Decision #56/17 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claims. A hearing was held on April 5, 2017 to consider the worker's appeals.
Issue
Date of Accident October 31, 2015:
Whether or not the worker's current back difficulties are a consequence of the October 31, 2015 accident.
Date of Accident March 2, 2016:
Whether or not the claim is acceptable.
Decision
Date of Accident October 31, 2015:
That the worker's current back difficulties are a consequence of the October 31, 2015 accident.
Date of Accident March 2, 2016:
Given the decision that the worker's current back difficulties are a consequence of the October 31, 2015 accident, this issue is considered moot.
Background
Date of Accident October 31, 2015:
On November 19, 2015, the worker filed a claim with the WCB for soreness in his low back that he related to heavy lifting at work on October 31, 2015. The worker reported the injury to his employer on November 2, 2015.
The Employer's Accident Report dated November 3, 2015 stated that the worker was lifting a foundation plate into a truck and that he injured his back. The accident was reported on November 2, 2015.
A Doctor First Report dated November 2, 2015 noted that the worker had tenderness and some stiffness over the interscapular and lumbar area. The diagnosis was a back strain. In a progress report dated December 18, 2015, the physician noted that the worker's back pain had improved with normal range of motion and normal neurovascular edema.
On December 16, 2015, the worker advised the WCB that his lower back becomes a little sore depending on his activities. He returned to his regular duties on December 7.
On March 1, 2016, the worker advised the WCB that he had a flare-up of back pain. The worker reported that he had been working 14 hour days and that his back pain progressively worsened. There was no new incident or accident. In December 2015, there was a shut down at work for 3 weeks. He was not performing regular duties and had some time off to rest. This may explain why his symptoms were not as prevalent. When he came back to work in the New Year, his work duties were not as physically strenuous as they normally are. His work duties were now getting more strenuous.
On March 1, 2016, the worker's foreman confirmed that the worker complained of stiffness and that he could not bend over to pick things up and driving would cause pain. The foreman confirmed that there was a 3 week shut down just before Christmas. He had no concerns that the worker's current issues were related to the October 31, 2015 accident.
On March 1, 2016, the WCB wrote the treating physician requesting an update related to the worker's back condition after December 4, 2015.
On March 15, 2016, a WCB medical advisor reviewed the file and the information provided by the treating physician. The medical advisor noted that the worker was diagnosed with a strain when he sought medical attention on November 2, 2015 and that the diagnosis was consistent with the mechanism of injury, symptoms and findings. On December 4, the worker's pain was noted to be improved and the clinical examination was normal and the worker was cleared for full work duty. The worker now presented with low back pain that was non-radicular. The clinical exam was normal and an x-ray showed disc space narrowing at L4-L5. This presentation was consistent with non-specific low back pain. The medical advisor further stated:
There are many causes and types of low back pain. If someone has one back strain related to a workplace injury, that does not mean that all subsequent episodes of back pain will be related. Each episode must be considered on its own merits. In this case, the worker had a strain type injury which has a favourable prognosis for full recovery within a short period of time. He demonstrated recovery by normalization of his clinical exam and return to heavy work. A new onset of back pain two months later would not be materially related to the recovered low back strain. If the worker feels the pain is related to his work, perhaps a new claim could be made and adjudicated accordingly.
On March 17, 2016, Compensation Services advised the worker that it could not relate his recent back difficulties to the October 31, 2015 accident. The decision stated: "At your December 4, 2015 medical appointment you demonstrated recovery by having a normal clinical exam and return to heavy work. The onset of your back pain two months later cannot be materially related to the recovered low back strain of October 31, 2015."
Date of Accident March 2, 2016:
On May 6, 2016, the worker filed a claim with the WCB for low back pain that he first noticed on March 2, 2016. The worker said the pain started in his low back and that it went into his hips.
On March 2, 2016, the employer wrote the WCB to advise that the worker's recent symptoms were not in relation to any work activity or event and that the claim did not meet WCB policy and the Act criteria.
In a doctor progress report dated March 2, 2016, the treating physician stated that the worker complained of back pain and that he had decreased range of motion and neurovascular was normal. On March 2, 2016, the worker was seen by a physiotherapist for an initial assessment and was diagnosed with mechanical low back pain.
On May 10, 2016, the worker advised the WCB that he has worked for his employer for 3 years in the same position. He was relating his issues to lifting, carrying, climbing ladders, bending, squatting and driving truck for long periods of time. He normally worked 8 days straight at 10 hour days. His symptoms started in early March 2016. The worker said he was putting a crossing into service which was a longer shift. He worked anywhere from 12 to 14 hours at a time. There was also an emergency wreck that weekend. He had to work longer hours in this shift as well. The tour was 8 days on and 6 days off. On March 1, his back was a little sore at the end of that work day and he was not overly concerned. When he woke up the next morning he could not get out of bed. He then scheduled an appointment with his doctor.
