The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after June 1, 2015. A hearing was held on May 2, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June 1, 2015.

Decision

The worker is entitled to benefits after June 1, 2015.

Background

The WCB received a Worker Incident Report on June 3, 2015 from the worker reporting that he injured his lower back on April 22, 2015 when lifting a heavy metal plate.

The employer filed an Employer's Accident Report dated June 4, 2015 that indicated the worker injured his lower back on April 22, 2015 when holding a drip pan and he felt pain to his back.

On June 2, 2015, the worker saw his family doctor for an examination where he was diagnosed with a muscle spasm. The worker's doctor recommended modified duties of no heavy lifting and no bending for a period of three weeks.

A Functional Status Report was completed on June 4, 2015 that noted the worker could return to work with modified duties of limiting his lifting, bending/twisting and alternating sitting and standing. The modified duties were to be in place for a period of fourteen days.

The worker attended an initial physiotherapy appointment on June 5, 2015. The physiotherapist noted the worker's description of the injury as pushing a heavy object up and over head with his right arm. The physiotherapist provided a diagnosis of a disc protrusion and recommended restrictions for two weeks of no lifting, bending, leaning, or reaching and no standing for longer than fifteen minutes.

A further Functional Status Report was completed on June 18, 2015 and outlined a gradual return to work duties, to be in place for fourteen days, starting for three hours a day with restrictions on lifting, stair climbing, bending/twisting, and alternating sitting and standing.

The WCB had a discussion with the worker on June 18, 2015. The worker reported immediately feeling a sharp pain in his lower back. The worker advised the WCB that he continued to have pain symptoms when he reported for his shift that night. He further advised that he reported his discomfort to his supervisor and was instructed to continue doing his job duties within his limitation. The worker reported waking up the next afternoon with severe back pain and attending for acupuncture that afternoon. He noted going to the health unit when he arrived at work because he felt he could not do his regular duties. The health unit provided him with restrictions and he started the alternate work duties right away. The worker advised the WCB that he did not attend to see a doctor as he felt that the acupuncture treatment would provide him with more benefit. His last day of work was April 24, 2015, where he was still on alternate work, and he left for a five week holiday on April 26, 2015 out of the country. The WCB asked the worker, during their discussion, if he sought medical treatment while he was away. The worker advised that he did but he did not bring any of the test results back with him.

On June 25, 2015, the employer provided further information from the worker's supervisor indicating that the worker reported the incident to them on April 13, 2015 and was directed to go to the health unit but the worker declined. The worker, through a translator, stated that he did not want to go the health unit and requested that he be allowed to "take it a little bit easy that night" and that he would be fine the following day. The employer also provided a statement from the translator confirming the discussion between the worker and his supervisor.

A WCB medical advisor provided an opinion on the worker's claim on June 25, 2015 at the request of the WCB. The WCB medical advisor provided the opinion that based on the worker's initial presentation and limited clinical information at the time of the workplace incident, the worker's probable diagnosis was non-radicular, non-specific low back pain. The WCB medical advisor also opined that if this had occurred after an unusual force through the back, it would be clinically equivalent to a strain/sprain injury. The WCB medical advisor also provided that a "strain/sprain will cause non-radicular back pain that may get worse for the first few days, then should gradually improve. Prognosis for full recovery is excellent and usually occurs within 6 weeks." The WCB medical advisor further provided:

The worker presents at over 7 weeks post-injury with ongoing low back pain, radiating to the right thigh. He has painful ROM, weakness to his legs, increased tone of the muscles, and positive SLR and slump tests. This presentation is consistent with discogenic back pain.

His initial presentation remains consistent with a strain injury, rather than discogenic back pain. The worker's current presentation cannot be medically accounted for in relation to the C/I (compensable injury)…

On July 10, 2015, the WCB advised the worker that his claim was accepted for a strain/sprain injury only. Based on the opinion of the WCB medical advisor, it was the decision of the WCB that the worker had recovered from the effects of his workplace accident and he was not entitled to benefits as of June 1, 2015 as they were not able to establish his ongoing difficulties were related to the workplace accident.

The worker's representative requested reconsideration of the WCB's decision to Review Office on November 16, 2016. The worker's representative advised that the worker attended for acupuncture treatment while on holidays outside of the country and upon return, continued to receive acupuncture treatment, who recommended physiotherapy and modified work duties. It was the worker's representative's position that the worker should be compensated for his medically related treatments he sought for his ongoing back problems.

On February 2, 2017, Review Office advised the worker that they had upheld the WCB's decision that he was not entitled to additional benefits after June 1, 2015. Review Office found that the worker's back problems after his vacation were not related to his workplace accident. Review Office accepted that the worker's back difficulties had become worse after his return from vacation to the point where he felt it necessary to seek medical attention from a doctor and a physiotherapist. Given that the worker had reported he was improving before he left on vacation but then reported worsening symptoms upon his return, Review Office was unable to establish a causal relationship between the workers' pre-trip and post-trip symptoms.

The worker's representative filed an application with the Appeal Commission on February 28, 2017. An oral hearing was held on May 2, 2018.

Reasons

Applicable Legislation

The worker is seeking further benefits beyond June 1, 2015

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 that 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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

Worker's Position

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

The worker's representative noted that the worker sustained a mid lower back sprain/strain in a workplace injury April 13, 2015 while lifting and pushing heavy drip trays. He was on modified duties due to the back injury and then went on vacation leave April 26, 2015. He returned to work after his vacation. He attended the first aid station seven times from April 14 to 23, 2015.

The worker's representative referred to WCB policy 44.120.10, Medical Aid. She noted that it provides that the WCB will pay for recommended treatments including acupuncture, as well as new treatments modalities being introduced to the market place. She noted that all such treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury.

