The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his current neck and back difficulties as being a consequence of the October 30, 2015 accident. A hearing was held on October 22, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's current neck and back difficulties as being a consequence of the October 30, 2015 accident.

Decision

Responsibility should not be accepted for the worker's current neck and back difficulties as being a consequence of the October 30, 2015 accident.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 154/17, dated November 14, 2017. The background will therefore not be repeated in its entirety.

On October 30, 2015, the worker reported that he injured his left wrist, neck and back while operating a vehicle when it flipped over three times while going up a dyke. His claim for compensation was accepted and various types of benefits were paid to the worker. Based on the opinion expressed by a WCB medical advisor on January 17, 2016, the diagnosis accepted by the WCB in relation to the workplace injury was a left scapholunate ligament injury. On June 14, 2016, the worker underwent a left wrist arthrotomy and an open reduction and internal fixation of the left scapholunate.

The worker's treating orthopedic surgeon provided on February 28, 2017 that the worker was able to participate in a graduated return to work. It was noted in the surgeon's report that "He is undergoing a CT for his back and he is complaining of generalized discomfort."

In an email with the WCB on March 10, 2017, when the worker advised that he has a CT scan scheduled for March 16, 2017 for his back, the WCB advised that as there had been no medical information provided linking his current difficulties with his back to the October 30, 2015 workplace accident, he would not be entitled to any benefits. He was further advised that any medical information received would be reviewed but that it would be difficult to relate symptoms he was reporting for his back to the workplace accident.

On March 15, 2017, the WCB advised the worker that a relationship between his current neck/back difficulties and the workplace injury of October 30, 2015 could not be established. The WCB noted that at the worker's initial doctor's appointment, it was reported that he had neck and back pain but a musculoskeletal and neurological examination was normal. A further report on November 6, 2015 noted a normal neurovascular exam after the worker reported a decreased range of motion in his neck and back. A review of the worker's file by a WCB medical advisor on January 17, 2016 noted "There has been no medical information on the back or neck, so no medical opinion can be provided for those." It was recommended by the worker's treating orthopedic surgeon, at an appointment on October 17, 2016, that the worker should discuss "his chronic back problems" with his family physician.

The worker requested reconsideration of the WCB's decision to Review Office on January 8, 2018. The worker noted that his back and neck injuries were not recorded at the time of the workplace accident but that he is suffering from the effects of those injuries.

On March 16, 2018, Review Office advised the worker that the WCB's decision of March 15, 2017 was upheld and responsibility would not be accepted for the worker's current neck and back difficulties as being a consequence of the October 30, 2015 accident. Review Office acknowledged that the worker had a sore back and neck following the workplace accident but that treatment was initially focused on his left wrist as that was the most serious injury at the time. Review Office noted that if the worker had sustained serious long term neck and low back injuries from the workplace accident, his treating healthcare practitioners would have noted those in their reports and provided recommendations for treatment. However, it was further noted that there was no mention of the worker's neck and back difficulties in any of the medical reports from November 2015 to August 2016. Review Office placed weight on the fact that the worker did not seek or receive treatment for his neck and back difficulties for two and half years and it could not be explained why, if the worker had made complaints about his neck and back, treatment was not provided.

The worker filed an appeal with the Appeal Commission on April 23, 2018. An oral hearing was arranged.

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.

Worker's Position

The worker has an accepted claim regarding an injury to his left wrist. He is seeking WCB coverage for his current neck and back difficulties as a consequence of this 2015 accident.

In reply to questions from the panel, the worker advised that:

• he did not have back problems prior to the accident.

• his lower back is bothering him the most. He gets stiff, can’t move, has a lot of pain.

• if he sits for a long period of time, his back hurts and he must get up and move.

• his back has gotten worse since October/November 2015.

• his back pain has progressed from 5 out of 10 to 8 out of 10.

• he gets headaches which he relates to his back condition.

• his physician recommended physio treatments but he cannot afford it.

• his neck has not been bothering him as much as his back.

In reply to a question about the lack of reference in the medical information to problems other that the left wrist, the worker stated:

I’ve been telling [hand specialist] right from the start all about my back and everything. Like, he was concentrating on my wrist, that’s what he said he had to concentrate on, and that’s what you guys were taking responsibility for, WCB was. So he wasn’t able to concentrate on anything else except for the wrist.

In reply to a question about his neck injury, the worker stated:

It gets stuck, that’s what I think causes my headaches, is the neck problem, but it’s all related with my spinal.

The worker described the workplace accident which occurred when he was driving a vehicle, which consists of a cab and trailer. He advised that the trailer rolled and flipped on the driver's side but that the cab did not flip. It ended up nose deep into the dirt, on the left side. He was strapped into the driver's seat and a coworker assisted in getting him out of the cab.

At the end of the hearing the worker stated:

…the way I feel is I wasn’t injured prior to this injury from the workplace in October, and I never had back problems prior to this injury, so I don't know what to do anymore. I’m just so stressed out, it’s taken a big toll…

Employer's Position

The employer was represented by its Director and Health and Safety Manager.

The employer representative did not make opening comments, however in closing stated:

…I think it’s fairly clear that there is no specific correlation of this three-year-later back injury to the incident itself.

The employer representative asked why the worker did not receive physiotherapy given his reports of back pain. The worker advised that the WCB would not pay for physiotherapy and that he had no other coverage so did not receive physiotherapy treatments.

Analysis

The worker is claiming that his current neck and back difficulties are a consequence of his October 30, 2015 workplace 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 workplace accident caused the worker's current neck and back difficulties.

The panel was not able to make this finding. The panel, finds on a balance of probabilities, the worker's current neck and back difficulties are not related to the accepted workplace accident claim.

At the hearing, the worker stated that his neck and back problems have existed since the workplace accident. He stated that he told physicians about his neck and back at the beginning of his claim and advised the WCB of this. This is confirmed by the Doctor First Report dated November 5, 2015 and by his report to the WCB dated November 15, 2015. However, there is no mention of these injuries again until August 2016 when a physiotherapist noted complaints of neck pain and headaches since the accident, and increased back pain. The panel would have expected the noted injuries would have received greater attention from the various medical services providers than the minimal reference in the early reports.

The panel notes that in August 2018, an orthopedic surgeon provided a report which links the worker's current symptoms to the workplace accident. The panel does not agree with the opinion of the orthopedic surgeon who first saw the worker in August 2018 and opined that the worker "…could have suffered a significant injury to the L4-5 disc in October 2015 with the subsequent result of what we are seeing in 2017." He noted that x-rays confirm chronic narrowing of the L4-5 disc space and that a CT scan shows some facet arthrosis at the L4-5. He describes the worker's 2015 accident as a "severe roll-over accident".

The panel is not able to attach weight to the opinion of the orthopedic surgeon. The panel finds his description of the accident is exaggerated and incorrect. In this regard, the panel notes that the surgeon was relying on a history provided by the worker, and did not have access to the early medical information on the file. The panel finds based on the evidence on file and provided at the hearing, that the accident occurred while the truck and trailer were travelling at a slow speed, that the truck cab did not roll over; rather, it came to a rest leaning over on its side with the worker being restrained in his seat by the seatbelt. The panel is not able to find that this mechanism of injury would cause the worker's neck and back problems which are noted to be degenerative. In conclusion, the panel finds, on a balance of probabilities, that the worker's current neck and back problems are not related to the workplace injury.

The worker's appeal 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 22nd day of November, 2018