Decision #148/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the July 3, 2017 accident. A hearing was held on August 21, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the July 3, 2017 accident.
That the worker is not entitled to further benefits in relation to the July 3, 2017 accident.
The worker filed a claim with the WCB for a neck/upper back injury which occurred at work on July 3, 2017, when a client grabbed his right hand and jerked it back.
On July 4, 2017, the worker sought medical attention from a chiropractor, who diagnosed him with sprains/strains to the neck and right shoulder. The worker also saw his family physician that same day, who diagnosed him with a muscle strain and mechanical back pain. The worker's claim was accepted for a right neck/upper back strain, and wage loss and other benefits were paid.
The worker later moved from chiropractic treatment to physiotherapy treatment. At an initial assessment on July 18, 2017, the physiotherapist recommended that the worker could return to work with temporary restrictions. On July 19, 2017, the worker returned to work performing modified duties based on those restrictions.
On August 17, 2017, the worker attended a call-in examination with a WCB medical advisor, who opined that based on the mechanism of injury and the initial presentation of localized pain with benign findings, the worker's initial diagnosis would be a right upper back strain. The medical advisor noted that the natural history of this type of strain has a favourable prognosis for full recovery, which would typically occur in about six to eight weeks, and that the worker's current presentation was consistent with non-specific pain. The medical advisor recommended that the worker continue with the current restrictions provided by the physiotherapist, and that more active-based therapy be added in, which would improve the worker's strength and tolerance, then his regular duties could be added in.
On September 14, 2017, the worker underwent an MRI of the thoracic and cervical spine, which showed "very mild disc degenerative changes at C5-6."
On October 17, 2017, the treating physiotherapist provided a discharge report in which he stated, based on his examination of the worker on September 25, 2017, that the worker was doing well, recovery was satisfactory and no significant restrictions were required. The worker returned to full regular duties on October 23, 2017.
On October 30, 2017, the worker contacted the WCB and advised that his employment had been terminated on October 27, 2017.
On October 31, 2017, Compensation Services advised the worker that as he had returned to his pre-injury job duties and was no longer missing time or attending medical treatment relating to his compensable injury, they would not take any further actions on his claim.
On November 2, 2017, the worker requested further physiotherapy coverage. The worker advised the WCB that he started to notice his neck getting very sore again as of November 1, 2017 and indicated that nothing specific had happened to cause the flare-up other than he started to do more things since he was cleared for regular duties.
On November 4, 2017, the worker was seen by another physician, who noted that the worker reported having been injured at work two months ago and was now complaining of "pain again for 2 days." The physician reported findings of "Tender T2-3, Otherwise normal," and recommended that the worker not lift more than 10 kg, and go back to physiotherapy.
On November 20, 2017, Compensation Services advised the worker that they had reviewed his claim and determined that he had recovered from his workplace injury and his ongoing concerns were not related to his workplace accident.
On January 12, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker advised that his symptoms from the workplace accident were continuing and his family physician and treating physiotherapist had confirmed that the symptoms and pain he was experiencing were from his workplace injury.
On January 22, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office stated that having considered the mechanism of injury, the length of time since the injury occurred, the compensable diagnosis and the treatments provided, they were not able to account for the worker needing further treatment or work restrictions in relation to the July 3, 2017 workplace accident.
Review Office noted that the worker had reported the onset of symptoms after being terminated from his employment. Review Office stated that as the worker was reporting that a new event at his workplace led to his need for further treatment, he could file another WCB claim for that incident, which would have to be adjudicated by Compensation Services.
On January 23, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Applicable Legislation and Policy
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.
The worker has an accepted claim for a right neck/upper back sprain, and is seeking further benefits in relation to his compensable injury.
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.
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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 126.96.36.199, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The Policy further provides that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that he has not recovered from his workplace injury and is entitled to further benefits as a result of the July 3, 2017 accident.
The worker stated that it was important to note that he had previously suffered an upper spinal cord injury. He stated that his collarbone was broken while he was working at the same premises in 2013 and had not resolved. He submitted that the July 3, 2017 accident triggered pain at the same spot as in 2013. He said it would be wrong to ignore the earlier injury and talk about his July 3, 2017 injury in isolation, as they go hand in hand. The worker also referred to a previous claim for a May 15, 2017 injury, for which he said he was still receiving chiropractic treatment at the time of the July 3, 2017 accident.
The worker submitted that he had not recovered from his July 3, 2017 compensable injury when the WCB decided he could return to his full regular duties. He said that he was still under restrictions from his doctor, both then and at the time of the hearing, that he could not carry over 10 kg. The worker noted that the WCB relied on the discharge report from the treating physiotherapist in arriving at their decision. The worker stated that the physiotherapist had advised, however, that he wrote the report because the worker had missed six appointments. The worker submitted that the physiotherapist should have called him to inquire as to why he had missed those appointments. He said that he had been assigned at that time to a different location which was further away and understaffed, and could not leave staff alone to deal with potentially violent clients while he went to physiotherapy.
The worker said that after his return to full duties, he was told that everything from the basement of the premises had to be removed and taken to the yard, for an inspection, and that he spent a day carrying things. The worker said that his back hurt so badly at the end of his shift that he had to call someone to drive him home. He believed he hurt himself badly that day. When he reported this to the WCB, they told him that this looked like a new case and he could file a new claim. The worker said he did not believe this was a new case. He noted that the injury and pain are to the same spot, and he goes to the same physician and the same physiotherapist who are treating him at that spot.
