The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after August 21, 2014 in relation to her compensable low back injury of March 21, 2014, and that her claim for bilateral knee injuries dated March 24, 2014 was not acceptable.  A hearing was held on May 4, 2016 to consider the worker's appeals.

Issue

Date of Accident:  March 21, 2014:

Whether or not the worker is entitled to benefits after August 21, 2014; and

Date of Accident:  March 24, 2014:

Whether or not the claim is acceptable.

Decision

Date of Accident:  March 21, 2014:

That the worker is not entitled to benefits after August 21, 2014; and

Date of Accident:  March 24, 2014:

That the claim is not acceptable.

Background

Date of Accident:  March 21, 2014:

The worker filed a claim with the WCB for a lower back injury that occurred at work on March 21, 2014.  The worker indicated that she was bending down to pick up product off a pallet to place into a slicer when she felt a pull in her lower back. 

Initial medical reports showed that the worker attended a physician and a physiotherapist for treatment and was diagnosed with a lumbar sprain.  The worker's claim for compensation was accepted based on the lumbar sprain diagnosis. 

On May 23, 2014, the worker's husband advised the WCB that the worker injured not only her back in March but also her knee.  The WCB adjudicator indicated that as there was no mention of any knee difficulties on file from the treating doctor or physiotherapist, a knee injury would likely not be accepted in relation to the March 21, 2014 compensable injury.

On July 25, 2014, the worker was seen at an urgent care facility and was diagnosed with musculoskeletal back pain. 

On July 29, 2014, the worker's husband advised the WCB that the worker was recently seen at the urgent care facility for knee and back complaints, and was taken off work until August 4, 2014. 

On July 29, 2014, the worker's file was referred to the WCB's healthcare branch for a medical opinion regarding the worker's current status in relation to her compensable back injury. 

On August 8, 2014, a WCB medical advisor opined that the worker sustained a strain to her low back in an environment of dextroretroscoliosis and illi osteitis condensans.  He stated that the natural history of the compensable injury was recovery in six to eight weeks, and that the worker had recovered from any effects of the injury.  He felt that any residual complaints at this time were unrelated to the workplace injury and there were no related workplace restrictions.  The medical advisor also commented that the worker had two pre-existing conditions.  On the X-ray report, she had dextroretroscoliosis and illi osteitis condensans.  He stated that the symptoms of scoliosis may produce muscle fatigue and pain, and that osteitis typically does not produce pain symptoms.

In a decision dated August 14, 2014, the worker was advised that the WCB was unable to accept ongoing responsibility for her claim as it felt she had recovered from the injury she sustained on March 21, 2014.  It was felt that the problems the worker was experiencing in both knees were not related to the back injury as they were never mentioned at the time of injury.  The worker was advised that partial wage loss benefits and medical costs would be paid to July 24, 2014 inclusive and final.  On October 3, 2014, the worker appealed the decision to Review Office.

On November 20, 2014, Review Office determined that the worker was entitled to benefits beyond July 24, 2014.  Review Office referred to file information to support that the worker had an ongoing loss of earning capacity and an associated entitlement to partial wage loss benefits that continued beyond July 24, 2014 in relation to her compensable low back condition.  Review Office found that the worker had recovered from her compensable low back condition by August 14, 2014.  Review Office also found that the worker was not provided suitable advance notice that her benefits were coming to an end, and was therefore entitled to one week of additional benefits up to August 21, 2014, based on WCB Policy 44.30.60, Notice of Change in Benefits or Services.

Review Office further determined that the worker's knee problems were not a compensable secondary injury that could be related to the worker's back problems on this claim. 

Date of Accident:  March 24, 2014:

The worker filed a claim with the WCB on June 9, 2014 for an aching sensation in both knees which she related to her work activities that involved bending down to pick up product.  The date of accident was listed as March 24, 2014. 

The Employer's Accident Report dated June 10, 2014 stated:  "There is no incident, I received a letter from her yesterday stating because we asked her to lift 5 lb boxes…which was allowed in her medical assessment form completed on May 27."

Initial medical reports showed that the worker attended a physiotherapist on June 12, 2014 for soreness in her knees after squatting at work.  The physiotherapist's diagnosis was overuse of the right and left knee due to hip weakness. 

On July 7, 2014, the worker was seen at an urgent care facility for increased left knee pain.  The diagnosis was soft tissue injury left knee and chronic low back pain. 

On July 24, 2014, a WCB adjudicator spoke with the worker with the help of a translator to obtain additional information regarding her knee complaints, job duties and the reporting of the knee complaints to her employer and co-workers. 

In September 2014, the WCB adjudicator spoke with the employer and a co-worker to obtain their knowledge of the worker's knee complaints. 

In a decision dated September 24, 2014, the worker was advised that the WCB was unable to accept responsibility for her bilateral knee difficulties.  The decision stated in part:

In order to accept your bilateral knee condition I would need to confirm that the work performed on March 24, 2014 caused the diagnosis' (sic)  of overuse of the right and left knees due to hip weakness and a soft tissue injury to the left knee.  When considering the different diagnosis provided by your physiotherapist and the emergency doctor's (sic), the nature of the restricted duties you were performing and the inability to confirm your complaints, it is the opinion of Compensation Services that a relationship has not been established.  Therefore, your claim for compensation has been disallowed.

