The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker isappealing the decision made by the Workers Compensation Board that he hadrecovered from his compensable injury by June 1, 2014.  A hearing was held on September 28, 2015to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June1, 2014.

Decision

That the worker is not entitled to benefits after June 1,2014.

Decision: Unanimous

Background

On June 12, 2013, the worker filed a claim with the WCB for injury to his low back that he related to twisting, turning, walking, kneeling and heavy lifting during the course of his employment as a maintenance mechanic.

When speaking with the WCB on June 13, 2013, the worker indicated that the onset of his back difficulties occurred on May 30, 2013 while at work when he noticed a tightness across his back. The worker described in detail the job duties he performed on May 28 and May 29. He stated that he continued to work on May 31 and that his symptoms remained the same over the weekend. While at work on June 3, 2013, he noticed that his back was becoming much more painful and he reported this to his employer and a coworker. The worker said he delayed in seeking medical attention as he had a history of low back stiffness which usually resolved on its own or with a bit of chiropractic treatment.

Regarding medical treatment, the worker indicated that he saw a chiropractor on June 5, 2013 and was told that he had a bulging disc. On the same day he received chiropractic treatment which did not ease his discomfort. He returned the same day for a second adjustment and felt extreme pain immediately afterwards. He then went to a hospital emergency room and was given pain medication and x-rays were taken. The worker said he saw a second chiropractor on June 7, 2013. On June 11, 2013, he returned to work performing modified duties.

On June 19, 2013, the WCB accepted the worker's claim based on the diagnosis of lumbosacral and sacroiliac strains.

On August 16, 2013, the worker attended physiotherapy for an initial assessment complaining of intermittent low back pain, left more than right. The diagnosis reported was "Lumbar sprain, strain (? disc)."

On October 3, 2013, the worker underwent an MRI of his lumbar spine which showed "Moderate left paracentral L4-5 disc extrusion with caudad (sic) migration of disc material. This appears to affect the left L5 root."

On November 21, 2013 the treating orthopedic surgeon reported that the worker may be a candidate for surgery since he had "inferiorly sequestrated disc material involving displacement of the left L5 nerve root."

The worker's file was reviewed by a WCB medical advisor on January 12, 2014 at the request of WCB case management. Regarding the initial diagnosis, the medical advisor stated it was a lumbar strain and there was no mention of any neurological findings. Based on the recent orthopedic consult and MRI results, the current diagnosis corresponded with the findings of extruding migrating disc material at left L4-L5 displacing the L5 root. The medical advisor further stated: "Over a period of several months the natural history is for the swelling of the disc material to reduce and for the neurological symptoms to regress."

On January 16, 2014, the worker saw a neurosurgeon who reported that the clinical presentation "elicits some mechanical low back pain, which accounts for the proximal lumbosacral and gluteal discomfort. The pain extending into the thigh may have been a transient radiculopathy. Given the favourable clinical evolution, I have recommended that the patient continues his present conservative treatment...".

On March 24, 2014, the WCB received the Chiropractor First Report for the examination of the worker on June 5, 2013. It stated that they were not informed that this was a WCB claim. The diagnosis was acute severe low back pain with associated muscle spasm and inflammation.

On April 15, 2014, the worker was seen at the WCB offices for a call-in assessment. In response to questions posed by primary adjudication, the following medical opinions were formed:

• The most likely initial diagnosis remained a lumbar strain, although there was some conflicting reports regarding the initial compensable injury (acute injury vs cumulative effects of work duties).

• Recovery from strain injuries typically takes several days to a few weeks.

• The current diagnosis was resolving L4-L5 disc extrusion and associated left L5 radiculopathy (largely resolved) since August 2013.

• The MRI diagnosis was not medically accounted for based on the initial reported mechanism of injury and/or clinical presentation.

• The weight of evidence does not support that the injury aggravated a pre-existing condition.

In a further note to file dated May 12, 2014, the WCB medical advisor stated that he spoke with the treating physician who confirmed that there were no features of radiculopathy on the history or exam during the initial examinations of the worker in June and July 2013. The referral to an orthopedic surgeon was initiated in response to the MRI findings, rather than to any specific neurologic/radiculopathic concerns.

