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 7, 2014 in relation to his compensable injury. A hearing was held on July 13, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 7, 2014.

Decision

That the worker is not entitled to benefits after March 7, 2014.

Decision: Unanimous

Background

On June 20, 2013, the worker bent over to place an order onto a pallet when 10 wire baskets that weighed approximately 31 pounds each fell onto his head and back. On the same day of accident, the worker sought medical attention for neck, back and left shoulder complaints and was referred to a physiotherapist. The physiotherapist's diagnosis was soft tissue injury to the thoracic spine and left shoulder. On July 24, 2013, the worker returned to work performing light duties and was back to full time hours by September 3, 2013.

On September 24, 2013, the worker advised the WCB that he was performing modified duties and working 8 hours per day but found it difficult due to pain.

A chiropractor's first report showed that the worker was seen for treatment on October 2, 2013 regarding mid and low back pain and bilateral shoulder pain. The chiropractor's diagnosis was sprain and strain to the thoracic and lumbar spines.

On October 24, 2013, the worker advised the WCB that he was now experiencing pain down his back and into his legs and that he wanted to get better.

On December 12, 2013, the treating chiropractor advised the WCB that the worker was approximately 80% recovered and was expected to be discharged on December 30, 2013.

On January 22, 2014, the worker was seen at the WCB offices for a call-in assessment. The medical advisor commented that the worker's occupation, method of injury and imaging studies had been reviewed. He stated: "The claimant was examined and he showed less than voluntary effort in various muscular testing areas. The claimant's shoulders were examined and they showed no specific areas of injury or muscle discomfort. The claimant has no evidence of neurological alteration in the upper arms or the lower legs. The claimant's lumbar spine was examined and is very satisfactory for range of movement and the hips were satisfactory. This examination was considered to be normal with no residual effects of any injury as described."

In a decision dated February 28, 2014, Compensation Services advised the worker that wage loss benefits would be paid to March 7, 2014 inclusive as it was felt that he had recovered from his compensable injury based on the findings at the call-in examination on January 22, 2014.

On March 25, 2014, the worker submitted a doctor's report dated March 17, 2014 and a Workplace Capabilities Form dated March 21, 2014 to support his position that he had not recovered from the effects of his compensable injuries.

On June 26, 2014, Review Office determined that there was no entitlement to benefits after March 7, 2014. Review Office accepted that the June 20, 2013 accident resulted in soft tissue injuries and strain/sprain to the left shoulder and upper/mid back. It noted that the worker later reported lower back and right shoulder difficulties two to four weeks after the accident and thereafter periodically. Given the reported mechanism of injury, the worker's initial complaints and the delay in reporting these symptoms, Review Office did not find a relationship between the low back/right shoulder difficulties and the June 20, 2013 accident.

Review Office referred to the treating chiropractor's information that the worker was approximately 80% recovered and was on target to be discharged from treatment at the end of the month. It noted that the worker continued to seek treatment from his chiropractor for low back difficulties but did not attend for treatment from February 26 to April 20, 2014. In April and May 2014, the worker was seen for both shoulders and his mid/low back. Review Office said it was unable to relate the worker's subsequent need for treatment to the compensable injuries of June 20, 2013.

Review Office stated it agreed with the opinion of the WCB medical advisor who saw the worker for an examination on January 22, 2014. Review Office stated it reviewed the March 17, 2014 doctor's note and did not find the evidence to support a specialist referral or continued restrictions as a result of the compensable accident.

Review Office concluded the worker's ongoing presentation was not related to his compensable injuries and that there was no loss of earning capacity after March 7, 2014.

The worker and his union representative provided Review Office with additional information to support their position that the worker had not recovered from the effects of his compensable injury. On September 30 and October 6, 2014, May 7 and 12, 2015, Review Office determined that the new information did not alter its previous decision that the worker was not entitled to benefits after March 7, 2014. On March 17, 2016, the Worker Advisor Office appealed Review Office's decision of June 26, 2014 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.

Subsection 4(2) of the Act provides that a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Section 27 of the Act provides for the payment of medical aid benefits.

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.

Worker's Position

The worker was represented by a Worker Advisor who provided a written copy of his submission. The worker was assisted by a translator and answered questions from the worker advisor and the panel.

