The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to wage loss benefits after June 8, 2016. A hearing was held on April 12, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 8, 2016.

Decision

That the worker is not entitled to wage loss benefits after June 8, 2016.

Background

The worker filed a claim with the WCB for an injury to her middle/low back that occurred on April 19, 2016 when she lifted a box that weighed six to seven pounds onto a table.

When speaking with a WCB adjudicator on April 26, 2016, the worker stated that when she lifted the box onto the table she felt a sharp pain that started in the middle of her spine and went down to her tailbone. She did not complain to any co-workers. She took Advil and "toughed it out." When she next worked on April 21, 2016 performing her regular duties, she started to get a bad migraine and her back ached to the point where it was painful to walk. She worked four hours out of her 10 hour shift and then spoke with her manager and filed a green card. The worker said she had a prior back injury about six to seven years ago and that her back flared up from time to time, but nothing to cause her to miss any time from work.

A chiropractor first report dated April 22, 2016 indicated that the worker complained of mid back pain, low back pain, headache and difficulty sleeping. The diagnosis was thoracic sprain/strain, multiple subluxation T7, T8 and sacrum. It was noted that the worker was not capable of alternate or modified work for one week.

A Doctor First Report dated May 11, 2016, outlined examination findings of tender bilateral paraspinals T10-S1, and limited range of motion in all planes by pain.

In a chiropractor progress report dated May 12, 2016 it was indicated that the worker had "increased pain on palpation with decreased range of motion, multiple subluxation T6, and post ribs". It was stated that the worker was not capable of alternate or modified work and that she should rest until x-ray results were obtained.

In Claim Notes dated May 12, 2016, the WCB adjudicator said she spoke directly with the treating chiropractor who stated:

Starting May 9 worker can perform desk duties.

Avoid any lifting at all.

Ability to sit/stand as required.

Restrictions for at least 2 weeks.

Worker still in for tx (treatment) 3 x per week.

Mid back soreness and uncomfortable sleeping.

On May 13, 2016, the worker underwent x-rays of her thoracic and lumbar spines. The results dated May 16, 2016 were read as follows:

Thoracic spine:

Degenerative disc disease at T3-4 through T8-9 and T10-11. Mild to moderate left thoracolumbar convexity. This may be associated with mild spasm.

Lumbar spine:

Degenerative spondylosis at L1-2 through L5-SW1. Facet arthrosis at L4-5 and L5-S1. Mild to moderate left thoracolumbar convexity. This may be associated with mild spasm.

On May 18, 2016, an employer representative advised the WCB that he spoke to the worker regarding modified duties and the worker felt that she was being forced back to work. The worker noted that her treating chiropractor agreed that she was able to perform the duties because he felt threatened that she would be cut off if she didn't return to work.

On May 19, 2016, the worker was scheduled to work a four hour shift but left after two hours because of pain.

On May 24, 2016, the worker was seen at the WCB's office for a call-in assessment by a chiropractic consultant. The consultant advised primary adjudication that the current diagnosis was nonspecific widespread back pain with non-organic features. There was no medical evidence of lumbar radicular involvement or red flags of serious underlying disorders. He found that the worker's presentation on examination could not be explained in terms of an injury or patho-anatomical structure associated with a workplace lifting mechanism such as described as occurring on April 19, 2016.

In a decision dated June 1, 2016, the worker was advised by Compensation Services that she would be paid partial wage loss benefits to June 8, 2016 as it was felt that she had recovered from the workplace injury. The worker was advised that the modified duties offered to her by the employer were light and that she was capable of working those duties as of June 1, 2016 with a full return to regular duties as of June 9, 2016. On June 13, 2016, the worker appealed the decision to Review Office.

The worker's treating chiropractor provided the WCB with a narrative report dated June 8, 2016 outlining his examination findings of the worker starting on April 20, 2016. The chiropractor noted that the worker's current symptoms and physical findings suggest that she had been suffering with insomnia, myofascial pain syndrome, degenerative disc disease, and a possible disc bulge/herniation due to the retrolisthesis of L1 on L2. "My overall impression is the above patient's quality of life has diminished significantly due to her condition. The physical workplace injury combined with her difficulty sleeping and the ongoing emotional and mental stress related to her interactions with WCB, is not allowing her body to heal within a typical time period and may have also aggravated her physical, mental, and emotional state. She requires further care and testing, such as a referral to a specialist or an MRI imaging."

