The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after September 1, 2016 in relation to the August 9, 2016 accident and that his claim is not acceptable for an accident occurring on December 23, 2016. A hearing was held on August 1, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 1, 2016 in relation to the August 9, 2016 accident;

Whether or not the claim is acceptable for an accident occurring on December 23, 2016.

Decision

The worker is not entitled to benefits after September 1, 2016 in relation to the August 9, 2016 accident;

The claim is acceptable for an accident occurring on December 23, 2016.

Background

An Employer's Incident Report was filed with the WCB on August 15, 2016, reporting that the worker hurt his lower back on August 9, 2016. The WCB contacted the worker on August 25, 2016 who advised he was unsure at the time if he wanted to pursue his claim. On January 10, 2017, the worker filed a Worker Incident Report with the WCB indicating he had injured his lower back on August 9, 2016 in an incident described as:

I was moving concrete machines sometimes by myself and sometimes with other people. The concrete machines are different sizes and different weights. I also do maintenance on them. I felt a thrashing pain that comes and go when moving them.

A Chiropractic First Report completed by the worker's chiropractor on August 9, 2016 notes the worker reported lower back pain after heavy work. The worker was diagnosed with right lumbar facet syndrome and the chiropractor recommended light duties or for the worker to work to his tolerance.

On December 27, 2016, the worker attended at a different chiropractor. At that appointment, the worker reported injuring his lower back on August 9, 2016 after "lifting heavy concrete machine." The chiropractor diagnosed the worker with "L5 lumbar vertebral subluxation complex" and recommended light duties (lifting less than 25 pounds) for a two week period.

In a discussion with the WCB on February 7, 2017, the worker advised that after the workplace accident, he was off work for two days then returned to light duties for a week and felt better after that. He reported that he had not been symptom-free since that time and sought medical treatment recently for his back as he had an increase in symptoms. He advised the WCB that he had a heavy workload in December and did not experience any new accidents or incidents at work or at home that would account for his current difficulties.

The worker's initial chiropractor provided a list of the dates and treatments for the worker on March 8, 2017, indicating that he saw the worker on August 9, 2016 with the worker's last treatment occurring on September 1, 2016.

On March 17, 2017, the WCB advised the worker that they accepted his claim for a workplace accident that occurred on August 9, 2016. However, as his employer confirmed that the worker had not reported any further injuries or incidents after that time and no medical documentation had been provided after September 1, 2016 up until December 27, 2016, there was no medical evidence to support a link between the worker's workplace accident on August 9, 2016 and his current difficulties. The WCB advised that they would only accept responsibility for the worker's claim and any associated medical costs up to and including September 1, 2016.

The worker provided the WCB, on March 24, 2017, with copies of:

• A note dated December 28, 2016 from his chiropractor indicating he should be off work to January 9, 2017, then on light duties for one to two weeks; 

• A further note dated January 3, 2017 from his chiropractor noting that the worker should perform light duties for one week ending January 6, 2017; 

• A report from his chiropractor dated March 24, 2017 noting that the worker had initially contacted the chiropractor's office on December 23, 2016 for an appointment regarding a lower back complaint but due to the holidays, was not seen at his office until December 27, 2016. The worker began treatment with the chiropractor on December 27, 2016 and on December 28, 2016, it was recommended that he be off work until January 9, 2017. The chiropractor advised that at an examination on January 3, 2017, he felt the worker was doing progressively better and he recommended that the worker begin light duties on January 6, 2017.

On April 21, 2017, the worker's representative contacted the WCB and requested a review of the worker's claim to consider whether the worker suffered a new injury in December 2016 as opposed to a recurrence of his August 9, 2016 injury.

The WCB gathered further information regarding the claim, including information from the employer and a discussion with a co-worker who reportedly witnessed the recurrence of the worker's injury in December 2016.

On May 29, 2017, the WCB advised the worker that they completed the review of his claim and were unable to accept his claim for a new injury in December 2016, or any related medical costs.

