The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

Date of Accident: June 10, 2011

She is not entitled to a permanent partial impairment award;

Date of Accident: November 26, 2015

She is not entitled to a permanent partial impairment award.

A file review was held on September 5, 2018 to consider the worker's appeal.

Issue

Date of Accident: June 10, 2011

Whether or not the worker is entitled to a permanent partial impairment award;

Date of Accident: November 26, 2015

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

Date of Accident: June 10, 2011

The worker is not entitled to a permanent partial impairment award;

Date of Accident: November 26, 2015

The worker is not entitled to a permanent partial impairment award.

Background

Date of Accident: June 10, 2011

This claim has been the subject of three previous appeals. Please see Appeal Commission Decision Nos. 58/14, dated May 13, 2014, 65/15, May 27, 2015, and 63/18, dated May 15, 2018. The background will therefore not be repeated in its entirety.

On June 10, 2011, the worker slipped and fell while going down a flight of stairs and injured her right knee, low back and hip. Her claim for compensation was accepted based on the diagnosis of a right knee sprain/strain, and benefits were paid up to May 31, 2012. No specific diagnoses were given with respect to the worker's right hip, thigh or low back.

On May 13, 2014, the Appeal Commission determined that the worker was entitled to benefits beyond May 31, 2012. (Decision No. 58/14) The Appeal Commission found that "the continuity of symptoms identified in the SI [sacroiliac] joint is sufficient to satisfy us that the worker suffered injury to her SI joint when she fell down the stairs on June 10, 2011." The Appeal Commission noted that the treating anesthesiologist had indicated that the most likely diagnosis for the worker's ongoing pain was right SI joint arthritis. The panel did not accept that the right SI joint arthritis itself was compensable. It accepted, however, that the worker's SI joint arthritis was a pre-existing condition which was aggravated and made symptomatic by the workplace fall.

On May 27, 2014, Compensation Services advised the worker that responsibility was accepted for wage loss benefits from June 1, 2012 to August 25, 2013, the worker having returned to her pre-accident duties on a full-time basis effective August 26, 2013.

In its decision dated May 27, 2015, the Appeal Commission indicated that responsibility would not be accepted for a May 13, 2014 surgical procedure (panniculectomy) and associated benefits. (Decision No. 65/15) Information on file indicates that the worker missed time from work in May and June 2014 due to the non-compensable surgery.

On August 3, 2017, Compensation Services advised the worker that they had determined she had recovered from her back injury, and that any ongoing difficulties were not related to her June 10, 2011 workplace injury. The worker was therefore not entitled to any further ongoing medical treatment and her claim would be closed.

In its later decision dated May 15, 2018, the Appeal Commission determined that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of her June 10, 2011 workplace injury (Decision 63/18).

On March 27, 2018, the worker requested the WCB review her claim for entitlement to a permanent partial impairment award.

The WCB advised the worker on May 1, 2018 that she did not have a rateable permanent impairment as a result of her workplace injury. The WCB advised that the worker did not qualify for a rateable permanent impairment because her accepted workplace injury was for a soft tissue injury and the normal recovery period for that type of injury was days to weeks and the medical information on her file did not support a permanent deficit of her low back as it related to the mechanism of injury and the accepted diagnosis.

On May 2, 2018, the worker requested reconsideration of the WCB's decision that she was not entitled to a permanent partial impairment award. The worker argued that she was permanently injured due to the workplace injury on June 10, 2011 and should be entitled to compensation.

Review Office determined on May 28, 2018 the worker was not entitled to a permanent partial impairment award. Review Office noted that they were bound by decisions made by the Appeal Commission. It was noted that the Appeal Commission had determined the worker had aggravated a pre-existing sacroiliac joint issue and that aggravations resolve over time and are not permanent. Accordingly, Review Office was unable to find any factor that would support the worker was entitled to a permanent partial impairment award. The medical evidence identified that the worker suffered a relatively minor injury, in the setting of a pre-existing condition, which resolved leaving no lasting effects.

The worker filed an application with the Appeal Commission on May 31, 2018. A file review was arranged.

Date of Accident: November 26, 2015

This claim has been the subject of one previous appeal. Please see Appeal Commission Decision No. 57/17. The background will therefore not be repeated in its entirety.

