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 May 26, 2017. A hearing was held on May 16, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 26, 2017.

Decision

That the worker is entitled to benefits from June 27, 2017 to August 17, 2017, inclusive.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 121/18, dated August 10, 2018. The background will therefore not be repeated in its entirety.

On June 1, 2017, the worker filed a Worker Incident Report for an injury he sustained in a workplace accident on May 24, 2017. The worker described the injury as follows:

After packing a box with merchandise, I was carrying it to a skid. As I turned with the box in my hand I twisted my right knee. 

The pain travelled from my right knee down to my right foot. 

I also had some pain in my lower back area. 

I could not put any pressure on my knee. I was not able to go down the stairs. 

Box weighed approx 30 lbs. 

I did not finish my shift.

The worker saw a doctor on May 24, 2017, who diagnosed him with "mechanical lower back pain" and referred him for an MRI. The doctor also provided the worker with a doctor's note to be off work from May 24 to May 26, 2017.

On June 2, 2017, the employer filed an Employer's Accident Report in which they stated that the workplace incident had not been reported to them. In a discussion with the WCB on June 5, 2017, the worker advised the WCB that he hurt his right knee carrying boxes and that his back was hurting as well.

On June 9, 2017, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services stated that based on the information obtained, they could not establish a relationship between his right knee and back difficulties and an accident arising out of and in the course of his employment.

On August 30, 2017, the worker requested that Review Office reconsider the Compensation Services decision. The worker provided a submission, including copies of medical records and employment income information, to support his claim that he had injured his right knee and back performing his job duties.

On October 16, 2017, Review Office advised the worker that his claim was not acceptable. Review Office found no medical evidence to support that either a back or a right knee injury occurred on May 24, 2017, as described by the worker.

The worker appealed the Review Office decision to the Appeal Commission. On August 10, 2018, the Appeal Commission determined that the worker suffered a minor mechanical lower back injury and his claim was acceptable. The appeal panel at that time noted that they were satisfied that the injury was of a relatively minor nature and likely to be of short duration.

On August 29, 2018, at the request of the WCB's Compensation Services, the worker's file was reviewed by a WCB orthopedic consultant, who opined:

1. The diagnosis of the injury of 24-May-2017 was non-specific mechanical low back pain (LBP). This is supported by the reported mechanism of injury and the clinical findings reported by the MD. Mechanical LBP was the diagnosis accepted by the Appeal Commission. 

2. A typical recovery period for this diagnosis would be within three months. 

3. It should be noted that multi-level degenerative disc disease (DDD) was a pre-existing and co-existing diagnosis.

On August 29, 2018, Compensation Services advised the worker that they had determined he had recovered from his May 24, 2017 workplace injury and his ongoing symptoms were not related to his claim. Compensation Services noted that his claim was accepted for mechanical low back pain. Compensation Services advised that having reviewed the medical information, including the diagnosis and the natural recovery period, as well as the reported mechanism of injury, it had been determined that he had recovered from his injury as of August 17, 2017.

On September 11, 2018, the worker requested that Review Office reconsider the Compensation Services decision, as he felt he was still suffering the effects of the workplace accident and should be entitled to benefits after August 17, 2017. On October 3, 2018, following a preliminary review of the worker's file, Review Office advised that the appeal issue would be expanded to include whether or not there was entitlement to benefits beyond May 24, 2017.

On October 10, 2018, Review Office determined that the worker was not entitled to benefits beyond May 26, 2017. Review Office requested and obtained chart notes from the worker's treating physician. Review Office found that the evidence supported the worker had a loss of earning capacity related to the workplace injury to May 26, 2017, based on the physician's recommendation that he remain off work from May 24 to May 26, 2017.

Review Office noted that file information showed the worker left the province after the injury and drove for approximately one month, during which time he slept in his car or stayed at a religious centre, and that his back was sore "a bit" when driving. Review Office noted that the worker did not seek medical treatment for his back between May 24 and June 27, 2017. He attended his physician on June 28, 2017 with complaints of "lower back pain for x few weeks."

Review Office determined that considering the worker's personal activities during this time period (driving for an extended period of time and sleeping in his car), the absence of workplace causation (not working since May 24, 2017), and that no medical attention was sought between May 24 and June 27, 2017, they were unable to establish a relationship between the worker's back complaints on June 28, 2017 and his claim. Review Office therefore concluded that the worker's loss of earning capacity and need for medical aid beyond May 26, 2017 was not related to the worker's claim.

On November 13, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

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.

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.

Subsection 4(2) provides that 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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate and reads as follows:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.

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.

WCB Policy 44.10.20.10, 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.

Worker's Position

The worker was self-represented and was provided with the services of an interpreter at the hearing. The worker made an oral presentation, and responded to questions from the panel with the assistance of the interpreter.

The worker’s position was that he continues to suffer from the effects of his compensable injury, which was "100%" from work, and is entitled to full compensation up to the present and beyond, including wage loss and medical aid benefits. He said that he is asking for full health support and compensation to enable him to return to his job and his life.