By letter dated May 26, 2014, the worker was advised that the WCB was ending responsibility on his claim and that benefits would not be paid beyond June 1, 2014. The WCB's position was that the acceptable diagnosis remained a soft tissue diagnosis which would have been expected to resolve long ago. Any ongoing difficulties could not be causally related to the May 30, 2013 incident. On October 23, 2014, the worker disagreed with the decision and his case was referred to Review Office for consideration.

On January 9, 2015, Review Office confirmed that the worker was not entitled to benefits beyond June 1, 2014 as it was unable to find a causal connection between the May 30, 2013 accident and the worker's low back pain after June 1, 2014.

Review Office stated that it paid particular attention to the initial reporting of the accident and the initial medical findings. Review Office preferred the reporting closest to the event and accepted that the worker experienced the onset of low back pain over the course of several days at work. The injury was accepted as being a strain/sprain type injury. The MRI findings of October 3, 2013 represented a degenerative condition which would not occur on a balance, over several days of work. Review Office concluded that the worker had recovered from his low back, soft tissue injury and that his persistent flare-ups of pain and radiculopathic symptoms were not in keeping with a sprain/strain injury.

On February 5, 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.

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.

Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. 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."

This appeal deals with the provision of benefits on an accepted claim. The worker is seeking benefits beyond June 1, 2014 in relation to his lower back injury.

Worker's Position

The worker was self-represented. The worker explained his reason for appealing the decision and answered questions from the panel. The worker called his former supervisor as a witness.

The witness confirmed that he approached the worker because he noted the worker's posture was out of alignment. He referred to it as "snaked." He said that the worker told him that he tweaked his back. He said that the injury occurred when the worker was working on a fan shaft. He advised that because he was new to the supervisory role, he did not know the process for dealing with a workplace injury.

The worker said that mistakes were made in writing up his injury. He expressed concern regarding the management of his claim and the actions of the WCB and his employer. He said the WCB has labelled his injury as a strain and continued to minimize what had happened. He noted that at the commencement of the claim, the employer representative told the WCB that he did not know if the injury was work-related. He feels this coloured the management of his claim. He said he was concerned that things were being used against him, basically making him look like he had done something wrong, when he had done nothing wrong. He was also concerned with the change in approach when a new case manager took over his claim.

The worker described the accident and the resulting injury which occurred on May 30, 2013. He said that he bent down, and picked up a fan shaft weighing 85 pounds. He used his knee to get momentum to get the shaft up high enough, and his feet were squarely planted on the ground. As he lifted, he twisted and turned and placed the shaft on the table. Consequently, he felt something was wrong. "Something just didn’t feel right. So I took a few minutes, walked outside,... kind of collected myself, and went back in."

He said that he did feel some discomfort throughout the rest of the day. The following morning, Friday, he had some tightness. This continued through the weekend. He did some self-medicating and stretching. On Monday he returned to work and by about lunchtime: "...things had really started to tighten up. I had trouble walking. It was at lunchtime on the Monday that I ended up meeting up with my supervisor. And that’s when he approached me and, you know, said that there was visibly something. I was having issues walking. To me, I had just felt tight, but he can visibly see I was having issues. At the end of the day, Monday, I got home and I couldn’t get out of my truck."

The worker sought medical treatment from a chiropractor. He acknowledged that he did not identify it as a work injury because he did not know whether it was under WCB or the employer's health fund.

On June 19, 2013, he received a document, from WCB acknowledging that he had a spinal injury with loss of mobility and function, but said the WCB labelled the injury as a strain. He reviewed the WCB case manager's decision and the Review Office decision. He said that the WCB kept picking and choosing the information it relied upon. He submitted that the WCB should have accepted the opinion of the orthopedic surgeon who examined him.

In answer to questions the worker described his early symptoms and treatments.

The worker advised that he left his position with his accident employer in December 2014 and worked in a sales position but is now working as a production manager.

With respect to his current symptoms he advised that "Now I experience a lot of discomfort and tightness in the same areas. I find it’s more problematic in the winter ...". He advised there are a lot of activities he can’t do anymore. He advised that he is not currently seeing any medical providers for his back. He said the last time that he saw a medical service provider was in March 2014 when he saw a physiotherapist who gave him tools for home exercise and a stretching program.

The worker confirmed that although he is not receiving medical attention and is working, he has not recovered. He said: "No, I am not 100 percent recovered and my, you know, for me speaking and how I know my body, and with the things I cannot do, I’m probably 80 percent."

