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 and medical aid benefits in relation to the June 20, 2018 accident. A hearing was held on September 24, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits in relation to the June 20, 2018 accident.

Decision

The worker is entitled to wage loss and medical aid benefits to August 15, 2018.

Background

The worker filed a Worker Incident Report with the WCB on June 27, 2018 indicating he injured his lower back at work on June 20, 2018. He reported that when he went to lift a heavy object, he "…squatted perfectly made sure back was straight but when I went to lift I felt something snap in my back."

The Employer's Accident Report, filed with the WCB on June 29, 2018 sets out that the owner was working with the worker on June 20, 2018 and noted "We were working 5.5 hrs. that day and he did not make any comments that he had a sore back. He did say he felt a little snap in his back but all was fine." The employer further noted that the worker was in a part-time position and not scheduled to work any other day.

On June 26, 2018, the worker saw his family physician, who diagnosed "Back Pain (muscle strain)" after noting the worker's complaint of low back pain for a week after lifting "heavy stuff" at work. The physician recommended the worker avoid heavy lifting for two to three weeks.

The worker also attended for chiropractic treatment on June 26, 2018 and reported low back pain and pain when moving. The chiropractor diagnosed an L5-S1 disc irritation and paravertebral muscle spasms, and recommended he remain off work for two to four weeks.

The worker discussed his claim with the WCB adjudicator on July 26, 2018, confirming the mechanism of injury and that he finished his shift on the day of the accident. The worker advised that his pain was in the middle of his lower back and across his back. He stated that on the weekend immediately following the incident, he took pain relievers and remained at home as he though the pain would go away. The worker explained that he sought medical treatment when his symptoms did not get better.

WCB advised the worker on July 26, 2018 that 14 weeks of chiropractic treatments were approved but no wage loss benefits would be provided. The worker discussed his claim with the WCB adjudicator again on August 3, 2018. He advised that on the day after the workplace accident, his muscles were sore but he had no low back symptoms and he did not work that day. The next day, he called in to the employer to see if there was work for him and was advised there was no work for him that day or the next. On June 22, 2018, his back muscles were sore but he was not in pain until later in the day when he awoke from a nap with excruciating pain in his back, and could not get up from the couch. The worker subsequently sought medical and chiropractic treatment.

On August 3, 2018, the WCB discussed the claim with the employer who confirmed that he was with the worker when the workplace accident occurred and the worker had advised him that he would likely be sore the next day. The employer further confirmed that the worker called him the next day and said he felt fine and wanted to work; however, the employer had already arranged for another worker to come in. The employer noted he was at a social gathering with the worker the evening of June 21, 2018 and the worker appeared fine. At that time, the worker asked about work for the following two days and the employer advised he had no work for him those days. On June 22, 2018, the employer was contacted by the worker who indicated that his back was "…really hurting him." and he was lying in bed in pain.

The employer indicated that the worker could have continued working for him; however, the business had been sold and he had retired. He further advised that he would not have been able to accommodate the worker.

The WCB advised the worker on August 13, 2018 that his claim was acceptable for an accident that occurred on June 20, 2018 but he was not entitled to wage loss benefits as he delayed in seeking medical treatment and did not report the injury to his employer until June 23, 2018. As such, the WCB was unable to relate his symptoms to the workplace accident on June 20, 2018.

The worker requested reconsideration of the WCB's decision to Review Office on August 21, 2018 and submitted an August 21, 2018 report from his treating chiropractor. On August 22, 2018, Review Office returned the worker's file to the WCB's Compensation Services and requested the new medical information be reviewed.

A WCB chiropractic advisor reviewed the worker's file on August 23, 2018 and provided the opinion that the worker's diagnosis for his lumber spine from the workplace accident would have been a "…lumbosacral strain/sprain type of injury."

In a further discussion with the WCB on August 24, 2018, the worker advised that the employer had not told the worker how long the job would be for or how many days he would be working but the worker had hoped the employer would keep him on until he retired.

