The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding his compensation claim. A hearing was held on February 23, 2017 to consider the worker's appeals.

Issue

Whether or not the worker is entitled to wage loss benefits after June 3, 2016; and

Whether or not the worker is entitled to medical aid benefits after July 13, 2016.

Decision

That the worker is not entitled to wage loss benefits after June 3, 2016; and

That the worker is not entitled to medical aid benefits after July 13, 2016.

Background

On June 9, 2016, the worker filed a claim with the WCB for an injury to his right hip. The worker reported that on June 1, 2016, he bent over to place a product onto a rack. As he stood up, he turned to his right side and twisted his right hip in the process. He felt a sharp shooting pain in his hip. When he walked back to his machine, he found it difficult to walk. He was on modified duties at the time. The worker reported that he had surgery to both hips in 2009.

The Employer's Accident Report dated June 13, 2016 indicated that the worker "bent down and reached into a bin and felt a pain in his hip." The employer noted that shortly before the incident on June 1, 2016, the worker was notified that he was being laid off due to a lack of work and his seniority status.

A doctor's first report is on file dated June 11, 2016.

File records indicate that the worker has permanent restrictions related to a 2009 injury. He also has arthritis in both hips and knees.

On June 14, 2016, a WCB medical advisor reviewed the file and stated:

There's no ER report on file, but he was seen by a family physician on June 11 for the ongoing complaint of low back pain going to the right hip. He was noted to have no other leg pain and no neurological symptoms. On exam, he had mildly limited lumbar flexion due to pain. There was low back tenderness. He had neg SLR [negative straight leg raise] test.

The presentation of non-radicular low back pain with mild loss of ROM [range of motion], tenderness, and neg SLR is consistent with a dx [diagnosis] of non-specific low back pain. If this occurs after an event that produces abnormal force through the back, it would be the clinical equivalent to a lumbar strain/sprain.

Length of symptoms would typically be proportional to the amount of force involved. In this case, there was no external force, gravity, velocity, or weight involved, so full recovery would be expected within 1-6 weeks.

In decision dated June 27, 2016, Compensation Services advised the worker that wage loss or medical aid benefits would not be paid beyond July 13, 2016 as it was felt that he had recovered from the June 1, 2016 compensable injury. The decision was based on the accident description, the accepted diagnosis of a low back strain, the normal recovery period of a strain, the available medical reports and diagnostic test results, the permanent restrictions he had prior to his work injury, and the WCB medical advisor's opinion.

On July 20, 2016, the worker appealed the decision of June 27, 2016 to Review Office. The worker argued that he had not recovered from his injury and had an appointment to see a specialist on August 17, 2016.

On July 25, 2016, Compensation Services wrote the worker to advise that a further review of his claim had taken place and it was concluded that he was not entitled to wage loss benefits beyond June 3, 2016. The decision was based on hospital information dated June 2, 2016 which showed that he was to be off work for June 2 and 3, 2016 due to his injury, and the June 11, 2016 medical report which indicated that he was capable of performing sedentary duties. The employer had advised that there were modified duties available up until the seniority-based lay-off of June 11, 2016, but the worker did not return to work. The worker was also advised:

Your employer…advised WCB that they contacted you for a recall back to work on July 11, 2016 however you provided a functional abilities form from July 18, 2016 which indicated a change in restrictions due to a non-compensable (non-work-related) condition. [Employer] indicated they were not able to accommodate those current restrictions and indicated you were currently applying for [name] disability.

Given that [employer] was able to accommodate you up to the seniority based lay off you were not entitled to wage loss benefits beyond June 3, 2016 as your loss of earning capacity was not related to the compensable injury, it was due to the layoff.

On August 17, 2016, a sports medicine physician reported that he saw the worker with an entrance complaint of low back and right SI joint/buttock pain that began at work around June of 2016 when he noticed sudden pain as he was getting up after having bent forward. The worker was diagnosed with mechanical low back pain without radicular symptoms and right-sided SI joint dysfunction. Treatment plan suggestions included physiotherapy, weight loss and medication options. In a submission to Review Office dated August 22, 2016, the employer's Safety and Health Coordinator outlined the position that the worker's ongoing difficulties were related to his pre-existing injury that he sustained with another employer and his subsequent hip replacement surgery. As such, the worker was not entitled to benefits beyond June 3, 2016.