The worker advisor stated that it is their positon that the evidence on file and the February 24, 2016 medical report from the occupational health physician supports that the worker did not recover from the effects of the workplace accident by March 7, 2014. He said the worker is seeking wage loss and medical benefits.

The worker advisor noted that the WCB accepted responsibility for injuries to the left shoulder, upper and mid back areas but not the lower back or right shoulder. He also noted that the WCB accepted that the accident caused sprains/strains or soft tissue injuries which resolved by March 7, 2014.

The worker advisor asked that the panel consider the compensability of the worker's lower back and right shoulder injuries. He submitted that the accident caused injuries to the worker's lower back and right shoulder, and that any delayed mention of these areas within the medical reports is likely due to the fact that there were multiple areas of injury, some of which were overlooked by the attending healthcare providers.

He also asked the panel to attach weight to the opinion of the occupational health physician who identifies a diagnosis of myofascial pain to account for the worker's left rotator cuff findings, which includes referral into the left lateral shoulder and upper arm. He noted that the physician had complete access to the worker's claim file in providing his opinion.

The worker advisor noted that the occupational health physician's evidence was that myofascial pain typically develops over the course of a few weeks to months post injury. In this case, the worker's initial injuries may have begun as soft tissue sprains/strains but developed into myofascial pain and referral of pain down the arms mainly due to the post injury work related activity. The physician noted that the worker had symptoms consistent with this condition as early as October 2013 with evidence of the condition in January 2014.

The worker advisor submitted that the duration of the worker's difficulties is partly attributable to inadequate rest following the initial accident and premature exposure to work duties that aggravated the worker's injuries.

The worker advisor noted that the worker's healthcare providers completed work capability forms and that, as of December 10, 2013, the employer was unable to accommodate the worker with suitable modified or alternate duties. He submitted that the worker should receive wage loss benefits because the restrictions extended beyond March 7, 2014.

The worker described the workplace accident. He advised that he was bent over with his hands about 2 feet above the ground, turning over a basket when several baskets (possibly 10) fell on his back. He said that it felt like he was hit by someone with a baseball bat and that he was stunned. He advised his supervisor who told him to continue working so he worked to the end of his shift. He advised that he was wearing a heavy winter coat at the time of the incident because he works in a cold area. He said the baskets weigh about 31 pounds each.

The worker advised that he attempted to return to work to modified duties in September 2013. However he could not continue. The worker advised that he has since returned to work, but is performing a different job which is not as physically demanding.

Employer's Position

The employer was represented by a para-legal.

The employer representative advised that the employer agrees with the Review Office decision that the worker's injury resolved by March 2014. She advised that the employer concurs with the opinion of the WCB medical advisor that the worker recovered. She reviewed various medical reports and noted that the treating chiropractor advised on December 12, 2013 that the worker is 80% recovered and is on target for discharge on December 30, 2013. She also noted that the worker's family physician acknowledged on March 17, 2014, that no physical findings were found. She said that the occupational health physician saw the worker 2 years post injury date and submitted that more weight should be given to the reports that are contemporaneous to the accident.

Analysis

The worker is seeking benefits after March 7, 2014. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity after March 7, 2014 due to his compensable workplace accident. The panel is not able to make this finding.

In reaching this decision, the panel attaches significant weight to the opinion of the WCB medical advisor. The medical advisor examined the worker on January 22, 2014, approximately 7 months after the injury date. The medical advisor noted that:

The claimant was examined and showed less than voluntary effort in various muscular testing areas. The claimant's shoulders were examined and they showed no specific areas of injury or muscle discomfort. The claimant has no evidence of neurological alteration in the upper arms or the lower legs. The claimant's lumbar spine was examined and is very satisfactory for range of movement and the hips are satisfactory.

This examination was considered to be normal with no residual effects of any injury as described.

The panel acknowledges that there is medical support for the worker's position, particularly the report of the occupational health physician dated February 24, 2016 which is based upon the worker's attendance at his office in September and October 2015. The panel, however, finds that the information provided at the time that the benefits were discontinued is more reliable and should be given greater weight.

The panel is unable to find, on a balance of probabilities, that the worker sustained a loss of earning capacity after March 7, 2014 due to his compensable workplace accident.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of August, 2016