The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was not entitled to further benefits in relation to his 2013 claim and that his 2014 claim was not acceptable. A hearing was held on June 6, 2017 to consider the worker's appeals.

Issue

2013 Claim:

Whether or not the worker is entitled to further benefits.

2014 Claim:

Whether or not the claim is acceptable.

Decision

2013 Claim:

That the worker is not entitled to further benefits. 

2014 Claim:

That the claim is not acceptable.

Background

2013 Claim:

On September 27, 2013, the employer submitted an Employer's Accident Report stating that the worker reported pain in his leg from working on a "whizzer" machine on September 20, 2013. The employer indicated that they were "filing this claim with exceptions."

On October 8, 2013, the worker advised the WCB through an interpreter that he could not recall a specific incident. When his symptoms started, he was using a whiz knife after his lunch break. His job involved loading loin cuts from a combo box to the line, which involved repetitive bending and lifting for about 2 hours. The worker indicated that these activities may have caused his pain. The worker reported that he told the lead hand that he had leg pain which seemed to come from his low back. The worker said he couldn't go to the health unit because he was not given the "form" which enabled him to see the health unit. He continued to work with some discomfort. There were no new incidents over the weekend -- he rested at home.

Medical information showed that the worker attended a chiropractor on September 24, 2013 regarding low back difficulties.

On October 11, 2013, a WCB chiropractic consultant stated that the diagnosis was segmental vertebral dysfunction. This language described back pain that was non-radicular and non-specific and would be considered a lumbar strain/sprain. The consultant stated:

A back strain could be caused by physical activities such as bending, twisting, lifting, push/pull or any combination of the above. The likelihood of a strain injury would increase with increased repetitions and increased force of the above movements. A sprain would require end range forces and would be incurred in events such as a fall or sudden unexpected event…It is improbable that an individual with a back sprain/strain injury would be totally disabled. They would, at minimum, be able to perform sedentary duties.

In a chiropractic progress report dated November 18, 2013, it was noted that the worker had tenderness at L5-S1 and that range of motion was within normal limits. On December 3, 2013, the chiropractor reported that the worker was discharged from care and had returned to his pre-accident status.

2014 claim:

The Employer's Accident Report dated November 12, 2014, indicated that the worker "has pain to lower back and right leg, he had a claim for same last year. Employee states it is bothering him again and it was related to his job." The date of accident was recorded as being November 7, 2014. The employer noted that the worker told his supervisor that his issues were not work-related.

When speaking with the WCB on November 17, 2014, the worker said he was moving and lifting some pallets "like usual" when his pain symptoms started. He could not recall doing anything different. The pain started on the morning of November 7, 2014 and he went to the health unit. His condition worsened over the weekend and he attended a hospital facility on November 10. He eventually had surgery to his low back.

On November 21, 2014, a WCB medical advisor reviewed the file information which included information from the treating chiropractor and various hospital reports (i.e. CT scan results and an operative report). The medical advisor opined that the diagnosis was a sequestered L4-L5 disc with partial cauda equina that was now surgically treated. She said the vast majority of disc changes are related to degeneration and the process starts in early adulthood. The role of trauma in the development of a disc sequestration was unknown but repetitive bending against force may be associated. The consultant noted that the worker had been diagnosed with a strain injury related to his 2013 back claim and that he had recovered by early December 2013. A recovered strain would not lead to a disc sequestration 11 months later.

In a decision by Compensation Services dated December 3, 2014, the worker was advised that the WCB was not able to establish that his diagnosed condition of a sequestered L4-L5 disc with partial cauda equina was causally related to his employment. The WCB's position was that the diagnosis was not caused by direct trauma at work nor was it caused by his previous low back strain. There was ample medical evidence that the cause of his condition was related to degenerative changes.

On March 22, 2016, the worker's advocate wrote Compensation Services requesting reconsideration of the December 3, 2014 decision. Included with the submission was a report from an occupational health physician dated March 10, 2015. The advocate outlined the following position:

"…WCB recognize that the original diagnoses in [2013 claim] was incorrectly diagnosed as a lumbar strain rather than an L4-5 Disc Herniation as per the September 13, 2014 CT Scan and that the injury of November 7, 2014 be considered a re-injury of the 2013 lower back claim and that the back surgery be considered part of that compensable injury and that [the worker] be compensated for all Wage Loss, medical benefits and all other benefits allowed under the Act."

