Decision #64/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after September 9, 2015 in relation to his compensation claim. A hearing was held on March 23, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 9, 2015.

Decision

That the worker is entitled to medical aid benefits, but not wage loss benefits, after September 9, 2015.

Background

The worker filed a claim with the WCB for injuries he sustained at work on August 5, 2015. The worker described the accident as follows:

I was tightening a chain underneath a bridge between two play structures. The chain broke. It was a wooden bridge. The one side (chain) let go and that side of the bridge dropped and hit me while I was underneath it on my left side. This incident caused me to injure the left side of my head, neck, left shoulder and back. I have a goose egg on my head. I am right handed.

On August 6, 2015, the worker attended a chiropractor for treatment and was diagnosed with a sprain/strain injury to his cervical, thoracic and lumbar spine and left shoulder. Chiropractic x-rays were also taken of the left shoulder, cervical, thoracic and lumbar spine and pelvis.

On August 11, 2015, the worker attended a physician for complaints of "confusion/decreased concentration has improved, ongoing discomfort left shoulder diffusely." The diagnosis outlined was concussion and contusion to the left shoulder. In a progress report dated August 18, 2015, the physician noted that the worker's ongoing discomfort was "very disproportionate to objective findings."

On August 20, 2015, the worker was seen at the WCB offices for a call-in assessment. The WCB chiropractic consultant noted that the worker presented with widespread left shoulder blade pain and low back pain. His manner of presentation and complaints were not medically accounted for by the results of the assessment, and ranges of motion were self-limited. The consultant said there were no reliable true impairments of function which precluded an immediate return to work at a minimal level of four hours per day and sedentary duties.

In a decision dated August 26, 2015, the worker was advised that coverage for his claim, including wage loss benefits from work, would end on September 1, 2015, as Compensation Services was unable to medically account for his current ongoing difficulties. It was felt that at nearly eight weeks post injury, the worker would have recovered from his sprain/strain type symptoms.

On September 9, 2015, a WCB medical advisor reviewed the file, which included new medical reports from two physicians, a chiropractor and a physiotherapist. The medical advisor stated:

There has been mention of concussion although concussion symptoms have not been reported. This diagnosis is improbable. There was likely a contusion on his head and there would be some other small contusions anticipated in relation to the described mechanism.

…I was not able to find objective medical information that would indicate the presence of a persisting tissue lesion in relation to the described workplace injury. This is despite seeing several care providers. An ongoing impairment of function in relation to the workplace injury is not probable.

On September 9, 2015, Compensation Services confirmed to the worker that no change would be made to the previous decision to end benefits effective September 1, 2015.

On November 16, 2015, the worker's union representative submitted new medical information from the treating physiotherapist dated October 28, 2015, to support that there was a C5 radiculopathy component to the worker's injury as a direct result of the August 5, 2015 compensable accident.

On December 8, 2015, the WCB chiropractic consultant reviewed the new medical information and stated that he did not find any clinical evidence of a left C5 radiculopathy on assessment at the WCB examination that took place on August 20, 2015.

On December 10, 2015, Compensation Services advised the worker that following review of the new medical information in consultation with a WCB healthcare advisor, no change would be made to its previous decision.

In a submission to Review Office dated August 1, 2016, the Worker Advisor Office outlined their opinion that the worker had not recovered from his workplace accident, as he continued to experience headaches, neck and shoulder pain related to that accident after September 1, 2015. The worker therefore requested reconsideration of the August 26, 2015 decision made by Compensation Services.

On September 27, 2016, the employer's representative wrote Review Office, stating that the weight of evidence did not demonstrate a loss of earning capacity beyond September 1, 2015.

In October 2016, the worker provided Review Office with a further submission to support his appeal, along with photographs depicting the accident site.

On October 19, 2016, Review Office determined that the worker was entitled to benefits to September 9, 2015. Review Office referred to the comments made by the treating physician dated August 18, 2016. They found that the statements were consistent with the worker's general presentation throughout the claim and were not in keeping with relevant objective medical findings. Review Office placed weight on the WCB call-in findings of August 20, 2015 and the WCB medical advisor's opinion of September 9, 2015.