The worker stated that he only worked for one week on regular duties before his employment was terminated. He submitted that he lost his job based on his injury. He said that he is still waiting for his restrictions to be lifted by his physician, who has referred him to a specialist and is awaiting the results of that referral.
In conclusion, the worker stated that his injury has changed his life. He cannot do things now that he used to do. He said that what he is seeking, in particular, is for the WCB to be responsible for the pain and limitations with respect to lifting if they resurface. He said that in his view, it is not fair to him to have to pay for something that is the result of his being injured at work.
The employer was represented by its Safety, Health and Disability Consultant, who was accompanied at the hearing by the employer's Director of People Resources. The employer's representative provided a written submission in advance of the hearing and made an oral presentation to the panel.
The employer's position was that the worker's appeal for ongoing WCB benefits was not supported by the medical information on file, and the Review Office decision should be upheld.
It was submitted that the employer provided the worker with modified duties within his medical restrictions up until the WCB advised that he was cleared to return to full duties. At no time was the worker asked to perform tasks which were outside his medical restrictions while on modified duties. The worker was cleared by the WCB to return to full duties on October 18, 2017, and did so.
The employer's representative noted that the worker's employment was terminated for cause on October 27, 2017. Information on the WCB file shows that it was only after he was terminated that the worker reported that he had injured himself on two occasions following his return to full duties. Although he knew how to report and document an injury, the worker did not mention an injury to the WCB or the employer, or file an injury report for a new injury, until after his termination. It was submitted that the worker's appeal was directly related to the October 27 termination of his employment, as opposed to a continuation or recurrence of his WCB claim or symptoms that appeared after his termination, and his appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the July 3, 2017 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker has a further loss of earning capacity and/or requires further medical aid as a result of his July 3, 2017 workplace accident. The panel is unable to make that finding.
The panel accepts that the worker is experiencing ongoing difficulties and pain. Based on our review of all of the information which is before us, on file and as presented at the hearing, we are unable to find, however, that the worker's ongoing concerns are causally related to the worker's July 3, 2017 workplace accident.
The panel finds that the medical information on file shows that the worker's compensable injury had resolved by October 2017. The panel places weight on and accepts the treating physiotherapist's report, based on his examination of the worker on September 25, 2017, that the worker's recovery was satisfactory and that no significant restrictions were required.
The panel notes that while the worker stated that he had restrictions from his doctor at that time of not carrying over 10 kg, the medical information on file does not support that assertion. Rather, the medical information indicates that such restrictions were only identified subsequently by the second physician, on November 4, 2017, with respect to a further workplace event and the worker's complaints of "Now pain again for 2 days."
The panel further finds that the onset of symptoms as reported by the worker in early November 2017 related to a new event or incident, which was separate and apart from the July 3, 2017 workplace accident. While the worker argued that the pain and problems were the same, as they were in the same spot as before, the panel notes that the symptoms were nevertheless said to have arisen out of a different incident in November 2017. The panel is satisfied that such symptoms or difficulties were not related to the July 3, 2017 workplace accident and injury and do not form part of this claim.
The panel notes that the WCB medical advisor was asked to consider the worker's current presentation and whether it was medically accounted for in relation to the compensable injury, and opined as follows on November 18, 2017:
The dx [diagnosis] in relation to the July 3, 2017 workplace injury was considered a strain injury. This has an excellent prognosis for full recovery within a few weeks.
The worker has had modifications of activity, medication, physio, and exercises - all appropriate treatment to treat the effects of a strain.
It would not be consistent with the natural history of the accepted dx for there to be significant impairment now 4 months later. This is supported by the lack of acute findings on MRI and the only current clinical finding being tenderness.
The ongoing report of pain and limitations in activity (ie restrictions), in the absence of a confirmed structural dx, cannot be directly attributed to this strain injury.
The worker was discharged from physiotherapy by the treating therapist. A home program was provided. The worker needs to be compliant with the home program and do his normal life activities, but no further treatment would be required for a strain injury from 4 months earlier.
The panel accepts the November 18, 2017 opinion of the WCB medical advisor, and notes that it is consistent with our review of the evidence in this case.
The worker submitted that his July 3, 2017 workplace injury must not be considered in isolation. The panel questioned the worker at some length at the hearing with respect to such previous injuries. The panel notes that there is no medical information with respect to a 2013 injury, and the worker acknowledged that no WCB claim was filed with respect to that injury. The information on file further showed that the worker's May 15, 2017 injury had substantially resolved by July 2017. In addition, while the MRI identified very mild disc degenerative changes, the panel is unable to find that the July 3, 2017 compensable injury had an effect on such changes.
Finally, the panel notes that the worker referred in his submission to the premises where he was working on July 3, 2017 being violent and unsafe, and to problems with his employer and the termination of his employment. To the extent that there were difficulties in the workplace or with the employer, the panel would indicate that these were employment or labour relations issues, which were not relevant to the appeal and have therefore not been addressed.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable injury has resolved and the worker does not have a further loss of earning capacity or require further medical aid as a result of his July 3 workplace accident. The panel therefore finds that the worker is not entitled to further benefits in relation to the July 3, 2017 accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of October, 2018