The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss and medical aid benefits. A hearing was held on June 6, 2018 to consider the worker's appeal.

Issue

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

Decision

The worker is not entitled to wage loss and medical aid benefits.

Background

On January 28, 2015, the worker reported to the WCB that she injured her neck, shoulders and mid upper back on January 1, 2015. The worker described the incident as:

A patient got up and was walking with his walker, his pants fell, I bent down to pull up his pants, he fell as I was lifting his pants, he pulled me in a twisting motion to the left and backwards. I felt a pull in my neck area and upper back. It was not bad at first. I finished my shift.

My left side started bothering me Jan 22/15. It was really tight.

The worker attended for an appointment with her family doctor on January 23, 2015 who noted her complaints of "pain, spasm of the neck, hard to turn to the sides" and diagnosed the worker with "Muscle spasm/neck pain." The doctor provided a Sickness Certificate noting that the worker should be off work from January 23, 2015 to February 1, 2015 inclusive.

On January 30, 2015, the worker had a follow-up appointment with her family doctor who noted that the worker's pain and range of motion were improving but her neck was still sore and recommended that she remain off work until her next appointment of February 6, 2015 when she would be reassessed. At the further follow-up appointment on February 6, 2015, the worker's doctor recommended that the worker remain off work for eight weeks and be reassessed every two weeks.

In her initial discussion with the WCB on February 3, 2015, the worker advised the WCB that she worked her regular shift on January 3, 2015 then was off due to a combination of her regular days off and family sick time until January 14, 2015. She worked January 14 to January 18, 2015 doing her regular duties. The worker noted that stiffness in her neck and back, more on the left side, set in while she was working those shifts. Her co-workers did notice her symptoms and she related it to the January 1, 2015 workplace incident.

The WCB spoke to one of the worker's co-workers on February 9, 2015 who confirmed speaking with the worker about her back and left shoulder pain, which the worker related to an incident at work but had not discussed when it happened. On February 18, 2015, the WCB spoke to another co-worker who was aware of the workplace incident that took place on January 1, 2015 but was not aware there were ongoing symptoms.

On February 20, 2015, the WCB advised the worker that she was not entitled to wage loss and medical aid benefits as they could not relate her increase in symptoms to the workplace injury of January 1, 2015.

The worker's representative submitted further medical information on January 7, 2016 and asked the WCB to reconsider their February 20, 2015 decision. The medical information provided was a letter dated December 2, 2015 from the worker's doctor noting that in his opinion, the injury the worker sustained on January 1, 2015 was "mainly muscular and this takes a while for it to present in an aggressive way."

On January 18, 2016, the WCB advised the worker's representative that the additional medical information provided was reviewed but there would be no change to their February 23, 2015 decision. The worker's representative submitted further medical information on September 6, 2016 requesting that the WCB once again reconsider their earlier decisions. The worker's representative submitted a report from the worker's massage therapist listing the worker's treatment dates following the workplace incident. On November 18, 2016, the worker was advised by the WCB that their earlier decisions remained unchanged. It was noted that the information provided by her representative from her massage therapy clinic indicated that on December 15, 2014 she was having upper back and shoulder pain which was causing headaches and nausea. There was also mention of an appointment on December 24, 2014 where the worker was reporting still having pain and tightness through her upper back, neck and head and she was encouraged to see her doctor as it was indicated they were "worrysome." The decision also referred to the delay in seeking medical attention.

The worker's representative requested reconsideration of the WCB's decisions to Review Office on April 27, 2017. The worker's representative noted disagreement with the WCB's decisions as the worker had a "legitimate and significant reason" for not seeking medical attention immediately as she had a family illness that took her attention away from her own medical issues. The worker attempted to manage the pain on her own and did seek medical attention when her symptoms did not improve. Further information was received from the employer's representative and the worker's representative and was shared with all the parties.

On July 5, 2017, Review Office upheld the WCB's earlier decisions that the worker was not entitled to wage loss and medical aid benefits. Review Office noted that the worker worked six shifts from January 2, 2015 to January 18, 2015. She then reported the workplace incident to the WCB on January 28, 2015 reporting that her left side started bothering her on January 22, 2015 and her symptoms increased after three days away from work. The information received from the worker's massage therapist notes that on January 26, 2015, the worker presented to their clinic in an acute state of muscle spasm/tension with tenderness and limited range of motion. The worker was diagnosed after that time with a strain type injury that Review Office noted usually presents with immediate discomfort and symptoms, which, after an acute phase, will begin to improve. In the worker's case, she reported an increase in symptoms after working a limited number of shifts and then not working for three days. Accordingly, Review Office found the evidence did not support that the worker had a loss of earning capacity or a requirement for medical aid benefits related to the January 1, 2015 workplace incident.