The worker submitted that his back has been going from bad to worse. The pain is still there; it is worse if he does anything and will continue to get worse. He said that he is unable to work and should be retrained.

The worker submitted that he did not get any medical treatment or help from May 24, 2017 to the present. He submitted that it is hard to recover if there is no physiotherapy or other treatment or medicines provided.

The worker submitted that the definition of a "short time injury" varies depending on the consequences of the injury. He submitted that the WCB's interpretation of a short duration in this case was very low and was unfair.

In response to questions from the panel, the worker said that he did not go back to the doctor until later in August 2017 because he had to wait for the MRI. He said he did not seek medical attention between May 26 and June 27, 2017 because he was travelling and would have had to pay for it himself.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after May 26, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after May 26, 2017 as a result of his May 24, 2017 workplace injury. The panel is able to make that finding, for the reasons that follow.

In Appeal Commission Decision No. 121/18, it was decided that the worker "suffered a minor mechanical lower back injury by accident arising out of and in the course of his employment on May 24, 2017." The panel in that case further noted that they were satisfied that "this injury was of a relatively minor nature and likely to be of short duration." Review Office subsequently determined that the worker was entitled to benefits to May 26, 2017.

The worker is appealing the decision that he is not entitled to benefits beyond May 26, 2017. Based on our review of the evidence, the panel finds that the worker had not recovered from his compensable injury by May 26, 2017 and is entitled to benefits beyond that date, as indicated below.

In arriving at this conclusion, the panel places weight on and accepts the WCB orthopedic consultant's opinion that a "typical recovery period for this diagnosis would be within three months." The panel further accepts the WCB orthopedic consultant's opinion that the "multi-level degenerative disc disease was a pre-existing and co-existing diagnosis."

In the panel's view, it would seem unlikely that a strain which occurred within the environment of degenerative disc disease and was considered sufficiently serious to require the worker's absence from work for three days and to order an MRI, would have resolved within two to three days, especially when the WCB medical consultant indicated a timeframe for recovery of up to three months.

The panel further notes that the worker filed his claim on June 1, 2017, and advised the WCB on June 5, 2017 that he was still experiencing problems, that his back was "sore a bit when driving. 8 out of 10."

While there is reference on the file to the worker having quit or resigned on May 25, 2017, the panel finds that the timing of the worker's "resignation" is concerning, and is satisfied that the worker's resignation was not entirely voluntary. In this regard, the panel notes that the evidence indicates the worker attended work on May 25, 2017 to bring his doctor's note to the employer. The panel is of the view that it does not make sense that the worker brought a doctor's note to the employer, taking him off work for three days, if he intended to resign from his employment. The panel further notes the worker's evidence that the employer made him sign a letter of resignation which the employer had prepared at that time.

The panel recognizes that the worker's doctor's note was for three days only, but places little weight on this fact. In our view, there would have been no reason for the worker to return for or obtain a further doctor's note after that, given that he was no longer employed by the employer.

The panel notes that the worker removed himself from active treatment for a month, when he left the province on May 27, 2017. While the panel is troubled by the worker's evidence that he was sleeping in his car for at least part of this time and by the effect this may have had on his back, the panel finds that this is not enough for us to determine that he was no longer suffering from the effects of his injury or entitled to any further benefits as a result of his workplace accident.

The panel notes that the evidence shows, however, that in his conversation with the WCB on June 5, 2017, when the worker indicated his back was sore, the adjudicator suggested he should seek medical treatment or physiotherapy if he was still having continued difficulties. The worker confirmed at the hearing that he did not seek any medical attention or treatment between May 27 and June 27, 2017 while he was travelling. In the circumstances, the panel is satisfied that the worker should not be entitled to benefits during that period of time, pursuant to section 22 of the Act.

The panel is further satisfied, on a balance of probabilities, that the worker was continuing to suffer from his compensable injury when he returned from his travels on June 27, 2017. The following day, on June 28, 2017, the worker saw his treating physician who noted that he had "lower back pain for x few weeks." The physician diagnosed him with low back pain and recommended rest.

On August 16, 2017, the worker underwent the MRI of his lumbar spine. It is the panel's understanding that the MRI report refers to various degenerative findings and is otherwise essentially normal. The panel has already accepted that the degenerative disc disease was a pre-existing and co-existing diagnosis, and is satisfied that by the time of the MRI, the worker's ongoing difficulties were the result of his pre-existing degenerative disc disease and not his workplace injury. Based on the best medical evidence available, the panel finds that the worker had recovered from his compensable injury by that time.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid beyond May 26, 2017 as a result of his May 24, 2017 workplace accident and is entitled to benefits to August 17, 2017, less the period of time from May 27 to June 26, 2017 when he absented himself from the province and removed himself from active treatment.

The panel therefore finds that the worker is entitled to benefits from June 27, 2017 to August 17, 2017, inclusive.

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of July, 2019