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 recovered from his November 2012 injury and therefore was notentitled to benefits beyond November 11, 2012. A hearing was held on April 15, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterNovember 11, 2012.

Decision

That the worker is not entitled to benefits after November11, 2012.

Decision: Unanimous

Background

On November 11, 2012, the worker injured his low back while bending over to pick up an object at work. The worker reported that he did not seek medical attention or miss time from work until June 2014 when his back condition became worse.

In a medical report dated June 10, 2014, the treating physician indicated that he was initiating a WCB claim for the worker due to worsening low back pain and acute left-sided sciatica. The physician stated:

"The likely mechanism of injury was repetitive stress, heavy lifting at work although there is no specific injury to attribute the symptoms. The patient mentioned hurting his back 6 years ago after heavy lifting and informing his workplace about the injury. No WCB claim was filed at that time. He also re-injured his back 2 years ago and informed his workplace. However, no WCB claim was filed at that time as well.

Most recently, he re-injured his back and experienced left-sided numbness/tingling 2 to 2.5 weeks ago during work. In addition, he also complained of sharp pains radiating from the lower L back to the L foot. There was no specific injury or date, however, the patient noticed these symptoms started during work."

In a report dated June 23, 2014, a physiotherapist stated: "From the initial assessment performed on December 3rd, 2013 and the initial assessment on June 11th, 2014 a change in the nature of his back pain has presented. [The worker] now presents with radicular back pain symptoms that are different in nature to his previous mechanical back pain. I do believe the cause of his second injury was due to a work place injury caused by crawling in a tight space."

On July 9, 2014, the WCB accepted that the worker suffered a work injury on November 11, 2012 but based on his delay in seeking medical attention until December 3, 2013, the WCB was unable to establish that the treatment he received was related to the work injury.

File records showed that the worker was in contact with the WCB to provide additional information to support that his back injury was work-related and that his delay in seeking medical treatment was based on the employer encouraging workers not to apply for WCB benefits.

On September 29, 2014, the WCB wrote the worker to advise that after speaking with the employer's safety officer and the treating physiotherapist, the WCB could not relate his current back difficulties to the November 2012 incident. On October 23, 2014, the worker appealed the decision to Review Office.

On December 16, 2014, Review Office determined that the worker was not entitled to benefits beyond November 11, 2012. Review Office noted that the claim information showed that the worker had a chronic sore back for the last 6 years. He had repeated flare ups at different times followed by a return to his baseline functioning. The worker did not seek medical attention following the November 2012 accident or miss time from work and when asked about his low back condition within a short time of his injury, he said it was fine. Review Office concluded that the worker had recovered from his compensable injury and had returned to his functioning baseline soon after the accident. In January 2015, the worker appealed Review Office's decision 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.

The worker has an accepted claim for an injury arising from a November 11, 2012 accident. He is seeking benefits after November 11, 2012.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was self-represented. His father accompanied him to the hearing.

The worker stated that he injured his lower right back in November 2012 and that it has continued to bother him and to deteriorate since that date. He said that he reported the incident to the employer but no claim was opened. The worker said that he did not miss any time from work after the injury. He said that he attended school to finish his course work in April 2013 and ultimately started working with a different employer in the summer of 2013.

The worker said that since the accident he has continuously felt pain above the belt line on the right side of his lower back.

The worker advised that he has seen several physicians since the incident and commencing in 2014, including, a chiropractor, massage therapist, sports medicine physician and a physiatrist. Diagnoses have included tendinopathy right hip joint abductor and neuro disc injuries.

He reports that he missed work on many occasions. He is currently working on a part-time basis for a friend. He does not perform any heavy lifting and works on residential sites only.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker sustained a low back injury on November 11, 2012. Although the claim was accepted by the WCB, the worker has not received wage loss or medical aid benefits. The worker claims that he has missed work and received medical treatments as a result of this accident. For the worker's appeal to be approved, the panel must find that the worker suffered a loss of earning capacity and required medical assistance as a result of the injury. The panel was not able to make this finding.

In reaching this decision the panel notes that:

• the worker continued to work after the November 2012 accident and did not miss any time from work.
• the worker advised the employer's safety coordinator that he had an accident and when asked about his injury at a later date he replied that he was fine.
• the worker did not seek treatment until March 2013. He saw a physiotherapist at this time, but he received treatment for a shoulder problem. No reference to a low back injury was recorded by the physiotherapist.
• the worker next saw the physiotherapist in December 2013, at which time he noted shoulder, elbow and low back trouble. No mechanism of injury was documented, although he did advise of injuring his low back six years prior.
• the worker saw the physiotherapist April 2014 "stating his back has continued to be sore over the past couple months".
• the worker saw the physiotherapist in June 2014. The physiotherapist noted that the worker reported injuring his back while working up north. He was diagnosed with left-sided L5 radiculopathy. The physiotherapist commented that "I do believe the cause of his second injury was due to a work place injury caused by crawling in a tight space."
• the worker saw his family physician in June 2014. The physician noted "the patient mentioned hurting his back 6 years ago after heavy lifting...he also re-injured his back 2 years ago...no claim was filed at that time." The physician advised that the worker re-injured his back and experienced left sided numbness and tingling 2 to 2.5 weeks ago during work.

The panel notes that the worker has had a variety of symptoms and diagnoses since the 2012 injury. The panel has considered the various symptoms and diagnoses but has been unable to find that the symptoms currently experienced by the worker are related to the November 2012 injury, particularly given the shift of right-sided symptoms to his left side. The panel is not able to identify any time loss or medical treatment provided to the worker in relation to the November 2012 injury and is not able to identify a loss of earning capacity related to the November 2012 injury

The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical treatment as a result of the November 2012 workplace injury. This decision is limited; it does not address the issue of whether the worker sustained a subsequent workplace injury which resulted in a loss of earning capacity or required medical treatment.

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 1st day of May, 2015