The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back difficulties were not a consequence of his compensable accident of August 10, 1997. A hearing was held on June 20, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's current back difficulties are a consequence of the August 10, 1997 accident.

Decision

That the worker's current back difficulties are not a consequence of the August 10, 1997 accident.

Background

The worker filed a claim with the WCB for a low back injury that occurred on August 10, 1997 during the course of his employment as a transport driver. The worker reported that he was moving a converter weighing approximately 600 pounds when his back injury occurred.

A chiropractor's first report dated August 13, 1997 stated:

[Worker] was moving a converter (500 lbs.) to get it into position to hook up to his tractor trailer. He immediately felt his lower back gave out on him. His supervisor and head driver wouldn't let him off duty and he has driven 30 hours since the accident occurred…He was required to unload 2 trailers after he was injured. [Worker] came into my clinic on an Emergency basis on August 11 at night.

Following an examination, the chiropractor diagnosed the worker with subluxation of L3, L5 motor units and right ilium causing nerve root irritation and muscle spasms. Discopathy at L5, S1 and muscular strain with swelling was the diagnosis. Chiropractor x-rays dated August 20, 1997 showed early discopathy at L4 and 5 and right and left lateral bending deformities with facet asymmetry.

In a report dated October 2, 1997, the treating chiropractor reported that the worker had reached his pre-accident status with "no impairment and no residual effects."

In February 2016, the worker contacted the WCB to advise that he was having ongoing difficulties with his back which he related to his 1997 low back injury.

The WCB requested and received updated medical reports concerning the worker's low back complaints.

On March 22, 2016, a WCB medical advisor reviewed the early medical reports from 1997 and stated that the worker's presentation at that time was consistent with non-specific low back pain and if it occurred after an inciting event, it would be the clinical equivalent to a strain/sprain. He noted that the treating chiropractor in his report of October 2, 1997 reported that the worker had no complaints, no clinical findings and was back to his pre-accident status.

Regarding the worker's current back difficulties, the medical advisor opined that they were not medically accounted for in relation to the 1997 workplace injury. The medical advisor stated:

• It was not consistent for there to be pain for 19 years from a strain injury. 

• There was no evidence of any structural injury from 1997 for there to be an expectation of chronic pain. 

• The chiropractor reported full recovery and no residual effects expected. 

• There was no medical information between 1997 and 2016. 

• In 2009, chiropractic information indicated 7/52 history of low back pain supporting that the pain was more recent, not from 1997. 

• There was documentation of multiple other injuries on file which included an injury in 1983-1984 where the worker may have been driven over by a gravel truck, and up to 22 motor vehicle accidents. So there were multiple other reasons for the worker to have low back pain. 

• Doctor chart notes on file noted the diagnosis of osteoarthritis/mechanical back pain/discs shown on MRI. None of those would be related to the recovered strain injury from 1997.

On March 31, 2016, Compensation Services wrote the worker to advise that the WCB was unable to accept further responsibility for his claim as a new or recurrent injury based on the medical opinion outlined on March 22, 2016. On April 18, 2016, the worker appealed the decision to Review Office.

On May 11, 2016, Review Office determined that it was premature to consider the worker's appeal as a 2010 MRI report was submitted which was not seen by Compensation Services. Review Office asked Compensation Services to request additional information related to the worker's back complaints and to review the file in totality in conjunction with the original decision and advise the worker of the outcome.

The WCB requested and received chiropractor and physiotherapy chart notes and well as information from a health clinic and a neurologist.

On August 19, 2016, a WCB medical advisor noted to the file that the new information did not change the previous opinion that the worker's long standing low back pain could not be medically accounted for in relation to the compensable injury. The medical advisor noted that the new information supported that the worker's pain started prior to the 1997 workplace accident. There was also evidence that the worker, in either 2003 or 2005 and again in 2010, reported that the pain was not related to a workplace accident. The medical advisor indicated that no medical practitioner has provided an opinion or evidence that the worker's pain was related to the 1997 WCB claim.

In a decision dated August 23, 2016, Compensation Services confirmed to the worker that the WCB was not able to accept further responsibility for his claim as it was felt that his current back symptoms were not related to his compensable injury of August 10, 1997.

An MRI report dated September 20, 2016 was reviewed by the WCB medical advisor on November 19, 2016. The medical advisor said the MRI showed multilevel disc changes which were indicative of degeneration and that the changes on imaging would not be related to moving a converter in 1997.

In a decision dated November 21, 2016, Compensation Services advised the worker that based on the MRI results of September 20, 2016, it was determined that his current back difficulties were related to degenerative disc disease and not to the workplace accident of August 10, 1997. On December 5, 2016, the worker appealed the decision to Review Office.

On January 11, 2017, Review Office determined that the worker's back difficulties were not a consequence of his compensable injury of August 10, 1997.

On February 18, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. In June 2017, the worker provided the Appeal Commission with additional medical information for consideration.

