Decision #36/18 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable and that the worker is entitled to wage loss benefits. A hearing was held on February 7, 2018 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits.

Decision

The claim is acceptable and the worker is entitled to wage loss benefits.

Background

The worker, an order picker in a warehouse, filed a Worker's Incident Report on May 3, 2012 reporting that on May 1, 2012 he injured his right lower back:

I was climbing down the stairs after retrieving a box of wire (30 pounds) the stairs are not (sic) mobile. So when I was coming down the stairs shifted to the right and it caused my body to shift and I felt a pain in my right lower back.

On May 3, 2012, the worker was seen by a chiropractor who diagnosed him with "Lumbopelvic sprain/strain w/ subluxations & aggravation of prior lumb. disc inj." The chiropractor noted:

Decreased lumbar ROM with pain on flexion and Rt. Lateral flexion. SLR test positive

At a follow-up appointment on May 18, 2012, the chiropractor noted "Lumbar flexion slightly improved. SLR test still positive, but with a greater degree of flexibility." An extension of chiropractic treatment was requested at that time, as:

Due to his recent injury, [the worker] is experiencing an acute aggravation of a chronic condition which resulted from a prior WCB claim. As such, recovery is slow.

On May 31, 2012, the worker had a further follow-up appointment with the chiropractor. At the request of the WCB, the chiropractor indicated that the worker would be able to return to work on July 16, 2012 with the modifications of "No lifting whatsoever. No sitting for longer than 10 minutes." subject to the worker receiving an extension of his chiropractic care.

The WCB, on June 5, 2012, requested that the worker attend a call-in exam. The worker was examined by a WCB chiropractic consultant on June 7, 2012 who provided the following:

On the basis of today's assessment, the diagnosis is non-specific lumbopelvic pain. There is no identified radicular component.

[The worker] demonstrates a significant amount of pain behavior and reports illness beliefs that are not in keeping with the level of findings or mechanism of injury.

[The worker's] present disability is symptom-based and reflects a poor self efficacy that is not commensurate to the nature and level of findings or to the diagnosis. Lumbar ranges of motion were self-limited and do not represent a true measurable impairment of function. There are no neurological deficits affecting the lower extremities.

[The worker's] antecedent history includes essentially chronic daily lower back pain. His present status is more in keeping with his pre-existing reported history. There are no exclusive features on assessment pointing to a medically probable ongoing cause and effect relationship between [the worker's] current condition and the workplace lower back injury of May 1, 2012.

In my opinion, [the worker] is able to return to his usual duties without a reasonable risk of harm.

On June 7, 2012 the worker was advised by the WCB that, based on the medical evidence provided by the WCB chiropractic consultant, the compensable injury had resolved and he was not entitled to wage loss benefits after June 7, 2012.

A representative for the employer requested reconsideration of the WCB's decision to accept the worker's claim and entitlement to wage loss benefits to the Review Office on November 30, 2016. Due to an error in addressing, the employer's representative wrote further letters on February 7, 2017 and June 8, 2017.

Review Office, on July 10, 2017, upheld the WCB's decision that the worker's claim was acceptable and that the worker was entitled to wage loss benefits to June 7, 2012. Review Office determined that the worker reported the workplace accident to his employer on May 1, 2012. The employer reported that the incident was reported to them on May 2, 2012 but while Review Office acknowledged the discrepancy, they did not consider it significant. Review Office found that prior to May 1, 2012, the worker was working and not receiving treatment for his back issues. After the May 1, 2012 workplace accident, the worker had to seek chiropractic treatment for his back and therefore, it was found that the worker did have an accident as defined by the Act and the claim is acceptable. Review Office also found that, given the worker's acute symptoms of pain and decreased mobility, the worker was likely totally disabled from his job duties as an order picker. As well, the worker's chiropractor recommended treatment and for the worker to have time off work. A further report from the worker's chiropractor on May 18, 2012, recommended more time off work as the worker's recovery was slow. Accordingly, Review Office found that the worker did suffer a loss of earning capacity in relation to the workplace accident.

