Decision #108/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after March 3, 2016. A hearing was held on May 22, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after March 3, 2016.
That the worker is entitled to benefits after March 3, 2016 to March 30, 2016 inclusive.
On January 14, 2016, the worker reported to the WCB that she injured her neck and left shoulder in an incident which she described, in part, as follows:
I was performing dental treatment on Friday Jan. 8/16. I moved awkwardly to reach behind me on my left side to retrieve an instrument. (I was working alone.) I felt a sharp hot pain behind my ear/neck area. I continued to work, I did change duties after my patient. The next few days it gradually became more painful and my movements were limited. I returned to work and found I was only able to treat the upper quadrant because I couldn't move my neck properly…
On January 12, 2016, the worker attended an initial appointment with a chiropractor, who diagnosed her with acute cervical spine dysfunction, cervicogenic headaches, acute costovertebral joint dysfunction, acute thoracic pain and concomitant chronic right shoulder impairment and thoracic dysfunction. The chiropractor noted that she told the worker not to go to work but the worker did not have anyone else to fill in for her and felt obligated to be there.
The incident was reported to the employer on January 14, 2016, and an Employer's Incident Report was filed January 19, 2016.
On January 18, 2016, the worker saw a second chiropractor who noted her complaints of severe neck and shoulder blade pain on her left side, and that she was unable to lift her left arm due to pain and was unable to laterally flex or rotate her neck to the left. The chiropractor recommended that the worker remain off work.
At an initial appointment with her family physician on January 26, 2016, the worker reported pain in her left neck, and being unable to turn her head, worse with movement, and was diagnosed with left neck pain/strain. The physician noted that the worker was unable to perform her job duties at that time.
At a follow-up appointment on March 2, 2016, the treating chiropractor noted that the worker "likely has a small cervical disk (sic) bulge." The worker reported that her neck was feeling "much better" but she "still can't hold head up while driving very long" because of the pain. The worker also reported that if she did too much activity, she got strong blade and arm pains. The chiropractor stated that the worker could attempt to return to work for two hours a day, but noted that this would create problems with the worker getting treatment were she to return to her home community. The chiropractor requested an extension of the worker's treatment plan of 2-3 times per week for 3-4 weeks.
The worker's claim was subsequently investigated by the WCB's Compliance Services, and on May 30, 2016, the worker was advised that she failed to meet her obligations under subsection 22(1) of The Workers Compensation Act (the "Act"), by discontinuing medical care with a healthcare provider and travelling out of the country between March 4 and March 14, 2016 and by failing to take reasonable steps to reduce or eliminate impairment and to promote recovery when carrying out physical activities on that trip.
On June 1, 2016, Compensation Services advised the worker that her loss of earning capacity ended as of March 4, 2016 and there was no entitlement to further benefits as of that date. Having considered information they had received about her trip out of the country, which involved a significant hiking excursion, Compensation Services determined that the worker's level of activity during that trip was equal to, if not greater than, her regular job duties.
On July 8, 2016, the worker requested that Compensation Services reconsider their decision to end her entitlement to benefits after March 3, 2016. On August 9, 2016, Compensation Services advised the worker that there would be no change to their earlier decision.
On October 26, 2016, the worker requested that Review Office reconsider Compensation Services' decision. On April 13, 2017, Review Office determined that there was no entitlement to benefits beyond March 3, 2016. Review Office stated that based on the mechanism of injury and the file evidence, they were of the view that the worker sustained a neck strain/sprain injury and they were unable to determine that a more significant injury occurred.
Review Office noted that the treating chiropractor indicated on March 2, 2016 that the worker could return to her regular duties for two hours per day, but they were unable to find any evidence to support that a gradual return to work was required. Review Office determined that the worker demonstrated during her vacation that she was capable of working her full regular job duties without any need for restricted hours. Review Office also determined that the worker showed a high level of function during her trip without the need for medical treatment.
On September 1, 2017, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
The worker was employed by a federal government agency or department and her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.
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.
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 is considered 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.
The worker was accompanied by a friend at the hearing. The worker was assisted by a worker advisor who provided a written submission in advance of the hearing and made a presentation to the panel. The worker also made an oral presentation and responded to questions from the worker advisor and the panel.
The worker’s position was that the evidence shows she had not recovered from her compensable injury and had a continuing loss of earning capacity and requirement for medical treatment beyond the benefit end date of March 3, 2016.
It was submitted that the worker was unaware of her WCB rights and responsibilities before leaving on her trip, as she was residing with family members outside her home community while undergoing medical treatment. Letters from the WCB containing information about those responsibilities were sent to her home mailing address, and she was not aware of those letters until after she returned from her trip.
In her submission, the worker confirmed that when she left for her vacation in March, she had not received any paper from the WCB even telling her that her claim had been accepted. She had booked her trip the previous November. She had researched it well and knew what was involved. She did not believe that her neck was in worse shape coming home from that trip than before she left. She said that spiritually, mentally and physically, she probably felt better after the trip, having been away from everything and doing something for herself.
The worker advisor submitted that letters from the attending chiropractors should be given greater weight than the comments attributed to them by Compliance Services. The initial chiropractor, who was also on the same excursion as the worker, indicated that the hike was not difficult or hazardous for the worker. After receiving details about the trip and activities undertaken, the subsequent treating chiropractor stated that he would have supported her participation in the trip at the time.