On May 20, 2016, the employer provided the WCB with the following information:
"On Feb 22/16 there was an emergency knock down where the crew was required to work 3 hours overtime installing a new gate mechanism. There was no report of any injury from anyone on the crew. Between Feb 04 to 22/16 [worker] worked 8 on and 6 off. 10 hour days as agreed to mutually by the entire crew. Our records, closest to March 01, 2016, indicate that [worker] finished his shift on Tuesday, February 23, 2016, He then had six days off. On March 01, 206 (sic), he reports that on Wednesday, February 24, 2016 he could "barely walk." He denies any work activity or work event that caused an injury. He was unable to work for his next scheduled shift on Tuesday, March 01, 2016. Now it appears he is stating symptoms started early March.
Chart notes from the treating physician are on file for visits on December 4, 2015, February 1, 25 and 29, 2016.
On May 25, 2016, Compensation Services wrote the worker to advise that his claim for compensation was not accepted as the WCB was not able to establish that an accident occurred or that his current or ongoing low back issues were related to his work duties.
In a submission to Review Office dated August 17, 2016, the Worker Advisor Office stated they were appealing the WCB's decision to deny that the worker experienced a recurrence of his October 31, 2015 compensable injury and that his claim was not acceptable for a new workplace injury. The worker advisor outlined the position that the worker suffered a recurrence of his October 31, 2015 compensable injury when he started experiencing the same symptoms at the end of February 2015. In the alternative, if the worker did not experience a recurrence, then on a balance of probabilities, he sustained a new workplace injury attributable to his workplace duties.
On October 25, 2016, Review Office determined that the worker's current back difficulties were not related to the workplace accident of October 31, 2015. Review Office referred to the medical reports on file from the treating physician and the WCB medical opinion outlined on March 15, 2016. Review Office found that the worker had functionally recovered by December 4, 2015. Review Office acknowledged that the worker experienced further difficulties with his back; however, a causal relationship was not found between the new back complaints and the workplace accident. Review Office stated "Experiencing problems at a later date in a similar anatomical area does not make those difficulties causally related to the initial injury."
In further decision dated November 8, 2016, Review Office determined that the worker did not suffer an accident on March 2, 2016 as defined in the Act. Review Office noted that the worker did not initially report an accident, he did not seek medical treatment until one week after the reported injury occurred and the worker did not report a specific event occurring that could have resulted in a back injury.
On December 19, 2016, the Worker Advisor Office appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.
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 Board of Directors.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Subsection 1(1) of the Act, defines accident as:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course
(iii) of, employment, and
an occupational disease,
and as a result of which a worker is injured;
The WCB Board of Directors has enacted WCB Policy 44.10.20.50.10., Recurring Effects of Injuries and Illness (Recurrences). This policy deals with situations where workers return to work and later discover that they have not recovered from their original injury.
The worker is appealing two issues in relation to his back difficulties.
Worker's Position
The worker was represented by a worker advisor who provided written and oral presentations.
The worker answered questions from the panel.
Accident of October 31, 2015: Whether his current back difficulties are a consequence of the October 31, 2015 accident.
The worker's representative submitted that:
It is our position that the worker's documented low back difficulties in February and March 2016 are related to the October 31, 2015 workplace accident by way of non-recovery or, if this panel decides that recovery had been achieved in December 2015, a recurrence of the initial injury…
The worker's representative submitted that the worker's foreman's direct observation of the worker having difficulty performing his duties is evidence of symptom continuity following December of 2015. He also noted that a December 16, 2015 phone conversation between an adjudicator and the worker supports that the worker had not recovered. While the worker reported having resumed his regular duties on December 7, he also said that he needed to continue to be careful because he still experienced lower back soreness at times. The representative also noted that on March 1, 2016, the worker contacted an adjudicator to report having experienced a "flare-up" of back pain on February 23, 2016.
Regarding factors that contributed to a flare-up, the worker's representative noted that the worker had been working longer days than usual.
The worker's representative also noted that the injury was referred to as a low back strain. He submitted that the identified objective findings in support of this diagnosis were tenderness and some reduced mobility.
Accident of March 2, 2016: Whether or not the claim is acceptable
The worker's representative submitted that:
If this panel concludes that there is no connection between the worker's initial compensable injury and the medically documented difficulties in February and March 2016, we then submit that the latter difficulties are compensable as a new injury arising from the work duties the worker performed.
The worker's representative noted that the WCB cited the absence of a specific event. He noted that it is not necessary to have a specific event and in this case the claim was filed as a cumulative injury and, therefore, no specific incident or event would be identified.