On August 29, 2016, the worker wrote Review Office to support that he was still suffering from the work-related injury of June 1, 2016 and not his pre-existing condition.

On September 1, 2016, Review Office determined that the worker was not entitled to wage loss benefits beyond June 3, 2016 and that he was not entitled to medical aid benefits beyond July 13, 2016.

Review Office found the evidence supported that the worker did not experience a loss of earning capacity related to the June 1, 2016 workplace injury beyond June 3, 2016, given the mechanism of injury, his permanent accommodation, the force that led to the injury and the medical documentation supporting a return to work.

Review Office also found the worker's need for treatment was predominantly attributable to his pre-existing conditions and that any aggravation he may have had, had returned to its baseline functioning. The ongoing need for medical aid was not required in relation to the worker's accident and he was not entitled to benefits beyond July 13, 2016. On September 23, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on February 23, 2017.

Following the oral hearing, the appeal panel met to discuss the case and requested additional information from the worker's employer and his treating physician. On March 29, 2017, the worker and the employer's representative were provided with the information that was received by the panel and were asked for their comments. On April 18, 2017, the panel met further to discuss the case and render its final decision regarding the issue under appeal.

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.

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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The Policy sets out the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented. The worker provided a written submission in advance of the hearing and made a presentation at the hearing.

The worker's position was that he continued to have problems due to the injury he suffered at work on June 1, 2016 and is entitled to benefits as a result of his injury.

The worker submitted that he had no problem with his lower back before his injury. When the incident happened, he was taken to hospital, where the doctor gave him a note for two days off work and told him to see his doctor if he still felt injured after that. As his injury did not get better, he went to see his family physician who gave him a further six weeks off work and referred him to a specialist.

In the meantime, the worker was called back to work, but he was still injured and his employer could not accommodate him. He submitted that the most recent Functional Abilities Forms from his treating physician and the specialist indicate that he is still injured, and the employer has said that they do not have a spot for him.

The worker submitted that given he was injured at work and is still injured, as confirmed by both of his physicians, he should be entitled to wage loss benefits from June 3, 2016 and medical aid benefits from July 13, 2016.

Employer's Position

The employer was represented by its Safety Coordinator and its Production Support Manager. The employer's position was that the worker should not be entitled to benefits after June 3, as he was in virtually the same state by then as he was before the injury.

The employer's representative stated that due to a previous injury sustained in 2009, the worker was already on modified duties when he was injured. Shortly before the incident on June 1, 2016, he had received notice that he was going to be laid off as part of a workforce lay-off. The doctor's note from just after the incident said that he was to take two days off work, at the end of which he would be able to return to his duties. Had he not been laid off, the worker would have been able to return to the same modified duties as he had been performing prior to being injured.

It was submitted that the mechanism of injury of simply bending over and picking up a small part that weighed less than five pounds was not consistent with the degree of injury that the worker was suggesting. The doctors' reports indicated that it was a simple strain injury that should have resolved completely within a couple of days or weeks.

In conclusion, it was submitted that the claim should have ended on June 3, 2016, as the worker had returned to his pre-accident state; he was off work after that date because he had been laid off, not because of his workplace injury.

Analysis

Issue 1. Whether or not the worker is entitled to wage loss benefits after June 3, 2016.

For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity after June 3, 2016 as a result of his June 1, 2016 workplace injury. For the reasons that follow, the panel is unable to make that finding.

The discharge instructions from the hospital report dated June 2, 2016 indicate that the worker was to remain off work the following day and follow-up with his family doctor, and the worker was provided with a medical note indicating that he required June 2 and 3 off work.

Information on file and at the hearing indicates that the worker was laid off effective June 6, 2016.

Medical reports after June 3, 2016 show a lack of ongoing complaints or findings with respect to back problems after June 3, and there is no indication in those reports that the worker was unable to work or required to be off work.

After the hearing, the panel requested and was provided with the treating physician's chart notes. The chart notes show that the worker saw the treating physician on June 8, 2016. In his notes of that visit, the treating physician wrote that the worker was currently on lay-off and seeking medical EI. With respect to subjective complaints, the report states "nil acute." There is no mention of any complaints or that the worker had experienced a back or work-related injury.

Chart notes from a subsequent visit on June 11, 2016 indicate that the worker was complaining of a work injury on June 2, but do not refer to any clinical findings with respect to that complaint or any such injury. In the doctor's first report dated June 11, 2016, the treating physician indicated that the worker was capable of alternate or modified work, with the restriction of sedentary duties.