It was submitted that the medical evidence did not indicate that the trip delayed the worker's recovery or made her injury worse. The activities which the worker engaged in during her vacation were not comparable with the physical movements and positioning required in the performance of her job duties. In her job, the worker had to repeatedly turn her head and neck down and to the left, and to hold that positioning while she did her work, and the medical reports show that the worker reported difficulties with these movements and positioning. Outside the work environment, the worker had control over what she did and how she did it, and no part of her trip required such repetitive neck movements or prolonged static neck flexion or extension.
It was submitted that the worker was still injured and incapable of resuming her regular work duties on March 4, 2016, and was therefore entitled to additional medical aid benefits, including reimbursement for appropriate treatment which she continued to pay for and attend. Wage loss benefits should also be reinstated based on file information and correspondence showing that the employer did not accommodate the worker's compensable injury until long after March 4, 2016.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after March 3, 2016. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after March 3, 2016 as a result of her January 8, 2016 workplace accident.
Based on the information on file and as presented at the hearing, the panel finds that the worker is entitled to wage loss and medical aid benefits from March 3, 2016 up to and including March 30, 2016.
In her submission and in response to questions at the hearing, the worker stated that she had been working at her job for 23 years prior to the accident. The worker described in detail her job duties at the time of the accident, including the range of treatments and procedures she performed, her positioning as she performed those procedures, her workload and her workday. The evidence showed that the worker spent a significant amount of time working unassisted, serving a wide range of clients and performing a full range of dental procedures. The evidence also indicated that the worker had to sustain long and awkward postures while performing her duties.
Based on our review of the information before us, the panel finds that the compensable diagnosis is a sprain/strain injury in the environment of a degenerative cervical spine. In the panel's view, that diagnosis is consistent with the mechanism of injury, as an acute injury which the worker sustained in the performance of her work duties on January 8, 2016. While other difficulties or conditions are referred to at various times in the file, the panel finds that the only consistent diagnosis is that of a sprain/strain injury. The panel is unable to determine that a further or more significant injury occurred or to relate any other difficulties or conditions to the worker's January 8, 2016 accident.
The panel is further satisfied that the worker had not completely recovered from her compensable injury as of March 2, or March 4, 2016, when she left for a ten-day vacation. The panel places significant weight on the March 2, 2016 report from the treating chiropractor, who indicated that the worker's neck was much better, but she still had some symptoms and required further time to recover from her injury. In his report, the chiropractor requested an extension of three to four weeks for further treatments.
The panel places little weight on the worker's trip from March 4 to March 14, 2016. Given the worker's detailed description of her job duties, the panel is satisfied that the activities which the worker engaged in during her trip were not comparable to the work activities she was required to perform in the course of her employment. Further, the panel finds that during the trip she did not aggravate her injury.
In this regard, the panel notes that the evidence shows the worker's neck pain was very specific and localized to definite motions and movements. The worker commented in her July 8, 2016 letter to the WCB that she knows "what I can and can not do." The panel accepts the worker's further comment in her October 26, 2016 submission to the Review Office that "For the entire duration of the trip at no such time was there any activity that would of caused me to be re-injured or prolong my injury. This trip was a pleasure trip…I have tried to effectively communicate that my injury is agitated by certain specific movements which I am completely aware of."
The panel also places weight on the October 16, 2016 correspondence from the treating chiropractor, who noted that he had known and looked after the worker since 2004 and stated that he would have consented to her trip, including her mountain hike. The panel also places weight on correspondence from the initial chiropractor dated August 2, 2016, in which the chiropractor, who completed the same trip and hiking excursion as the worker, opined that "the physical nature of the trip was not putting her at risk. The hike was not difficult and I had no physical issues with the hike…"
The panel finds that the report from the treating chiropractor suggests that the worker would have recovered from her injury within three to four weeks after he saw her on March 2, 2016, based on his recommended treatment regimen. The panel notes that the chiropractor's March 2, 2016 report is the closest medical report in time to the March 4, 2016 cut-off date. In the panel's view, that report provides the best evidence of the worker's rate of recovery, indicating that the worker's injury would have resolved by the end of that four-week period. Leaving aside the worker's trip, the panel expects that the worker would have completed her treatment and been ready to return to her full duties at the end of the four-week period of time that was suggested by the treating chiropractor. The panel therefore finds that the worker would have been entitled to appropriate medical aid in respect of that four-week period of time. Accordingly, the worker is entitled to medical aid benefits for a period of four weeks following the March 2 report, to March 30, 2016.
The panel is further satisfied that the worker is entitled to coverage for any wage loss associated with treatment during that four-week period of time. As the worker had been undergoing her treatment at a location outside of her home community, the additional treatment would also be authorized at the same location, which is a considerable distance from her home community. The worker would therefore be entitled to wage loss benefits associated with undergoing treatment at that location, to be determined by the WCB.
The panel notes that the worker advisor raised an issue at the hearing with respect to vacation pay or pay during the vacation period from March 4 to March 14, 2016, noting that the worker had not received any money in respect of that period of time. The panel would indicate that the issue of vacation pay and its impact on the WCB is also to be assessed by the WCB.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is entitled to medical aid and wage loss benefits after March 3, 2016 to March 30, 2016 inclusive.
The worker's appeal is allowed, in part.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of July, 2018