worker was approaching recovery from his injuries or that he was capable of resuming his pre-accident job duties. The panel also notes that the surveillance was taken approximately two months after the worker had been seen at the call-in examination by the WCB medical advisor and given the time lapse, it difficult to compare the worker's complaints at the call-in with his presentation on the video. The panel is therefore inclined to place less weight on the video surveillance evidence.

Instead, when coming to our decision, the panel focused on the medical reports on file. It would appear that as a result of his fall on February 13, 2013, the worker sustained two types of injuries: a fracture to the left posterior rib at T10 and a soft tissue injury to the back.

With respect to the left rib fracture, the worker's evidence at the hearing was that as a result of the accident, he felt like his T-10 rib stuck out further than his other ribs. During the day when he was up and moving around, he would not notice it. However, while the rib did not cause him any difficulty during the day, he could feel it at night when he tried to lay on his left side.

According to the WCB medical advisor, the natural history for a rib fracture is recovery within three months. Given the passage of time and the worker's evidence that the rib does not cause him any issues during the day, the panel finds that the worker has functionally recovered from this injury and is not entitled to any further benefits in relation to same.

With respect to the soft tissue injury to the back, in the initial medical reports, the pain was described as being primarily located in the area of the left ribcage. The emergency department report indicated complaints of pain to the left sided ribcage. The doctor's first report indentified tender left lower rib cage and left sided thoracic and muscle pain, with neurological exam being normal. The chiropractor's first report indicated left sided back pain from shoulder to left hip. It is notable that there were no reports of pain extending to the left leg.

The first indication of pain radiating to the left leg was in the treating chiropractor's report of May 22, 2013 which reported "low back pain with intermittent referral to leg." By the time of the call-in examination of June 10, 2013, the worker was reporting a dull continuous pain on the left side which tended to radiate into the left thigh and calf. When attending for an independent third party medical assessment on August 12, 2013, the worker reported: "shooting pains radiating down the left lateral leg for the last month" (emphasis added).

At the hearing, the worker described his current difficulties as having constant pain and discomfort in his lower back. The pain would start on the left side near the hip and travel across and up the lower back. He could not sit for very long periods of time as he would feel achy and then the pain would start shooting down the buttocks and into the leg.

In the panel's opinion, the symptoms described by the worker as causing him the most discomfort is the low back "sciatic" pain, which is typically characterized by the shooting pain down the leg. The MRI identified abnormal discs at L4-5 and L5-S1 which have been identified by the worker's medical treatment providers as the cause of the sciatic pain. On a balance of probabilities, the panel is not able to relate the worker's sciatica to the acute injury suffered at work on February 13, 2013. The sciatic symptoms did not manifest until several months later. We find that the worker's compensable injury was limited to the T10 rib fracture and a soft tissue injury to the middle/lower back, both of which resolved by October 22, 2013. The ongoing difficulties the worker has been suffering are not related to the workplace accident.

We therefore find that the worker is not entitled to benefits after October 22, 2013. 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 16th day of July, 2014