The employer's representative filed an application with the Appeal Commission on July 18, 2017. An oral hearing was held February 7, 2018.

Reasons

Applicable Legislation and Policy

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. Subsection 4(1) of the Act provides: 4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

"accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker; 

(b) any 

(i) event arising out of, and in the course of employment, or 

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured;

Where there is an accepted claim, 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 WCB Board of Directors has enacted WCB Policy 44.40.10, Evidence of Disability. The policy provides that "Compensation is payable only when there is medical, or similar evidence of a disability arising from a compensable incident or condition."

The administrative guidelines under this policy provide that "Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker's treating healthcare professional."

The WCB Board of Directors also enacted WCB Policy 44.10.20.10, Pre-existing Conditions which provides the following definitions:

DEFINITIONS 

1. Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury. 

2. Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury. 

3. Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Employer Position

The employer was represented by a consultant who participated via teleconference. The employer is appealing the WCB Review Office decision that the worker's claim is acceptable.

The employer's representative provided a written submission, dated July 18, 2017, in advance of the hearing and made an oral submission at the hearing. In his written submission, he advised:

In consideration for the benign mechanism of injury and chronic low back pain the worker was already experiencing before May 1, 2012, we request this claim be denied and all costs be removed from [employer's] account. Alternatively, we request this claim be accepted on a no lost time basis in recognition of the fact that the worker could have continued working at his regular duties because his low back was the same after the date of the accident as it was the day prior to the accident. The incident described by the worker as having occurred on May 1, 2012 did not cause any disability as the worker was already symptomatic and capable of performing his regular duties.

The employer's representative noted that at the commencement of the worker's claim, the employer expressed concern to the WCB regarding the claim. He noted that the employer advised the WCB that the worker had asked to be transferred to a different department because he found the work in the warehouse physically demanding. The worker had also asked that the employer terminate his employment. The employer did not accede to the worker's requests. The employer representative noted that a few weeks later, the worker submitted a workplace injury claim.

The employer representative submitted that the worker was motivated to stop working because he had approached the employer on different occasions, asking to be put on employment insurance.

The employer's representative referred to the worker's description of the accident, acknowledged that it could be considered a sudden event, but it was "a relatively benign event."

He referred to the medical information and submitted that there was no change in the worker's condition, and that although there may have been an accident there has been no injury.

Regarding the medical information, the employer's representative noted the June 7, 2012 opinion of the WCB Chiropractic Medical Consultant that:

[worker's] present disability is symptom based and reflects a poor self efficacy that is not commensurate to the nature and level of findings or to the diagnosis.

The employer's representative submitted that:

My interpretation of that, those sentences, is that he couldn't find anything wrong with him. He couldn't even find an injury in spite of all the complaints of back pain, daily back pain.

The employer representative noted the WCB Chiropractic Medical Consultant comments that the antecedent history includes essentially chronic daily lower back pain and that his present status is more in keeping with his pre-existing reported history. 

He also noted that the worker has acknowledged the pre-existing back pain and has clearly worked with it throughout that period of time.

Regarding the description of the accident provided by the worker, the employer representative advised that the employer never had a concern with the description of the accident as the worker described it. However, he submitted that:

He said he caught his balance, he doesn't say anything about hitting a rail or anything like that, but the point I'm making is that when you already have a bad back and you already have a symptomatic back, you are not actually suffering an injury. 

… 

You know, like either he's purposely giving a display of an injury that's not there, or he thinks he's injured when physically they can't find anything wrong with him. That's essentially what I'm arguing is that he could very well have been going down the stairs exactly as described, he may have thought he suffered an injury, but really I think it was just because he was fed up and wanted to get out of there. And medically, there is nothing to say that he got any worse from going down the stairs. He's been in this similar state for a very long time.