Review Office acknowledged that the worker's healthcare providers outlined a continued disability due to symptoms they related to the compensable injury, but stated that they were not able to draw a similar conclusion.

In keeping with WCB policy 44.30.60, Notice of Change in Benefits or Services, Review Office determined that the worker was entitled to benefits to September 9, 2015. Review Office felt that the worker's continued complaints beyond September 9, 2015 were unrelated to the compensable injuries he sustained at the time of the accident.

On November 8, 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. The worker made a presentation and responded to questions from the panel.

The worker's position was that he had not recovered from his compensable injury by September 9, 2015 and is entitled to benefits beyond that date.

The worker said that he did not understand why his benefits were stopped. He said that he tried to listen to his doctors' opinions. He was communicating the entire time with his WCB case manager and followed his advice. He started seeing a new doctor on August 26, 2015, who sent him for physiotherapy. His first physiotherapy treatment was on September 2, 2015. His physiotherapist was advised at first that his treatments were covered, then received a second fax on September 2 saying that his treatments were not covered.

The worker said that he was still hurt and had just started getting a line of treatment going when the benefits ended. He just wanted to get his medical treatment and physiotherapy covered so he could focus on healing and getting back to work. Once he received appropriate treatment starting September 2, his body responded quickly. He was able to return to work on a graduated basis starting September 28, 2015, and continued to receive treatments for his injuries beyond that date.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's representative made an oral submission, a copy of which was filed as an exhibit at the hearing.

The employer's position was that the worker had recovered from the effects of the August 5, 2015 injury which, in their view, was a sprain/strain and/or contusion.

The employer's representative pointed to certain information which the employer believed was the most compelling and should be given greater weight. It was submitted that less weight should be given to the subjective complaints or assertions from the worker or much of the evidence provided by his healthcare providers, which was driven by the worker's subjective complaints or assertions regarding his functional abilities.

The representative submitted that credibility was a factor in this case. The representative pointed to references in medical reports to the worker's self-limiting presentation, to his over-reacting and his subjective complaints being disproportionate to clinical findings.

In summary, it was submitted that the evidence demonstrated that the worker had recovered from the effects of his injury by September 9, 2015 and was therefore not entitled to further wage loss or medical aid benefits after that date.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after September 9, 2015. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid benefits after September 9, 2015 as a result of his August 5, 2015 workplace accident.

For the reasons that follow, the panel is unable to find that the worker suffered a loss of earning capacity after September 9, 2015 as a result of his workplace accident. The panel finds, however, that the worker continued to require medical aid benefits after September 9, 2015 as a result of his compensable injury.

At the hearing, the worker described in further detail the incident which occurred on August 5, 2015. Based on the evidence before us, the panel is satisfied that the accident and the injury which the worker suffered as a result of that accident were not insignificant. Having said that, the panel recognizes and acknowledges that the reported or described effects of the worker's injury as a result of his workplace accident were not always medically accounted for.

With respect to the worker's ability to return to work and loss of earning capacity, the panel notes that in his August 18, 2015 progress report, the treating physician reported that the worker's reported "ongoing discomfort" was "very disproportionate to objective findings." Two days later, on August 20, 2015, the worker attended a call-in examination with the WCB chiropractic consultant. In his examination notes, the consultant made several references to the worker's self-limiting behaviour and overreaction. The consultant went on to opine, in part, that:

There are no reliable true impairments of function identified on today's assessment precluding an immediate return to work. [Worker's] pain and fear avoidance appear to be the basis of time loss from work. Absent any identified patho-anatomic structures, these are not consistent, reliable, or valid indicators of disability. In my opinion, [worker] is able to make an immediate return to work at a minimal level of four hours per day and sedentary duties. This should be reviewed in one week, where after I expect that [worker] will be able to increment to a full day at usual duties.

