The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB")that he was not entitled to further benefits in relation to his compensableaccidents that occurred in 2011 and 2012. A hearing was held on January 27, 2016 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits inrelation to the workplace accidents occurring June 14, 2011 and June 7, 2012.

Decision

That the worker is not entitled to further benefits inrelation to the workplace accidents occurring June 14, 2011 and June 7, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his upper back and neck which occurred on June 14, 2011. The worker reported that he was driving heavy equipment and his back became sore from bouncing in the air and hitting bumps while driving. The worker reported that he had to stop the machine and get off. A co-worker found him laying on the ground. He must have passed out. The next thing he knew he was about 100 feet away from the machine. The worker said his hands and arms were numb at the hospital. He was placed on a backboard and as long as his back was straight he was okay.

On June 22, 2011, a WCB adjudicator noted that the worker was off work from June 15 to June 17, 2011 and returned to his regular duties on June 20, 2011. The worker indicated he was still pretty sore but was being careful performing his duties. In September 2011, the worker advised the WCB that he was still having ongoing problems with his upper back and neck.

Medical information confirmed that the worker attended a hospital facility on the day of the accident with complaints of pain below his shoulder blades in his spine, low back pain and numbness to both hands. A CT scan of the thoracic spine dated June 14, 2011 was read as showing:

"No acute thoracic spine fracture is identified. Minor anterior wedging from T9 through T12, was seen previously on the previous 2009 MR. The lack of paraspinal hematoma suggests there is no superimposed acute wedge compression in the lower thoracic spine."

When seen by a physician on June 30, 2011, the worker was diagnosed with a suspected back strain.

File records show that the worker was treated by a physiotherapist who reported on September 29, 2011 that he was experiencing occupational numbness into his arms and hands bilaterally when jarred.

On January 27, 2012, the worker underwent an MRI of the cervical and thoracic spine which was read as showing broad central disc osteophytes at the C3-4 level. The C4-C5 level was well maintained and the C5-C6 level also demonstrated a left paracentral disc osteophyte complex.

In March 2012, the treating physiotherapist reported that the worker was doing well and had no further incidents of neck pain or paresthesia. Neurological testing was normal.

The treating physician, on March 15, 2012, reported that the worker was doing well at this stage but was off work for the winter months. If there was any jarring of his back, the worker developed numbness and tingling in his arms. It was reported that the worker would return to work when he got called back and hopefully he would be able to continue on modified duties.

On June 18, 2012, the worker filed a new WCB claim for injury to his neck and back that occurred on June 7, 2012. The worker reported that he switched from one machine to another to push up broken asphalt with a wheel loader. He jarred himself when he was backing up and sprained his back. He said his back and neck were really jarred. The worker said his hands went numb. The bottom of his right foot up the side of his right leg was also feeling numb.

Medical reports showed that the worker sought medical attention on June 8, 2012. The treating physician noted that the worker felt a big jolt and jarred his back when working with a front loader. The worker now complained of numbness in his hands and in his right foot. The physician outlined his examination findings and gave the worker a note not to operate machinery that could jar his back or to work in very hot conditions.

In a report dated October 16, 2012, an orthopedic surgeon outlined his examination findings as follows:

"Examination of his back shows non-specific tenderness over a large area. Range of motion is well maintained. The examination of his neck shows tenderness in the lower cervical area in the midline. Once again, movement is somewhat limited. The neurological examination; however, did not confirm any specific weakness. Sensation is equal on both hands, as was grip strength. The reflexes of the upper and lower limbs are diminished but equal on all sides. Babinsky response was normal."

The surgeon noted that the worker's symptoms were worse than the clinical findings and a new MRI of the lumbar spine was being arranged.

On November 21, 2012, the orthopedic surgeon reported that the worker was seen again following the MRI scan of the lumbar spine and it showed significant degenerative changes at L3-4, L4-5 and to a lesser degree L2-3. The worker complained of significantly more symptoms than the imagings would suggest. Facet blocks were suggested at L2-3, L3-4 and L4-5.

On November 27, 2012, a WCB medical advisor reviewed the claim file at the request of the case manager and concluded that the worker's condition arising from this incident had materially resolved.

In a WCB decision dated November 29, 2012, the worker was advised that based on the recent WCB medical opinion, the WCB felt he was recovered from the June 27, 2012 accident and any ongoing problems were related entirely to a pre-existing degenerative condition.

Subsequent file records contain medical reports from treating practitioners dated March 5, 2013 through to August 3, 2013.

On August 15, 2013, a WCB medical advisor was asked to review the new information and comment on whether there was any relationship between the worker's current symptoms and the compensable 2011 and 2012 neck and back issues. On October 18, 2013, the WCB medical advisor noted that:

• there was no apparent new diagnosis on file. The advocate and the physiotherapist refer to spinal stenosis but there was no compelling evidence on imaging (MRIs of cervical, thoracic and lumbar spine).
• the diagnosis to account for the worker's ongoing neck and back pain remained undetermined beyond the descriptor of non specific low back/neck pain. The imaging demonstrated no striking structural abnormalities at the lumbar spine, noting only "mild changes of lumbar spondylosis" unchanged when compared to prior scans in 2007. MRI of the cervical spine demonstrates pre-existing degenerative changes. The thoracic spine was reported normal.
• there was no evidence to support that the compensable injury contributed to a material degree to the worker's current status. The natural history of strain injuries is for recovery over a period of days to weeks. Current reported symptoms remain unaccounted for in specific relation to work duties/influences.

On November 1, 2013, it was confirmed to the worker that the WCB was unable to accept responsibility for his current back difficulties as a relationship between his current difficulties and the June 7, 2012 neck and back injury had not been established. It remained the WCB 's opinion that there was no change to the decision dated November 29, 2012. On November 25, 2013, the worker's advocate submitted to Review Office that the worker had not recovered from his June 2011 and June 2012 injuries.