On November 26, 2015, the worker was cleaning a washroom when her feet slipped out from under her and she fell, landing on her buttocks. On November 30, 2015, the worker was diagnosed with coccodynia/coccalgia and shoulder pain by the attending physician. On January 7, 2016, the treating physiotherapist diagnosed the worker with an acute lumbar strain/tailbone injury. The WCB accepted the worker's claim and benefits and services were paid.

On May 24, 2016, the worker was advised by Compensation Services that based on the accident description, the accepted diagnosis of a strain which was a temporary injury, the typical recovery time for a strain injury (a few days or weeks), the length of time it had been since the worker's injury (6 months), and the medical opinion from the examination at the WCB, a gradual return to work would be therapeutic and would aid in her return to work. The worker was advised that wage loss benefits would be paid during the period of the graduated return to work program which was to commence on June 1, 2016.

In e-mail correspondence dated August 12, 2016, the worker asked Review Office to reconsider the decision made on her claim. The worker contended that she was not ready for a return to work based on the recommendations of her treating physician and anesthesiologist. The worker noted that her injury was not a muscle strain, but an injury to her tailbone, and there was nerve damage.

In its decision dated May 12, 2017, the Appeal Commission determined that the worker did not suffer a loss of earning capacity beyond June 28, 2016 as a result of her November 26, 2015 workplace injury, and the worker was not entitled to wage loss benefits after June 28, 2016 (Decision 57/17).

On March 27, 2018, the worker requested the WCB review her claim for entitlement to a permanent partial impairment award.

The WCB advised the worker on April 9, 2018 that she did not have a rateable permanent impairment as a result of her workplace injury. The WCB advised the worker that permanent partial impairment awards were issued to recognize that a permanent physical impairment resulted from a workplace injury. The award is granted because the function of a person's body has been measured and determined to be permanently affected by the workplace injury. The WCB advised the worker that she did not qualify for a rateable permanent impairment as her diagnosed workplace injury was a soft tissue injury with a normal recovery time of days to weeks. It was also noted that the medical information on her file did not support a permanent deficit of her low back as it related to her mechanism of injury and the accepted diagnosis.

On April 23, 2018, the worker requested reconsideration of the WCB's decision to Review Office as she felt she had suffered a permanent injury as a result of the workplace accident.

Review Office advised the worker on May 28, 2018 that she was not entitled to a permanent partial impairment award. Review Office noted that they are bound by the decision made by the Appeal Commission. It was further noted that in the Appeal Commission decision, dated May 12, 2017, the appeal panel found that the MRI conducted on the worker's back confirmed ongoing multi-level degenerative changes which were consistent with the worker's complaints of pain and were pre-existing conditions that they were unable to relate to the worker's November 26, 2015 workplace accident. Review Office was unable to identify any loss of range of motion or cosmetic injury as a result of the workplace injury and accordingly, there is no entitlement to a permanent partial impairment award.

The worker filed an application with the Appeal Commission on May 31, 2018. A file review was arranged.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB 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 4(9) provides that the board may award compensation for an impairment that does not result in a loss of earning capacity.

The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

WCB Policy 44.90.10, Permanent Impairment Rating Schedule (the "PPI Policy") provides that impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the PPI Policy.

Worker's Position

The worker provided a written submission to the Appeal Commission. She submitted:

My back has never fully recovered from my 2 called (sic) dated June 10, 2011 & November 26, 2015… I NEVER had a previous injury prior to the June 10th 2011 fall was working a very physical job with no physical problems and did my job without issues. I was in the best physical condition.

After my fall down a flight of stairs on June 10, 2011 I was NEVER the same. My lower back has never recovered even though I did return 2 (sic) work it was only with the aid of injections into my SI joint for 6 years every 3-4 months. After another fall on November 26, 2015 my lower back will never recover and injections no longer work. I am on disability & no longer able to work. I believe I am entitled to PPI because my back was irreversibly injured on June 10, 2011 and never needed injections before the injury dat (sic).

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing WCB decisions that she is not entitled to a permanent partial impairment award in relation to injuries that she received in 2011 and 2015.

For the worker's appeal of these decisions to be successful, the panel must find that the worker sustained a rateable permanent partial impairment arising from the noted accidents. The panel was not able to make this finding.

