Decision #60/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after May 29, 2017. A hearing was held on March 18, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after May 29, 2017.
The worker is entitled to wage loss benefits after May 29, 2017.
The worker, a mechanic, reported to the WCB on May 30, 2017 that he injured his neck at work on May 29, 2017. He described the incident as:
I was lifting an approx. 25 lb garbage can over my head to dump the contents into a large bin. It was all done in one sweeping motion. At some point during this I felt a sharp pain in my neck.
I dropped the can and grabbed on to my neck. Every time I moved, the pain would shoot from my neck into my Rt (right) upper back area.
On May 29, 2017, the worker attended at a local walk-in clinic. The treating physician noted "painful limited ROM (range of motion)" after examining the worker's neck and diagnosed a strained muscle. Medications were prescribed, the worker was referred for an MRI study and the worker was provided with a sick note to remain off work until August 31, 2017.
In a discussion with the WCB on May 31, 2017, the worker advised that he had injured the same spot in his neck approximately six to eight months ago at work but had not filed a WCB claim. He had received chiropractic, physiotherapy, acupuncture and massage therapy treatments for that injury.
The worker attended for an initial physiotherapy assessment on June 6, 2017. The physiotherapist noted the worker had "1/8 of normal ROM" and could not provide a proper diagnosis due to the worker's pain. A July 31, 2017 Chiropractor's First Report noted that the worker had severe pain in his left C4-C5 region and "extreme pain" with motion of his neck. The chiropractor diagnosed the worker with acute cervical radiculopathy with concomitant C4-C5 facet syndrome.
The worker's file was reviewed by a WCB medical advisor on October 12, 2017. The WCB medical advisor opined:
To summarize, the worker had neck pain predating the workplace accident. The force involved with the MOI (mechanism of injury) was not observed to be significant. He saw a doctor the same day and there was no documented change to his clinical status from pre-accident. There was no change to medical management. He later presented with 10/10 pain. The progress of pain to 10/10 is not consistent with the natural history of any injury from lifting the garbage can.
Since the criteria have not been met, a dx (diagnosis) in relation to the workplace incident cannot be confirmed.
The worker had neck pain pre-dating the accident. The above findings support that he experienced pain at work, but that the workplace duties did not cause any material change to his pre-x (pre-existing) condition. Therefore, there is no evidence of aggravation or enhancement of the pre-x condition.
The worker's presentation of disabling neck pain 3 months after lifting the garbage can cannot be medically accounted for in relation to this workplace accident.
On October 18, 2017, the WCB advised the worker that his claim was not acceptable as a connection between the worker's symptoms and the workplace accident could not be established. The worker requested reconsideration of the decision to Review Office on November 23, 2017 and on December 5, 2017, Review Office determined the worker's claim was acceptable and referred the worker's file back to the WCB's Compensation Services for further adjudication.
The WCB's Compensation Services requested further medical information from the worker's healthcare providers. On December 15, 2017, the worker's treating physiotherapist advised the WCB that the worker only attended for his initial assessment on June 6, 2017. On December 20, 2017, the worker's treating chiropractor advised that the worker attended for treatments on September 15 and 28, 2016 and July 10 and 31, 2017. The WCB had a discussion with the employer on December 21, 2017. The employer noted that the worker advised he had injured his neck six to eight months previous to the workplace injury but had not filled out an incident report and continued to work his full regular duties. The employer advised that they were not aware of any ongoing complaints by the worker.
The worker was advised by the WCB on January 4, 2018, that it had been determined his claim was acceptable. However, he was not entitled to wage loss or medical aid benefits after May 29, 2017. The WCB advised that after reviewing the information on the worker's file, there was insufficient evidence to establish that the worker's ongoing symptoms were related to the workplace accident.
On January 31, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker presented his argument that he was injured at work on May 29, 2017 and when he sought medical treatment, the doctor recommended he remain off work for three months. He noted that he had not missed any time from work prior to the workplace accident but was in immediate pain after the workplace accident and could not return to his duties.
Review Office determined, on March 22, 2018, that the worker was not entitled to benefits after May 29, 2017. Review Office placed weight on the WCB medical advisor's opinion that the workplace accident did not produce a material change to the worker's pre-existing neck condition. Review Office could not establish that the workplace accident caused the worker any additional level of disability beyond the date of the accident. Review Office further found that the evidence on the file did not support the symptoms the worker was reporting that he related to the workplace accident.
