The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits after October 17, 1997. A hearing was held on June 4, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after October 17, 1997.

Decision

That the worker is not entitled to benefits after October 17, 1997.

Background

The worker reported to the WCB that she injured her lower left side and buttock while performing her job duties at work on July 8, 1997. The worker saw her family physician on July 8, 1997. She was diagnosed with a lumbosacral sprain and referred for physiotherapy. The worker's claim was accepted by the WCB.

On July 17, 1997, the worker was seen by a neurologist, who noted that he could not find any "neurological defect" and referred the worker for a CT scan.

On September 8, 1997, a WCB medical advisor reviewed the worker's file, including an August 25, 1997 CT scan, and stated that the worker's current diagnosis appeared to be "mechanical low back strain."

The worker attended a call-in examination with a WCB physiotherapy consultant on September 23, 1997. In her notes from the examination, the consultant opined:

The physical examination findings do not support ongoing physical disability from lumbar sprain, sacroiliac joint strain, hip joint dysfunction or any primary muscle injury around the lower quadrant.

On October 10, 1997, the worker was advised that the WCB had determined she had recovered from the effects of her workplace accident and was not entitled to benefits after October 17, 1997. On May 24, 2001 and July 30, 2001, the worker requested reconsideration of the WCB's decision.

The WCB subsequently received a report from the worker's family physician dated December 11, 2001. The physician noted that he had been treating the worker since 1992. He stated that the worker's "alleged lower back pain and sciatica-like pain occured (sic) on July 9, 1997" and that she had not complained of similar problems prior to that.

On February 14, 2004, the worker underwent a CT scan of her lumbosacral spine, which indicated:

Multilevel degenerative disc and facet changes are present. Small far lateral (extraforaminal) disc herniations are present at L3-L4 and L4-L5.

On May 2, 2005, the WCB received a report from a physician with an interest in occupational health who had examined the worker on March 31, 2005. The physician noted that the worker had ongoing issues with her lower back and hands. The physician opined that the workplace accident of July 8, 1997 "…consisted more of muscle strain or tearing of the lateral hip rotators located in the medial left buttock."

On August 31, 2005, a worker advisor requested that the WCB reconsider their decision that the worker had recovered from the effects of her workplace accident. The worker advisor submitted a report from the worker's family physician dated July 15, 2005 which summarized the worker's treatment. On November 3, 2005, the worker was advised that her file had been reviewed with a WCB medical advisor, and it had been determined that her current difficulties were not related to her original injury suffered on July 8, 1997.

On January 12, 2006, the worker submitted a further request that the WCB reconsider their decision. On March 4, 2006, the worker's treating physician provided the WCB with another summary of the treatment of the worker's condition in support of her request. On March 28, 2006, the worker was advised by the WCB that there was no change to their decisions of October 10, 1997 and November 3, 2005 that the worker had recovered from her compensable injury.

On June 23, 2017, the worker, through a representative, requested that the WCB again reconsider their decisions. The worker's representative advised that the worker had been in pain since the 1997 workplace accident and had not worked since 1997. The WCB reviewed the worker's file and gathered further information from the worker's representative. The WCB also spoke to the worker's current family physician, who advised that he had only recently started treating the worker and would have difficulty relating the worker's current condition to her workplace accident. On August 3, 2017, the worker was advised that the WCB's decisions of October 10, 1997, November 3, 2005 and March 28, 2006 remained unchanged.

On September 27, 2018, the worker requested that Review Office reconsider the WCB's decisions. The worker submitted that she injured her back in 1997 and had never recovered, and requested that her benefits be reinstated.

On November 16, 2018, Review Office determined that there was no entitlement to benefits beyond October 17, 1997. Review Office placed weight on the neurologist's report of July 24, 1997 and the WCB physiotherapy consultant's report of September 23, 1997. Review Office agreed with the WCB's determination that the worker had recovered from her compensable injury as of October 17, 1997 and was not entitled to further benefits beyond that date.

On December 5, 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 27(1) of the Act states 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 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 represented by an advocate, who provided a detailed written submission in advance of the hearing and made a presentation to the panel. The worker was provided with the services of an interpreter, and responded to questions from the panel with the assistance of the interpreter.

The worker's position is that she is entitled to further benefits, as her ongoing pain and difficulties are the result of her July 8, 1997 workplace accident and injury.

The worker's advocate submitted that the worker felt the decision to end her benefits was not fair. She was given only three or four months of compensation following her injury. The worker felt that she had been discriminated against and that the medical evidence which had been provided at that time was not complete.

