The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing problems with his neck and middle back are not related to his compensable injury of September 13, 2016. A hearing was held on November 1, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after December 30, 2016.

Decision

That the worker is not entitled to wage loss and medical aid benefits after December 30, 2016.

Background

On September 13, 2016, the worker injured his neck and middle back in a motor vehicle accident during the course of his employment as a delivery driver. Following receipt of medical and other claim information, the WCB accepted the worker's claim based on the diagnosis of a neck and low back strain. File records show that the worker was treated for his injuries by a physiotherapist commencing September 21, 2016.

On December 15, 2016, a WCB physiotherapy advisor reviewed the file and stated:

Accepted diagnosis is cervical and lumbar strain (with significant pre-x)…The claimant has had a full course of physiotherapy, with temporary pain relief. He has been instructed in a home program. Further in-clinic treatment related to the c/i (compensable injury) is not indicated. PT rationale is deconditioning. This is not accounted for in relation to the c/i.

In a letter by Compensation Services dated December 15, 2016, the treating physiotherapist was advised that the WCB was unable to approve the extension request for additional physiotherapy treatment as there was no evidence that further in clinic treatment was warranted and that a home program and/or self-pain management techniques should suffice.

In a further letter by Compensation Services dated December 20, 2016, the worker was advised that his claim had been reviewed by a WCB medical advisor (on November 22, 2016) and it was opined that the current diagnosis was resolving cervical and low back strain in the environment of preexisting spinal stenosis. The worker was advised that his current cervical and low back symptoms would be an effect of the preexisting spinal stenosis rather than a material effect of the workplace accident. Based on the accident description, the length of time that had passed since the accident, the available medical reports and the WCB medical advisor's opinion, it was felt that the worker had recovered from his compensable injury and was not entitled to WCB benefits beyond December 30, 2016.

On December 22, 2016, the worker appealed the decision that he was not entitled to additional physiotherapy treatments. On February 8, 2016, the worker appealed the decision that he was not entitled to benefits after December 30, 2016.

On March 7, 2017, Review Office determined that there was no entitlement to wage loss and medical aid benefits beyond December 30, 2016 as it concluded that the worker had recovered from the strain injury to his neck and lower back in relation to the compensable injury.

Review Office noted in its decision that it did not find evidence to support the worker's claims that his continued dysfunction and inability to return to work relate to his original sprain injury that occurred 15 weeks prior to the decision made by Compensation Services. It noted that the request for additional physiotherapy treatment was to address deconditioning. Review Office felt that this would not be related to the compensable injury diagnosed as a strain.

Review Office noted that the degenerative changes found on the worker's x-rays were not caused by or a result of the compensable strain injury or that the worker's current neck and low back difficulties were related to the compensable injury. Review Office referred to specific file evidence to support its findings that the worker's loss of earning capacity was not caused in part by a compensable injury or in part by a non-compensable pre-existing condition or any relationship between them.

On June 6, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. On June 16 and October 16, 2017, a worker advisor submitted additional information from the worker to the Appeal Commission for the panel's review prior to the hearing.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 25, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, 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.

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(3) of the Act provides that "Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay wage loss benefits for a period of not more than 48 months following the date of the accident."

Worker's Position

The worker was represented by a worker advisor and accompanied by his wife. He has an accepted claim for a workplace injury on September 13, 2016. He is appealing the WCB decision that he is not entitled to benefits after December 30, 2016.

At the commencement of the hearing the worker made a statement about his claim. He stated, in part, that:

I would like to make a statement regarding what the WCB office is led to believe that my auto accident has no bearing in my prolong injury and pain. They are of the opinion that my neck and back pain is related to my previous condition, this being spinal stenosis. I find this assumption disturbing and stressful.

The WCB Review Office … are convinced you can suddenly become disabled overnight by my pre-existing condition, and not by the contributing factor of the auto accident. WCB is using in part most of its analysis on hypothetical data and not the true full facts. They have not done any follow-up personally, such as visual contact or by phone with me, nor have they gone down to the plant to clearly sustain their true findings for their results.

Let it be known that I have proof, facts, that the auto accident is a direct result of my disability condition. I was in very good physical condition, which my fellow employees can attest to.

…WCB office has not collaborated with them by phone or by personal visits to the plant to verify my claim.

Also there are all my doctors’ letters from September 13, 2016 accident and 2017 to date, stating by this thorough examination throughout this ongoing process, where he states my mobility was severely damaged caused by the accident and not by any previous condition…

The worker's representative advised that it is the worker's positon that he did not recover from the September 13, 2016 compensable injury by December 30, 2016, and he should be entitled to additional coverage of wage loss and medical treatment

She submitted that the degenerative changes found in the worker’s x-rays were not caused by or a result of a compensable strain injury. She stated that, on a balance of probabilities, the worker’s current neck and low back difficulties are not related to the degenerative condition but rather to the compensable injury.

The worker advised that his duties at the time of the accident, involved loading and unloading materials (recycled auto parts) onto a half or three-quarters ton truck. He said that some of the products weigh up to 200 pounds and some have a span of four or five feet. He said he has to move many of the products by himself.

The worker confirmed that at the time of the accident he was not receiving any treatment for his neck or back. In reply to a question from his representative about whether he required the use of a cane or any other type of walking aid prior to September 13, the worker responded "None whatsoever."

The worker said he had his annual check-up in February 2016 and he was not taking any medications.

The worker described the accident as:

I was stopped at a red light on Broadway and Smith with my signal lights indicating a right turn, while waiting for the light to change, when I was suddenly hit from behind from an automobile. My body position at the time was slightly leaning forward looking for pedestrians, when the violent force of the impact jarred my body backward. This caused intense physical pain to my neck and back.