The worker filed an appeal with the Appeal Commission on May 22, 2018. An oral hearing was arranged.
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 May 27, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 workplace injury arising from a May 29, 2017 accident. He is seeking benefits after May 29, 2017.
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.
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 time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
The worker participated in the hearing via teleconference. He was assisted by a worker advisor, who made a presentation on the worker's behalf. The worker’s position is that he is entitled to wage loss benefits after May 29, 2017.
The worker's representative submitted the evidence shows the worker continues to suffer the effects of his workplace injury, has a loss of earning capacity beyond the accident date and is entitled to further benefits. She also submitted that the worker was able to perform his regular duties without his preexisting condition hindering his performance but that after the accident, the worker was injured and unable to return to his regular duties.
Regarding the mechanism of injury, the worker's representative stated:
The worker was lifting a garbage can over his head to empty it when he suffered a sharp pain on the left side of his neck. The incident was recorded on the employer's cameras, and the worker estimated the garbage bin to weigh approximately 25 pounds.
With respect to medical treatments, the worker's representative noted that:
• he attended a physician the same day as the accident and was told he pulled neck muscles. He was given muscle relaxants, pain relievers and a gel. He was also referred to physiotherapy. The physician noted poor range of motion and tenderness, and indicated the worker could not work.
• Physiotherapist's initial assessment indicated the worker had one-eighth of the normal range of motion. Extreme pain hindered the physiotherapist's ability to get a proper diagnosis.
• a chiropractor's initial diagnosis was cervical radiculitis with coexisting C4-5 facet syndrome.
The worker's representative noted that a WCB medical advisor opined that the garbage can appeared too light to cause injury. The medical advisor also indicated that the body mechanics of the worker in the video after the accident was not suggestive of a serious injury. She further noted that the worker had previous neck issues.
The worker's representative noted that the claim was ultimately accepted, but that the WCB found that the worker had previous neck issues and established the level of the worker's disability prior to the accident. It found there was no change in the medical management of the worker's condition after the accident, and the accident would not have produced a material change in the worker's condition.
The worker's representative agreed with the original Review Office decision that determined there was an acute change in the worker's condition because of the accident and, therefore an entitlement to further benefits.
Regarding a prior workplace injury, the worker's representative noted:
• that in 2016 the worker had suffered a prior workplace injury when an apprentice dropped the end of a large piece of equipment, causing the worker to injure his neck.
• the worker lost no time from work and his insurance paid for physiotherapy.
• the worker believes the first accident is related to his current difficulties despite there being no benefits required at that time.
• the physiotherapy assessment from the first accident noted slight stiffness, slight range of motion loss and that the worker was capable of regular duties.
The worker's representative noted that prior to the accident, the worker had an MRI ordered for ongoing neck pain. At that time the attending physician also recommended non-steroid anti-inflammatory. The attending physician did not mention any requirement for modified duties or time off work.
The worker's representative submitted that facts show the worker had both a previous accident and a preexisting cervical disc degeneration but at the same time the worker was working full-time and taking over-the-counter medications to manage any symptoms. She said that the evidence shows that the worker performed his regular duties as a mechanic full-time without his preexisting neck issues hindering his performance.
The worker's representative noted that after the second accident (this claim), the worker was unable to work. This was supported by the attending physician who found the worker was incapable of work or modified duties and prescribed Tylenol 3, anti-inflammatory topical medication and a muscle relaxant. The worker was referred to a clinic in Winnipeg, and saw a physiotherapist, who was unable to get a proper diagnosis on initial assessment due to pain and reported that the worker was incapable of work or modified duties. The worker saw a chiropractor on July 11, 2017, who indicated the worker was still incapable of returning to work on modified duties.
She submitted that the facts show an acute change in the worker's condition and inability to return to any form of modified duties after the second workplace accident.
Regarding the impact of the second accident, the worker stated:
… I lifted a garbage can to dump it in the garbage bin and I felt a sharp pain down left side of my neck. It was all the way to my shoulder. It was so painful. It was right beside my spine. The pain was so severe and so painful, I felt instantly sick. All my body was really, really hot and I felt like I wanted to puke.
Also I lost fully strength in my arm and my hand, as well as my body. I don't even know how did I walk back to the shop.
The worker acknowledged that a physician authorized him to remain off work for three months. The worker said:
Again why he took me off three months I have no idea.
