The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB") that her chipped tooth was not accepted as being a consequence of the compensable injury and that she was not entitled to benefits after November 2, 2016. A hearing was held on November 23, 2017 to consider the worker's appeals.

Issue

Whether or not the worker's chipped tooth should be accepted as being a consequence of the compensable injury.

Whether or not the worker is entitled to benefits after November 2, 2016.

Decision

That the worker's chipped tooth should be accepted as a consequence of the compensable injury.

That the worker is not entitled to benefits after November 2, 2016.

Background

The worker filed a claim with WCB on March 1, 2016 after a door that was being repaired by a contractor fell and struck her on the lower and middle back. She went to the doctor the same day and the medical report stated a superficial abrasion and localized swelling. The doctor also noted the worker had a pre-existing chronic lower back issue that she was on medication for.

On March 3, 2016, the worker contacted WCB to advise that she had also chipped a tooth when the accident occurred, that the force of the impact of the door on her back caused her to clench her teeth. A Dentist Report submitted on March 15, 2016 indicated a tooth #31 mesial incisal edge fracture. The worker was advised on May 5, 2016 that her claim for a chipped tooth was not accepted as her initial claim did not indicate an injury to her tooth or that she was struck in the facial area when the accident occurred. A relationship could not be established between the accident and the chipped tooth. A Physiotherapy Initial Assessment dated March 3, 2016 diagnosed the worker with "Acute L/S sprain/strain on chronic L/S disc herniations". The worker continued with physiotherapy treatments and medication but showed limited improvement. It was determined that the worker could return to work with restrictions but her employer advised the WCB on May 2, 2016 that the worker's position required her to be on her feet all day and that it would be difficult to provide sedentary duties. A call in examination by a WCB orthopedic specialist was performed on September 13, 2016 with an MRI scan performed on September 21, 2016. The WCB orthopedic specialist's report dated September 13, 2016 concluded that the worker's lower back pain could no longer be related to the March 1, 2016 accident and the worker was advised on October 26, 2016 that she was not entitled to benefits past November 2, 2016.

The worker, through her worker advisor, appealed the May 5, 2016 decision that her claim for the chipped tooth was not compensable and the October 26, 2016 decision that she was not entitled to benefits past November 2, 2016 to the Review Office.

On April 12, 2017, the worker was advised by Review Office that their review of her appeal had determined that her chipped tooth was not compensable and that she was not entitled to benefits beyond November 2, 2016 as it could find no connection between the accident of March 1, 2016 and the worker's chipped tooth and current lower back pain. With regard to the chipped tooth, Review Office noted that at the time of the accident, the worker only noted her lower back injury stating that when she was struck, she screamed and had the "wind knocked out of her". Review Office determined that it was not likely that the worker could have screamed, had the wind knocked out of her and clenched her teeth at the same time. As well, Review Office felt that had a sudden clenching or jarring occurred as the worker stated, it would have been expected that more than one of her teeth would have been damaged and it was noted that the symptoms of a chipped tooth are typically felt immediately. On a balance of probabilities, it would not usually take two days to feel the symptoms of a chipped tooth.

Review Office also determined that the worker was not entitled to benefits beyond November 2, 2016 as the medical evidence from the WCB orthopedic specialist could not connect her continuing back and leg pain with the accident on March 1, 2016. The WCB orthopedic specialist indicated:

"A contusion of this nature in an otherwise normal back can be anticipated to be problematic for up to four to six weeks. It is not a mechanism likely to cause discal or nerve root injury, but rather symptoms generated in the predominately muscular paraspinal soft tissues."

And it was concluded that the worker's extended recovery time and exaggerated pain responses could not be "patho-anatomically explained" by the accident or her pre-existing chronic lower back issue. On June 2, 2017, the worker filed an application to appeal with the Appeal Commission. An oral hearing was held on November 23, 2017.

Reasons

Applicable Legislation

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB. To have an acceptable claim, the worker must have suffered an injury by accident that arose out of and in the course of employment.

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(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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

The worker has an accepted claim. She is seeking WCB coverage for a chipped tooth and is seeking benefits after November 2, 2016 due to a back condition which she attributes to the workplace accident.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from her representative and the panel.

Issue 1: Whether the worker's chipped tooth should be accepted as a consequence of the compensable accident.

Regarding her claim for a chipped tooth, the worker advised that she first noticed that she had chipped her bottom left tooth on the evening of the incident. She contacted her dentist and the WCB the next day. She saw her dentist on March 15, 2016 for repair of the chipped tooth.

The worker explained that the force of the freezer door hitting her caused her to fall forward nearly hitting her face. She believes that clenching down hard on her jaw caused the tooth to chip. The worker states her dentist agrees that the chip could have resulted from the clenching down hard with the jaw.

The worker's representative submitted that based on proximity of time when the chipped tooth was discovered and the mechanics of the incident, the chipped tooth occurred when the freezer door hit the worker's back and is therefore an acceptable workplace injury.

Issue 2: Whether or not the worker is entitled to benefits after November 2, 2016.

The worker's representative submitted that the worker has continued to experience mid/low back and left/right leg difficulties since the March 1, 2016 compensable incident and is entitled to additional benefits.

The worker advised that she has worked for the employer since October 1998. At the time of the injury she was employed as a swing manager.

The worker provided extensive information regarding her 2007 injuries. Her representative confirmed that the worker's appeal pertained solely to the 2016 injury. The worker advised that she initially injured her back in August 2007 in two separate incidents. She saw a chiropractor and later an orthopedic surgeon regarding the 2007 injuries. She returned to work in 2008 but has taken pain medication since. She advised that she also started receiving massage therapy two days before the 2016 injury.

