The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to benefits after March 3, 2014 in relation to hiscompensable injury of November 13, 2013. A hearing was held on November 9, 2015 to consider the worker'sappeal.

Issue

Whether or not the worker is entitled tobenefits after March 3, 2014.

Decision

That the worker is not entitled to benefits after March 3,2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for multiple injuries that he sustained at work on November 13, 2013 after being struck directly in the right buttock by the fork of a forklift.

When speaking with a WCB adjudicator on November 19, 2013, the worker advised that he sustained injuries to his right leg, low back and cuts to his buttocks. He reported the injury to his co-worker on the same day and to his employer on November 14, 2013. The worker indicated that he sought medical attention on November 14 and was prescribed medication and to remain off work.

On November 26, 2013, the worker advised the WCB that he returned to work on November 25 to his regular duties. He was still experiencing pain to his low back and right side ribs when sitting or standing for certain periods. On December 9, 2013, the worker indicated that he could not go into work that day as his low back was very sore. There were no new injuries.

Initial medical reports showed that the worker sought medical treatment on November 14, 2013 and was diagnosed with a right gluteus laceration/bruise. When seen for medical treatment on November 20, 2013, the treating physician reported right rib pain and an infection in the buttock wound. When seen on November 25, 2013, the worker had normal range of motion of the buttocks, legs and lower back.

On November 30, 2013, the worker was seen by a physiotherapist for an initial assessment. The diagnosis was a lumbar strain secondary to work injury, a rotator cuff strain and knee pain.

On December 4, 2013, it was determined by the WCB that the worker's claim was only being accepted for the low back and that multisite physiotherapy treatments would not be funded.

Ongoing medical reports in December 2013 showed that the worker was seen for neck pain, low back pain and radiculopathy.

On January 7, 2014, a WCB medical advisor opined that the current diagnosis was nonspecific mechanical low back pain with radicular features. It was felt that the worker's low back and leg symptoms showed a temporal relationship with the workplace accident.

In a report dated January 13, 2014, a physical medicine and rehabilitation specialist (physiatrist) stated there was "no definite electrophysiological evidence for an ongoing lumbosacral radiculopathy on the right." The physiatrist did note that, based on clinical findings, a diagnosis of myofascial pain in the right low back and gluteal region was suggested. The worker was advised to use heat, stretching and massage over the area and the physiatrist outlined some specific daily stretching exercises.

On January 16, 2014, MRI results of the lumbar spine were read as showing:

Mild to moderate multilevel degenerative changes. Changes are worse at L4-L5 there is possible contact with the bilateral descending L5 nerve roots.

On February 18, 2014, the worker was seen at the WCB offices for a call-in assessment. Following the examination, the WCB medical advisor outlined the following opinions:

• the recent MRI findings were pre-accident conditions. The examination was unable to produce any evidence of radicular pain because of the pain behaviour and exaggeration of symptoms of the worker.
• the worker's current presentation was not medically accounted for in relation to the workplace injury.
• based on the excessive pain behavior and exaggeration of symptoms, there was no evidence to support any continual complaints related to the original compensable injury.
• based on the compensable injury, the buttock area, the worker had recovered from the described compensable injury.
• there were no restrictions in relation to the described compensable injury.

Based on the WCB medical advisor's examination findings and opinion, the worker was advised on February 25, 2014 by Compensation Services that he had recovered from the effects of his November 13, 2013 compensable injury and therefore he was not entitled to wage loss or medical aid expenses.

In a letter to the WCB dated March 5, 2014, the treating physician noted that the worker complained of low back pain and spasm in his thigh muscle which is exactly located at the point where the worker was hit by the forklift. He stated the worker's injury and recovery might not be complete due to his pre-existing condition. It was felt that good physiotherapy would improve the worker's condition.

On March 13, 2014, the WCB medical advisor stated: "The call in examination did not reveal any evidence of physical complaint related to the pre X condition of the lumbar spine. As indicated the worker presented with exaggeration of symptoms and pain behavior. There was no evidence of pre X condition playing any part in his presentation in the examining room."

On May 9, 2014, a WCB medical advisor reviewed reports on file from a sport medicine physician dated April 23, 2014 and a report from the treating physician dated February 5, 2014. The medical advisor stated that the April 23, 2014 report provided no new significant information. A diagnosis of chronic sprain was provided and this would not account for the reported symptoms and/or the degree of functional limitation. The February 5, 2014 report contained no new significant information. A neurology referral was noted but this was unlikely to be required in relation to the effects of the compensable injury.

On October 1, 2014, a WCB medical advisor was asked to review the file information which included a report from an occupational health physician dated September 18, 2014, a report from the physiatrist dated January 13, 2014 and a May 2014 report from the treating physician.

