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 further benefits in relation to his compensation claim. A hearing was held on February 7, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further wage loss benefits, from December 12 to December 15, 2015, inclusive.

Background

On November 19, 2015, the worker slipped on ice as he was getting out of a work vehicle and injured his back and left knee. The worker reported that he continued to work after the incident, and sought medical treatment on November 24, 2015, as that was the first appointment he could get.

The Employer's Report stated that the worker "stepped on icy ground and hyperextended L knee on the vehical (sic) side rail and proceeded to fall on the icy surface hitting L side and L shoulder on the icy ground."

The treating physician confirmed that the worker was seen for an assessment on November 24, 2015 for entrance complaints related to his left knee. The physician reported that the worker also complained of some upper, lower back and shoulder complaints secondary to the fall, "but he feels these are resolving." Regarding the worker's left knee condition, the physician made the diagnosis of "likely patellar tendon strain, possible meniscal irritation."

The worker was seen again on December 8, 2015 by the treating physician, who reported: "Patient states his knee if (sic) feeling a little better, but now his hip/back have been feeling worse. He has been tolerating the augmented duties well, he is supposed to return to regular duties this week be (sic) doesn't feel that he can proceed with regular duties." The physician diagnosed the worker with mechanical low back pain and patellar tendonitis, and advised that he was to remain on sedentary duties for 7 to 10 days.

On December 14, 2015, the worker was seen by a physiotherapist for an initial assessment. The diagnosis outlined was a left sacroiliac joint sprain and left medial meniscus irritation/tear. The physiotherapist noted that the worker was going away on holidays for 6 weeks, and would be following up when he returned home.

On December 23, 2015, a WCB medical advisor reviewed the claim file and stated, in part:

Reported diagnoses included left knee patellar strain, possible meniscal irritation and SI joint sprain.

On subsequent review (undated, but apparently prior to departing on Dec 14) an essentially normal examination was documented with the only finding being tenderness at the left hip (greater trochanter). Symptoms at the hip and low back are reported…

It would be expected that the restrictions could be removed and regular duties resumed after a further 10-14 days from the date of the mid December exam.

On January 11, 2016, the worker advised the WCB that his back was improving and he was still away on vacation.

On January 27, 2016, the treating physiotherapist reported that the worker was capable of performing modified duties with restrictions.

On January 29, 2016, the worker advised the WCB that his knee was okay but his back was bothering him. He said he was scheduled to return to work but was not reporting because he was not cleared by his physiotherapist to return to his full-time regular duties. The worker provided details of his activities while away on vacation. He said he found that standing and sitting for too long was the worst and that moving around made him feel better.

On February 1, 2016, the treating physician outlined his examination findings and stated that x-rays showed "age-appropriate DDD changes." The diagnosis outlined was mechanical low back pain.

On February 4, 2016, the worker was seen by a chiropractor for an initial assessment. The diagnosis was "strain sprain lower back and mid back. Hypertonic with pain left psoas and QL. Segmental joint dysfunction left lumbar region."

A WCB chiropractic consultant reviewed the file on February 23, 2016 and stated:

The worker's low back pain is enduring beyond an expected course of recovery from an initial sprain and strain. Lower back pain has reportedly persisted through the worker's 6 week vacation. Reported findings are ubiquitous, nonspecific, and not discerning for a continuing low back injury deriving from the work incident of November 19, 2015.

On February 25, 2016, the worker was advised of the WCB's position that on a balance of probabilities, his ongoing back issues were not directly related to the injury of November 19, 2015.

On March 15, 2016, the worker asked a WCB sector services manager to review his claim.

In a memorandum to file dated March 29, 2016, the sector services manager outlined his opinion that based on his review of the file evidence, the worker had likely recovered from any significant effects of the initial November 19, 2015 injury (strains) by the end of December 2015. He opined that the symptoms and decreased examination results upon the worker's return from 6 weeks of vacation in late January were not likely related to the initial strain type injuries that typically resolve within 6 to 8 weeks.

On May 11, 2016, the worker submitted an appeal to Review Office regarding the case manager's decision dated February 25, 2016.

On August 24, 2016, Review Office determined there was no entitlement to further benefits. Based on the mechanism of injury and the early medical reports, Review Office concluded that the compensable diagnosis was a lower back strain/sprain.

Review Office agreed with the WCB medical consultant's December 23, 2015 opinion and found that the evidence supported that the worker was recovering from his compensable back injury in December 2015. Review Office also accepted the WCB chiropractic consultant's opinion dated February 23, 2016, and stated that it was unable to account for the worker's worsening symptoms while away from work in relation to the compensable back strain injury of November 19, 2015. On September 4, 2016, the worker appealed Review Office's decision 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 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 shall be paid to the worker by the WCB.

