The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to compensation benefits beyond March 4, 2015 in relation to her compensable injury. A hearing was held on May 12, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits after March 4, 2015.

Decision

That the worker is not entitled to wage loss or medical aid benefits after March 4, 2015.

Decision: Unanimous

Background

The worker reported that on March 4, 2015, while employed as an educational assistant, she was on a school bus which was hit by another vehicle. She was sitting in the aisle seat and was thrown into the window. There was no one sitting beside her. She reported that when she was thrown, her back got "twisted".

Information from the employer indicated that the worker travelled on the bus each morning with a student. On March 4, 2015, a car struck the bus on the driver's side front tire. The worker had indicated that the impact from the car hitting the bus sent her flying across the seat, striking the right side of her head on the window and jarring her back.

File records contain medical information from the hospital emergency facility which the worker attended for treatment on March 4, 2015, as well as information from the family physician, the treating physiotherapist and x-ray results. The WCB also obtained on board video footage concerning the March 4, 2015 incident from the employer.

On March 13, 2015, a WCB adjudicator documented information she obtained from the worker regarding the March 4, 2015 incident. The worker indicated that once the bus and the car collided, she was twisted and shifted to the right, towards the window. The worker stated that she was not thrown into the window and did not hit her head.

On April 1, 2015, a WCB medical advisor reviewed the claim file at the request of primary adjudication and opined:

The video was reviewed. There was a minor jolt to the bus. The video actually had to be reviewed multiple times to even be certain when the accident occurred…The worker could be observed during the jolt and there did not appear to be any unusual force or movement to her body. She was able to move about the bus freely afterward with no evidence of pain and with no apparent limitation in movement or function.

This amount of impact to the bus would not be expected to cause any injury to the body, let alone a presentation of 7-8/10 pain and 16/24 on the Roland Morris (meaning that she has serious functional limitations due to her back pain). She presented to physio with quite restricted ROM, minimal core strength, and widespread tenderness. These findings would not be expected from innocuous mechanism of injury.

By letter dated April 15, 2015, the worker was advised that the WCB approved her claim for the March 4, 2015 incident, but did not accept responsibility for wage loss or medical treatment costs related to her back difficulty. The adjudicator made reference to the April 1, 2015 WCB medical opinion. In the opinion of Rehabilitation and Compensation Services, there was no evidence of a causal relationship between the incident which occurred on March 4, 2015 and her back difficulty diagnosed as a low back strain. As a result, the WCB would not accept responsibility for her back difficulties and would only accept responsibility for the incident which occurred on March 4, 2015.

On May 14, 2015, the Worker Advisor Office requested that Review Office reconsider the adjudicator's decision of April 15, 2015.

In a decision dated July 2, 2015, Review Office determined there was no entitlement to wage loss or medical aid benefits beyond March 4, 2015. Review Office stated that it placed weight on the video footage which showed the specifics of the event in question. The footage clearly showed the impact point, but also demonstrated that a minimal amount of actual movement was displayed by the worker at the point of impact. Review Office indicated that it concurred with Compensation Services that the actual motion at the time of accident was not significant enough to produce the needed forces to cause an injury that required the level of treatment the worker underwent. On November 24, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

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.

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 as provided by the Act shall be paid to the worker by the WCB.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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 advisor, who made a presentation on her behalf. The worker answered questions from the worker advisor and from the panel.

The worker advisor submitted that as no alternate diagnosis was offered by the WCB, the diagnoses offered by the worker's treating healthcare providers had to be considered. The worker attended a hospital on the day of the accident with an entrance complaint of back pain and was diagnosed as having musculoskeletal low back pain. The worker then attended a physician on March 10, who diagnosed a lower back strain, and a physiotherapist on March 12, who diagnosed a low back sprain or strain. It was submitted that the clinical findings in the initial medical reports were consistent, and that the diagnosis of musculoskeletal pain was consistent with a strain or sprain injury. The physician and physiotherapist both explained that with a low back strain or sprain injury, the signs or symptoms are not always immediately apparent, which further supported that these diagnoses were related to the workplace accident.

The worker advisor acknowledged the worker's limited motion during impact and submitted that the WCB medical advisor's comments with respect to the worker's mobility, based at least in part on her review of the video, had been rebutted by the worker's healthcare providers. It was submitted that the panel should attach little weight to the WCB medical advisor's focus on the worker's self-reported or perceived level of pain and function, which was recorded during the acute stage of her injury and prior to her undergoing any formal medical treatment.

