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 benefits after May 19, 2017 and that she is not entitled to further physiotherapy treatment. A hearing was held on July 19, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after May 19, 2017;

Whether or not the worker is entitled to further physiotherapy treatment.

Decision

The worker is not entitled to wage loss benefits after May 19, 2017;

The worker is entitled to further physiotherapy treatments.

Background

The worker reported injuring herself at work on May 16, 2017, describing the incident as:

I was sitting in an office chair. I went to lean forward to pick something up from the floor, chair went to the right and started to tip. I tipped over and fell to the floor injuring myself.

The worker sought medical attention the same day, reporting pain in her right hip, ankle, lower back and neck. At her first appointment with the chiropractor on May 17, 2017, the worker was diagnosed with an acute cervical, thoracic, lumbar strain/sprain injury, an acute right and left knee strain and an acute left foot (forefoot) strain. The chiropractor recommended that the worker be off work for three days and to be re-evaluated the week of May 22, 2017. On May 25, 2017, the worker advised the WCB that she developed bowel incontinence on May 18, 2017. She saw her doctor regarding this on May 23, 2017 who advised that she had a muscle/ligament strain in her lower abdomen area and needed time to heal. 

On May 30, 2017, the worker was advised by the WCB that her claim was accepted. Wage loss benefits were issued for May 17, 2017 to May 19, 2017 and payment of other benefits commenced. In a discussion with the WCB on June 7, 2017, the worker advised that her difficulties with bowel incontinence had resolved by June 2, 2017 but her right side was still sore.

The worker's physiotherapist requested approval for further physiotherapy treatments on August 10, 2017, noting "There is delayed healing, patient complains of changes in workload that require a frequency of rotational workload." On August 17, 2017, the WCB advised the worker's physiotherapist that based on the nature of the worker's injury, the treatment administered and the worker's response to the treatment already provided, further physiotherapy treatments would not be authorized.

The worker requested reconsideration of the WCB's decision to Review Office on September 5, 2017. The worker advised that when she returned to work, it was doing her regular duties and the physical demands of her job duties that made the progress of her recovery slow.

On October 17, 2017, Review Office advised the worker that she was not entitled to further medical aid (physiotherapy) treatments. Review Office noted that the worker attended for 21 physiotherapy treatments over the period of four months. The worker's accepted claim was for soft tissue injuries on her right side. Review Office further notes that soft tissue injuries generally resolve on their own within eight weeks and it was now more than five months after the workplace incident. It was also noted that the worker had not reported any improvement in her perceived disability or pain levels; that the worker made the same subjective complaints and provides the same scores on testing five months after the workplace incident as she did within three weeks of the incident. As such, Review Office found that there would be no benefit to the worker for continued physiotherapy treatment.

The worker's representative, on November 20, 2017, requested the WCB reconsider their decision to only pay wage loss benefits for May 17, 2017 to May 19, 2017. The worker's representative advised that the worker missed work as a result of her bowel incontinence difficulties as her job site did not have immediate access to running water. The worker's representative provided a further medical report on December 18, 2017. The occupational health clinic physician provided in his report, "The occurrence of bowel incontinence followed the injury and was associated with unaccustomed constipation, resulting from decreased movement, medications and pain inhibition related to sore abdominal wall and back musculature. Raising herself from a chair engages quadratus lumborum and other affected muscles is painful and associated with increased intra abdominal pressure which leads to fecal incontinence."

On January 9, 2018, the WCB advised the worker that she was not entitled to wage loss benefits after May 19, 2017 as the medical evidence provided did not substantiate the development of bowel incontinence related to the workplace incident. At the request of the WCB, the WCB medical advisor provided on December 20, 2017, that "the accepted soft tissue injuries would not medically account for the development of fecal incontinence."

The worker's representative requested reconsideration of the WCB's January 9, 2018 decision to Review Office on January 16, 2018. The worker's representative argued that the worker was entitled to further wage loss benefits as she was suffering from the effects of a further compensable injury. The worker's representative also noted that the worker's bowel incontinence was likely a side effect of the medications prescribed to treat the workplace injuries.

Review Office, on January 29, 2018, determined that the worker was not entitled to wage loss benefits after May 19, 2017. Review Office accepted the WCB medical advisor's December 20, 2017 opinion and found that the worker did not develop a further injury involving her bowels, subsequent to the workplace incident.