Following consultation with a WCB medical advisor, Compensation Services wrote the worker on April 12, 2016 to advise that in the WCB's opinion, he had already recovered from his lumbar strain injury of September 2013 and that the L4-L5 disc herniation was not caused by an accident arising out of and in the course of his employment. This decision was placed onto the worker's 2013 claim.

On October 5, 2016, Review Office considered written appeals from both the worker's advocate and the employer's advocate and decided that there was no further entitlement to benefits in relation to the worker's 2013 claim and that the worker's 2014 claim was not acceptable.

Regarding the 2013 claim, Review Office stated that it preferred the opinion provided by the WCB general medical advisor dated April 15, 2016 over the opinion made by the occupational health physician. Review Office agreed that the probable diagnosis in relation to the event on or about September 20, 2016 was a strain and that the medical advisor's conclusions were generally consistent with the opinions of the worker's care providers. By December 3, 2013, Review Office felt the worker had recovered from his strain injury and that he was not entitled to further benefits.

Regarding the 2014 claim, Review Office referred to file evidence to support that the worker had longstanding discogenic problems that pre-dated his activities on November 7, 2014 and that an acute injury did not occur on or about November 7, 2014 and that the 2014 claim was not acceptable.

On November 10, 2016, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

On June 8, 2017, the panel met to discuss the worker's appeal and requested additional medical information from two treating physicians. The requested information was later received and was forwarded to the worker for comment. On July 12, 2017, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the 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 is appealing two decisions made by the WCB. He has an accepted claim for a workplace injury on September 20, 2013. He is appealing the WCB decision that he is not entitled to further benefits on this claim.

The worker also is appealing the WCB decision that his claim for injury on November 7, 2014 was not accepted by the WCB.

Worker's Position

The worker was represented by a worker advocate and was assisted by an interpreter.

The worker's representative asked that the panel accept the medical opinion of the occupational health physician. She noted that the occupational health physician, in consultation with the worker, reviewed the medical files and opined that the treating chiropractor misdiagnosed the worker's injury in providing a diagnosis of a lumbar strain, subluxation complex with right side sciatica, when, in fact, the worker had an L4-L5 disc herniation, as shown on the September 13, 2014 CT scan.

The worker's representative disagreed with the employer's position that the physical demand analysis showed limited or no back flexion. She submitted that the physical demand descriptions provided by WCB shows a frequent back flexion of up to 45 degrees on the loin loader line with occasional rotation, frequent back flexion of up to 20 degrees with occasional rotation on the primal trim line, and occasional back flexion of up to 20 degrees on the back cut loin line.

The worker's representative noted the actions and weights involved in each position. She acknowledged that workers are normally rotated through these positions, but the constant standing, grasping, reaching and bending in these positions put a lot of stress on the lower back, and there is no ergonomic relief from any of these rotations.

She submitted that due to the 2013 compensable injury and ongoing back problems, the worker moved to another position, driving a motorized pallet jack, or jitney, and on November 7, 2014 he enhanced and/or re-aggravated his previous back injury, lifting and moving pallets.

With regard to the duties he was performing on the line in 2013, the worker acknowledged that the description of the positions provided by the production supervisor was accurate.

In answer to a question about the treatments he received from the chiropractor, the worker confirmed that when his treatments ended in December 2013, "Everything was okay". He confirmed that he returned to work and had no problems.

With respect to the November 2014 accident the worker explained, through the interpreter, that he was working normally without problem, but one day he was driving the jitney, and had to manually lift a wood pallet that was approximately 80 to 90 pounds. He advised that when he lifted the pallet, he felt the pain in his back.

Employer's Position

The employer was represented by an advocate and its production supervisor. The employer representative advised that the employer agrees with the WCB decisions on these claims.

The employer's representative noted that the occupational health physician did not examine the worker until 20 months after the September 2013 injury. She advised that the employer disagrees with his opinion. She asked that the panel accept the April 15, 2016 opinion of the WCB medical advisor that the worker sustained a strain.

The employer's production supervisor described the five positions that are involved in the rotation of job duties. He noted that workers rotate through the duties at two hour intervals. He said that because one of the duties has two positions, there are actually 6 positions which are rotated amongst the staff and that a worker only rotates in 4 positions each day.

The employer's representative advised that the focus on having the rotations is to limit the same repetitive motions and to make the workstations as ergonomic as possible.

