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 further medical aid benefits in relation to the September 19, 2017 accident. A file review was held on May 22, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further medical aid benefits in relation to the September 19, 2017 accident.

Decision

That the worker is not entitled to further medical aid benefits in relation to the September 19, 2017 accident.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 115/18, dated July 31, 2018. The background will therefore not be repeated in its entirety.

The worker, a general labourer, filed a claim with the WCB on October 6, 2017, reporting that he injured his upper/mid/lower back in an accident at work on September 19, 2017. The incident was described as carrying a large job box down a set of stairs, after which he felt something in his back, "I felt a strain but I just carried on. I continued working. I finished my shift at 3:15 p.m."

On September 27, 2017, the worker attended at a doctor's office, where he reported being "unable to bend forward due to back pain" and was diagnosed with a musculoskeletal injury. It was recommended that the worker could return to work with modified duties of no lifting heavy objects for a duration of two weeks.

In a discussion with the WCB on October 13, 2017, the worker advised that the job box he was helping to move was about four to five feet long, four feet deep and three or four feet wide and weighed between 80 to 100 pounds. He further advised that his first symptom was a feeling of something moving out of place and numbness. The worker noted that he did not mention anything to his employer on the day the incident happened, but he did take mini-breaks throughout the day to stretch and complained about his back. The worker advised the WCB that when he woke up the next day, he had trouble walking and had pain in his whole back. The worker noted he delayed going to see the doctor until September 27, 2017, as he thought he would rest his back a few days and be back at work.

On October 23, 2017, the WCB advised the worker that his claim was not acceptable. The WCB noted that because of the delay in reporting the incident to his employer and seeking medical treatment, the WCB had no evidence that a workplace accident occurred on September 19, 2017.

On October 30, 2017, the worker requested that Review Office reconsider the WCB's decision. On December 15, 2017, Review Office reversed the WCB's decision and accepted the worker's claim.

The worker's file was therefore returned to Compensation Services to consider whether he was entitled to benefits. On December 21, 2017, Compensation Services advised the worker that he was entitled to wage loss benefits from September 20, 2017 to September 27, 2017 and ongoing medical aid benefits related to the compensable injury.

On December 19, 2017, the employer appealed Review Office's decision that the claim was acceptable to the Appeal Commission. On July 31, 2018, the Appeal Commission determined that the worker's claim was acceptable. The Appeal Commission found that the mechanism of injury indicated the worker suffered a strain type injury and the evidence supported a conclusion that the injury arose out of and in the course of employment. The Appeal Commission found that the delay in reporting was consistent with the type of injury the worker suffered and was not unreasonable, and that the delay in seeking medical attention was also not unreasonable in the circumstances. The Appeal Commission found that the fact the worker did not seek immediate medical attention did not mean he had not sustained an injury.

Following the Appeal Commission decision, Compensation Services reviewed the worker's file to determine whether the worker was entitled to further benefits. In a telephone conversation with the WCB on September 14, 2018, the worker advised that he had not sought further medical treatment since September 27, 2017 as he "…deals with the pain and has become accustomed to it." He further advised that he had ended his employment with the employer and was currently not working. The worker said he continued to have spasms in his back as soon as he would get out of bed. The spasms would last for 20 to 40 minutes. He had to stretch to alleviate the pain, and the spasms usually occurred at least once a day. The worker confirmed he had not had any new accidents, and his condition had not changed since the workplace accident.

On September 24, 2018, the worker attended an initial assessment with a chiropractor, who provided a report which identified the areas of injury as cervical, thoracic and lumbar sacral spine, as well as the left shoulder. Reports of x-rays of the worker's cervical, thoracic and lumbar spine, taken October 3, 2018, were also provided to the WCB.

On November 14, 2018, Compensation Services advised the worker that due to a lack of objective medical findings, they were unable to establish a continuity of symptoms and to relate his ongoing difficulties to the September 19, 2017 incident, and were not accepting responsibility for his ongoing difficulties, including wage loss and treatment, beyond September 27, 2017. On November 13, 2018, the worker requested that Review Office reconsider Compensation Services' decision, as he was still suffering from the effects of the workplace accident.

On November 21, 2018, Review Office determined that the worker was entitled to wage loss benefits from September 28, 2017 to October 11, 2017, but was not entitled to further medical aid benefits. Review Office noted that the September 27, 2017 report from the worker's treating physician recommended restrictions for the worker for two weeks. Review Office further noted that on December 19, 2017, the employer advised the WCB that they were not certain they would have had light duties for the worker to return to after September 27, 2017. Review Office found that the restrictions would likely have prevented the worker from performing labourer activities for any other employer during this time period, and that the worker was therefore entitled to wage loss benefits for the two-week period from September 28 to October 11, 2017.

Review Office also noted that the worker did not seek medical attention from September 2017 to September 2018, and determined that given the diagnosis of the compensable injury and the lack of medical reports for approximately one year, they could not relate the worker's current difficulties to the September 2017 compensable injury. Review Office therefore found that there was no further entitlement to medical aid benefits.

On November 30, 2018, the worker appealed the Review Office decision to the Appeal Commission and a file review 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 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."

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states, in part, 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 his appeal proceeded by way of file review. The worker's position, as set out in his November 30, 2018 appeal form, was that his injury from the September 19, 2017 workplace accident "is still with me and has not been rectified," and that he is entitled to further medical aid benefits in relation to his compensable injury.

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 further medical aid benefits in relation to the September 19, 2017 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires further medical aid as a result of his September 19, 2017 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for a back strain injury in relation to his September 19, 2017 workplace accident.

Information on file shows that the worker first attended a doctor's office for his workplace injury on September 27, 2017, then did not seek medical treatment for almost one full year after that. On December 14, 2017, when the WCB asked about any follow-up, the worker advised that he had not attended a doctor or any other medical person other than the one visit, and no referrals had been made for diagnostics. In a subsequent conversation with the WCB on September 14, 2018, the worker said he had not followed up with any doctor or sought medical treatment. When asked why he did not seek treatment, he said that he "deals with the pain and has become accustomed to it."

The panel recognizes that the information on file indicates the worker advised the WCB on September 14, 2018 that his condition had not changed since the accident and he had been managing his pain. However, given the lack of medical reports or treatment for almost a year and the compensable diagnosis of a back strain, the panel finds that the evidence fails to establish that the worker continued to suffer from the effects of his compensable injury. Based on the evidence, the panel finds, on a balance of probabilities, that the worker would have recovered from his compensable back injury within a relatively short period of time and his current condition and symptoms are not related to his September 19, 2017 workplace accident.

The panel notes that the worker attended a chiropractor on September 24, 2018, at which time x-rays were ordered of his cervical, thoracic and lumbar spine. The x-rays, taken October 3, 2018, show that the worker has fairly significant degenerative disc disease at numerous levels. The panel is satisfied, on a balance of probabilities, that the worker's ongoing back condition and symptoms are related to the degenerative conditions which are identified in the x-ray reports. The panel is further satisfied that those degenerative conditions were pre-existing, and were not causally related to the worker's accident or the effects of his compensable injury, or aggravated or enhanced by his compensable injury.

The panel acknowledges that the worker has ongoing back problems. Based on the evidence which is before us, however, the panel is unable to connect those problems to his compensable back strain injury.

In conclusion, the panel finds, on a balance of probabilities, that the worker does not require further medical aid as a result of his September 19, 2017 workplace accident. The panel therefore finds that the worker is not entitled to further medical aid benefits in relation to that accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of July, 2019