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 July 17, 2015 in relation to his compensation claim. A hearing was held on June 2, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 17, 2015.

Decision

That the worker is not entitled to benefits after July 17, 2015.

Background

The worker has an accepted claim with the WCB for a neck injury that occurred on July 26, 2013, when he slipped while walking down a trailer ramp. The compensable diagnoses were a a strain/sprain to the cervical thoracic spine, pre-existing Diffuse Interstitial Skeletal Hyperostosis ("DISH"), cervical degenerative disc disease ("DDD") and spinal stenosis.

Based on permanent workplace restrictions and the accident employer's inability to accommodate the worker with work that met his compensable restrictions, the worker was referred to the WCB's vocational rehabilitation branch, and a vocational rehabilitation plan was developed under National Occupational Classification ("NOC") 6651, Security Guard. By July 17, 2015, the worker completed his training and job search and was considered capable of employment within NOC 6651. Effective July 17, 2015, the worker's benefits were reduced by the starting wage within NOC 6651 equal to $428.00 per week.

On October 6, 2015, the worker wrote Review Office appealing the WCB's decision that he was capable of employment within NOC 6651 as he still suffered from neck pain, headaches, lack of sleep and poor concentration.

In a decision dated October 28, 2015, Review Office determined that there was no entitlement to wage loss benefits beyond July 17, 2015, as it found that the worker was medically capable of working or securing employment within NOC 6651.

Review Office referred to file information dated January 21, 2015 which showed that the worker spoke with his WCB vocational rehabilitation consultant ("VRC") and agreed with his permanent work restrictions, that he was not totally disabled, and was able to participate in his VR plan. When the job search period of the plan came to a close, the worker then started to raise concerns with his injury and his pain/disability level.

Review Office was unable to accept the medical note of disability from the family doctor as it was not in keeping with the medical information on file. Review Office accepted that the worker's permanent restrictions: no lifting from a level below the waist, no lifting from waist to chest level more than 20 pounds occasionally and 8 pounds frequently, and no pushing/pulling more than 20 pounds occasionally and 8 pounds frequently were in keeping with the physical demands of a security job position.

Review Office concluded that the worker's restrictions were accurate and that he was not completely disabled and was capable of obtaining employment within NOC 6651. On February 4, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on June 2, 2016.

Following the hearing, the appeal panel requested additional medical information from the worker's treating physician specializing in anesthesiology and pain management. A report from the specialist was later received and was forwarded to the worker for comment. On September 1, 2016, the panel met to discuss the case and rendered its decision.

Reasons

Applicable Legislation and Policy

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.

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.

The WCB's Board of Directors have enacted polices dealing with Vocational Rehabilitation (Policy 43.00), Deeming (Policy 44.80.30.20) and Pre-existing Conditions (Policy 44.10.20.10). These policies are applicable to the worker's claim.

The worker appealed the WCB decision that he was not entitled to wage loss and medical aid benefits after July 17, 2015.

Worker's Position

The worker was self-represented. He described his workplace accident and injury. He advised that:

the accident happened on a rainy day. We were putting tools back into the work ramp and it was so muddy and greasy. I was coming out. I fell on the ramp, flat on my back. But when my head hit, well, I had my hard hat on, my neck snapped forward, and been in pain ever since. And I got an injury between my third and fourth disc, or vertebrae, I guess.

The worker advised that he "went for every treatment you can think of, like, massage, acupuncture, physio, whatever." He saw several physicians, underwent numerous tests including nerve conduction tests and has tried numerous medications. Finally, he was referred to a pain clinic where he is currently receiving treatments. He said the treatments involve injections which are to alleviate the pain.

The worker advised that:

So my problem is no one seems to know what to do. I’ve gone through, like I said, I went through all these, all these treatments. Nothing helps, nothing.

The worker acknowledged that he participated in training for security work. He advised that

Yes, well, I went through the security course, yes. Well, the bloody pain and lack of sleep and everything, I guess it just compounded or whatever. Also, depression like crazy.

The worker indicated that he was frustrated with his condition. He commented that:

I had no problem until this accident, like, no pills, nothing. And all of a sudden I’m eating pills like they’re bloody candy. The only thing I did wrong was get hurt at work. I don’t understand them.

What I don’t understand is why is there, why can’t anybody do something for me? All these professionals, and I’ve got a big question mark here. I got no faith at all in the medical profession anymore.

In reply to a question about returning to work, the worker advised that he was unsure if he can work. He expressed concern about "attacks" which he said come on suddenly. They involve pain coming down his neck, his left side, then his hand tingles and sometimes he gets headaches which he cannot tolerate.

The worker advised that he also has sleep problems. In answer to a question about when sleep became an issue, he advised that:

Always has been, always has been. I have to sleep with a collar. If I turn over in my sleep the wrong way, I’m up. I’m up for, whatever. Take another pill and try to get back to sleep. That is my life. Like, right now, I’m ready for whatever. That is my life.

In reply to a question about whether he has looked for alternate employment, the worker advised that a friend has a contact at a large company and has spoken about helping him get a job with the company. He said nothing has developed on this.