The panel carefully questioned the worker and the employer at the hearing with respect to the worker's restrictions both before and after the June 1, 2016 incident. After the hearing, the panel requested copies of further Functional Abilities Forms from the employer relating to the worker's restrictions prior to the injury.

Based on our review of the information which is before us, including the information provided subsequent to the hearing, the panel finds that the worker had ongoing work restrictions from 2009 due to his previous injury and surgery and/or other medical conditions.

The panel further finds that the physical restrictions which were provided by the treating physician and specialist after the June 1, 2016 injury were very similar to the restrictions which had been provided before the injury. The panel is satisfied that there was no change in restrictions which would have prevented the worker from performing the same light or modified duties he was doing before June 1, 2016, and that he would have been able to return to those same duties on June 6 if he had not been laid off on that date. The panel therefore finds that the worker's loss of earning capacity was due to his lay-off and other non-compensable issues and injuries or illnesses.

While the worker stated at the hearing that the physician had taken him off work until he saw the specialist, we are unable to reconcile that statement with the June 11, 2016 report from the treating physician indicating that he was capable of returning to sedentary duties, and two subsequent reports, dated June 24 and July 7, 2016, which also stated that he was capable of working light duties. The panel also finds that the ongoing issues in the medical reports were related to other non-compensable issues that affected the worker's employability, and not to compensable issues.

The panel notes that information on file shows that the worker was called back to work on July 11, 2016. On July 18, 2016, he provided the employer with a Functional Abilities Form with restrictions which were expressly stated to be due to non-occupational (not work related) osteoarthritis. The physical restrictions which were identified in that form were similar to previous restrictions, but a time limit of four hours' work per day was also included. The worker did not return to work at that time. At the hearing, the employer stated that their full workforce was not yet back from lay-off, that they were therefore limited in the scope of duties and could not accommodate this new restriction of four hours per day. In the circumstances, and given the express indication on the report that the restrictions were required due to a non-work-related issue, the panel is unable to find that the worker's inability to return to work at that time was related to his compensable injury.

The worker argued that his restrictions were not the same after the accident because he was on modified duties for different problems: before the accident the restrictions were due to non-work-related issues, while after the accident they were due to his injury at work. The panel is unable to accept that argument. Based on the evidence, and given our previous finding that there was no change in the worker's physical restrictions, we are unable to find that the worker's ongoing restrictions were related to his compensable injury of a low back strain.

In summary, the panel finds that the worker's loss of earning capacity was due to his lay-off and other non-compensable issues and injuries or illnesses. The panel acknowledges that the worker has significant ongoing difficulties, but is unable to relate any further loss of earning capacity to his June 1, 2016 compensable injury.

The panel therefore finds that the worker did not suffer a loss of earning capacity after June 3, 2016 as a result of his June 1, 2016 compensable injury, and that the worker is not entitled to wage loss benefits after June 3, 2016.

The worker's appeal of this issue is dismissed.

Issue 2. Whether or not the worker is entitled to medical aid benefits after July 13, 2016.

For the appeal on this issue to be accepted, the panel must find that the worker required medical aid after July 13, 2016 as a result of his June 1, 2016 workplace incident. The panel is unable to make that finding.

In the panel's view, the evidence shows that the worker had a mild injury which was improving, with no apparent changes or relapses. The panel notes that the chart notes from the treating physician indicate that by July 18, 2016, the worker was getting stronger and walking more and more. As previously noted, the July 18, 2016 Functional Abilities Form further indicates that the worker's restrictions and limitations were based on a non-work-related condition and non-compensable matters. In the panel's view, there is no indication of any ongoing physical complaints or findings suggesting that the worker's lower back injury was still in play at that time.

The panel accepts the WCB medical advisor's June 14, 2016 opinion that the worker's presentation was consistent with a diagnosis of non-specific low back pain, and full recovery from such an injury would be expected to take place within one to six weeks. The panel finds that this predicted time frame is consistent with the worker's actual medical history, which indicates that recovery occurred and the worker returned to his pre-injury baseline condition within a one to six week period of time.

Based on the foregoing, the panel finds that the worker did not require medical aid after July 13, 2016 as a result of his June 1, 2016 workplace incident. The worker is therefore not entitled to medical aid benefits after July 13, 2016.

The worker's appeal of this issue is dismissed.

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 6th day of June, 2017