The panel places significant weight on the August 20, 2015 opinion of the WCB chiropractic consultant.

The panel also places weight on the September 9, 2015 opinion of the WCB medical advisor, who reviewed the file and stated that he was "not able to find objective medical information that would indicate the presence of a persisting tissue lesion in relation to the described workplace injury. This is despite seeing several care providers." The medical advisor went on to opine that "An ongoing impairment of function in relation to the workplace injury is not probable."

The panel further notes that in a progress report dated September 21, 2015, the treating physician reported that "on weekend past 2 days [worker] was doing painting and sanding and on Sept 19 onset R sided neck, pain/headache…" While the treating physician had taken the worker off work prior to that date, the panel is of the view that the worker's reported ability to paint and sand at home supports that the worker had a significant capacity to work and was capable of returning to work on modified duties on September 9 when his benefits were cut off. The panel notes that the treating physician went on to indicate in her September 21, 2015 report that the worker was capable of alternate or modified work, with restrictions of "desk duties/light duties, no lifting >15 lbs," and did not indicate any need to limit the worker's hours of work.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker was capable of returning to work on a full-time basis, with modified duties, by September 9, 2015.

A finding that the worker was able to return to work, particularly with modified duties, does not necessarily mean that the worker had fully recovered from the effects of his compensable injury and therefore no longer required medical aid.

File information shows that a number of different diagnoses and symptoms have been proposed and described by different healthcare providers at various times.

The panel attaches little weight to the findings of the treating chiropractor, as being overly broad and generally not in keeping with the findings of other healthcare providers. In addition to injuries to the cervical, thoracic and lumbar spine, left arm and shoulder, the chiropractor refers to the worker having suffered a concussion and concussion injuries. The panel places significant weight on the September 9, 2015 opinion of the WCB medical advisor that concussion symptoms had not been reported and a diagnosis of concussion was "improbable," which is consistent with our review and understanding of the information on file.

Based on our review of the medical information on file, the panel is also unable to find a connection between the physiotherapist's proposed diagnosis on September 2, 2015 of a C5 radiculopathy and the workplace accident. We note that the WCB chiropractic consultant examined the worker in this regard, and described his neurological findings in his notes of the August 20, 2015 examination. In a subsequent memorandum dated December 8, 2015, the consultant confirmed that he had not found any clinical evidence of a left C5 radiculopathy on assessment. In reports dated August 28 and September 9, 2015, the treating physician also confirmed that upper extremity neurological findings were negative.

The panel is further satisfied that the evidence does not establish that the worker had an ongoing injury to his shoulder. In this regard, we place weight on the findings of the WCB medical advisor at the August 20, 2015 call-in examination that "shoulder ranges of motion are full in every direction," and findings by the treating physician on August 28 and September 8, 2015 that the shoulder examination was normal bilaterally.

The panel is satisfied, however, that the medical information on file shows that the worker continued to have issues with his neck which had not yet resolved by September 9, 2015. Reports of clinical findings by both the treating physiotherapist on September 2, 2015 and the treating physician on September 21, 2015 indicate that the worker had a decreased range of motion in his neck. In the panel's view, these neck issues were consistent with the mechanism of injury as described on file and at the hearing. At the time the worker's benefits were terminated, he had just begun receiving physiotherapy treatment for these symptoms, and the treating physician recommended in her September 8, 2015 report to "continue with physiotherapy as even one visit helped [worker's] pain."

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to suffer from an underlying injury to the neck and neck area which was related to the workplace accident and had not fully resolved by September 9, 2015, and that medical aid was still required with respect to the worker's ongoing neck limitation and decreased range of motion.

In summary, the panel finds that the worker did not suffer a loss of earning capacity after September 9, 2015 as a result of his August 5, 2015 workplace accident, but continued to require medical aid benefits after that date as a result of his compensable injury.

The panel therefore finds that the worker is entitled to medical aid benefits, but not wage loss benefits, after September 9, 2015, as indicated above.  

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 19th day of May, 2017

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