The worker's representative requested reconsideration of the WCB's May 29, 2017 decision to Review Office on July 12, 2017. The worker's representative argued that the worker continued to experience low back difficulties on and off after treatment for the August 9, 2016 workplace accident and that, in December 2016, the worker suffered a recurrence as the injury was in the same anatomical area and the mechanism of injury was the same as the August 9, 2016 incident. On July 13, 2017, Review Office returned the claim to the WCB for further investigation. Review Office requested that the WCB clarify its position regarding the worker's workplace accident on August 9, 2016.

The WCB provided the worker with a confirmation letter on July 18, 2017, advising that his claim for the workplace accident on August 9, 2016 was accepted and medical treatment from August 9, 2016 to September 1, 2016 was authorized.

On July 20, 2017, the worker's representative requested reconsideration by Review Office of the WCB's July 18, 2017 decision. The worker's representative advised that the worker suffered an exacerbation of his injury in December 2016 and as such, the worker was entitled to benefits beyond September 1, 2016.

Review Office advised the worker on August 15, 2017 that he was not entitled to benefits after September 1, 2016 in relation to his August 9, 2016 accident and that his claim for an injury occurring on December 23, 2016 was not acceptable. Review Office found that the worker's accepted diagnosis was of a lumbar strain where recovery typically occurs within a short period of time. Review Office was unable to establish a connection between the worker's complaints on December 27, 2016 in relation to his August 9, 2016 workplace accident and, accordingly, determined that he was not entitled to further benefits after September 1, 2016.

With respect to the December 2016 incident, Review Office noted that the worker had reported an increase in his duties for a two week period in December that he believed led to an exacerbation of his August 9, 2016 injury however, the employer could not account for an increase in the worker's job duties, as noted on his time sheets for that period. It was also noted that no new injury was reported to the employer in December 2016. Review Office also noted that while the worker's chiropractor recorded that the worker "described severe lower back pain that he stated was as a result of a work accident" no description of an incident or a specific injury was mentioned. As such, Review Office found the worker's claim for an incident occurring on December 23, 2016 was not acceptable.

The worker filed an application with the Appeal Commission October 19, 2017. An oral hearing was held on August 1, 2018.

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.

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 to the worker by the WCB.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful 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.

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 the board considers 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.

Worker's Position

The worker was self-represented. He was assisted by an interpreter.

The worker described his work duties as including:

• driving a medium size truck 

• hooking up the trailers to bring supplies and machines to workplaces. 

• being responsible for the shop

He said his hours were from around 7:00 to 4:00, but if needed he would start at 5:00 or 6:00.

He advised that in August 2016, the employer was involved with some big jobs and that he had to perform the maintenance on the machines used by the employer. The work included moving the machines to and from the worksite, and performing necessary maintenance. He said the machines were very heavy.

The worker explained that he hurt his back at work. Through the interpreter, he said:

“When I feel a backache after I’m moving heavy objects, I went, hardly walking to [co-worker's] office. And I spoke to her, I have a backache, and she told me, you may have a seat. I told her I don’t want seat, I need someone to help me, I almost all the time carrying the heavy weights, and my back is starting to hurt. She told me, wait until the human resource lady arrive, and we will send you to the chiropractic office where they will examine you, and will see what happened to you."

The worker explained that the employer's wife told him that "we will book you on private benefits, and we pay that." He said that he asked about WCB and was told, "don't worry about WCB, we deal with them."

He attended a chiropractor arranged by the employer.

The worker advised that:

…after, like, a week, I felt good and I keep working, and nothing happens around it.

He advised that from August to December 25, they were busy at work. He explained that he was the only employee performing certain tasks. He asked for assistance but did not get help.

He advised that the shop shut down for 10 days over the holidays.