On December 12, 2013, the treating physician noted that the worker's symptoms had not changed much from before and jarring action creates more pain, more tingling in the arms, and ongoing pain in the joints. It was noted that the worker was also being referred to a pain clinic.

On January 16, 2014, Review Office determined that the worker was not entitled to further benefits in relation to his 2011 or 2012 claims. Review Office outlined the position that the injuries suffered by the worker in 2011 and 2012 were strain injuries that had resolved. Review Office found that the worker had longstanding back and neck issues and that imaging reports showed longstanding degenerative changes of the spine that were not progressing at an appreciable rate. The degenerative changes were not particularly severe. Examination findings following each accident were not consistent with a significant injury.

Review Office considered the advocate's argument that the nature of the worker's employment was responsible for the degenerative changes of his spine (in particular, spinal stenosis) and, as he considered this was the source of the worker's complaints, he was entitled to further benefits. Review Office indicated that the worker had degenerative changes of his thoracic spine as early as 2009 (November 5, 2009 MRI). A November 14, 2009 MRI reading referred to a 2007 MRI showing similar changes of the lumbar spines.

Review Office concluded that the worker's employment was not in any way accountable for the degenerative changes of his spines. In July 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The worker has accepted claims for workplace injuries that occurred in 2011 and 2012. He is seeking further benefits in relation to the workplace injuries.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. 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 represented by a worker advocate who made a submission on his behalf. The worked answered questions from the panel. The worker's representative asked that the panel overturn the Review Office decision.

In his written submission, the worker's representative outlined the worker's position as:

The wear and tear on [worker's] body from this line of work over the years is due to the worker's employment and he now has continual back and neck issues where he is in constant pain, on medications and unable to sleep...

[Worker's] present back and neck issues are the result of his 2011 and 2012 injuries along with the combined injuries working in the heavy construction industry

The representative noted that the worker worked in heavy construction for decades. He advised that the worker was a heavy-duty mechanic, and due to his injuries and permanent work restrictions, was removed from that line of work and placed into a heavy-equipment operator’s position.

He advised that in April 2015, the worker's permanent restrictions, arising from claims in 2004 and 2006, included:

· to avoid repetitive above shoulder level activities

· avoid lifting and carrying greater than 25 pounds with either arm,

He noted the following additional restrictions which arose from claims in 2006 and 2008:

· avoid prolonged standing and walking greater than one hour at a time

· avoid kneeling, squatting and crouching.

He advised that the worker received a PPI rating of 7.1 % on his 2008 injury claim.

The worker's representative noted that in June 2011 the worker injured his neck and upper back,

while operating a bulldozer. In June 2012, the worker jarred his back and neck while backing up the loader. His hands went numb, numbness in the bottom of the right foot and up his right leg, and also sustained sharp pain in the side of the right upper leg.

The worker's representative submitted that the worker has many of the symptoms of spinal stenosis which is an injury that places pressure on the nerve root or the spinal cord which causes numbness, cramping or pain in the back, buttocks, thighs, calves, or in the neck, shoulders or arms.

He submitted that it has been documented that mobile machine operators and drivers, especially those who work off-road, are at increased risk from back pain due to excessive exposure to whole body vibration, shocks and jolts, repeated climbing into or jumping down from a high cab, or one which is difficult to get in and out of. He said that the risk also increases when the operator is exposed to two or more of these activities, along with work areas that experience high vibration exposures. These are operators of off-road machinery in construction, mining and quarry work.

The worker's representative stated that in order for the worker to continue working for his employer, he requires medical assistance, such as, physiotherapy, chiropractic treatments, swim-water exercises, or a combination of them, along with his prescribed medications. He submitted that these medical expenses should all be covered by WCB and that the worker's current neck, back and injury claims are work-related, and should be related as compensable injuries.

The worker's representative submitted that WCB Policy 44.10.20.10, Pre-existing conditions applies to the worker's case. He also submitted that WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences), also applies. He noted Section 3 provides that a

recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

The worker answered questions regarding his medical treatments. He advised that he saw a surgeon and pain clinic physicians. He provided the panel with a list of his medications.

In answer to a question, the worker advised that his back is sore but when he hurts himself "it's really sore." He said it can reach to 8 or 10 out of 10 on a pain scale. The worker added that he has always been able to take the pain but that his biggest problem is that he doesn't get rest as he does not sleep properly. The worker advised that while at the hearing his back pain was probably 4 or 5.

In answer to a question about the worker's position that mobile machine operators and drivers are at increased risk from back pain, the worker's representative advised that he relied on a study from the US National Library of Medicine which he found under the definition of spinal stenosis.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is appealing the WCB Review Office decisions on two claims.

For the worker's appeal of this issue to be approved, the panel must find that the worker continued to suffer a loss of earning capacity, required medical aid benefits, or other benefits, as a result of the 2011 and or 2012 injuries. The panel was not able to make this finding.

The worker is seeking benefits arising from the 2011 and 2012 claims and for the combined effects of all the injuries he has sustained at work in the heavy construction industry. The worker's representative referred to studies regarding the risks associated with these types of employment. For the worker to proceed with a cumulative injury claim, the issue must be clearly identified and subsequently addressed as a cumulative injury or occupational disease by the WCB. For these reasons, the panel finds that the worker's request to consider the worker's appeal on these specific claims as a cumulative claim for all the accidents, injuries and wear and tear on the worker, is not properly before it.

The panel has, however, addressed the issue of entitlement for benefits on the 2011 and 2012 claims, on their individual facts and merits.