On October 3, 2014, the worker appealed the September 24 decision to Review Office.

On November 20, 2014, Review Office confirmed that the worker's claim was not acceptable, as the evidence did not support that an "accident" occurred on March 24, 2014.  Based on a review of this claim and the back injury claim of March 21, 2014, Review Office noted that the earliest report of knee problems was on June 9.  Compensation Services had contacted the employer and interviewed a co-worker, and neither of them could confirm the worker having difficulties with her knees.  Both witnesses recalled seeing the worker bend her knees in the workplace without apparent difficulty or limitation after March 24. 

On May 4, 2016, a hearing was held at the Appeal Commission to consider the worker's appeals from Review Office's decisions dated November 20, 2014.

Following the oral hearing, the appeal panel requested that arrangements be made to view the worksite and the job duties performed by the worker.  The worksite visit took place on July 22, 2016.  On July 26, 2016, the panel met to discuss the case and render a decision on the issues under appeal.

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

Subsection 4(2) of the Act 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 accompanied by her husband at the hearing.  She was assisted in her appeal by legal counsel, and provided with the services of an interpreter.  The worker responded to questions from her counsel and the panel with the assistance of the interpreter.

Regarding the March 21, 2014 issue, counsel submitted that the worker's injury had been accepted and continued to exist after August 21, 2014.  She continued to see her doctors who confirmed that she was unfit to return to her work duties.  Medical forms from September and October 2014 showed that the worker's treating physician assessed her and determined that she was still not fit to return to her full regular duties or regular hours of work.  A March 10, 2015 MRI indicated that there was tenderness in the lumbar area and she was still in pain.

Counsel submitted that recovery time is subjective and changes with different people, and the evidence was clear that the worker had not healed by August 21.  There was no intervening factor or activity.  She continued to be in pain, to see her doctors and to spend her own money for physiotherapy and acupuncture treatments for her injury. 

In response to questions from the panel, counsel submitted that while there had been reference to degenerative conditions, whatever caused that degeneration had not been specified. 

In conclusion, it was submitted there is evidence the worker's pain and injury are still there, and in the absence of contrary evidence, she ought to be compensated.

With respect to the March 24, 2014 issue, it was submitted that the worker's knee injury happened at work and was reported on that date.  There was no evidence that the worker complained of a knee injury before March 24.  The worker said she reported the injury to her supervisor on March 24, and that this was confirmed by her supervisor, but not in writing.  The worker said she also reported the injury to her doctor that same day, although this does not appear on his report to the WCB.

It was submitted that the duties the worker was required to do on March 24 exceeded her normal activity.   Her work involved a lot of squatting, not just that day, but on a regular basis.

It was submitted that the evidence shows that the employer was aware of the worker's knee difficulties and her March 24 knee injury.  Counsel pointed to the Accident Report of July 7 where the employer noted that the injury might have been the result of the March 24 incident, thereby indicating that it was aware of that incident.  Reference was also made to a Claim Note dated September 16, 2014, where it was noted that others saw the worker squatting on the day of the accident. 

In conclusion, it was submitted that operative reports in respect of surgery which the worker underwent in July 2015 and all other reports from the worker's doctors indicate that the worker's knee difficulties were related to her job duties.  While findings from the surgery are not entirely specific as to the cause of the injury, they do not exclude a workplace injury.  Counsel submitted that where the cause of injury is left open and the evidence indicates there was nothing before, the link can be deduced.

Employer's Position

The employer was represented by an advocate.  The employer's position, as outlined by their advocate, was that they agreed with the WCB's decisions on both issues, and asked that those decisions be upheld.

With respect to the first issue, the advocate submitted that the evidence strongly demonstrated that the worker's back-related disability was caused by a pre-existing, non-compensable degenerative condition.  A review of the claims and the evidence indicated that the actual accident on March 21 involved a normal body movement of bending and was minor in nature.  After investigation, it was accepted as a muscular strain injury.  It was submitted that the expected disability period for such an injury would be minimal at best.  The WCB medical advisor stated that the normal recovery period would be six to eight weeks and that the worker had recovered from the effects of her injury.  The physiotherapist's report in June 2014 supported that the worker was essentially better.

The advocate submitted that the worker had two pre-existing conditions which explained any ongoing back problems.  The March 2015 MRI mainly showed degenerative disc disease; it did not show a new injury. 

In summary, it was submitted that the worker's injury was a back strain, from which she had recovered. 

With respect to the second issue, the advocate submitted that while the worker advised that her knees were sore, there was no new accident or incident at work to cause an injury.  It was noted that the worker was on modified duties at the time, and the job she was doing was within the restrictions as to what the doctor said she could do.  The worker's position appeared to be that performing those duties had caused her knee injury.  The advocate noted that the medical reports on file dealt more with the worker's back than her knee complaints.  It was submitted that the operative report was not indicative of a knee injury, not even a repetitive injury like squatting.  Rather, the report basically indicated that the worker has a degenerative problem in her knees.  In the circumstances, it was submitted that the claim did not meet the definition of an accident and was not acceptable.

