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 wage loss benefits after August 9, 2018 and that responsibility should not be accepted for physiotherapy treatment. A hearing was held on July 11, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 9, 2018; and

Whether or not responsibility should be accepted for physiotherapy treatment.

Decision

That the worker is not entitled to wage loss benefits after August 9, 2018; and

That responsibility should not be accepted for physiotherapy treatment.

Background

On June 25, 2018, the worker reported to the WCB that he injured his upper and middle back in an incident at work on June 21, 2018. He described the incident as:

Me and a fellow employee were putting 15 foot auger into the grain bin. The fellow employee tripped on a piece of material, causing him to fall. He landed on me and I landed on a rock, landing on my back.

On June 24, 2018, the worker attended a local emergency department where he reported pain to his left shoulder and neck, with tingling down his left arm. An x-ray of the worker's left shoulder, left scapula and cervical spine noted "Lower cervical degenerative changes. No acute fracture or subluxation identified." The attending physician diagnosed the worker with a left shoulder/neck strain with possible radiculopathy. The worker's claim was accepted by the WCB and benefits commenced.

On July 13, 2018, the worker saw a family physician. The worker reported that his back was "…better not 100%..." and slight tenderness was noted. On July 19, 2018, the worker's claim was reviewed by a WCB medical advisor, who opined that the most probable diagnosis as related to the workplace accident was a contusion/strain, the natural history of which would be for gradual improvement with time, usually within six weeks. The WCB medical advisor further opined that the medical evidence did not support total disability and the worker should be able to perform duties that did not involve heavy lifting or prolonged awkward positions.

On July 26, 2018, Compensation Services advised the worker that based on the information on file, medical findings and the WCB medical advisor's opinion, the worker was not totally disabled from working, and was not entitled to further wage loss benefits after July 5, 2018.

On August 1, 2018, the worker was seen by his family physician. The physician reported that the worker had pain in his "…low neck area by adduction against force…" of his left and right arms. The family physician opined that the worker had a muscular injury. The physician noted that although the worker complained of right shoulder pain, he had no pain there, but had pain in his "…inferior medial neck area" on movement. The family physician further opined that the worker could perform light duties but that the worker was "…adamant he can do no heavy lifting."

On August 9, 2018, the WCB medical advisor reviewed the worker's file again and noted that the worker was just past the usual six week recovery period. The medical advisor opined that it was not unusual to have some lingering symptoms as a strain injury resolved, but any tissue issue should have been resolved. The medical advisor further opined that treatment for a strain would be for the worker to return to normal activity, without limitation, and no further treatment would be required.

On August 13, 2018, Compensation Services advised the worker that a further review of his file had been completed and the decision remained the same, that the medical evidence did not support he was disabled from work. Compensation Services noted the worker's healthcare providers had not recommend any further treatment, that he had been diagnosed with a muscle strain and the treatment for a strain was to return to normal activities. Compensation Services therefore determined that the worker was not entitled to further wage loss benefits after July 26, 2018.

On August 17, 2018, the worker attended an initial physiotherapy assessment. The worker reported to the physiotherapist that he had pain to his mid to upper back and neck on his left side and that the pain radiated out to his left shoulder at times. The physiotherapist diagnosed the worker with a left cervical/scapular strain. On August 21, 2018, a WCB physiotherapy advisor reviewed the worker's initial assessment and noted that even though the worker had been off work for two months, findings at the assessment were to a much greater degree than on his earlier medical reports. The physiotherapy advisor was not able to relate the worker's current findings to the June 21, 2018 injury. On August 23, 2018, Compensation Services advised the worker that physiotherapy treatment was not authorized.

On August 24, 2018, the worker requested that Review Office reconsider Compensation Services' decisions. In his submission, the worker noted that he was still suffering the effects of the workplace injury and felt that he should be entitled to continuing wage loss benefits and physiotherapy treatments.

On October 3, 2018, Review Office determined that the worker was entitled to wage loss benefits to August 9, 2018 but was not entitled to physiotherapy treatment. Review Office accepted the medical opinions on file that the mechanism of injury, as described by the worker, resulted in a strain to his left shoulder, back and neck. Review Office noted that the worker did not seek further medical treatment until 19 days after his initial attendance at the local emergency department, which suggested that the worker's injuries were not acute in nature. Review Office accepted the August 9, 2018 opinion of the WCB medical advisor that the worker's soft tissue injury had likely resolved by August 9, 2018 and no further medical treatment or workplace restrictions were required. As such, Review Office determined that the worker was capable of returning to his job duties and his loss of earning capacity ended on August 9, 2018.

Review Office further noted that the worker attended the physiotherapist after being informed by Compensation Services that treatment was not recommended. Review Office stated that they would have expected a possible need for physiotherapy treatment immediately following the workplace injury, not eight weeks later. Review Office determined that they were therefore unable to account for the findings at the physiotherapist's initial assessment in relation to the workplace accident of June 21, 2018 compensable injuries.

On October 16, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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 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.

Worker's Position

The worker was self-represented and participated in the hearing by teleconference. The worker's position was that he has not recovered from his workplace injury and is entitled to both wage loss benefits beyond August 9, 2018 and physiotherapy treatment.

The worker said that the accident occurred when a co-worker tripped and fell on him. The worker stated that he is still experiencing symptoms, including shooting pain through his neck and shoulder as a result of his workplace accident. He is still seeing his doctor for his injury. He said that he cannot understand why his benefits have been cut off when he is still injured, or why the WCB had denied coverage for physiotherapy treatments which the physiotherapy had recommended.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker is entitled to wage loss benefits after August 9, 2018.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond August 9, 2018 as a result of his workplace accident. The panel is unable to make that finding.

The worker has an accepted claim for a sprain/strain injury. Based on our review of the information which is before us, the panel is unable to find that the medical evidence supports that the worker suffered anything more insidious than a sprain/stain injury as a result of his accident.

The worker has stated that he continues to suffer from his compensable injury and his condition has continued to deteriorate. The worker has also reported various new and additional symptoms, including shortness of breath, dizziness and difficulty walking. The panel notes that in his report dated July 13, 2018, his treating physician indicated that the worker had reported that his back was better, though "not 100%." Based on our review of the information on file and as presented at the hearing, the panel is unable to account for the subsequent deterioration of the worker's condition or increase in his symptoms.

Based on the foregoing, the panel is unable to relate the worker's ongoing and current symptoms to his workplace injury approximately 14 months later. The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity beyond August 9, 2018 as a result of his workplace accident. The worker is therefore not entitled to wage loss benefits after that date.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the responsibility should be accepted for physiotherapy treatment.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that physiotherapy treatment is necessary to cure and provide relief from the worker's June 21, 2018 compensable injury. The panel is unable to make that finding.

Based on our finding with respect to Issue 1 above, that the panel is unable to relate the worker's ongoing and current symptoms to his workplace injury, the panel finds that physiotherapy treatment is not necessary to cure and provide relief from the worker's June 21, 2018 compensable injury.

The panel therefore finds that responsibility should not be accepted for physiotherapy treatment.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of September, 2019