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 August 10, 1997. He is appealing the WCB decision that denied responsibility for certain difficulties which he asserts are related to the compensable decision. He is seeking further benefits in relation to his accident of August 10, 1997.

Worker's Position

The worker was self-represented. He was accompanied by his wife.

The worker explained that in August 1997, he was working as a truck driver and was supposed to take a trip out past Swift Current with two trailers. He said that while trying to hook up, he had to move a converter. Because of where it was located, he had to turn it around by hand. He said the ground was hard packed clay with little bits of gravel in it. He said he was able to move it, but that all of a sudden, his lower back let go. Although his back was painful, he felt he had to take the trip.

After the trip the worker saw his chiropractor. He said that his chiropractor told him that if the converter weighed over a certain poundage the worker would have to go to the emergency ward instead of seeing the chiropractor. They decided it weighed about 600 pounds and that the chiropractor could treat him. The worker said that he was badly bruised by the accident and that "my lower back, was completely purple and blue."

The worker advised that the proper weight of the converter was about 4,500 pounds.

The worker advised that around 2003 or 2004, he decided he could not work at truck-driving anymore because his back hurt too much. He worked at various occupations after that including working as a driller in the oil patch and at a call center. He also obtained his level 1 firefighter and EMT certificates.

In answer to a question, the worker advised that he takes pain medication for his back and anti-depressants.

The worker acknowledged that before he injured his back, he participated in kick boxing.

The worker said that he believes he herniated his disc in the 1997 accident because that's "the only time I ever really hurt my back." The worker told the panel that the real bad pain, started about two years later and has gotten worse. The worker explained that he continued to see a chiropractor about every one or two weeks until about 2000.

In answer to a question about continuing pain, the worker stated:

There are points when it feels less bad, yes, but you have to also understand, I really don’t know what less bad or bad feels like, just for the fact is I’ve been dealing with the pain for such a long time, and you learn to live with it.

He said that he has been constantly on painkillers since the accident and can’t function without painkillers.

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker is appealing the WCB decision that he is not entitled to further benefits in relation to his accepted accident of August 10, 1997. For the worker's appeal to be approved, the panel must find that the worker's current difficulties are a consequence of the August 10, 1997 accident.

The panel finds on a balance of probabilities, that the worker's current difficulties are not a consequence of his August 10, 1997 workplace accident and accordingly, the worker is not entitled to further wage loss or medical aid benefits in relation to this accident. In arriving at this conclusion, the panel relies upon the following:

1. October 2, 1997 Discharge note from the treating chiropractor. The note indicates: "Any Change of Diagnosis: He has reached pre-accident status. General Prognosis: He has returned to pre-accident status with no impairment and no residual effects. This is his last treatment and he is being discharged from our care for these injuries." 

2. Chiropractic x-ray dated August 20, 1997 states: "Impression: Early discopathy L4 and L5. Right and left lateral bending deformities." The panel finds that this test demonstrated early degeneration was evident at the time of the injury. 

3. The November 19, 2016 opinion of a WCB medical advisor regarding the above noted x-ray: "Degeneration of the spine is a common occurrence in all people. It can be evident on imaging even as early as our teens. The cause of it is not known, but the incidence increases with age. The changes on imaging would not relate to the MOI (mechanism of injury) here, moving a converter, in 1997.

There is evidence of "early discopathy" on an x-ray taken 2 days after the incident. If this injury caused the disc changes, they would not have been present within 2 days of the accident. This further supports that the disc changes are unrelated to this C/I and the progression of changes between 1997 and 2016 is consistent with the natural progression of the degeneration with aging."

4. The worker's evidence that he had no symptoms after the discharge in October 1997 until 2000. The panel finds that this evidence supports the finding that the worker had recovered from the 1997 workplace injury.

5. The worker's evidence that he can go for months without symptoms and then has periods where his symptoms can be severe. This is consistent of the panel's understanding of symptoms that wax and wane which are generally considered to be degenerative.

6. September 20, 2016 MRI L-spine which noted: Multilevel degenerative changes to the spine.

It is the panel's understanding that degenerative changes are generally related to the natural aging process. In the worker's case, his 1997 x-ray indicated that the degenerative process had commenced.

The panel notes the worker expressed concern regarding the weight of the converter which he moved in 1997. At the time the claim was filed the converter was noted to weigh 600 pounds, the worker then indicated that it weighed 2400 pounds. At the hearing the worker advised that the converter weighed 4500 pounds. The worker advised that he sought chiropractic care rather than medical care from a physician because he thought the converter weighed only 600 pounds. He commented that he would have gone to see a physician or hospital for medical care if he had known the correct weight. The worker appeared to indicate that the weight of the converter determined which healthcare profession could best treat his injury. The worker's view that the type of care provided is predicated upon the weight of the object involved in the incident is not consistent with the panel's understanding. The panel finds that the actual weight of the converter is not relevant to the type of care provided and accepts that the worker was injured moving the converter but that his current back problems are not related to that injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 25th day of July, 2017