The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back complaints are not a consequence of his compensable back injury that occurred at work on June 3, 2013. A hearing was held on July 21, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's current back condition as a consequence of the June 3, 2013 compensable injury.

Decision

That responsibility should not be accepted for the worker's current back condition as a consequence of the June 3, 2013 compensable injury.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on June 3, 2013 during the course of his employment as a lead hand/carpenter. The worker described the accident as follows to the WCB:

I was walking down our walking path to the job site. There were three loads of rebar in front of me. I stepped on the first one with my left leg. I stepped on the 3rd one with my right leg. The pile of rebar slid forward a little bit. My front leg stretched forward and I fell backwards but I didn't hit the ground. I kind of jarred my back and pushed my disc out of place.

Following the accident, the worker sought treatment from a chiropractor as well as a walk-in clinic. The diagnosis accepted by the WCB was a lumbar back strain and disc bulge. The worker returned to light duties while attending chiropractic treatment and by July 15, 2013, he was back at his full regular work duties.

On January 7, 2014, the worker called the WCB to advise that on January 1, 2014, his back went out again and it was a recurrence of his original injury and could even be related to his previous years of back injuries. The worker stated that he did not suffer a new injury at work but that his back went out at home when he got up from a chair. The worker said he continued working from July 2013 until a holiday plant shut down on December 21, 2013. The worker indicated that he was set to return to work on January 2, 2014.

By letter dated January 7, 2014, the WCB advised the worker that no responsibility could be accepted for his time loss or medical costs beyond July 26, 2013 as a relationship could not be established between the original accident and his current back difficulties that came about on January 1, 2014 when he arose from a chair at his home. On January 21, 2014, the worker appealed the decision to Review Office.

On March 4, 2014, Review Office determined that the worker's low back condition was not related to the compensable injury. Review Office found that the worker had recovered from his June 2013 compensable injury prior to the January 1, 2014 back incident that occurred at home. Review Office noted that when speaking with an adjudicator on August 20, 2013 after being back at work for several weeks, the worker reported no ongoing pain and indicated that he was performing his regular duties.

With respect to the worker's reference to his prior back claims with the WCB which he felt contributed to his latest incident on January 1, 2014, Review Office indicated that they had reviewed the referenced claims and could not establish a direct causal relationship between any of the worker's prior claims and his most recent back issues in January 2014. On April 9, 2014, the worker's representative appealed Review Office's decision to the Appeal Commission and an oral hearing was held on July 21, 2014.

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. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The worker’s position:

The worker was assisted by an advocate at the hearing. It was submitted that there was sufficient evidence to establish a cause and effect relationship between the worker's January 2014 increase in symptoms and the June 2013 injury. The position advanced on behalf of the worker was that his current symptoms were a consequence of the combined effects of the worker's physical labour type of occupation and the June 2013 injury. The workplace injury resulted in a debilitating disc related problem that precipitated the onset of the January 2014 symptoms. The worker had been forced back to work while still in the critical phase of recovery and was then pushed to work regular duties despite the fact that he had not fully recovered. Additional chiropractic treatments were requested to support the worker's return to work; however, the request was denied. It was also noted that although the worker did eventually return to his position as a carpenter he did not return to his regular duties. He could not wear his tool belt due to the pain it caused his back. He performed smaller tasks until the time that he accepted alternate employment, which was less physically demanding.

The worker's compensable injury had been given the "all-encompassing panacea diagnosis of back strain" but until the worker saw a sports medicine physician after the worsening in January 2014, there had been no referral for diagnostic imaging. Concern was expressed in the Worker Appeal of Claims Decision form that: "There was no investigation into the medical aspect of this claim. The claim was summarily dismissed without even a cursory examination of the salient facts. There is incontestable evidence of an ongoing back related issue which pre-dates the worker's January 2, 2014 onset of symptoms."

Overall, it was submitted that there was a causal connection between the June 2013 injury and the January 2014 worsened back condition. A normal healthy back would not have reacted the way that the worker's back did when he was simply standing up from a seated position. Post-workplace injury, the worker's back had never recovered and was characterized as a "ticking time bomb." The worker did return to work but he had no choice as he was the sole source of income for his family. The panel was therefore asked to determine that the WCB had responsibility to provide further compensation to the worker from January 2014 onwards.

Analysis:

The issue before the panel is whether or not responsibility should be accepted for the worker's current back condition as a consequence of the June 3, 2013 compensable injury. In order for the appeal to be successful, the panel must find that the June 2013 workplace injury has not resolved and is contributing to the worker's back condition which worsened in January 2014. We are not able to make that finding.

After reviewing the medical information, the panel is unable to relate the symptoms reported in January 2014 to the compensable injury sustained seven months earlier in June 2013. Although the worker characterized his worsened condition in January 2014 as feeling exactly the same as his previous workplace injury, the clinical findings reported by his health care providers are different.

The medical reports post-January 2014 indicate positive neurological findings. In contrast, the June 2013 compensable injury was not neurological. The Doctor First Report dated June 3, 2013 indicated a diagnosis of back strain. Similarly, the Chiropractor First Report dated June 3, 2013 indicated a diagnosis of lumbar disc bulge and lumbar sprain/strain. The medical reports indicate pain and spasm but no radiation. At a doctor appointment on June 20, 2013, the worker denied any tingling or numbness in the lower limbs. At the hearing it was noted that the worker was not referred for an MRI after his workplace injury. In the panel's view, this makes sense as there was no indication of a neurological injury. The clinical findings were all suggestive of a back strain.

It would appear that by July 2013, the worker had recovered sufficiently to make a functional return to work at his regular duties. Although the worker's evidence was that he did not return to the full extent of his regular duties, the panel finds that this was not due to the compensable back strain injury. In the chiropractor's July 17, 2013 progress report, he indicated a new diagnosis of lumbar facet syndrome. This is a pre-existing degenerative condition, and would not be the result of the mechanism of injury of jarring the low back by stepping on an unsteady surface. The MRI of May 1, 2014 also confirmed the presence of degenerative processes in the worker's lower back.

Based on the foregoing, the panel finds on a balance of probabilities that the compensable low back strain suffered by the worker in the workplace accident of June 3, 2013 had resolved by July 15, 2013, and any ongoing residual pain or difficulties he experienced in his low back after that date were related to pre-existing degenerative changes.

The January 2014 incident at home resulted in a new type of back injury to the worker. The worker was reported as suffering from a L5 radiculopathy. The MRI confirmed the presence of degenerative changes in the lumbar spine and a disc herniation at L5-S1. We find that this new neurological injury is distinctly different from the compensable workplace injury and is not a continuation from June 2013.

The panel therefore finds that responsibility should not be accepted for the worker's current back condition as a consequence of the June 3, 2013 compensable injury. 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 19th day of August, 2014