The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after March 30, 2016. A hearing was held on June 14, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 30, 2016.

Decision

That the worker is not entitled to benefits after March 30, 2016.

Background

The worker filed a claim with the WCB on January 20, 2016 regarding an injury to her low back and right hip that occurred on December 22, 2015, during her employment as a derrick hand. The worker described the accident as follows:

I was on the rig floor spinning tongs (steel). I had the tongs behind me, I would grab them from behind me. I am really short and the table is set up for a taller person. As I was turning to use the wrench, the tongs would bounce off of my lower back and buttocks, more on the right side. The tongs hit me about a hundred times that shift. It was not hurting me. The next day I was swollen in the right hip/pelvic area. It has gotten worse, I cannot sit for ten minutes without being in a lot of pain. I have sharp pain in the top of my right leg now.

The worker reported that she also worked part-time with a different employer three times per week.

In January 2016, the worker provided the WCB with additional information regarding the onset of her symptoms and the hours that she worked at her second job as a bartender. The worker noted that she felt pain since the day of her injury and remembered that on December 25 while sitting on the floor with her son that she felt a sharp pain in her low back and buttocks. She said that driving and sitting aggravated the pain.

On February 3, 2016, a WCB medical advisor said there were several diagnoses on the claim file between January 4 and February 1, 2016. They included suspected appendicitis, bilateral S1 and lumbar sacral subluxations, lumbar muscle strain, resolving buttock contusions and traumatic soft tissue injury to the right gluteal/low back area. The medical advisor concluded that the likely diagnosis from the December 22, 2014 workplace injury was contusion to the buttocks. The natural history of this diagnosis was a gradual resolution over several weeks. On January 25, 2016, the treating physician reported that the worker was capable of medium intensity, shop and yard duties.

On February 16, 2016, Compensation Services advised the worker that her claim was accepted for a contusion to the buttocks and that she was entitled to limited medical aid benefits. As the worker continued to work with both the accident employer and her second employer for four weeks following the injury of December 22, 2015, any loss of wages beyond January 15, 2016 was not related to her compensable injury.

On March 15, 2016, a WCB physiotherapy advisor stated there was no indication for work restrictions based on the mechanism of injury, the diagnosis of a buttock contusion, time frame, and the minimal findings noted on the March 10, 2016 physiotherapy progress report. A graduated return to work program was outlined.

On March 21, 2016, the worker advised the WCB that she had felt excruciating pain the day before and that an MRI assessment was recommended by her treating physician.

An MRI report dated March 29, 2016 stated "There is quite a large right paracentral inferiorly directed L4-L5 disc herniation, with extension into the right lateral recess of L5."

On March 29, 2016, the treating physician reported that the worker required an emergent laminectomy and discectomy at L4-5.

Based on the mechanism of injury and the chronology of symptoms, a WCB medical advisor stated on March 30, 2016 that there was no probable relationship between the December 22, 2015 workplace injury and the recently demonstrated L4-L5 herniation or the proposed L4-L5 discectomy and laminectomy.

In a report dated March 31, 2016, the treating physician opined that the worker's herniated lumbar discs were the direct result of the December 22, 2015 workplace injury.

On March 31, 2016, Compensation Services advised the worker that based on all the file information and the recent WCB medical opinion, there was no relationship between her current difficulties and the December 22, 2015 workplace injury and that no responsibility would be accepted for any wage loss or medical aid benefits.

On June 30, 2016, the Worker Advisor Office requested reconsideration of the adjudicative decision based on the following opinion that was expressed by an orthopedic surgeon dated June 20, 2016:

"This lady had an injury to the back with progressive problems. It is quite clear that soft tissue injury in the spine can entail many things, including a disc herniation. It is quite clear the patient had a specific injury. She had specific pain at the time of the injury, which did not recede and progressed, in fact, to the extent that she developed a severe pain and cauda equine-like symptoms, which required emergent surgery.

There is no doubt that this is an extension of the injury that she described to me, which occurred in December 2015."

On July 7, 2016, Compensation Services determined that the new information dated June 20, 2016 did not change the decision of March 31, 2016. On July 13, 2016, the Worker Advisor Office appealed the decision to Review Office.

On September 21, 2016, Review Office determined that there was no entitlement to benefits beyond March 30, 2016. Based on its review of all the file information, Review Office was unable to find that the worker suffered a disc herniation on December 22, 2015 and it accepted the medical opinion of the worker's doctor and WCB general medical advisor that the probable compensable injury was a contusion(s). Review Office concluded by March 30, 2016, that the worker had recovered from her workplace injury(ies) and that the March 31, 2016 surgery and the underlying condition that it addressed was not compensable. On November 23, 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 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 on December 22, 2015. She is appealing the WCB decision that she is not entitled to benefits after March 30, 2016.

Worker's Position

The worker was self-represented.

The worker advised that she was injured while working on an oil rig. She told the panel that she had several years of experience working on oil rigs. At the time of the accident, she was working as a rough neck on an oil rig. She described the work as having a lot of lifting and being very demanding. The worked described the job duties and her activities at the time of the injury. At the panel's request, she drew a diagram outlining the structure of the rig and explained the various pieces and how they moved.