The worker filed an application for both issues with the Appeal Commission on February 9, 2018. An oral hearing was held on July 19, 2018.

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

The worker is appealing two decisions made by the WCB. She has an accepted claim for a workplace injury and is seeking wage loss benefits after May 19, 2017. She is also appealing the WCB decision that she is not entitled to further physiotherapy treatment.

Worker's Position

The worker was represented by a union representative. The worker's representative provided a written submission in advance of the hearing addressing the issues under appeal.

Issue 1: Whether the worker is entitled to wage loss benefits after May 19, 2017.

The worker's representative submitted that:

It's our position that [worker] is entitled to further wage loss benefits because the disabling effects of her May 16, 2017 workplace injury persisted beyond May 19th. They, in fact, prevented her from going back to work until June 16, 2017.

He noted that:

• the worker sustained multiple soft tissue injuries as a result of her accident, which caused both pain and functional limitations and prevented her from performing the physical demands of her pre-accident occupation. 

• the worker's duties required movements such as twisting, frequent reaching, and these things are incompatible with the compensable injury. 

• the worker developed a fecal incontinence within days of her accident, which was a sequela of her workplace accident. He submitted that this complication, on a balance of probabilities, was a consequence that developed as a result of the soft tissue injuries, the medications she took as a result of her injuries, and the increased abdominal pressure that was exerted while getting around, to move around in pain.

Issue 2: Whether the worker is entitled to further physiotherapy treatment.

The worker's representative submitted that the worker is also entitled to further medical aid, specifically physiotherapy treatment. He noted that the WCB refused to support the physiotherapist's request for additional treatment, on the basis she wasn't recovering with that treatment.

The worker's representative said that:

The muscular injuries [the worker] sustained did require treatment and she did improve with treatment. However, that improvement was consistently aggravated with the return to work which was -- which involved repetitive rotation and flexion of her trunk, which aggravated those compensable injuries.

The worker's representative also noted that the worker's deconditioned state was likely a complicating factor, which likely prolonged her recovery. 

In reply to questions from her representative, the worker advised she worked for the employer for approximately 30 years, had only worked at this specific location since 2017, and worked Monday to Friday from 7:00 AM to 3:00 PM.

She described her duties as working at a customer service window dealing with customers. She said that on an average day she dealt with 100 customers at the window. She also took intercom calls from 29 devices and answered those calls, sent emails for any problems that arose with equipment or concerns from customers to her supervisor, and also, when necessary, made calls to operations to get information. She described the type of issues she had to deal with during a shift.

The worker reviewed photos of her work area which had been admitted as exhibits and explained the movements involved in performing her duties when customers came to the service window. She explained there were two workstations, of which one was by the window for dealing with customers. She explained that she would move from one work station to another depending on the type of calls and work she had on a particular day.

Regarding the accident, the worker said:

Well, like many times, I dropped an elastic on the floor and I moved my right foot to have it situated in between my two feet to bend over and pick it up. And unfortunately on this day, when I did start leaning forward, the chair started going to the right. And I went, oh-oh, quickly tried to sit up and started moving my body to the left to try to counteract the chair from tipping and, unfortunately, it continued to tip over to the right and I hit the floor… So at that time even my shoulder hit the floor. The majority of the impact was where the arm of the chair is, because it went into my right side.

The worker said the fall impacted her whole right side. She said:

Immediately I had shooting pain from the neck down on my right side. In the process of the accident and trying to get up off the floor, my left big toe hurt. I don't know how I managed that, but -- so that was throbbing a bit. And so that was the immediate effect. It was just a jarring sensation in my entire body.

The worker advised that she saw a physician and a chiropractor about her injury. She said that she had been seeing the chiropractor regularly, once a week, for years to keep her in alignment. She acknowledged that the chiropractor authorized three days off for the accident.

She advised that she did not return to work after the 3 days. She explained that this was because she was having fecal incontinence, which started a couple of days after the accident. She saw a physician for this condition and he provided a laxative for the condition. She saw also saw her regular physician who said the accident and the fecal incontinence were not related.

She also saw an occupational health clinic physician who indicated that there was a relationship between the injury and the incontinence. He provided an opinion which is on the claim file.

On May 29, after the incontinence had stopped, the worker said that she attempted to return to work but was in too much pain and had to stop working.