As noted previously, the worker sustained an injury in June 2011 and in November 2015.

June 2011 Injury

On June 10, 2011 the worker slipped and fell while going down a flight of stairs and injured her right knee, low back and hip. Her claim for compensation was accepted based on the diagnosis of right knee sprain/strain. She was paid wage loss benefits. She subsequently sought a permanent partial impairment award. This request was declined by the WCB and by the Review Office.

She is now appealing the Review Office decision that she did not sustain a permanent partial impairment as a result of her June 2011 injury and is not entitled to a PPI award.

This panel notes that the Appeal Commission reviewed the worker's claim in 2018 and in Decision 63/18 determined that:

The panel finds that the worker's ongoing or current symptoms are not consistent with the mechanism of injury and early medical reports with respect to the 2011 workplace accident. While the worker's symptoms were originally to the right side only, they are now bilateral. While right side SI joint injections were effective prior to the worker's 2015 accident, SI joint injections following her 2015 accident, to both her left and right sides, were ineffective in treating her symptoms.

Information on file and at the hearing further indicates that the worker's current problems are not in the same area as was previously identified in respect of the 2011 accident. In its May 13, 2014 decision, the Appeal Commission noted that the right SI joint had been consistently identified in the medical file as a problem area for the worker, and found that the worker suffered injury to her right SI joint when she fell. The worker confirmed at the hearing that more recent treatments were directed towards the L4-5 area of her spine, as opposed to the SI joints. The panel notes that L4-L5 was not identified as a problem area in medical reports closer in time to the accident, or in the Appeal Commission's 2014 decision. The panel is therefore unable to relate the worker's symptoms or problems in the L4-L5 area to her 2011 accident.

In Decision 63/18, the Appeal Commission concluded that while the worker has significant ongoing symptomatology, it was unable to find that the worker's ongoing difficulties and symptomatology are causally related to her June 10, 2011 workplace accident.

Given the above decision and the evidence on file, the panel finds, that the worker had recovered from the compensable injury and there was no medical evidence of a lasting or permanent disability as a result. Accordingly, the panel finds, on a balance of probabilities, that there is no disability in relation to the November 2011 accident to rate for a PPI.

The worker's appeal of this issue is dismissed.

November 2015 Injury

On November 26, 2015, the worker was cleaning a washroom when her feet slipped out from under her and she fell, landing on her buttocks. On November 30, 2015, the worker was diagnosed with coccodynia/coccalgia and shoulder pain by an attending physician. On January 7, 2016, the treating physiotherapist diagnosed the worker with an acute lumbar strain/tailbone injury. The WCB accepted the claim, and benefits and services were provided for a limited period of time.

The worker then sought a determination that she sustained a permanent partial impairment as a result of the November 2015 injury and is entitled to a PPI award for this injury. The WCB and the Review Office declined the worker's request for a PPI award.

The worker's 2015 injury was addressed by the Appeal Commission in Decision 57/17. The issue before this Appeal Commission was "whether the worker is entitled to wage loss benefits after June 28, 2016."

In making its decision the Appeal Commission placed significant weight on the opinion of the WCB medical advisor dated May 15, 2016. It noted that the medical advisor had previously reviewed the worker's file and conducted a call-in examination of the worker on March 29, 2016. It noted that the WCB medical advisor opined that:

This opinion is provided based only on the effects of this 2015 C/I [compensable injury]. If the injury caused a soft tissue injury, the recommendations should lead to a sustained improvement in symptoms and function. If not, then that cannot be medically accounted for and would be related to other factors (pre-x and pain presentation).

The Appeal Commission found that:

Based on the foregoing, the panel finds that the worker was capable of returning to work as planned, on June 1, 2016, and her loss of earning capacity ended at the beginning of the fifth week of the plan (June 29), when she could have returned to full-time duties. The panel finds that the worker's difficulties and any inability to work after June 28, 2016 were due to the non-work related conditions, and not to her November 26, 2015 accident.

Given the above decision and the evidence of the WCB medical advisor noted above, this panel finds, on a balance of probabilities, that that the worker is not entitled to a permanent partial impairment award in relation to injuries that she received in the November 2015 accident.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of October, 2018