In conclusion, it was submitted that the evidence established the worker's diagnosed low back strain or sprain injury was related to the bus being struck, and resulted in her needing time off work and medical aid to help cure and provide relief from her injury.

Employer's Position

The employer was represented by a human resources officer. The employer's position was that the worker's appeal should be dismissed, based on the video evidence of the accident and the opinion of the WCB medical advisor.

The employer's representative noted that the video recording showed that the worker was not thrown off the seat as she had originally indicated. It was submitted that the accident report which the worker completed was not consistent with what appeared on the video, in terms of the worker hitting her head or twisting her back.

The representative also relied on the WCB medical advisor's comment that she had some difficulty figuring out the time of impact because it was so minimal, and her conclusion that the injury was not consistent with what was seen on the video in terms of its severity.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss or medical aid benefits after March 4, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity or required medical aid after March 4, 2015 as a result of the workplace accident. The panel is unable to make these findings.

The panel reviewed the information on file with respect to the description of the incident and the mechanism of injury. In the WCB Worker Incident Report dated March 5, 2015, the worker stated that "I was sitting in the aisle seat and I was thrown into the window…When I was thrown, I got twisted. My back was twisted." In the employer's form of Accident Report completed on March 5, 2015, the worker wrote that "I was thrown to the right and twisted my back and hit the right side of my head on the window…My lower back and neck sustained injury." On March 13, 2015, the worker advised the WCB adjudicator that she was not thrown into the window and did not hit her head. The panel reviewed the video which shows the worker facing forward in her seat prior to the accident, and does not show her being thrown to the right or hitting her head on the window at any time during the video.

On the Doctor First Report for March 10, 2015, the worker's description of the incident was recorded as "Sitting aisle seat school bus and bus got sideswiped by car. Felt lower back twist." On the Physiotherapy Initial Assessment for March 12, 2015, the worker's description of the incident was recorded as "Involved in a MVA while on a school bus. Was sitting in a twisted position when hit." The description of the incident in the physiotherapist's report was more than one week after the accident. The panel again notes that from our review, the video shows the worker was facing forward and her legs were not to the side.

The worker was questioned at length during the hearing with respect to the mechanism of injury. When asked whether she could explain the difference between the incident reports and the video, the worker responded that: "I didn't hit my head. I was twisted and, I don't know, I was under medication at that time once I did fill out the report. I'm not a person that takes medication at all." When asked about how she was sitting in her seat and how she moved on impact, the worker's response was: "I don't know, I was just twist -- because I can't sit in the bus straight because there's not enough room." Asked if she recalled where she was facing when the accident happened, whether she was facing forward or looking sideways, she responded "I don't recall."

The panel accepts and adopts the opinion of the WCB medical advisor who opined after reviewing the video, that the amount of impact to the bus would not be expected to cause any injury to the body, or the presentation of pain and limitations as reported to the treating physiotherapist.

The panel notes that there is limited medical or other evidence of disability prior to the worker's attendance at the physiotherapist on March 12, 2015. File information shows that the worker was referred to physiotherapy by the treating physician at the worker's request, and that the treating physician had not considered such a referral necessary. Rather, she felt that the worker was able to return to work. The worker then presented to the physiotherapist with a significantly different mechanism of injury. The panel finds that the report of the physiotherapist, who recorded high levels of pain and diagnosed a second degree lumbar sprain/strain, was based largely upon what the physiotherapist was told by the worker as opposed to clinical findings.

The panel considered the treating physician's and physiotherapist's statements that signs of injury are not always immediately apparent; that there may be increased symptoms or pain in the day or days following an accident. The panel is not satisfied, however, that the evidence supports such a suggestion in these circumstances, and we are of the view, particularly with a motor vehicle accident, that a much more significant mechanism of injury and set of injuries would be required to accept a late onset of pain more than a week after the accident.

In conclusion, the panel recognizes that an accident occurred on March 4, 2015. Based on our analysis of the information on file and the information provided at the hearing, the panel finds, on a balance of probabilities, that the worker did not sustain any loss of earning capacity or require medical aid after March 4, 2015 as a result of the workplace accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 7th day of July, 2016