Regarding the 2013 injury, the employer's representative submitted that:

…the medical evidence is clear, [worker's] presentation was compatible with a strain, not a disc injury; there was no specific mechanism of injury or an acute traumatic event which would have caused a serious disc injury.

Regarding the 2014 claim, the employer's representative submitted that:

We believe that there isn’t any evidence of an acute workplace injury or trauma which would have led to the development of the L4-5 disc herniation requiring emergency surgery.

The employer representative noted that when the worker informed the employer of his back problem, he did not mention anything about lifting pallets that would have caused injury, but he did tell the employer that his condition was due to a personal condition.

Reference was made to a memo indicating that the worker reported the incident to the health unit at 5:46 AM on November 7, 2014 but that the employer had no record of the worker signing in that day. The information also noted that work on pallets does not begin until 7:00 AM.

The employer representative submitted that the diagnosis of right-sided stenosis was degenerative.

Analysis

Issue 1: Whether the worker is entitled to further benefits.

For the worker's appeal of this matter to be approved the panel must find that the worker continued to sustain a loss of earning capacity and require medical aid as a result of the 2013 workplace injury. The panel was not able to make this finding.

The panel finds on a balance of probabilities that the worker recovered from the workplace injury. The panel finds that the worker sustained a sprain in this accident and recovered by December 3, 2013.

The panel attaches weight to the opinion of the treating chiropractor who discharged the worker from care on December 3, 2013. The panel notes that the chiropractor reported that the worker returned to pre-accident status and that the chiropractor's treatment and time frame for recovery was consistent with a diagnosis of a strain.

The panel notes the October 11, 2013 opinion of the WCB Chiropractic Adviser. He noted that "the physical findings of pain with decreased range of motion, as reported, are consistent with a sprain/strain injury."

The panel also notes the April 15, 2016 opinion of the WCB general medical advisor that:

more of the evidence favours the strain dx, so on a balance of probabilities, the dx related to the C/I would be a strain.

At the hearing the worker was asked about his condition at the time that he was discharged from treatment. The worker advised that "Everything was okay". The panel notes that the position advanced by the occupational health physician was that the chiropractor had misdiagnosed the worker's back condition, having missed a serious disc injury. The panel finds the worker's evidence of being "okay" and returning to work contradicts this opinion. As well, there were no neurological symptoms, complaints, or findings in late 2013 to suggest a missed disc injury. The panel is not able to find that the worker sustained a disc injury in the 2013 workplace injury.

The worker's appeal of this issue is dismissed.

Issue 2: Whether the worker's 2014 claim for injury is acceptable.

The worker filed a claim for an injury which he said occurred when he manually moved a pallet. He said that the injury happened near 5:00 AM on November 7, 2014.

For the worker's appeal of this issue to be approved, the panel must find on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was not able to make this finding.

The panel finds that that although the worker had increased symptoms while at work, the evidence does not establish that the worker sustained a new accident and injury at work in 2014. The panel notes that the new medical evidence provided to the panel after the hearing discloses that prior to the November 7, 2014 incident, a September 13, 2014 CT scan found that the worker had a disc protrusion at L4-L5 causing moderate to severe spinal stenosis. The worker had undergone injections in his back prior to the alleged November 7th incident and on November 4, 2014 the worker was referred to a specialist for his ongoing sciatic pain. In the panel's view, the worker's disc issues predated the November 7, 2014 incident.

The panel then considered whether the November 7, 2014 incident aggravated or enhanced the worker's pre-existing condition. We could not find, on a balance of probabilities, that the incident caused an aggravation or enhancement.

In considering the November 2014 incident, the panel relies upon the April 15, 2016 opinion of the WCB general medicine advisor who opined that:

About a year after this injury, the worker had a CT scan showing a large disc at L4L5. There has been speculation that this 2013 episode of back pain was the start of that becoming clinically significant. If that were the case, it would be expected that within a reasonable period of time of the onset of this episode of back pain (usually within 0-14 days), there would have been evidence of L5 radiculopathy. There would have been progressive pain/numbness/tingling and sensory changes down the leg to the mid-dorsum of the foot. There would have been weakness of great toe extension. There would have been positive SLR/Lasegue or slump testing. None of those specific symptoms/findings were documented over the weeks following the C/I., so the presentation was not consistent with an L5 radiculopathy.

The panel finds on a balance of probabilities that the worker did not sustain an injury by accident arising out of and in the course of his employment on November 7, 2014 and did not sustain an aggravation or enhancement of his pre-existing back condition.

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 3rd day of August, 2017