The employer's representative said that it is necessary look at the medical findings of all reports, including the very first chiropractic reports, review such things as the straight leg raising or the objective medical findings, then look at the conclusion at the bottom, which always says the worker can't work. He said then compare these to the conclusions of the WCB Chiropractic Medical Advisor "which seems to have the virtually identical findings as the chiropractor" but different conclusions.

In reply to a question about whether the panel should discount the findings, the changes and the improvements in the three reports from the treating chiropractor, the employer's representative submitted that:

I'm saying that the reports themselves to me don't demonstrate a change in what is essentially his baseline condition. Because he presents himself with that same limited flexion and straight leg raise throughout. And so it would ebb and flow perhaps he had higher levels and lower levels, but it doesn’t meet the definition of disabled permanently or totally disabled, at least temporarily totally disabled.

I don't think he was temporarily totally disabled and therefore, he's not entitled to wage loss benefit.

With respect to the second issue, whether or not the worker is entitled to wage loss benefits, the employer representative confirmed that the employer's position is:

Yes, that is essentially what I'm saying, is that in the example I used, he potentially was coming down the stairs, it turned and he felt, you know, he tweaked himself. But by the time he got to the bottom of the stairs, if he’s having problems with his back, that's just a continuation of a chronic problem. So that doesn’t warrant temporary total disability benefits. So that part where it would be a no loss time claim.

Worker's Position

The worker attended the hearing and answered questions form the panel.

In answer to questions, the worker advised that the stairs he was standing on were mobile stairs made of metal with wheels on the bottom to move the stairs. He estimated that the stairs were about 3 feet wide and 20 feet high. He said that he climbed the stairs to retrieve a reel of wire that weighed approximately 40 pounds. He said the stairs did not have locking wheels.

He described the accident as:

I'm at the top of the stairs, the very top. The floor at [employer's] isn't very level, these stairs are old and they're rickety, they wobble when you walk up and down them, especially this set of stairs that I had to use. So when I got to, I took about two steps, and the stairs shifted over to the left, causing me and the wire wheel to shift over to the left, which is the bad part of my back, which injured it to a point that I could barely walk when I got off the stairs.

The worker advised that he walked down the stairs and when he got to the bottom of the stairs, he put the reel down he could barely walk. He then went to the supervisor and filled out the form and went home.

The worker said that he had a back problem arising from a 2005 incident. He referred to various documents, which were described as reports of incidents. He said that he provided these to his employer before the May 1, 2012 injury. The panel did not receive or view these documents.

The worker described his pain as:

Well, like my lower back chronic back pain consists of pain pulsating from one spot in my back.

In answer to a question, the worker told the panel that he had not received any chiropractic treatment for his back between 2007 and 2012.

When asked why he needed chiropractic treatment on May 1, 2012, the worker advised:

Because when I came down that ladder I could barely walk anymore.

He said that the pain was worse than any pain he has felt since 2005. The worker advised that he had not seen the treating chiropractor before this accident and that he told the chiropractor about his chronic condition.

In reply to a question about whether the chiropractic treatments worked, the worker advised:

They were working good. Actually, they were working well. It was involved, I guess he did some positioning and then he took this little spring loaded device and jabbed me on the spine with it. And after five weeks, six weeks, I was feeling much better. I still had my normal pain, of course, that never goes away, but I was being normal, I could do things.

The worker advised that he returned to work after his benefits ended. He advised that he spoke with his supervisor, explained his situation and was given the rest he needed until his back got better. He advised that he was terminated in September 2012.

The worker denied the employer's assertion that on several occasions he asked to be laid off so he could receive unemployment benefits, he said:

I only went to my employer once to ask to be laid off from [employer], and that was because of the abuse I was suffering from younger employees.

Analysis

There were two issues before the panel:

1. Whether or not the claim is acceptable 

2. Whether or not the worker is entitled to wage loss benefits

For the employer's appeal to be approved the panel must find, on a balance of probabilities, that the worker did not sustain an injury arising out of or in the course of his employment with the employer, or if the claim is accepted, the panel must find that the worker did not sustain a loss of earning capacity as a result of the injury.