She noted there was no mention that the worker was informed that he would require prior approval for acupuncture prior to traveling to [country]. As English is not the worker’s first language, she said that it cannot be assumed he read this policy.

She submitted that:

In conclusion we are asking that the claim be accepted and he be compensated for all medical expenses and any other benefits he may be entitled to under the WCB Act and policies.

With the assistance of the interpreter, the worker answered questions from the panel.

The worker confirmed that, at the current time, he has no medical problems with his back.

He advised that between June 2015 and October 2015 he had 30 to 40 treatments. He said these varied, and included fitness exercises, use of a heat pad on his back, and also electric impulses.

The worker described the April 2015 accident which involved lifting a heavy drip tray. He indicated that it was eight feet by about two feet or one meter by about two and half meters. He said there were two people lifting the tray. They were not lifting at the same speed. This caused him to injure his back.

Regarding medical treatment, he advised that before he left on vacation at the end of April he was seeing an acupuncturist every day. He also received massages. While he was on vacation, he received acupuncture and massage treatment, and had a CT of his back. He has only had an x-ray of his back in Canada.

The worker advised that he never obtained reports on his treatment while he was away, because the WCB told him that it did not authorize his trip.

The worker advised that he missed one day of work upon his return in June.

Employer's Position

The employer was represented by an employer advocate who provided a written submission and did not attend the hearing.

The employer representative submitted that:

While we are not disputing that [worker] sustained a mid/low back injury on April 13, 2015, we do not believe that he was disabled as a result or that he required benefits following his return to Canada after a five-week trip to [country].

She noted that the worker did not seek any formal medical attention at that time but at the urging of the employer, attended the employer's Health Unit. She submitted that the nurses' documentation showed resolving complaints and symptomatology including:

• his complaints weren't ominous. 

• he complained of mid and low back pain and difficulty bending, twisting and reaching. 

• there was no mention of radicular pain 

• he reported feeling better at each visit 

• the WCB medical advisor opined that the worker's presentation was consistent with "non-radicular, non-specific low back pain." 

• by April 20, 2015 he indicated that he was feeling much better 

• at the April 23, 2015 visit he stated that he was feeling better and wanted to resume his regular duties.

She noted that upon his return to Canada he saw a physician on June 2, 2015 who provided a diagnosis of muscle spasm. No neurological signs were noted and range of motion was normal. The employer advocate contrasted this with the physiotherapist findings on June 5, 2015 which noted complaints of trouble getting out of bed, limited ability to walk, pain radiating down both legs, increased urgency of bladder, and positive dural signs. She noted the very limiting restrictions that were recommended.

The employer advocate asked that consideration be given to the WCB medical advisor's opinion of June 25, 2015.

The employer representative submitted that:

Based upon the scant information and the opinion of the WCB medical advisor, we agree with the decision that there is no entitlement to benefits after June 1, 2015.

Analysis

The worker is seeking benefits after June 1, 2015. For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after June 1, 2015 as a result of his April 13, 2015 work injury.

For the reasons that follow, the panel finds, on a balance of probabilities, that the worker is entitled to benefits after June 1, 2015.

The panel attaches significant weight to the SOAP notes provided by the employer's Health Unit, particularly the notes dated April 22 and 23, 2015 and June 1 and 3, 2015.

SOAP note April 22, 2015 - assessment: 

-EE still cannot bend or twist without pain

SOAP note April 23, 2015 Subjective: 

-EE states going to acupuncture tomorrow 

-EE will going to FD wants assessment but states wants to be back to RD soon.

SOAP note June 1, 2015 indicates: Subjective: 

-EE in reporting still pain to mid, low back. 

-EE reports getting acupuncture treatments while in [country], feels better but the pain still there. 

-EE states going to family Dr [name] tomorrow. FSR 216 given.

Assessment: 

-Limited ROM, c/o pain to reach, bend and twist. 

-Noted that EE walking fine into and leaving HU. 

SOAP note June 3, 2015 indicates: 

Subjective: 

-EE in questioning restrictions 

-EE was under the impression that he was restricted from reaching, bending and twisting. 

-stated that yesterday was cleaning some pans and had to reach forward to clean them. By doing so, he was hurting his back more. 

-Spoke with supervisor [name] and stated that he doesn't have to do any reaching forward, the pans come to him and he just clean (sic) them where his (sic) standing. 

-[name] will go over the job with EE, and if this job is not suitable will be move (sic) to do something else. 

-Explain restrictions given by Dr. ee ok with them and with Supervisor resolution. Will report back if any problems.

The panel finds that these notes confirm that the worker did not recover before he left on vacation, that he reported that he sought treatment while on vacation and that he still had symptoms and sought treatment when he returned after vacation. These notes are consistent with other information on file and with the information provided in answer to questions at the hearing.

The panel finds that the worker did not recover from the injury and as per the SOAP notes of June 3, 2015, specifically "stated yesterday was cleaning some pans and had to reach forward to clean them. By doing so, he was hurting his back more." In the panel's view, the worker sustained a recurrence of the injury, while at work on June 2, 2015, entitling the worker to benefits as of that date.

The panel found the worker to be credible. His position has remained consistent. The panel also notes that throughout this claim the worker has continued to work at modified duties and did not seek time off.

The worker's representative advised that the worker would like to be reimbursed for the medical expenses he incurred for treatment outside Canada. The panel notes that the issue before it relates only to entitlement to benefits after June 1, 2015. As the expenses incurred by the worker out of Canada were prior to June 1, 2015, the panel is not able to address this request. It remains available to the worker to submit receipts for these expenses and for the WCB to adjudicate these expenses pursuant to its policies and guidelines.

The worker's appeal for entitlement to benefits after June 1, 2015 is approved.

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 12th day of June, 2018