The advocate submitted that the worker's ongoing back problems have been very stressful for her and her family. She has been unable to work and is always on medication, which she has had to take continually to relieve her pain.

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 October 17, 1997. 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 October 17, 1997 as a result of her July 8, 1997 workplace injury. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for an injury to her left lower side and buttock. The panel accepts the diagnosis of a lumbosacral sprain/strain injury as the compensable injury. The panel is further satisfied that the evidence indicates the worker had recovered from her compensable injury by the middle of October 1997.

In arriving at our decision, the panel places significant weight on the July 24, 1997 report from the treating neurologist who noted that "there were no significant findings detected on examination of the spine," and opined that he "could not find any neurological defect in this lady." In light of the worker's complaints of radiating pain, the neurologist requested a CT scan. The results of that scan were consistent with the neurologist's finding of no neurological defect.

The panel notes that the medical information on file, including the results of the August 25, 1997 CT scan, were reviewed by the WCB medical advisor on September 8, 1997. Following that review, the medical advisor provided a diagnosis of "mechanical low back strain."

The panel also places significant weight on the opinion of the WCB physiotherapy consultant who examined the worker at a call-in examination of September 23, 1997 and was unable to find any ongoing problems. The panel accepts the consultant's conclusion that the physical examination findings "do not support ongoing physical disability from lumbar sprain, sacroiliac joint strain, hip joint dysfunction or any primary muscle injury around the lower quadrant."

The panel is satisfied that our conclusion that the worker's injury had resolved is consistent with the gradual onset mechanism of injury which, in our view, was not highly traumatic. The panel further understands that resolution of the worker's compensable injury would be consistent with the usual period for recovery from a sprain/strain injury of this nature, which would typically have been expected to have resolved within a relatively short period of time.

The panel finds that this conclusion is also consistent with information provided by the treating family physician in a letter to the worker advisor office dated September 20, 2001, where he reported that when he saw the worker on May 4, 1998, "…her back was all right. She said that she was not willing to go back to work." In the panel's view, this suggests that the worker's injury had resolved, as anticipated, and that her disinclination to work was no longer related to her compensable injury.

The panel accepts that the worker has ongoing back problems subsequent to that date, but is unable to relate those problems to her July 8, 1997 workplace accident or compensable injury.

In the course of the hearing, the worker's advocate referred to and relied upon a passage from the December 11, 2001 report from treating family physician to the WCB, where the physician indicated, in summary, that the worker "…has had work-related sciatica (L) [left] which still persists…" (emphasis in original) The panel is unable to attach any weight to this assertion. The panel notes that the physician does not specify how the worker's ongoing condition was related to the original workplace accident or compensable injury. The panel further notes that earlier in his December 11, 2001 report, the physician had simply stated that "In the absence of a fall or any other agravating (sic) factor, her work is related to this injury." Again, outside of a temporal relationship, the panel cannot link the worker's condition in 2001 to her 1997 compensable sprain/strain injury.

The panel also notes that more recent imaging shows that the worker has developed significant degenerative issues in her back. The panel notes that the August 25, 1997 CT scan of the worker's lumbosacral spine showed no spinal stenosis or nerve root compression, while the February 14, 2004 CT scan of the worker's lumbosacral spine showed: "Multilevel degenerative disc and facet changes…" and an MRI performed July 21, 2004 showed:

There is no significant level of spinal stenosis in the lumbar spine. At T11-12, there is narrowing due to ligamentum flavum thickening but significant spinal cord compression is not suggested.

More recently, the report of a May 6, 2019 CT scan indicates:

1. There is multiple level spinal stenosis. 

2. There is broad-based disc protrusion at the L4-L5 and L5-S1 disc levels with displacement of the left nerve root.

The panel is unable to relate these degenerative changes to the July 8, 1997 workplace accident or the compensable sprain/strain injury sustained on that date. The panel is satisfied, on a balance of probabilities, that these degenerative changes are due to the natural process of aging.

Finally, with respect to the comment that the worker felt she had been discriminated against, the worker's advocate clarified in the course of the hearing that the worker felt the people she was speaking to at the WCB did not believe her. The advocate confirmed that there was no particular event or comment that they were referring to in this respect. The panel notes that we did not find anything on the file or in the information provided at the hearing to support this suggestion of discrimination.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had recovered from the effects of her July 8, 1997 workplace accident and did not sustain a loss of earning capacity or require medical aid after October 17, 1997 as a result of her July 8, 1997 workplace injury. The worker is therefore not entitled to benefits after October 17, 1997.

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 1st day of August, 2019