The worker's representative noted that at the time of the March 1, 2016 incident, the worker was still experiencing low back and left sciatica pain, for which she was taking medication and doing her home exercises.

Regarding the 2016 injury, the worker advised that after the injury she could not work but had to stay at the store because there was a new manager and it was the morning rush period. Later that morning she walked to a walk-in clinic, walked back to work and filed her claim on the work computer. She advised that she has not returned to work since the 2016 injury.

The worker advised that the walk-in clinic doctor told her that:

it was probably from the trauma of the door falling and shifting everything when it hit. And right from the beginning, when the door hit me, I just heard crunching and gross things going on in my body when it hit me.

The worker's representative advised that the initial diagnosis was acute L4 sprain/strain on chronic L5 disc herniation. The Board accepted the claim as a low back contusion with nonspecific lower back pain.

The worker's representative submitted that the worker did not recover to her pre-accident status following the March 1, 2016 injury, and was not capable of performing regular duties as a swing manager by November 2, 2016.

In answer to a question about which condition was play on November 2, 2016 the worker replied:

The right hip, I have it right now, it’s constant. I always have pain going from my spine to my right hip. The sciatica down my right leg, that had been gone for years, and that’s every day now as well. The inability to stand for longer than 25 to 30 minutes.

She advised that the pain in her spine was different after the 2016 injury. She said:

Well, it was mostly all the left side before, and now I feel the right side, more than the left side. The left side is still there, but the right side is prominent.

The worker advised that her right leg symptoms developed about a week after the accident. She said that the right leg pain from the 2007 injury had resolved but came back after the 2016 injury.

When it was noted that there was no mention of right hip symptoms during the first month of treatment, the worker responded that:

No, it was the right hip, it was, from day one, the right hip. I told her when I went in there that it was my right hip.

In reply to a comment about whether the right hip pain came because of the accident, or whether it came as part of a come and go cycle, the worker responded:

The right leg never came and went. The right leg, after the 2007 injury, was there. About six months after the injury it went away, I didn’t have right leg pain injury for years. It never bothered me.

The worker described her current pain as commencing at the waist level, and shooting to her right buttocks and down her right leg. Regarding her current medical treatment, the worker advised that she performs physio exercises at home and sees her family doctor for prescriptions.

The worker's representative submitted that;

It is our argument that [worker] was not fit to return to regular duties on November 2, 2016.

Medical information shows that [worker] continued to be symptomatic and required restrictions that did not permit her to return to her regular duties on November 2, 2016. [worker] has explained to the panel that she has experienced persistent right hip and right leg pain since the 2016 injury, which has affected her functionality, in that prolonged standing is now very difficult for her. Therefore, we believe that [the worker] was not fit to return on November 2, 2016.

Employer's Position

The employer did not participate in the hearing.

Analysis

The appeal deals with two issues arising from the workplace accident on March 1, 2016.

Issue 1: Whether the worker's chipped tooth should be accepted as a consequence of the compensable accident.

For the worker's appeal of this claim to be approved, the panel must find on a balance of probabilities that the circumstances of the accident resulted in an injury to her tooth. The panel was able to make this finding. In arriving at this conclusion, the panel accepts the worker's description of the accident and her immediate response, when hit by the fridge door across the back, was that her mouth slammed shut with her bottom tooth hitting the back of her front tooth.

The panel also accepts the worker's evidence that she noticed the chipped tooth, the night of the injury and notified the WCB the next day. She also notified her dentist who subsequently submitted a Dentist Report. The panel finds that it is plausible that the trauma of the accident delayed her discovery of the broken tooth.

The worker's appeal on this issue is approved.

Issue 2: Whether the worker is entitled to benefits after November 2, 2016.

For the worker's appeal of this issue to be approved the panel must find on a balance of probabilities that the worker continued to sustain a loss of earning capacity and/or required medical aid benefits after November 2, 2016.

For the reasons that follow, the panel was not able to find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity or required medical aid benefits after November 2, 2016 as a result of the March 1, 2016 workplace injury.

The panel notes the worker had reported right sided symptoms resulting from this injury. The panel reviewed the medical information and notes that the first mention of right sided symptoms is more than one month after the workplace injury.

The Doctor First report, dated March 1, 2016, reported, in part lower back pain with superficial abrasions and some swelling right lumbar paraspinal muscle bony pain around L4S1 area. It noted ROM limited flexion, extension and lateral rotation due to pain.

The Physiotherapist Initial Assessment, dated March 3, 2016, noted in part:

• Complaints: Constant pain to lower back bilaterally, sharp feeling, radiates into buttock and L ankle with walking numbness to lateral calf and foot (longstanding). • Diagnosis: Acute L/S sprain/strain on chronic L/S disc herniations.

The Doctor Progress Report, March 29, 2016, reported, in part: that the worker was now noticing more pain around left hip and ordered an x-ray of the left hip. The x-ray indicated joint spaces well maintained and no osseous abnormalities evident.

The panel finds that it was not until the Physiotherapist Progress Report, of April 21, 2016 and Doctor First Report, of April 27, 2016, that right sided symptoms were noted.

The panel notes the delay in development of right sided symptoms for at least month, is not consistent with the immediate symptoms that would be expected from an acute event at work.

Based on our review of the medical evidence on the file, the panel finds that the compensable injury arising from the March 2016 accident was a low back contusion with non-specific pain. The panel finds that these symptoms had resolved by November 2016. While the worker relates her current right hip symptoms to the door hitting her at work, the panel is not able to relate these symptoms to the compensable incident.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after November 2, 2016.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of January, 2018