The worker's representative filed an application with the Appeal Commission on December 20, 2017. An oral hearing was held June 6, 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: 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 the 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;

Subsection 4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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) The board 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.

Section 37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2) Subject to subsection (3), wage loss benefits are payable until the loss of earning capacity ends.

The WCB Board of Directors enacted WCB Policy 44.05.20, Arising Out of and in the Course of Employment. This policy provides in part that: To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "policy") addresses the issue of pre-existing conditions when administering benefits. The policy states that: When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the policy:

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

• 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. 

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

Worker’s Position

The worker is appealing the WCB Review Office decision that there is no entitlement to wage loss and medical aid benefits. The worker was represented by a worker advisor, who made a submission on the worker's behalf. The worker responded to questions from her representative and the panel.

The worker's position was that she was in the course of her employment when she was injured on January 1, 2015 and is entitled to wage loss and medical aid benefits as her medical presentation from January 23, 2015 forward related to the January 1, 2015 workplace accident. The worker described the injury to her neck, mid and upper back and shoulder area as feeling "uncomfortable, it was tight, it was -- it’s very hard to describe, because it wasn’t excruciating pain like I previously felt."

The incident in question occurred on January 1, 2015. The worker was off work the following day but returned to work January 3, 2015 and then was off for the next ten days. (both scheduled and to care for a seriously ill child). She returned to work January 14-18, 2015. The worker self-treated her worsening pain and attended a doctor on January 23, 2015 who recommended she not work for a period of two weeks. There was reasonable justification for the worker not seeking medical attention sooner. The worker ultimately returned to work on a gradual basis to full capacity in early April 2015.

Employer’s Position

The employer was represented by an advocate.

The employer's advocate's position is that there is no substantive evidence of disability associated with the January 1, 2015 workplace incident which would entitle the worker to benefits.

The employer's advocate submitted that in a February 3, 2015 memorandum detailing a conversation the adjudicator had with the worker, she initially reported right side pain, and then reported that her left side hurt more during the week of January 14-18, 2015. It wasn’t until over three weeks later that she sought medical attention, and the delay in seeking medical attention makes it more difficult to establish a connection between a workplace event and the need for treatment.

At the appointment on January 23rd, the diagnosis was muscle spasm and neck pain. There weren’t any onerous objective findings. There was complaints of neck stiffness, decreased rotation to the left side, and a tender cervical spine. The worker did seek treatment for these same areas, the neck and upper back, prior to January 1st. She saw a massage therapist on December 15th for upper back and neck pain which was causing nausea and headaches. She saw this same therapist on December 24th, and the therapist found the nausea to be worrisome, recommending that her client consult a physician to rule out any other potential cause other than a muscle-related origin.

The employer's advocate stated this makes it impossible to establish that time loss from work starting weeks later and the medical treatment are related to the January 1st workplace event, and not to an overall problem condition that she was having prior to the incident.

It was the employer's advocate's position that the appeal should be denied.

Analysis

The worker is seeking wage loss and medical benefits due to a workplace incident on January 1, 2015. For the appeal to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid prior to returning to full capacity in April 2015. For the reasons that follow, the panel was unable to make that finding.

The panel notes that prior to the January 1, 2015 workplace accident, physiotherapy records from December 15, 2014 and December 24, 2014 both indicate the presence of pain in the upper back and neck areas to the point that it was causing “worrisome” effects of nausea and headaches. It was in this environment that the worker suffered a muscular injury that the panel would describe as minor; the worker was able to complete her shift; she was able to perform her regular duties form January 14 to 18, 2015; and she did not seek medical treatment until after a major flare-up of pain on the left side of her neck on January 22, 2015.

The passage of time between the reported incident on January 1, 2015 and the first visit with a doctor on January 23, 2015 would normally suggest improvement in a muscular strain injury and not worsening of symptoms. The panel finds that the significant worsening of symptoms three weeks later is not consistent with this pattern.

The panel was unable to reconcile that the injury initially felt tight and uncomfortable after the incident on January 1, 2015 but progressed to the point of acute pain such that the worker was barely able to be touched during the attempted January 23, 2015 physiotherapy appointment. In addition, there was insufficient medical evidence to explain the transfer of pain points from the right side to the left side of the neck.

The panel notes that the worker was dealing with high levels of stress and exhaustion between January 1, 2015 and the first intervention of physiotherapy on January 23, 2015. As well, there is a prior history of neck and upper back issues for which the worker was receiving treatment immediately prior to the January 1, 2015 workplace accident.

The panel therefore finds, on a balance of probabilities, that the worker is not entitled to wage loss or medical benefits. The appeal is denied.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of July, 2018