The worker then saw a physiotherapist who provided passive treatments. She was able to return to work on June 6. She continues to receive physiotherapy treatments.

In reply to a question about what kept her off work for the first week after the accident, the worker advised that incontinence was an issue but that pain would have kept her off work as well. She advised that the only washroom facility is a portable toilet located near the office building.

The worker was asked whether her physician had given her a note to be off work for the week after the accident. The worker advised that:

No, she wouldn't give me another week off.

Regarding working on May 29, the worker advised that:

It was a very rough day because I was in a lot of pain when I went in and with the movements that I have to do in my job, it became even worse and I was at an intolerable level by the time I left there.

The worker confirmed she is seeking wage loss benefits up until but not including June 5.

The worker's representative advised that the worker is seeking coverage for 8 days of wage loss and for physiotherapy treatments that she was provided, which has gotten her back to a functional basis again.

Employer's Position

The employer was represented by its Manager of Support Services. He submitted that the injury was a result of the worker's actions and said that she would not have injured had she not tried to overreach on a chair with wheels.

It was explained to the employer representative that the claim has been accepted and that the issue before the panel is entitlement to benefits. The employer representative advised that the employer had no submission on this issue. The employer representative was asked about the worker's description of the job, he advised that he is familiar with the job and:

[worker] has actually been fairly accurate. There is -- potentially day to day can change. Some days are slower than others. On busy days there can be a lot more movement…It varies day to day. It varies on the location, the -- at that particular location, it would depend on the flights, time of season, you know, have they been very busy.

In reply to a question, the employer representative advised that hard data is available on the volume of calls that the worker dealt with each day.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits after May 19, 2017

For the worker's appeal of this issue to be approved, the panel must find that that the worker sustained a loss of earning capacity after May 19, 2017 as a result of the compensable workplace accident. The panel was not able to make this finding.

The panel notes the worker's physician completed the Doctor's First Report on May 16, 2017. In reply to the question: "Will worker be disabled from work beyond the date of accident as a result of the injury?" the physician checked the "No" box. As well the worker confirmed that her physician refused to authorize time loss and told the worker that she could return to work. The panel finds that the medical evidence supports the physician's position.

The worker asked for time off due to pain and due to the fecal incontinence that she suffered after the accident. While an occupational health clinic physician opined that there could be a relationship between the workplace injury and the worker's incontinence, the panel does not find the explanation provided by the physician to be medically plausible. The panel places greater weight on and accepts the December 20 opinion of the WCB medical advisor that:

"…it does not appear that [worker's] fecal incontinence is medically accounted for in relation to constipation, either from medication or from accident-related inactivity. 

Although [worker] was reported on May 16, 2017 to have some tenderness to palpation over the low back, the accepted soft tissue injuries would not medically account for the development of fecal incontinence. Bowel continence is in general controlled by the anal sphincter of which there are two divisions: an internal and an external division).There is no evidence in the medical reports from the family physician and chiropractor of any pathoanatomic anal sphincter lesion (involving either the internal or external sphincter) in relation to the May 16, 2017 workplace accident, nor would any be anticipated, given the reported mechanism of injury.

The panel also notes the worker's evidence that her physician advised her that the fecal incontinence is not related to her workplace accident. Based upon the above evidence, the panel finds that the worker did not require further time off as a result of the workplace injury.

The worker's appeal of this issue is dismissed.

Issue 2. Whether or not the worker is entitled to further physiotherapy treatment

For the worker's appeal of this issue to be approved, the panel must find that the provision of additional physiotherapy treatment was necessary for the worker to recover from the workplace injury and facilitated her return to work.

The panel was able to find that the physiotherapy treatments provided in September 2017 and October 2017 were beneficial to the worker and assisted in recovery from the workplace accident.

In making this decision, the panel notes the physiotherapist's letter of June 15, 2018. In this letter the physiotherapist noted:

After the denial for further coverage from the WCB, [worker] and this writer decided to continue to treat under her private insurance. Client was seen 2x per month for September and October. At this time pain symptoms had significantly reduced. I have continued to see this client for maintenance treatments on a monthly basic (sic). The extended treatments benefited [worker] greatly in aiding with her injury recovery.

The panel approves payment for treatment provided in September and October 2017. Treatments after that date are, as noted by the physiotherapist, "maintenance" and are not related to the accident.

The worker's appeal of this issue is approved in part.

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 30th day of August, 2018