In a response dated October 27, 2014, the WCB medical advisor stated:

The report from [treating physician] provides no useful new information.

Previously [worker] was assessed by a physiatrist, [name], in January 2014, at two months post injury. The only notable exam findings at that time were mildly reduced lumbar range of motion, and tenderness of the paraspinal muscles, right more than left. The reported impression was of "myofascial pain", a descriptive label in reference to non specific soft tissue pain theorized to be arising from muscle and connective tissue. PT (physiotherapy) treatment was ongoing and the specialist advised continued physiotherapy treatments which was provided subsequently.

The report from [occupational health physician] is in reference to examinations carried out in August and Sept 2014, nine and ten months post injury. He notes findings including tenderness, muscle shortening, hypertonicity, and taut bands involving the paraspinal muscles, hamstrings, gluteal, inguinal, and thigh areas, and marked limitation of spinal movement. These findings were not noted (beyond paraspinal tenderness) at the physiatrist's exam at two months post injury, but unaccountably are present at nine months post injury in areas beyond the back/spine itself.

The MOI (mechanism of injury) would account for a contusion/strain, the typical natural history of which is for recovery over a period of days to several weeks. There is no clinical evidence of a more significant injury having occurred in relation to the ci (compensable injury). Considering the nature of the injury, a significant contusion would be expected which would have taken several weeks to resolve. Even allowing for this, the extent of symptoms and findings reported by [occupational health physician] are not likely to be accounted for in specific relation to effects of the ci which occurred ten months prior.

Based on the WCB medical advisor's opinion, Compensation Services advised the worker on October 28, 2014 that no change would be made to the original decision to end his benefits. On November 4, 2014, the Worker Advisor Office appealed the decision to Review Office.

On January 29, 2015, Review Office determined that there was no entitlement to benefits beyond March 3, 2014. After considering all the file evidence which included the medical reports from the treating physicians, the WCB medical advisor's opinions and the worker advisor's position outlined on November 4, 2014, Review Office found the evidence, the diagnoses, treatment rendered (physiotherapy) and time that had passed (November 2013 to March 2014) did not support a causal relationship between the worker's current difficulties and the November 13, 2013, workplace injury and as such, there was no entitlement to benefits beyond March 3, 2014.

On June 17, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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 injuries arising out of a November 13, 2013 accident. He is seeking additional wage loss and medical aid benefits.

Subsection 4(1) of the Act provides that 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 27(1) of the Act provides that the WCB may provide a worker with such medical aid as considered necessary to cure and provide relief from a workplace injury. Subsection 39(2) provides that the WCB will pay wage loss benefits until the worker's loss of earning capacity ends.

Worker's position

The worker was assisted by a worker advisor at the hearing who made a presentation on his behalf. The worker answered questions asked by his representative and the panel. Their position was the original accepted diagnoses had evolved from a laceration, bruising and a strain injury to the low back to include myofascial pain diagnosed two months later by a physiatrist and confirmed 10 months post injury by the occupational health physician.

It was submitted that greater weight should be afforded to the opinion of the occupational health physician who reviewed the entire file prior to a physical examination and addressed both the impact of the accident on the worker's condition as well as the effects of returning to work in the weeks after the injury.

The worker advisor noted the right side clinical findings identified by both examiners are consistent and the worker's condition remained relatively static following the discontinuation of benefits.

The worker's evidence was that he still has limitations to his activities and can only walk extended periods every third or fourth day. His major problem was with his right leg with some numbness and difficulty going up stairs but it is okay when coming down stairs.

In respect to the entitlement for wage loss benefits, it was the worker's position that none of the healthcare providers had cleared him for return to regular duties by March 3, 2014 and the employer was unable to modify or provide alternate duties that would allow a safe return to work to minimize or eliminate his loss of earnings.

It was submitted that on February 22, 2014 the treating physiotherapist noted a requirement of a further 6 weeks of treatment and the worker was capable of alternate or modified duties that did not involve lifting, lumbar flexion, extension, rotation and side flexion.

The worker advisor noted that in January 2014 the case manager contacted the employer who advised that they were unable to "modify or provide alternate duties" to the worker.

In response to questions by the panel about his attempts to return to work, the worker stated:

I would be calling after the accident, I called at 5:00 asked if there was anything and they would say, no…my resume, there is nothing that suits that I can do the job...could do a little office job with maybe a little standing, a little sitting. If I sit too long there's a problem. If I stand too long there is a problem.

The worker advisor concluded that with the need for ongoing physiotherapy treatments and the occupational health physician's referral to an anesthesiologist for trigger point needling, the worker is entitled to medical aid to cure and provide relief from the compensable injuries. Further, the ongoing need for work restrictions and the lack of availability of suitable work by the employer supports entitlement to wage loss benefits beyond March 3, 2014.