Analysis

Issue 1.    Whether or not the worker is entitled to benefits after August 21, 2014 with respect to her March 21, 2014 accepted claim.

For the worker's appeal of this issue to be successful, the panel must find that the worker continued to suffer a loss of earning capacity and/or required medical aid benefits after August 21, 2014 as a result of her March 21, 2014 back injury.  The panel is unable to make that finding.

The worker was diagnosed with a lumbar strain which was accepted by the WCB as a compensable injury.  Having carefully reviewed the evidence on file, the evidence provided at the hearing, the site visit, and the submissions of the parties, the panel finds that the worker had recovered from her compensable lower back injury by August 21, 2014.  In arriving at that conclusion, the panel places weight on the following evidence:

• Subsequent to her injury, the worker was placed on light duties.
• In a discharge report dated June 24, 2014, the treating physiotherapist stated that there were no positive findings to report, the injury had resolved and there were no clinical findings to treat.
• The report relating to the worker's attendance at the urgent care facility on July 25, 2014 reported a normal back exam, including normal reflexes, normal muscle power and tone and normal straight leg raise.
• On August 1, 2014, the treating physician reported that the worker was still complaining of back pain, but it was improving.
• The WCB sought a medical opinion as to the status of the worker's compensable injury on July 29, 2014.  On August 8, 2014, the WCB medical advisor opined that the worker had sustained a strain to her low back in the environment of pre-existing conditions, that she had recovered from any effects of her workplace injury, that any residual complaints were unrelated to her workplace injury and there were no related workplace restrictions.
• Having attended at the worksite and seen the job duties which the worker performed, the panel accepts the WCB medical advisor's opinion that the worker had suffered only a low back strain in the environment of pre-existing low back conditions and that she had recovered from that strain injury.  

Based on the panel's consideration of all the evidence, the panel finds, on a balance of probabilities, that the worker's lumbar strain had resolved by July 25, 2014.  At that time, the WCB sought a medical opinion, and having received and considered that opinion, it notified the worker on August 14, 2014 that she was no longer entitled to benefits on her claim.  The worker's benefits ended one week after that date, in accordance with WCB policy.

In conclusion, the panel recognizes that the worker has ongoing complaints of pain in her lower back, but is unable to relate those complaints to her workplace injury of March 21, 2014.  The panel therefore finds that the worker did not suffer a loss of earning capacity or require medical aid benefits after August 21, 2014 as a result of her March 21, 2014 accepted claim, and is not entitled to benefits after that date.

The worker's appeal of this issue is dismissed.

Issue 2.    Whether or not the claim for injury occurring March 24, 2014 is acceptable.

For the worker's appeal of this issue to be successful, the panel must find that the worker's bilateral knee difficulties were causally related to the performance of her job duties.  The panel is unable to make that finding.

To assist in our adjudication of this issue, the panel attended at the worksite and observed workers doing the tasks which the worker performed at the relevant time and which she felt led to her lower back and knee difficulties.  The worker, her counsel, an interpreter, representatives of the employer and the employer's advocate were in attendance.

The operation of the slicer was physically explained during the site visit.  The worker agreed that this was what she was doing at the time, although she indicated that she did it slightly differently.  The employer stated that the use of the slicer would depend on what orders were received, and product would not be sliced in advance.  When in use, the slicer would be operated an average of 30 minutes to 2 hours a day, depending on the orders.  There were several stacks of boxes of product on a pallet.  A worker would remove the boxes in layers and empty the product into the slicing machine.  He or she would not go through a whole pallet every day, and would only occasionally get down to the bottom of the pallet.  The employer's evidence was that the worker did not perform the slicer duties on a daily or regular basis; that the workers shared these duties on a rotational basis.  The panel notes the worker did not contest any of the information presented or demonstrated and accepts the employer's evidence in this regard.  The panel notes that the other duties which the worker would have been performing at the time had little or nothing to do with her knees.

Based on our observations of the work associated with the slicer position and the other work performed in the workplace, and on our review of all of the information before us, the panel finds, on a balance of probabilities, that the performance of the worker's job duties was not a cause of her bilateral knee difficulties.

The panel further notes that there was no mention of any injury to the worker's knees in the Incident Report which she filed with respect to her back injury on March 26, 2014, even though she later claimed that her knee injuries were sustained two days earlier, on March 24, 2014.  The Worker's Incident Report with respect to her knee injuries was not filed until June 9, 2014.   She first saw the physiotherapist because of her sore knees on June 12, 2014, and her first attendance at the urgent care facility with respect to knee complaints was July 7, 2014.

In all of the circumstances, the panel is unable to relate the worker's reported knee difficulties to the performance of her job duties.

Based on the foregoing, the panel finds that the claim is not acceptable.

The worker's appeal of this issue is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 1st day of September, 2016