When asked what his current diagnosis is, the worker replied: "It’s a feeling that, it’s hard to describe, but right in my L4/L5, there’s, there’s just something not right. You know, you just feel, I haven’t had any spasms for many months."

The worker acknowledged that he believes the findings on the MRI are related to his workplace incident.

The worker commented that: "I don’t think it’s fair that the Workers Compensation Board can look at one statement from October 8th and base their decision on my claim off of that, trying to justify a pre-existing injury because I have a degenerative disc problem, that’s essentially what they’re saying, when there’s several other documents from other practitioners and x-rays that contradict it."

In closing the worker advised that: "I have absolutely nothing to gain monetarily by coming here. I’m here as a matter of principle to set the record straight and ensure I am protected in years to come."

Employer's Position

The employer was represented by legal counsel and its Environmental and Safety Manager.

Legal counsel advised that the employer is represented in a watching brief capacity. She advised that the employer does not disagree with the Review Office decision but is not present to oppose the appeal. She advised that the employer is only present to ensure that, to the extent that there is dispute about the facts around what happened with respect to the accident and reporting of the accident, the employer will address them.

Subsequently, legal counsel advised that the employer would not make a submission.

Analysis

The worker injured his back at work and has an accepted claim for the injury. This appeal addresses whether he is entitled to benefits after June 1, 2014. In order for the worker’s appeal to be approved, the panel must find that the worker continued to suffer from the effects of his workplace injuries after June 1, 2014. We are not able to make that finding.

In the panel's opinion, the evidence, on a balance of probabilities, supports the finding that by June 1, 2014, the worker had recovered from his compensable low back strain. In coming to this conclusion, the panel relied on the medical reports nearest to the compensable accident which identify symptoms consistent with a low back strain:

• report of a June 5, 2013 visit to a chiropractor notes a diagnosis of soft tissue type injury. No radicular symptoms were noted.

• report of a June 5, 2013 attendance at a hospital emergency room. The report notes findings of tenderness and range of motion. No radicular findings were noted.

• report of a June 7, 2013 visit to a second chiropractor notes soft tissue, "L/S and SI strains." No radicular findings were noted.

• June 10, 2013 report from the general practitioner provides a diagnosis of lumbar back strain.

The panel also attaches weight to the January 12, 2014 opinion of a WCB medical advisor who reviewed the claim and confirmed the diagnosis was a soft tissue injury, a lumbar strain.

The panel notes that later in the claim the worker complained of radicular/neurological symptoms. In August, a physiotherapist noted a diagnosis of lumbar strain/sprain and possible disc injury. An October 2013 MRI found that the L4-L5 level demonstrates moderate degenerative intervertebral disc space narrowing. The diagnosis provided was "Moderate left paracentral L4-L5 disc extrusion with caudad (sic) migration of disc material. This appears to affect the left L5 root."

At the hearing, the worker advised that he believes the findings on the October 2013 MRI are related to his workplace injury. The panel has considered this position but finds the evidence does not support that the worker sustained a radicular injury as identified in the MRI. In this regard, the panel attaches weight to the April 16, 2014 opinion of the WCB medical advisor who examined the worker and opined that the most likely initial diagnosis was of a lumbar strain. With respect to whether the MRI diagnosis is medically accounted for based on the initial reported mechanism of injury, the WCB medical advisor stated:

"On balance no. Radiculopathy associated with acute disc injury typically develops immediately or shortly following the injury event (i.e. within a few days). In the case of radiculopathy, typical findings would include:

· Report of leg pain/altered sensation in a dermatomal distribution,

· Examination findings of myotomal weakness, decreased or lost deep tendon reflex, and/or sensory loss,

o Signs of significant dural tension. While [the worker] reported low back pain consistent with a strain in apparent relation to work duties performed in late May 2013, there was no record of signs or symptoms of radiculopathy (such as noted above) until mid August 2013..."

The worker also noted that an orthopedic surgeon who examined him in November 2013 found that he has a nerve problem. The panel has considered the orthopedic surgeon's report and note that he made such a finding but did not relate the nerve problem to the workplace accident.

The panel recognizes the worker's concern that he sustained a serious injury at work on May 30, 2013; however, the panel finds that the evidence does not support his position.

The panel also notes the worker's evidence that he has not sought medical treatment for his back since March 2014 and that he has not missed work since June 2014. This supports the panel's finding that the worker has made a functional recovery from the workplace injury.

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 2nd day of November, 2015