On July 23, 2016, the employer's representative submitted to Review Office that the weight of evidence failed to establish the necessary nexus between the worker's current symptomology and the minor accident of April 19, 2016. A copy of the employer's submission was given to the worker and her final comments to Review Office are dated August 5, 2016.

On August 12, 2016, Review Office determined that there was no entitlement to wage loss benefits beyond June 8, 2016. Review Office acknowledged that the worker sustained an injury to her mid/lower back but found that the medical information did not provide additional evidence to support a cause/effect relationship continued to exist beyond June 8, 2016. Review Office placed weight on the WCB chiropractic consultant's assessment of May 24, 2016 which failed to demonstrate that a functional causal relationship continued to exist. Review Office said the conditions noted on the x-rays were not created by the compensable injury and that the reported mechanism of injury would not have been substantial enough to cause issues with the conditions as listed.

On November 1, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 12, 2017.

Following the hearing, the appeal panel requested additional medical information from the worker's treating physician and a copy of the worker's 2008 claim file with the WCB. The requested information was received and was forwarded to the interested parties for comment. On May 26, 2017, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work 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 worker has an accepted claim for a workplace injury. She is appealing the WCB decision that she is not entitled to benefits after June 8, 2016.

Worker's Position

The worker attended the hearing with her husband who assisted her with the presentation.

The worker described the incident as follows:

I went to work on the 19th and I started my shift, perfectly fine, everything was great. I had to do a fill for a table, and when I lifted the case up of chips, I had a really sharp pain in my back and it went down into my tailbone. I was in a lot of pain throughout the rest of the night, but I just took some Advil and stayed through my shift.

The worker was displeased with the WCB call-in exam. She said that the WCB chiropractic consultant was unprofessional. She said he dismissed the x-ray results, but that they show a "vertebrae that was sticking halfway out."

She advised that:

Mainly I was cut off before I had a chance to even heal. It was not even a full month and a half, and today I'm still in pain, but I am getting better.Slowly I'm getting there.

The worker stated that the decision to terminate her benefits was made based on an incomplete examination and a report that is full of date discrepancies.

The worker acknowledged that she had been receiving chiropractic care for approximately 17 years and saw a chiropractor a week or two before the injury. She explained that:

I had pains once in a while. But when I did have any discomfort of any kind, I would go to my chiropractor, and I did see a chiropractor regularly for many years.

She said that she would see a chiropractor once every two weeks or once per month. She said that she has a tailbone issue; it pops out of place sometimes, and has sciatica that flares up. She was told that she had a curvature in the spine and with regular adjustments it actually straightened out. She also uses a TENS machine. She also acknowledged that she had switched to a different chiropractor before the injury.

The worker advised that her right leg has pins and needles on the front and back of the right thigh. She has had this condition for almost two years. Her left leg started to bother her about six months prior to the hearing. It goes numb from the hip to the knee.

In answer to questions, the worker advised that her back is better now than when she saw the WCB chiropractic consultant. She said that she has more range of motion now.

The worker advised that she recently had an MRI of the lumbar spine.

Regarding her ability to work now, the worker advised she can't lift a whole lot of weight at this point and can't be on her feet for that long. She can sit but is limited to how much time she can spend on her feet.

The worker described the tray that she was carrying at the time of the incident as being approximately the size of an 8.5 inch by 11 inch sheet of paper with a handle in the middle and weighing six or seven pounds. She said that she was waiting for a table to be cleared and when it was cleared she put the tray on the table and that's when she felt the pain in her back. In closing the worker submitted, in part:

With regards to the initial diagnosis that [chiropractor] had stated, that's what he thought it was with the symptoms I was displaying. But it did change once the x-ray results came back. Once he knew what he was dealing with, it did change. And the seriousness of that…there is a vertebrae sticking out halfway, when it's your back, that's scary…

I have genuine fears with this incident and with this injury. And the stress of everything did not help, and the fact that I was basically not believed, like, in everything, and to be cut off so quickly, and I just, from my standpoint I don't feel that it was - that there was just cause to cut me off so quickly.