She explained that she was injured by metal tongs which are hydraulically operated. The tongs hit her in the back and caused bruising. She pointed to the area of the bruising which was adjacent to the rear pocket on her pants. She said the next day she noticed the bruises and that she was moving a little slower. She said that the pain was from on the right side of her sacrum and was "wrapping around my side into the front." She said the pain was radiating around her side.

The worker said that the injury was caused, in part, because the work area was set up for a taller person. She also said that usually there are two people "running the floor, but, for the most part, I ran the floor by myself."

The worker described the various symptoms she experienced after the injury, her attempts to return to work and the final episode of pain that resulted in her having emergency spinal surgery. She advised that she required a second surgery and that she is on a waiting list for a third surgery.

She noted that although the WCB refused to approve the surgery, she felt it was necessary, so she proceeded to have the surgery. She obtained coverage under a private insurance plan.

The worker submitted that:

I do not have any preexisting conditions. I got hurt on the rig. Whether it was just from that day or from the fact that I've been doing this for three and a half years and working that hard all the time and picking up heavy pieces of pipe and being bent over that rod table spinning rods, irregardless of the fact, this is a job, like a workplace-related injury. There's no doubt in my mind it is.

The worker referred to letters which are on file from the orthopedic surgeon and two other physicians which support her claim for a work-related injury.

In response to a question about the change of symptoms in March 2016, the worker indicated:

How it was explained to me is my disc, like depending on the amount that would have been herniated or bulged, like because nobody knows because I didn't get that MRI -- it could have been okay. Like it could have been pretty bad when it first happened and then I took those days sitting, like those couple weeks sitting at home doing nothing and it healed a bit, right? And then I was required to drive back and forth all those hours, and they say that with herniated discs, sitting in vehicles, the vibrations of the engine and being in that position, that it will cause more pressure on your back. So the disc that may or may not have already been herniated or partially herniated has been having lots of pressure put on it.

The worker described the way in which the tongs hit her:

So I would hit it, it would bump back and then it would come back and it would hit me again and bounce off my…butt, and then it would come back again.

The worker referred to information from two websites regarding the causes of disc herniation. She submitted that her disc herniation "could have been mild for the first however long, but compromised the whole time."

Employer's Position

The employer provided a written submission. The employer representative submitted that:

Our position remains that the mechanism of injury for [worker's] December 20, 2015 claim was not sufficient to cause the disc herniation for which she underwent surgery March 31, 2016 and we are in agreement with Compensation Services that [worker] is not entitled to benefits beyond March 30, 2016.

The employer representative noted an x-ray on a prior WCB file which identified a lumbosacral transitional vertebra which the employer considered relevant to the current file. The employer representative also noted that the worker is receiving private disability insurance benefits in support of its position that the worker's ongoing issues are not related to the workplace injury.

Analysis

The worker is seeking WCB benefits after March 30, 2016. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity and required medical aid benefits after March 30, 2016 related to her workplace injury. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker's loss of earning capacity and medical treatment after March 30, 2016 are not related to the workplace injury.

The panel has reviewed all the medical information and discussed the information with the worker at the hearing. The panel finds that the worker's symptoms in the early months after the injury did not identify a neurological/disc injury. In support of this position, the panel relies upon the following:

• March 3, 2016 - a WCB physiotherapy consultant records that he spoke to the treating physiotherapist who opined the worker is progressing in terms of function. 
• March 15, 2016 - a different WCB physiotherapy consultant reviewed the file with the claim owner and opined that: "Based on the mechanism of injury, diagnosis of a buttock contusion, time frame, and the minimal findings noted on the March 10, 2016 physiotherapy progress report, there is no indication for work restrictions. A graduated return to full duties could be considered starting at 4 hours the first week, 6 hours the second week and then full hours."
• March 30, 2016 - a WCB Medical advisor opined: There is no probable relationship between the December 22/15 workplace injury and the recently demonstrated L4-L5 disc herniation or proposed L4-L5 discectomy and laminectomy. This medical opinion is based upon a combination of the following factors that were noted on the file review:

  o The mechanism of the injury was reviewed. The mechanism reportedly involved being struck in the buttocks with tongs. This mechanism would not likely be associated with the development of disc herniation.

• o The chronology of symptoms reported in this case has not been consistent with radiculopathy.

• o Reportedly, there has been a dramatic increase in symptoms and downturn in function. Relating these difficulties to December 22/15 workplace injury is speculative.

• The panel notes that at the hearing, the worker acknowledged that in early March she was feeling better.

  The panel notes that the worker's symptoms
  for the first 3 months were soft tissue related and that the medical reports indicated her condition had improved to the point where a return to work was approved. In mid-March there was a significant shift in symptoms. A March 16, 2016 doctors progress report from a physician identified radiating pain, numbness and tingling symptoms and significant radicular findings. The panel finds that the new symptoms cannot be explained by the mechanism of injury of the workplace accident and are not consistent with the prior symptoms. The panel relies upon the March 30, 2016 opinion of the WCB medical advisor in finding, on a balance of probabilities, that the worker's loss of earning capacity and need for medical treatment after March 30, 2016 are not related to the workplace accident.

  The worker's appeal is dismissed.

• At the hearing, the worker referred to other possible causes or contributing factors for her injury, specifically many years of demanding work and significant driving while recovering. However, the panel is not able to address them as the issues have not been adjudicated by WCB.

Panel Members

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of July, 2017