The worker's representative noted that the employer verified February 23 as being the worker's final day worked that month, and that the previous day the worker was part of a crew who had worked three hours of overtime for the purpose of installing a new gate mechanism. He submitted that there appears to be a close temporal relationship between this increase in work hours and the worker's flare-up.
Evidence of the Worker
In answer to a question from the panel, the worker's representative acknowledged that the claim duration in March was about one week after which the worker returned to an accommodated position.
The worker advised that there was also a brief period where he was suspended from work for 144 hours for not reporting the injury in accordance with the employer's terms and regulations.
The worker advised that when the problem recurred in February and March it was the same problem but more severe. He said that the pain was right across the whole back, especially in the centre spine area. He said it was about 3 to 4 inches above the beltline.
The worker advised that he was originally injured when the manager got him and co-workers to lift up a heavy part of a gate.
Regarding his return to work in December, the worker said his condition:
"…had improved dramatically, it was, it was good. The only problem I would probably say I consistently still had was tightness in my lower back, say by the end of the day."
The worker said that he was off over the Christmas season.
The worker answered questions about his job duties and working conditions. He advised that he was a labourer on the crew which meant he had to do "all general grunt work."
Regarding his worsening condition, the worker stated:
To be honest and fair about everything, my stubbornness of me going back to work maybe too soon originally in December, and then just trying to be the tough guy and work, trying to work through the majority of this, probably had led to the flare-up in March, February there. Because to be honest, there’s nothing I did in my subsequently (sic) job duties, besides working longer hours, that would’ve caused a new injury.
The worker advised that he was back to 100 percent in May or the beginning of June.
The worker's representative stated:
In conclusion, whether the worker's injury in February and March is acknowledged on the basis of non-recovery from the initial incident, a subsequent recurrence or, as a result of a new accident, we believe the worker's low back injury arose both out of and in the course of his employment, and we therefore submit that responsibility for it lies with the WCB.
Employer's Position
The employer was represented by its WCB specialist. She advised the employer agrees with the Review Office's decisions. She noted that extensive medical evidence was obtained and evaluated by WCB. This information was then tested against WCB policy and found to be unacceptable.
The employer's representative noted that the worker claims on one hand that his back symptoms are a recurrence of a 2015 injury, and then on the other, claims it was a new 2016 injury.
The employer representative commented that with the significant symptoms the worker described at the hearing "…one would think that that would be reported to the employer immediately."
The employer representative also noted that the worker had five prior claims so was aware of the need to report.
Analysis
The worker appealed two issues, alternatively:
Accident of October 31, 2015: Whether his current back difficulties are a consequence of the October 31, 2015 accident.
The worker submitted that his back difficulties are a consequence of his October 31, 2015 accident. For the worker's appeal of this issue to be approved, the panel must find that the injury did not resolve and that his ongoing symptoms are related to this accident. The panel was able to make this finding.
The panel finds that there is compelling evidence to accept this appeal on the basis of a recurrence or alternatively as a new accident; however, given the proximity of the return of symptoms and the nature of the symptoms, the panel finds that the worker's later symptoms fall within WCB Policy 44.10.20.50.10., Recurring Effects of Injuries and Illness (Recurrences). The panel notes that Policy provides in part:
When a worker has returned to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity as a result of that same injury or illness, the WCB will award compensation benefits to the worker during the current loss of earning capacity.
Based on the facts of this case, the panel finds that the later symptoms are a recurrence and should be adjudicated on the October 31, 2015 accident claim.
In making this decision, the panel accepts the evidence that the worker's duties are physical and are performed in extreme weather and over long shifts.
The panel has considered the symptoms reported in November and December and those reported in February and March and find that there is a direct connection between the symptoms. The latter symptoms are in the same anatomical area as the earlier symptoms.
The panel notes that the worker's supervisor confirmed that the worker complained of symptoms when he initially[AS1] returned to work in December 2015.
Regarding the flare-up in February 2016, the panel accepts the worker's evidence that he was working longer hours and performing difficult tasks when his symptoms flared up. In this regard, the panel notes that the employer confirmed that on February 23, 2016 the worker worked three hours of overtime. This was followed by a visit to his physician on February 25, 2016. The worker advised that his regular shift is eight days, 10 hours per day followed by six days off.
The panel finds, on a balance of probabilities, that the worker's October 2015 injury had not resolved and that his ongoing symptoms are related to this accident.
The worker's appeal is approved.
Accident of March 2, 2016: Whether or not the claim is acceptable
Given the panel's decision on the first issue, this issue is considered moot and was not addressed by the panel.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of May, 2017