The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board that her claim forcompensation was not accepted for an accident occurring on September 21,2014.  A hearing was held on January7, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable; and

That the worker is entitled to compensation benefits to December 12, 2014 inclusive and final.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her right inner thigh and hip that occurred on September 21, 2014 when reaching up to clean and restock shelves. The worker stated that she did not report the accident to her employer until September 23, 2014 as she thought her condition would go away.

The Employer's Accident Report for the claim indicated that the worker hurt herself while dusting on September 21, 2014.

Subsequent file records showed that WCB staff contacted the worker, the accident employer's representative and a co-worker to obtain specific information related to the reported work accident of September 21, 2014. The WCB also obtained x-ray, bone scan and CT scan results, hospital information and reports from the worker's treating physicians and physiotherapist.

On December 12, 2014, the worker was seen at the WCB offices for a call-in assessment. In response to questions posed by the WCB case manager, the examining medical advisor stated that based on his examination findings and the inconsistencies on examination, he was unable to determine a current diagnosis and therefore was unable to associate the worker's current presentation with the September 21, 2014 workplace incident.

In a decision dated December 23, 2014, the WCB acknowledged that the worker suffered a workplace incident on September 21, 2014; however, it was unable to establish that her current right groin/hip/knee difficulties were related to the incident. The case manager's decision was based on file information, the history of the worker's injury and the WCB medical advisor's opinion that there was no clear diagnosis related to the worker's ongoing groin, hip and knee difficulties.

On April 9, 2015, the Worker Advisor Office provided the WCB with additional medical information to support that a relationship existed between the worker's current lumbar condition and the September 21, 2014 workplace accident.

On April 24, 2015, the worker's file was reviewed by a WCB medical advisor who stated:

MRI findings are to be correlated with clinical presentation. The MRI shows findings that are typical of a 72 year old individual and would be considered degenerative in nature. The imaging is unable to be related to the inconsistent presentation by multiple health care providers including reported pain to BOTH legs and inconsistent finding at the call-in exam of December 12, 2014.

As above, it appears a diagnosis is offered as a result of imaging rather than consistent objective physical examination. This is further evidenced by multiple diagnoses given prior to the MRI without adequate consistent clinical evidence ie. Physical examination. Femoral neuropathy is typically as result of compression and not the result of lumbar disc herniations. Given the above, the writer's (sic) is unable to relate the proposed diagnosis to the mechanism of injury.

In a second decision dated April 30, 2015, the WCB advised the worker that the additional information had been reviewed by a WCB medical advisor and that no change would be made to the original decision of December 23, 2014. On May 25, 2015, the Worker Advisor Office appealed the decision to Review Office.

On August 11, 2015, Review Office found that the evidence on file did not establish that the worker suffered an "accident" on September 21, 2014 or that her worsening symptoms beyond September 21, 2014 were causally related. Review Office's decision was based on inconsistencies in the reporting of the accident and the finding that the worker's first pain symptoms occurred 12 hours after she left work. Review Office also stated that it could not find that the worker's lumbar disc herniation was the cause of the worker's pain complaints after January 2015 or that it was caused by the September 2014 job duties. On August 18, 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 WCB's Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was self-represented. The worker advised that:

• while cleaning shelves at a retail shop she suffered an injury.
• she was cleaning glass shelves, which involved moving merchandise off the shelf, cleaning the shelf and replacing the merchandise.
• in performing the duties she had to reach over large boxes which were in front of the shelves.
• the shelves were at eye level.
• after cleaning 2 shelves, she felt a pain and winced.
• she felt weird and sat down for the balance of her shift, only rising to serve customers.
• her condition got progressively worse.
• she tried heat but it did not help.
• two days later (Tuesday) she saw her physician who prescribed medication and subsequently prescribed an opioid medication.
• the pain worsened to the point that she had to go to the hospital emergency ward.
• she had to return to the hospital and was hospitalized for almost a month.
• she had an MRI.
• she still has pain down her leg and into her knee and is unable to return to work.