Issue 1: Whether or not the claim is acceptable

The panel notes that:

• the employer did not dispute the description of the incident provided by the worker 

• the worker has a chronic back condition

The employer's representative's positon was that the worker's prior condition did not change as a result of the incident. The employer's representative agreed that the incident could have occurred as described by the worker and the worker might have had some increased pain caused by the incident, but that the pain was momentary. He said that:

And I would suggest that at most, the worker tweaked his back perhaps on May 1st, walked down the stairs and by the time he got to the bottom of the stairs, the real accident and any potential injury was over.

And at that point, yes, maybe it was time for it (sic) a change and move to a different department, but that was certainly not a disabling event.

The panel considered the employer's position, but finds, on a balance of probabilities, that the mechanism of injury described by the worker resulted in an aggravation of the worker's pre-existing back condition. The panel makes this finding under Board Policy 44.10.20.10, Pre-existing Conditions.

In making this finding the panel considered the opinion of the treating chiropractor who provided three reports to the WCB with respect to the worker's condition:

• in the 1st report, dated May 4, 2012, the treating chiropractor noted "Decreased lumbar ROM with pain on flexion and Rt. Lateral flexion. SLR test positive. "

• in the 2nd report, dated May 18, 2012, the treating chiropractor noted "Lumbar Flexion improved. SLR test still positive, but a greater degree of flexibility"

• in the 3rd report, dated June 1, 2012, the treating chiropractor noted "Lumbar flexion improving slowly, SLR test still positive, but now at a level of 60 degrees"

The panel finds that the treating chiropractor's reports demonstrate changes and improvement in the worker's condition from May 3, 2012 to May 31, 2012.

The panel does not agree with the employer's position that there was no change in the worker's condition from the date of the accident to the date that the worker returned to work.

In addition to the evidence of the treating chiropractor, the panel also attaches weight to the evidence provided by the worker. He said that after the accident he could hardly walk and therefore reported the accident. The panel accepts this evidence that there was an immediate change in the worker's condition as a result of the incident on the ladder. Further, the worker advised that the treatments were working well and that:

And after five weeks, six weeks, I was feeling much better. I still had my normal pain, of course, that never goes away, but I was being normal, I could do things. The panel notes the worker returned to work in early June 2012.

Regarding the opinion of the WCB Chiropractic Medical Advisor, the panel accepts this opinion as an indication of the worker's condition as of the day of the examination, June 7, 2012. He stated his opinion that:

In my opinion, [worker] is able to return to his usual duties without a reasonable risk of harm. [Worker], by several indicators, has derived maximal therapeutic benefit from chiropractic treatment.

In the panel's view, the successful course of treatment over a short period of time is consistent with our finding that the worker suffered a temporary aggravation on May 1, 2012.

In conclusion, the panel finds that the worker sustained an injury by accident arising out of and in the course of his employment on May 1, 2012. The worker's claim is acceptable.

The employer's appeal of this issue is dismissed.

Issue 2: Whether or not the worker is entitled to wage loss benefits

As noted above, the employer has also disagreed with the WCB decision that the worker was entitled to wage loss benefits. For the employer's appeal to be approved, the panel must find that the worker did not sustain a loss of earning capacity as a result of the injury.

The Act provides that wage loss benefits are payable when a worker sustains a loss of earning capacity as a result of a workplace injury. The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity beyond May 1, 2012 in relation to the accepted compensable injury.

The panel accepts the worker's evidence regarding his condition on and after May 1, 2012 and finds that the worker was unable to work at his regular duties. The panel also relies upon the opinion of the treating chiropractor that the worker was not able to work due to his workplace injury. The panel also accepts the opinion of the WCB Chiropractic Advisor that the worker was fit to return to his duties as of June 7, 2012. The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity as a result of the accident and was entitled to wage loss benefits.

The employer's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of March, 2018

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