Employer's position

The employer was represented by the company president, she explained the nature of her business requires a great deal of term and temporary contracts. Even when her staff are doing extremely light duties such as stamping and stickering where there is no lifting, staff have to stand, walk and be mobile.

It was submitted that by the time the worker had phoned to let her know his availability, it was quite late and all of the light positions had been assigned.

The employer noted that after being informed by WCB that as of March 3, 2014 the claim was over and the worker was not entitled to any benefits she stated "…we have not seen or spoke to [worker] in any capacity since then."

In response to questions from the panel, the employer's evidence was:

Whatever the restrictions are, we do our very best to be able to accommodate them…the issue was the not being able to stand for long periods, as when you're working in a warehouse, that's a major part of it. Depending on their skills, if they can do some office duties, then I can try to accommodate them for data entry or file or stuff like that. Nothing on his resume, or speaking with him, made me look in that direction…If you're calling after 8:00 in the morning, I very rarely have work after that point.

Analysis:

For the worker to be successful in his appeal, the panel must find that he continued to require ongoing treatment related to the injuries suffered in his compensable accident and was unable to work in any capacity after March 3, 2014. For the reasons that follow, the panel is unable to make those findings.

The panel examined all the evidence at the time of injury, the initial medical reports and the worker's evidence in regard to how he was injured and the period after his accident.

It was the worker's evidence that he was in the process of wrapping a pallet of boxed material when he was struck from behind on his right buttock and knocked down forward and to his right side. The driver of the forklift didn't realize he had hit him. Co-workers had brought some ice which he applied, he remembers that they took him home.

In response to a question by the panel, the worker noted"…I did not lose consciousness at that time and a co-worker took me home. The following morning I found it difficult. So it was two or three people took me to the clinic." The worker noted that at the clinic they did not put in stitches, that they put a special bandage on to seal it up, also that "I just have some pains in the ribs" indicating his left side.

The panel notes the doctor's diagnosis on November 14, 2013 was right gluteus laceration/bruise. His examination findings showed "laceration and bruising to the gluteus, no bleeding, tender to palpation…" The physician applied steristrips and took the worker off work for four days instructing him to return next week for possible return to work or further off work.

At the follow-up appointment November 20, 2013 with a second physician, it was noted that he looked fine, had a mild limp, his buttock was tender with some swelling and had developed some infection. It was the physician's opinion that he was capable of modified work with restrictions to avoid lifting and bending.

On a November 25, 2013 visit, the original physician's examination findings were normal range of motion of the buttocks/legs/lower back. He noted the worker could return to work now with continued analgesics and warm compress. No restrictions were outlined nor was there a need for modified or alternate work.

After careful review, the panel notes there was no loss of consciousness, no call for ambulance or need for immediate medical attention at a hospital, as well as the findings on the first 12 days after the injury which show a resolution of the initial symptoms. The panel finds that the worker's injury on November 13, 2013 was a minor bruise with laceration to his right hip and buttock with mechanical non-specific low back pain that had resolved by November 25, 2013.

The panel notes that by the time the worker started physiotherapy a new series of symptoms began to be noted by the worker and his health care providers. Subsequent Xrays and an MRI were unable to find a cause for the complaints arising out of the contact to the worker's right buttock and hip that he sustained in the compensable injury. The panel finds the symptoms reported from November 30, 2013 and onward are not related to the original compensable injury.

There was much discussion on the employer's ability to provide modified or alternate work for the worker. The panel notes that after being cleared by his treating physician the memo dated November 26, 2013 shows the worker came in to WCB and spoke with his case manager. It is noted that "…he returned to work on Nov 25 to his regular duties. He is still experiencing pain to his lower back and right side ribs when sitting/standing for certain periods of time." Another memo noted that he was sent home on December 6, 2013 for lack of work and on December 9, 2013 he didn't go to work as his lower back was very sore, he noted that he had no new injuries.

The case manager contacted the employer who noted they were unable to accommodate his lifting and bending restrictions and they provided light duties to sticker and stamp boxes and he had help wrapping boxes. He worked from December 2, 2013 to December 5, 2013, was off December 6 and December 16 as no work was available. He did work December 17, 18, 19 and 20, 2013 with no complaint of back problems. The worker did not return to the employer after December 20, 2013.

Given our findings on the extent of the worker's injury and acceptable diagnosis, the panel finds the time loss from employment beyond December 20, 2013 was not related to the compensable injury of November 13, 2013.

Having considered all of the evidence before us we have concluded on a balance of probabilities that the worker's ongoing symptoms and loss of earning capacity is not related to his compensable injuries. The panel finds, on a balance of probabilities that the worker is not entitled to benefits after March 3, 2014.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 30th day of December, 2015