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 difficulties are not related to his July 7, 1998 workplace accident. A hearing was held on August 28, 2014 to consider the matter.

Issue

Whether or not the worker's current back difficulties are related to the July 7, 1998 workplace accident.

Decision

That the worker's current back difficulties are not related to the July 7, 1998 workplace accident.

Decision: Unanimous

Background

On February 6, 2014, the worker filed a claim with the WCB for a low back injury that occurred on June 1, 1999. The worker stated that a co-worker tapped him on his back with a small crane's boom. The worker also provided the WCB with the following information:

• he retired about 6 years ago.
• he reported the injury to his supervisor on the same day it happened.
• he did not miss time from work even for doctor appointments.
• he was placed on light duties after his injury for almost one year.
• his back has continued to bother him. If he bends down it hurts. The pain goes away and then comes back again.

The Employer's Accident Report dated February 12, 2014 indicated that they had no record of an incident occurring on June 1, 1999 or any record of the employee working modified duties at that time.

Medical information on file consists of a hospital emergency report dated July 7, 1998 and x-ray reports of the chest, lumbar and lumbosacral spines.

On February 11, 2014, the worker advised a WCB adjudicator that he delayed reporting a claim to the WCB as he thought the pain in his low back would go away but it hadn't. The worker indicated he injured his back in July 1998 and he reported the injury to his supervisor on the same day. With respect to his back injury, the worker said a co-worker tapped him on his back with a crane machine. He didn't see him there. The bottom boom, made of steel, is what hit him. It knocked him to the ground and he had bruising. He suffered no time loss from work and was placed on light duties. The worker advised the adjudicator that his back was still sore and he was claiming for pain and suffering.

In a decision dated March 4, 2014, the worker was advised that his claim for injuries sustained to his low back on July 7, 1998 was acceptable and that responsibility would be limited up to and including July 7, 1998 and final. The adjudicator concluded that there was insufficient information including medical evidence to establish a relationship between the worker's current low back complaints and the work accident of July 7, 1998. On March 19, 2014, the worker appealed the decision to Review Office.

On May 16, 2014, Review Office determined that the worker's current back difficulties were not related to the workplace accident of July 7, 1998.

Review Office indicated the medical evidence at the time of the July 7, 1998 accident showed that the worker suffered minor soft tissue injuries. Review Office noted that the worker had been diagnosed with multiple contusions based on the July 7, 1998 hospital report and that a July 14, 1998 x-ray demonstrated osteoarthritis in the facet joints of the lower spine. It was felt that this pre-existing condition of osteoarthritis would not have improved with time but rather would have gotten worse slowly. Review Office found that the worker's delay in reporting the workplace incident 16 years after the fact was very significant and it did not accept the worker's reasons for the delay in his reporting the claim. Based on the whole of the evidence, Review Office found that the worker's current back difficulties were not related to the July 7, 1998 workplace accident. On May 30, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested medical information from the worker's treating physician. A report from the physician was later received and was provided to the worker and the employer for comment. On October 9, 2014, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

Reasons

Applicable Legislation

The worker has an accepted claim for a workplace injury which occurred in 1998. He is appealing the Review Office determination that his current condition is not related to his 1998 workplace injury.

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 accompanied by his wife who assisted him with his presentation to the panel. The worker answered questions from the panel.

The worker described the accident. The worker said that he was seen at a hospital in a small town. He said he was at the hospital for a couple hours and that x-rays were taken of his back. He also saw his family physician shortly after the accident because he had to have some fluid removed.

The worker advised that he continues to have back pain. He pointed to his back and acknowledged that the pain was in the middle of the back, near the beltline. His wife noted that he also has pain in the tailbone. He said that he cannot sleep on his back. He said the pain comes and goes. His wife advised that she took photographs of the injured areas on the day her husband got home and that she provided copies to the WCB.

The worker said his job involved physical work, such as, shoveling gravel. He indicated that he experiences pain when he lifts more than 30 pounds. He said that he was able to work until age 65 at which time he retired. He advised that his back has remained the same since he left work. The worker advised that he performed light duties for one year after the accident. He described those duties as "I would probably walk around doing not much work anyway at that time." He said that when he returned to work he did not work that hard and did little shoveling. His duties including bringing "stuff" to co-workers when they needed something. He then continued to work his full regular duties after that one year period.

The worker advised that he saw a chiropractor because of his back. The chiropractor performed manipulations, adjustments and other treatments. He said the treatments provided relief for a couple days. He advised that his chiropractor retired but he occasionally sees a new chiropractor.

The worker has a current family physician who ordered an x-ray and CT scan of his back.