The worker advised that his physician was not available until the next week and that he continued to work until his appointment because his employer was short-handed. He advised that he sought assistance from co-workers and customers in loading and unloading the truck due to the pain. He advised that he also started using a cane for walking and balance.

The worker advised that his physician advised him to take Advil and attend at physiotherapy. Later his physician told him the accident was serious enough that it exacerbated his previous conditions, spinal stenosis, to the point that it will not become normal, leaving him with his present disability condition.

Regarding his current condition the worker advised that:

I am in constant daily pain and limited mobility. I have trouble sitting, standing and walking. I need a cane for support for walking and balance when I am mobile.

The worker's representative advised that:

He was diagnosed with a lumbar and a cervical sprain/strain injury following the accident, and physiotherapy treatment was provided. The September 21, 2016 physiotherapy assessment noted constant ache in the low back, trouble walking, and sharp pain in the lateral hip with walking. The clinical finding showed reduced range of motion and flexion of the cervical, thoracic and lumbar spine, triggering in the scapula and hip/core weakness. Ongoing medical reports show a very slow progress in recovery.

The worker's representative noted that a WCB medical advisor wrote in a memorandum dated November 4, 2016, that the worker's current cervical and low back symptoms would be an effect of the pre-existing spinal stenosis, rather than a material effect of the workplace accident. He noted that spinal stenosis is a progressive condition which becomes more symptomatic over time.

She noted that his physician disagreed with the WCB medical advisor and stated that the worker's persistent lower back and neck pain with resultant limitation on activities of daily living are a direct result of his compensable injury of September 2016.

She submitted that the worker did not have any of the physical findings or require any of the restrictions outlined in the December 2 and 14, 2016 physiotherapy reports prior to the September 13, 2016 accident.

In reply to a question from the panel about whether his condition had changed since the accident, the worker replied that:

No, it's the same since the accident. Nothing has been improved, nothing whatsoever.

The worker advised that any easing of pain during physiotherapy sessions were temporary and when he arrived home his pain was returned.

In a submission dated October 9, 2018, the worker's representative noted the new medical information received from the worker's physician. She submitted that:

In response of this information, it confirms our position that [worker] did not have any prior neck injuries or pain and no ongoing significant back symptoms prior to his workplace accident, which removed him from work before September 13, 2016.

Employer's Position

The worker's employer did not participate in the appeal.

Analysis

The issue before the panel was whether the worker is entitled to benefits after December 30, 2016.

For the worker's appeal of this matter to be approved, the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and required medical aid benefits after December 30, 2016, as a result of his 2016 workplace injury. The panel was not able to make this finding.

Dealing with the mechanism of injury, the worker advised that the incident did not cause any damage to his vehicle. He did not get pushed into the intersection because the brakes were on his vehicle. He also reported that he finished his deliveries on the day of the accident and worked for four days the following week, until he could see his physician on September 20, 2016.

The panel finds that the description of the accident, no damage to his vehicle, and the worker's ability to continue to work the balance of the day and then the next week without medical attention are not consistent with having sustained a serious injury.

The worker was asked several questions at the hearing regarding his physical wellness before the accident and after. The worker advised that prior to the accident he was in good physical shape. He also denied that he had to use a cane before the accident, except briefly when he recovered from hip surgery in 2005.

The panel obtained the worker's medical file from his physician. The panel finds that the information in the medical file contradicts much of the worker's evidence from the hearing particularly with respect to the status of his low back prior to his injury.

When asked at the hearing whether receiving any treatment for his neck or his back at the time of the September 13, 2016 injury, the worker advised "None whatsoever."

However the worker's medical record indicates a significant recent history of back pain:

Chart note May 25, 2016 "L hip and lower back painful intermittently due to working on concrete/ standing a lot.

Chart note October 31, 2014 "c/o increasing lower back and L hip pain chronically"

Chart note July 31, 2013 "on EI Disability/ was delivering auto parts for [name] - unable to do any longer/ looking for lighter work/ lower back and L hip pain worsening"

SOAP note "Parking Pass (OA L hip)"

Parking Permit "The cause and description of my physical disability is Hips (both) + spine degeneration" 13/06/07

Chart note May 15, 2007 (from orthopedic surgeon) "x-rays of the lumbar spine done today show severe degenerative changes at L4-5 and L5-S1 with slight lipping above that. This gentleman's story is that of spinal stenosis, not of hip troubles."

Also, a note in the worker's file indicates that at an October 26, 2016 meeting with the worker's case manager, the worker and his wife confirmed that he had to use a cane and shopping cart for support prior to the injury. At the hearing the worker was asked if he used a cane or walking aid prior to the accident. The worker responded to the question with "none whatsoever." He clarified this by later adding:

I did buy my cane when I had my hip operation. I had to use that, and it was stored in the, in a closet until now, right now.

The panel notes that the hip operation was in 2005. The information provided by the physician's charts indicates that as of February 16, 2016, the worker was "using cane to mobilize." As well, a parking pass application dated June 24, 2013 indicates that the worker requires ongoing assistance of a mobility aid.

The panel places greater weight on the historical evidence over that provided by the worker at the hearing regarding his physical condition before the accident and his use of a cane before the accident. The panel finds, on a balance of probabilities, that the worker's ongoing medical issues as of December 30, 2016 were related to the natural progression of his significant non-compensable degenerative conditions and not to his compensable injury. The panel is not able to find that the worker is entitled to benefits after December 30, 2016.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of October, 2018