He said that right after the accident his symptoms changed:
It was severe stiffness, unable to move my head sideways or up and down. And the neck seize. If I'm sitting, let's say I'm using my cell phone. After that one minute, two minutes, the neck seize and I feel so so pain, right beside my spine all the way down to my shoulder on left side.
The worker provided a list of activities he could no longer participate in after the second accident.
The worker advised that he had to move to another city in November 2017 for financial reasons.
He acknowledged that he was initially seeking 3 months of benefits, but said that he has not been able to work since he returned to the other city. He saw a physician there who sent him for x-rays which did not show anything. He also sent him for physiotherapy treatment.
Regarding his current condition, the worker said that he feels better but his movement is not 100 percent. He said:
100 percent, I could not move or fully move my neck back and forth. And the seize -- my neck seize, not all the time. It doesn't happen often. Pretty much once in a while it happens. So that's pretty much it.
He has seen his physician only one time since October 2018 for treatment related to a flu.
In response to a question about whether he can work, he advised that he can work but not as a heavy-duty mechanic. He stated:
But, yes, I never said that, hey, I could not go to work. I could go to work with no issue. Like I said, I found a job in a farmers' market as a salesperson. That's pretty much it.
The worker acknowledged that in April 2018, he saw a physician who gave him three injections in his back.
The worker confirmed that at the time of the hearing he was not working, but was looking for a job. He also confirmed that he was not receiving medical treatment.
In closing, the worker's representative submitted that:
The evidence on file proves the acute change in the worker's condition by the accepted accident. This evidence includes objective and subjective findings recorded by multiple medical practitioners includes their informed medical opinions that the worker was prevented from working due to the symptoms he experienced from the compensable injury. These symptoms lasted beyond the date of the accident.
It is unfortunate the worker's continuity of care was hindered by the WCB not accepting the claim initially, the loss of benefits from the workplace and the subsequent move to Alberta. These factors have affected the worker's care negatively. The injury caused an aggravation of a preexisting condition, as well as possible muscle strains and spasms.
On May 13, 2019, in response to the receipt of additional information, the worker's representative submitted that:
The file information clearly shows, although the worker had pre-accident pain in his neck, there was an acute change in the treatment plan after the accident. An x-ray, CT scan request, an orthopedic surgeon referral, [name] clinic referral, recommendation for chiropractic treatments and prescribed opioid, anti-inflammatory and muscle relaxant medications outline this change.
The employer was represented by its Dealership Administrator. She advised that the employer offered the worker modified duties when he was first injured. She said the employer had many things he could do. She also advised that the worker advised he was moving back to a different city at the end of August 2018. She referred to videos which the worker posted on line which show the worker as being fit.
The issue before the panel is whether or not the worker is entitled to benefits after May 29, 2017. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after as a result of his May 29, 2017 workplace incident. For the reasons that follow, the panel is able to make that finding.
In making its decision, the panel notes that there is evidence of a prior injury. As well there is evidence of a prior psychological condition and evidence that he disliked his workplace. However, the panel finds that the worker nonetheless sustained a workplace injury on May 29, 2017 while emptying garbage into a receptacle. The panel finds that the motion involved in lifting and emptying the garbage container, as noted on the video, was sufficient to cause a minor acute injury, in the environment of a previous injury; as evidenced by the change in the worker's functional levels immediately after May 29, 2017.
In terms of the duration of the injury, the panel notes that a physician provided a medical note authorizing that the worker take three months off work. This note supports the worker's change in functional status, but the panel makes no findings in respect of the duration of time loss proposed by the physician. At the hearing, the worker advised that the physician said:
And this is exactly what I remember that conversation. We're going to write down three months off. As soon as you feel better after three days, after a week, after two weeks, after a month, whatever, and then you can just come back and return to work.
The panel finds that the authorization of medical leave and the additional evidence provided by the worker do not support a finding that the worker sustained a serious long term injury as a result of the May 29 accident. The panel finds that the worker's accident caused a minor injury of short duration. Many of the worker's post-accident actions are not consistent with the worker having sustained a serious injury, including his failure to proceed with a scheduled CT scan, his decision to relocate to another province, and the lack of ongoing medical care.
However, the panel disagrees with the WCB's finding regarding the length of the worker's inability to work due to the accident, and refers the file to the WCB to determine that period of wage loss sustained by the worker as a result of the injury.
The worker's appeal is approved, in part.
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 31st day of May, 2019