The worker referred to various co-workers who he thought would be aware of his injury.

In reply to a question, the worker acknowledged that he signed a medical evaluation form on July 22, 1998, approximately 2 weeks after the accident which indicated that he had no current health problems, no accidents, on or off the job, and no injuries, on or off the job. In response to why he not ticked "no" on the form, the worker said "I missed that, just missed that." He also agreed that he may have been afraid to answer the questionnaire and disclose the on-the-job injury.

Employer's Position

The employer was represented by legal counsel who made a presentation on the employer's behalf. The employer's WCB claims officer also attended the meeting and assisted the employer representative.

The employer's representative advised that the employer is opposed to payment of benefits on this claim. He submitted that "this is a claim that's 16 years after the fact... minor soft tissue injury that's alleged to have led, 16 years later, to a serious but unspecified back problem that's ongoing...Now, there is no medical evidence about that anywhere on the record. And so the claim rests on [worker's] own subjective assessment...of his past and current conditions and his belief that there's a link between what happened in 1998 and his condition today. There is no medical evidence to support either."

The employer representative noted that because of the 16 year passage of time, the employer had no record of the injury and no record of the event that is said to have caused the injury. He said that any investigation by the employer has been effectively impossible because of elapsed time. He said that the practical implication is that the employer has been unable to monitor the worker's progress over the years, monitor treatments and to investigate the initial incident.

The employer representative noted that the worker made an application for disability benefits in 1990 and an occupational injury was reported in 1992, so the worker was familiar with disability and WCB.

He also noted that on July 22, 1998, shortly after the accident, the worker underwent a medical examination and completed a form in which he indicated that he did not have any current health problems, nor any accidents or near misses, nor any injuries on or off the job. He said this information is inconsistent with the worker's position.

Subsequent to the oral hearing, the employer representative provided a final submission. He commented on the information received from the worker's physician after the hearing. He noted the physician found no record on the worker's chart of the July 1998 incident. He also noted that an x-ray report regarding the worker's lumbar spine dated November 10, 2003 indicated there were degenerative changes identified throughout the entire lumbar spine and no fracture or destructive lesion was seen. The representative said that this report does not support the worker's position that he suffered a serious injury in July 1998.

Analysis

The worker has an accepted claim for a workplace injury occurring on July 7, 1998. The issue before the panel is not whether the worker was injured in the accident but whether the worker's current back difficulties are related to the accident. For the worker's appeal to be approved, the evidence must show, on a balance of probabilities, that the worker's current back difficulties are related to the workplace accident. The panel finds there is not sufficient evidence, on a balance of probabilities, to establish such a relationship.

To assist with the adjudication, the panel wrote to the worker's current physician who has attended to him for approximately 15 years. The physician advised there is no record of a 1998 injury on the worker's chart. He provided information from the file indicating that the worker visited a hospital on July 7, 1998 including a printout from the hospital, an Emergency Report, an x-ray taken the same date and an EKG. He also provided an x-ray report of the worker's lumbar spine taken on a visit on November 10, 2003, at which time the worker complained of low back pain.

The panel considered all the information on the file, including the information provided at the hearing and subsequent to the hearing. In reaching its decision the panel notes:

• the worker's current treating physician, who has been his physician for approximately 15 years, advised that there are no notes on the worker's chart regarding the 1998 injury or significant back trauma requiring follow up medical treatment by him.
• the worker originally did not miss work as a result of the injury.
• the worker did not file a WCB claim.
• the employer has no record of a workplace accident on this date.

The panel considered the limited medical information on the file. The panel notes that the x-ray taken of the lumbar spine at the time of injury shows "large bridging osteophytes at most levels in the lumbar spine. The L5-S1 level is relatively spared. There is disc space narrowing at L5/5. Sacroiliac joints are normal." This x-ray does not demonstrate significant trauma to the back. The panel finds this x-ray is more consistent with a degenerative condition.

The panel also notes an x-ray was taken on November 10, 2003 which indicates:

"There are degenerative changes throughout the entire lumbar spine. Marginal osteophytes at all levels are seen and disc spaces also appear narrowed from L2-L6. No fracture or destructive lesion is seen."

The panel finds this x-ray is not consistent with the worker's position that he suffered a serious back injury in 1998.

The employer referred to a medical examination form completed by the worker on July 22, 1998, shortly after the accident in which the worker indicated that he had no injuries or current health problems. The panel attaches little weight to this form given the documented evidence from the hospital of the worker's attendance on July 7, 1998 for an injury. The evidence confirms that the worker suffered multiple contusions and abrasions to his left elbow, left side chest, left arm/elbow and left lower back and chest.

The worker'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 23rd day of October, 2014