The worker described the circumstances around his December injury:

And the last two days, before holidays, I work like animal. I didn’t take my lunch or stop, just finish, finish, finish, finish, until we got all the equipment. He give me some help from his crew, but all the pushing under my responsible. I’m the last guy close the shop, and to clean it, and make sure all the equipment in, and all this work. When I finish around 4:00, or whatever, on the Friday, I remember it was a Friday, December 23rd, whatever, it was a Friday. I went home tired. I’m just sit in the couch. When I sit in the couch after these days, and especially the last week from this, the last week before the holidays, this is the hard week for us. I sit in the couch, after two, three hours I want to walk up, I can’t move. I start crying because too much pain,…

The worker said that he found a chiropractor who treated him over the holidays. His employer called and asked him to work but he was not able to work. He met with his employer after the holidays. He stated the employer advised him that:

… this job is not for you, [worker's name], and you have to prepare yourself to find another job.

The worker advised that the employer kept him on staff until February. He was then laid off for a "limitation of skills." He was told that the employer would deal with WCB. He then went on Employment Insurance.

Regarding his conversations with the WCB, the worker said that the WCB representative did not understand his concern. He explained that he was not relating his back problem to the August injury, rather he had a new accident in December.

In reply to questions, the worker confirmed that in January he returned to work. He said that he worked full-time, eight hours each day performing light duties. He confirmed that this was similar to 2016, as the work slows down over the winter. The worker said he worked until February 9, 2017 when he was laid-off.

Regarding medical treatment, the worker advised that he is still seeing the chiropractor, who first treated him in December 2016, every two weeks.

The worker reported that:

…I’m feeling very good now, but not like before. Before I am like, have handicap problems, but still sometimes when I sit, like, let’s say, if I sleep more than 10 hours, I’ll wake up stuck. Now my sleeping six, seven hours maximum, because if I sleep more, I start get pain from left side, and that’s my problems.

In reply to a question about working after February 9, 2017, the worker advised that:

Okay, what I did, I go to the EI and I want to find something to, you know, to keep me more relaxed. I like driving… I went to the employ office, I told them my story, I need something. Well, he said, what do you like? I said, driving, and if you want to help me with anything to do with my skills. She said, you can do Class 1? I say, yes, and I like it. I finish Class 1.

He advised that he started the program in May and the training ran for 6 weeks. He said that when he finished he found employment as a professional driver with the help of the driving school.

In reply to a question about benefits, the worker advised that he is seeking coverage for the chiropractic treatments he has received. He advised that he has not paid his chiropractor for the treatments. He still receives chiropractic treatment every two weeks.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing two issues:

Issue 1: Whether the worker is entitled to benefits after September 1, 2016 in relation to the August 9, 2016 accident.

For the worker's appeal of this issue to be approved the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and require medical aid as a result of his August 9, 2016 workplace accident. The panel is not able to make this finding.

At the hearing the worker confirmed that he had recovered from the August 9, 2016 injury, returned to work, and did not require medical aid benefits until he was re-injured in December 2016. The worker made no claim for benefits during this period.

The panel finds that the evidence demonstrates full recovery from the August 9, 2016 injury and there is no basis to grant further benefits after September 1, 2016. The worker's appeal on this issue is therefore denied.

Issue 2: Whether the claim is acceptable for an accident occurring on December 23, 2016.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of employment. The panel was able to make this finding.

The panel finds that the worker sustained an injury on December 23, 2016 while manipulating/moving heavy equipment. This is confirmed by the worker's immediate discomfort following that day of work and attendance with the chiropractor who started treating him on December 26, 2016.

The panel also notes that the worker's low back issues were consistent with the worker's job duties in late December. He said that he returned to work after the holiday break and performed light duties. He said this was similar to 2016, when he performed light work around the shop in the winter which is the slow season in this industry.

Regarding chiropractic treatment, the worker advised that he began seeing the chiropractor in December 2016 and continued to see the chiropractor as of the date of the hearing. He initially saw the chiropractor weekly but now sees him every two weeks. The panel finds that the worker is entitled to medical aid benefits, including chiropractic treatments.

As to the worker's request for specific benefits after December 23, 2016, the panel notes that significant amounts of evidence were provided at the hearing which is available for the WCB to adjudicate for specific benefit entitlements in terms of wage loss benefits and the duration of medical aid.

The worker's appeal of this issue is approved.

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 6th day of September, 2018