Under subsection 4(2), 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 self-represented, and was accompanied by his wife at the hearing.  The worker made a presentation, and responded to questions from the panel.

The worker's position was that he was entitled to wage loss benefits for a 4-day period of time in mid-December 2015 and a period of time following his return from holidays in January 2016 during which he was recovering from his workplace injury, as well as for medical aid benefits, and in particular, chiropractic treatment.

With respect to his time loss in December, the worker said that he continued working the rest of his shift following the accident on November 19, but did not feel well enough to work the next day.  He took November 20 and 21 off, and was paid for those days.  He then went back to work his next two tours, from November 26 to 29 and December 4 to 7.  He was working a temporary assignment, with the result that his duties for those shifts were not as physically strenuous as his usual duties, and he could monitor his progress.  He said that by the end of those tours, the pain in his lower back was getting worse and was not going away, and on December 8, his doctor put him on sedentary or light duties for the next 7 to 10 days, up to the time he was to go on vacation.  As the department did not have light duties for him, he did not work his next tour, from December 12 to 15, 2015.  He said that he had not yet been paid for those last 4 days.

The worker left for a 6-week holiday on December 16, 2015.  He noted that this had been planned for a long time and booked more than 6 months earlier, and could not be changed.  He said he believed that his soreness and his knee, back and shoulder issues would clear up by the time he got back from holidays.  He explained to his doctor that 6 weeks would be sufficient for him to heal himself, and asked his doctor to indicate that he would be back to full duties after 7 to 10 days.  He said he did not want to go on light duties when he came back.

The worker's evidence was that while he was on holidays, his back and hips were getting stiffer and giving him lots of problems.  He continued to believe the soreness would go away, but was still hurt when he came back.  The worker said that nothing happened on his holidays to injure his back, it was just worse than he thought.  When he returned, he saw his physiotherapist and doctor, and both of them confirmed that he needed more treatment.  His physiotherapist recommended that he refrain from regular duties and gave him light duty restrictions.  The doctor agreed, and referred him to the physiotherapist, a chiropractor and a massage therapist for treatment.  The chiropractor confirmed that the mechanism of injury was consistent with the injuries and pain he sustained as a result of falling on his left side.

The worker submitted that while the WCB doctor assessed him as fit for work as of mid-December, his treating doctor and other healthcare practitioners said the opposite.  While the WCB chiropractic consultant said he did not need chiropractic treatment, his treating physician had prescribed such treatment and should know what was best for him.  In his view, the WCB should take the word of his treating practitioners over that of the WCB consultants.  He noted that neither the WCB doctor nor the WCB chiropractic consultant had ever seen or assessed him.

The worker said that the combination of treatments he received from his physiotherapist and his chiropractor was amazing, and enabled him to return to his full regular duties by March 3, 2016.  In his view, it made no sense and was contradictory for the WCB to have covered his physiotherapy, but not his chiropractic treatments.  Both were prescribed by his doctor, and both should have been covered.

The worker indicated that it should make no difference that he was away on vacation.  When he returned, he was still suffering from the same injury and still required treatment.  If he had not gone on holidays on December 16, he would have been restricted to light duties and his benefits

would have continued.  As with December 12 to 15, there would likely not have been any light duties available for him.  The worker noted that when he came back from his vacation, and right up to the time he returned to his full regular duties, he was trying to get back on light duties, but there was no accommodation available, and he was forced to use his sick time instead.

Employer's Position

The employer was represented by its Workers Compensation Coordinator, who made a presentation at the hearing. 

The employer's position was that they supported the WCB decision that the worker was not entitled to further benefits, as any need for further benefits was not related to the November 19, 2015 accident.

The employer's representative agreed that the worker suffered a loss of earning capacity and should be entitled to full wage loss benefits from December 12 to 15, 2015.  It was submitted that the WCB thought that the worker had continued to work up until the time he left on vacation, but that did not appear to be the case.  The evidence indicated that the worker had been temporarily assigned to particular duties at the time of the accident and continued to work those same duties through to December 7, 2015, when that assignment ended and he was to return to his regular duties.  The worker did not feel that he could perform his regular duties at that time, and his treating physician therefore identified certain restrictions which were to apply for the next 7 to 10 days.  The employer did not provide accommodation at that time.  The representative noted that this had happened so quickly that the employer's WCB coordinator was not even involved, and that the employer took no issue with the worker's entitlement to wage loss benefits for the December 12 to 15 shifts.