The panel asked several questions and the worker provided the following information:

• she had a cortisone injection in her right hip but is not sure if it helped as she was already using significant pain killers.
• she received no treatment for her left hip.
• she declined an injection in her back.
• she received physiotherapy for her knee and later for her back.
• her back felt "a little better" after the physiotherapy.

The worker advised that she has been told by a physician her problem is that her third and fourth disc are compressing on the right side and causing pain. Regarding the MRI, she advised that one of her physicians advised her that he does not think she has osteoarthritis.

The worker advised her back never hurt before, and her first excruciating pain was in the groin and down the thigh. This groin pain has resolved, but she still has shooting pain down her leg.

Employer's Position

The employer did not participate in the hearing.

Analysis

This appeal arises from a Review Office decision which found that the claim was not acceptable and that the worker was not entitled to benefits. At the hearing, the panel obtained information from the worker on the issue of claim acceptance and her entitlement to benefits. The panel also obtained current information on her medical status and her employability. The panel finds that it has the authority to address both issues that were considered by the Review Office.

The worker's Notice of Appeal indicates that she disagrees with the WCB Review Office decision that her claim is not acceptable. For the worker's appeal of this matter to be approved, the panel must find that the worker was injured by accident arising out of and in the course of her employment as provided by subsection 1(1) of the Act. The worker also advised that she feels she is still disabled and entitled to benefits. The panel found that while performing her employment duties on September 21, 2014, the worker sustained an injury. Accordingly, the panel finds that the worker's claim is acceptable.

The panel notes there were inconsistencies regarding the reporting of the accident and the onset of symptoms. The panel attaches weight to the reports that were initially made to the WCB and to the worker's physician which the panel finds to be more reliable than later reports. The panel accepts the description of the incident in the Worker Incident Report:

"I was cleaning shelves and restocking and I guess the reaching up high I pulled the muscles and tendons. It was very hard getting to the shelves. In the middle of the night on Sunday I was having pain in the inner thigh and I got up and took a Tylenol 1 and on Monday I was in excruciating pain."

This description is consistent with the information provided to the WCB representative on September 29, 2014. The panel notes that the worker's onset of pain, in the middle of the night following the work day, and her seeking medical treatment within two days for a progressing non-specific lower back medical condition is consistent with the worker's reported mechanism of injury.

The panel further finds the claim is acceptable as an aggravation of a pre-existing condition and

that the aggravation had resolved by December 12, 2014, the date the worker was examined by the WCB medical advisor.

Regarding the worker's actual workplace injury, the panel notes that there is significant and varying medical information on the file from a number of healthcare providers and examiners regarding the worker's symptoms, tests performed, diagnoses and treatments. These diagnoses ranged from iliopsoas and/or adductor and quadriceps muscle strains to trochanter bursitis on the left and/or right side to later lumbar spine disc-based diagnoses including osteophytes, mild central spinal stenosis and disc protrusions, disc degeneration, a central annular tear and osteoarthritis of the lumbar spine and hip, as well as a femoral neuropathy. The panel notes that many of these conditions, by their nature, would be pre-existing conditions, even if the worker had been asymptomatic beforehand.

In reviewing the medical information on file, the panel finds that there were no neurological findings in the period following the accident. However, what was consistent on the file, from the outset, was that the various first reports all identified extreme pain in the worker's groin and thigh area that became apparent at 3 a.m. on September 22, 2014. The worker confirmed at the hearing that this acute groin pain resolved some time after she was hospitalized in November 2014. This timeframe is essentially confirmed by the WCB medical advisor who extensively examined the worker on December 12, 2014 and noted primarily negative findings and the inability to establish a clear diagnosis on that date. In the panel's view, the evidence supports a finding that the worker was predisposed to a low back injury due to the pre-existing state of her back from what were relatively light duties, and did suffer a temporary aggravation of her pre-existing condition on September 21, 2014 that had, on a balance of probabilities, certainly resolved by December 12, 2014. The panel further finds that her ongoing medical issues are not related to the workplace incident of September 21, 2014.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of January, 2016