Employer's Position

The employer was represented by an employer advocate and its health and wellness consultant.

The employer representative stated that the evidence, on a balance of probabilities, fails to establish the necessary nexus between the compensable incident of April 19, 2016 and the worker's symtpomatology beyond June 8, 2016. He submitted that the x-rays reveal degenerative changes which could not be related to a thoracic strain/sprain as diagnosed by the attending chiropractor.

The employer's health and wellness consultant advised that the last time the employer received an update was in November 2016. He said that the employer received a functional abilities form but that the employer did not have a position to offer at that time. He advised that when the previous duties were offered, "it was because there was a survey going on, and an update for staff, so there was that need to have those duties where she was seated."

The employer representative submitted that:

The diagnosis provided by [chiropractor] on April 20, 2016 was a thoracic sprain/strain, and I don't see anywhere where that diagnosis has changed. The recovery norm for that diagnosis is generally thought to be six to eight weeks, and we're a year, one week short of a year down the road. And as we've heard today, there is yet to be resolution.

So for that reason we question the relation to the compensable incident. In fact, it would be our position that the ongoing problems that [worker] is experiencing are, for the most part, attributable to the degeneration noted in the May 13th x-rays.

Analysis

The worker has an accepted claim for an April 2016 accident. She is seeking WCB benefits after June 8, 2016. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity as a result of the April 2016 accident, after June 8, 2016. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after June 8, 2016.

The panel has carefully reviewed the medical information on the file including the March 20, 2017 MRI report, the February 16, 2009 MRI report, chiropractic x-ray dated September 30, 2008, the chiropractic x-ray of May 16, 2016 and the May 4, 2017 report from the worker's treating physician. The panel notes that the worker has degenerative conditions in her lower back and thoracic back.

The 2017 MRI shows that the worker has "moderate facet arthropathy at L4-5 and L5-S1 most marked on the left at L4-5." This same condition is noted on the 2008 chiropractic x-ray. While the treating physician describes the facet arthrosis as a new finding, the 2008 chiropractic x-ray rebuts this opinion. Clearly this condition existed before the 2016 accident. The panel also notes that the worker's retrolisthesis at the L5 was noted on the 2008 chiropractic x-ray. The panel finds that neither of these conditions is caused or aggravated by the 2016 workplace accident.

Regarding the worker's thoracic spine, the panel notes that the May 16, 2016 chiropractic x-ray notes "degenerative disc disease at the T3-4 through T8-9 and T10-11." The panel finds that this degenerative condition is not related to the worker's accident, as it would not have developed within two months of the worker's April 2016 injury.

The panel also finds that the worker's long history of chiropractic treatment is consistent with her history of treatment for degenerative conditions.

The panel notes that the mechanism of injury for the worker's accident is minor in nature. She was carrying a small tray (approximately the size of a sheet of paper) weighing about 6 or 7 pounds and placing it on a table which was near rib cage height, when she felt pain in her back. She said that she turned to put the tray on the table. While the worker's movements may have involved some twisting, the panel is not able to identify any significant force in the described activity and as a result is not able to attribute any significant injury to the minor mechanism of injury described by the worker.

The panel also notes and accepts the opinion of the WCB chiropractic consultant who found that the worker's presentation on examination cannot be explained in terms of an injury or pathoanatomical structure associated with a workplace lifting mechanism such as that described as occurring on April 19, 2016. The panel therefore finds that the worker's ongoing medical complaints as of June 8, 2016 are not related to the worker's April 2016 claim.

The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity after June 8, 2016 as a result of the workplace accident and that the worker is not entitled to wage loss benefits after June 8, 2016. The worker's appeal is dismissed.

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 28th day of June, 2017