At the conclusion of the hearing the worker commented that:

Well, you know what, I just want this crap to go away. I want to get back to work. I just want to be a human being again. That was it.

Employer's Positon

The employer did not participate in the hearing.

Analysis

The worker is seeking further benefits after July 17, 2015. For the worker's appeal to be successful, the panel must find that the worker continues to have a loss of earning capacity and requires medical aid after July 17, 2015 as a result of his workplace injury. The panel was not able to make this finding.

The panel notes that the worker was injured on July 25, 2013. The first report, dated August 8, 2013, received from a chiropractor indicated a subluxation/strain/sprain of the cervical-thoracic spine had been diagnosed. A report from a physician, dated August 30, 2013, provided a diagnosis of cervical musculo-ligamentous strain and spinal arthritis.

On September 17, 2013, the worker was examined by a WCB chiropractic consultant who opined that the worker sustained:

…a soft tissue type of injury involving his left cervical spine, including the muscles of the left levator scapulae and left upper trapezius musculature. In my opinion there is no radicular involvement.

The panel finds that the WCB chiropractic consultant's opinion best represents the diagnosis of the worker's injury. While the worker has since seen many physicians, received a variety of treatments, and numerous diagnoses, the panel finds that the worker's workplace injury was a soft tissue injury of the cervical spine, as diagnosed by the WCB chiropractic consultant. The panel finds that all other diagnoses and treatments are not related to the workplace injury.

In support of this finding, the panel also relies upon the January 15, 2014 opinion of the WCB orthopedic consultant. The consultant opined that:

1. Based on x-ray dated July 31, 2013 the current diagnosis is Diffuse Interstitial Skeletel Hyperostosis (DISH), and cervical Degenerative Disc Disease (DDD) and spinal stenosis. These conditions are known to cause stiffness and pain in the spine and also sometimes DISH involves other large joints. MRI is not helpful in the diagnosis of DISH; the MRI dated 24-Dec-2013 demonstrated multilevel degenerative disc disease (DDD) with central and foraminal stenosis.
2. The workplace injury would not have caused these chronic idiopathic conditions. Symptoms of neck pain occurred after the workplace injury and have continued in spite of various treatments. The opinion of the WCB Chiropractic Consultant at the call-in examination on 17-September 2013 was that the workplace injury had caused a soft tissue neck injury with no radicular features. One would normally expect the effects of a soft tissue injury to settle within two months. There is no objective medical evidence that current symptoms are related to the workplace injury. Rather, the current symptoms are caused by the natural history of progressive deterioration of pre-existing conditions. The natural history of multilevel degenerative disc disease (DDD) and of DISH is deterioration over time with respect to stiffness and pain in the spine and eventual encroachment of the nerves as they exit the spinal column, leading to radicular symptoms such as extremity numbness.

The panel has considered the reports provided by the worker's family physician and the pain clinic physician. The panel notes that both these physicians became involved in the worker's treatment long after the July 2013 workplace injury; the family physician's first report is from an examination in June 2015 and the pain clinic physician first saw the worker in September 2014 and next saw him in June 2015. The panel notes that those reports generally focus on issues related to the worker's cervical spine which the panel finds are non-compensable medical conditions. Given our findings that the worker suffered a strain/sprain injury, the panel is unable to attach weight to their reports in terms of establishing a causal connection to the worker's original 2013 injury.

Given our findings on the workplace injury, the panel finds that the treatments provided by the pain clinic physician are for conditions which are not related to the workplace injury.

The panel finds that the worker's compensable restrictions, as outlined by the WCB orthopedic consultant, are appropriate. The restrictions are:

a) No lifting from a level below the waist

b) No lifting from the waist to chest level more than 20 lbs occasionally, 8 lbs frequently

c) No pushing/pulling more than 20 lbs occasionally, 8 lbs frequently

The panel notes that the worker participated in a Vocational Rehabilitation Plan with an occupational goal of NOC 6651, Security Guard. Under this plan the worker completed a training program which included numerous topics including; Emergency First Aid Training, Security and Customer Service, Dealing with Difficult People, and Stay Safe. In addition, the panel notes the worker advised that he had prior experience in the security field. The panel finds that the plan was appropriate, within the worker's post injury physical restrictions, and took into account his skills and aptitude and interest. The panel finds that the worker's vocational Rehabilitation Plan satisfied the requirements of Policy 43.00.

The panel notes that under the VR plan the worker was provided 13 weeks of job search with full wage loss. The worker advised the panel that he had unsuccessfully applied for a number of security positions. He said that he did not apply for any positions on-line. The panel finds that the job search assistance was appropriate. Finally, the panel finds that it was appropriate to deem the worker at the conclusion of the VR plan. The panel finds that this action complies with Policy 44.80.30.20.

Based on our review of the evidence on file and at the hearing, the panel finds, on a balance of probabilities, that the worker's loss of earning capacity and need for medical aid after July 17, 2015 is not related to his 2013 workplace accident. Accordingly, the worker is not entitled to benefits after July 17, 2015.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 8th day of September, 2016