The representative submitted that the medical evidence clearly demonstrated that the worker was capable of working with suitable accommodation before he went on vacation on December 16, 2015.  It was the employer's position that they would very likely have provided him with alternate or modified duties if he had not gone on vacation, as long as the WCB determined that he was still experiencing the effects of the November 19, 2015 injury and was unable to return to his regular duties. The representative noted that the employer has a long-established return to work program with a solid track record of accommodating workers who are temporarily unable to perform their regular duties due to a compensable injury.

It was further submitted that the evidence demonstrated that the November 19, 2015 accident resulted in a strain/sprain injury to the worker's lower back and/or SI joint and that the worker was capable of returning to regular duties near the end of December or into January while he was

on vacation.  The treating physician and the WCB medical advisor were consistent in terms of the worker's ability to return to work by that time.  The last medical report from before the worker's vacation lacked any objective findings that would contraindicate a return to regular duties.  The medical information provided following his return also lacked objective findings that would establish a relationship between the increase in the worker's symptoms and ongoing difficulties and the original sprain/strain injury, or would contraindicate a return to regular duties by reason of the compensable injury. 

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits.  For the worker's appeal to be successful, the panel must find that the worker sustained a further loss of earning capacity and/or required additional medical aid as a result of his November 19, 2015 workplace injury.  The panel is able to make that finding, in part.

The evidence indicates, and the employer acknowledged, that the worker was able to work light or modified duties from December 12 to 15, 2015, but the employer did not offer or provide him with suitable accommodation at that time.  The evidence further indicates that wage loss benefits were not paid for those 4 days.  The employer thus conceded, and the panel finds, that the worker suffered a loss of earning capacity from December 12 to December 15, 2015 as a result of his compensable injury, and is entitled to wage loss benefits for that period of time.

The mechanism of injury and medical information support that the worker sustained a sprain/strain injury as a result of the November 19, 2015 accident.  Medical information on file shows that the worker had essentially recovered from his compensable injury as of January 1, 2016.  The worker had continued to work 2 further 4-day tours after the accident, performing the same duties he had been performing at the time of the injury.  His physician then provided him with the restriction of sedentary duties for a period of 7 to 10 days, as the worker had said that he did not feel that he could proceed with regular duties. 

The worker's evidence was that he asked the physician to indicate that he would be fit for regular duties after that, as he did not want to go on light duties when he came back from his vacation.  Whether the worker told his doctor to put him back on regular duties or not, the fact remains that the treating physician indicated that the worker had sufficiently recovered from his injury to be able to return to his regular work by mid-December 2015, and that this is consistent with the objective medical evidence on file.   

The worker indicated several times at the hearing that he believed he would be fine and his injury would be cleared up by the time he returned from his vacation.  It is the panel's understanding that this would be consistent with the natural progression and resolution of a sprain/strain injury.  The worker said he also thought that if he had not gone on vacation, he would have been treated and would have been fine.  

While the worker reported that his symptoms had increased while he was away, there is a lack of medical evidence relating to this period of time.  In light of the foregoing, and in the absence of medical evidence, the panel is unable to establish a connection between the worker's worsening or ongoing symptoms and his November 19, 2015 workplace accident and injury.  The panel therefore finds, on a balance of probabilities, that the worker's ongoing symptoms and difficulties following his return from vacation at the end of January 2016 were not related to his November 19, 2015 compensable injury, and the worker is not entitled to wage loss benefits with respect to this period of time.

The worker has argued that he should be entitled to further medical aid benefits, and in particular, chiropractic treatment which was recommended by the treating physician and was important to his recovery.  He argued that the WCB's decision to authorize coverage for physiotherapy treatments and deny coverage for chiropractic treatments was confusing and contradictory.  The panel notes that the recommendation for these treatments were made at different times.  The physician recommended physiotherapy on December 8, 2015, to help increase strength and stability.  The worker was first seen by the physiotherapist on December 14, and up to 20 visits were authorized by the WCB on December 16, 2015.  The evidence indicates that those treatments were provided and covered, as authorized.

The treating physician added a recommendation for chiropractic treatment on February 1, 2016, subsequent to the worker's return from vacation.  Given our previous finding that the worker's symptoms and difficulties at that time were not related to the worker's November 19, 2015 compensable injury, the panel is unable to find that chiropractic treatment or other additional medical aid was necessary to cure and provide relief from his compensable injury. 

Based on the foregoing, the panel finds, on a balance of probabilities, that:

• The worker is entitled to further wage loss benefits, from December 12, 2015 to December 15, 2015, inclusive;
• The worker did not sustain a loss of earning capacity after December 15, 2015 as a result of his November 19, 2015 workplace injury, and is not entitled to wage loss benefits beyond December 15, 2015; and
• The worker did not require and is not entitled to additional medical aid as a result of his November 19, 2015 workplace injury.

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

  Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of April, 2017