On August 24, 2018, the WCB advised the worker that he was not entitled to wage loss benefits as it was determined the worker was "…no longer employed for reasons unrelated to the workplace injury."

On August 29, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker submitted that he could have continued to work had he not been injured. The worker provided a note from his family physician indicating that he should remain off work until November 30, 2018 in support of his request for reconsideration.

Review Office determined on September 17, 2018 that the worker was not entitled to wage loss benefits in relation to the June 20, 2018 accident. Review Office found the evidence on file supported that the worker was capable of continuing to work his regular duties, as demonstrated by the worker contacting the employer the day following the workplace accident to enquire about working that day, and did not require any work restrictions, time away from work or medical treatment on the date of the accident or the two days following the accident. It wasn't until June 23, 2018 that the worker reported acute back pain and an inability to work. Review Office could not account for the worker's back difficulties three days after the workplace accident and accordingly, found that the worker was not entitled to wage loss benefits after the June 20, 2018 accident.

The worker filed an appeal with the Appeal Commission on March 25, 2019. 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 December 23, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.

Section 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. That compensation includes wage loss benefits and medical aid, as set out in s 37 of the Act.

Wage loss benefits are addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out 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.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as "…necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker appeared on his own behalf and made submissions to the panel. The worker answered questions put to him by members of the panel.

The worker's position is that as a result of an injury to his back that occurred at and in the course of work on June 20, 2018, he was disabled from working beyond the date of the injury. The worker believes he experienced a loss of earning capacity as a result of the injury that entitles him to receive wage loss benefits under the provisions of the Act. Further, the worker believes that as a result of the injury and in order to provide relief from the injury, he required medical treatment, including medications and chiropractic care. He should therefore also be entitled to medical aid.

The worker described to the panel the circumstances under which he sustained injury to his back early in the day on June 20, 2018. He indicated that when trying to move a heavy platform, he heard a loud snap and thought he had pulled a muscle. There was no immediate pain and he was able to continue working for the balance of the day. He drove himself home after the work was complete and stayed at home that evening. He felt muscle soreness at the time, in the muscles around the area in his back where he felt the snap. The next day, Thursday, he continued to experience soreness. That evening, he attended a meeting at his church, still feeling muscle soreness, which continued into Friday. On Saturday, the worker noted that he was still feeling sore and couldn't stand for long. He took an afternoon nap and on waking, his pain had greatly increased such that he couldn't initially move his feet or get up. The worker described excruciating pain at this time and called the employer that evening to let him know about the extent of his injury.

The worker explained that he remained mostly reclined through the weekend, resting with ongoing high pain levels. After the weekend, he arranged to see both his family physician and chiropractor on Tuesday, June 26, 2018.

With respect to his availability to work, the worker advised he still felt able to work on June 21, 2018, but the employer didn't have work available. He asked the employer on June 21 if there was work available on June 22 and 23, but was advised he was not needed. The worker indicated he would have worked on those days, if not for the lingering muscle soreness.

The worker confirmed that he found chiropractic treatment to improve his symptoms and he continued with it. Initially, after the injury, he attended approximately twice weekly. After two weeks, he indicated that his back remained very painful, but had improved somewhat. He has continued to experience flare-ups of symptoms from time to time since then, including in October 2018 and in June 2019. He noted that pain is still triggered when he walks too much.

In sum, the worker's position is that as a result of the compensable workplace injury of June 20, 2018, he experienced a loss of earning capacity that continued beyond the injury date and that he required medical treatment to cure and provide relief from that injury. In the result, the worker submits, he should be entitled to wage loss and medical aid benefits in relation to the June 20, 2018 accident.

Employer's Position

The employer did not participate in the hearing.

Analysis

In order to find that the worker is entitled to wage loss and medical benefits in relation to the June 20, 2018 accident, the panel must find that the worker experienced a loss of earning capacity and required medical aid as a result of the injury sustained in the compensable accident. The panel was able to find that the worker suffered a loss of earning capacity and did require medical aid as a result of the compensable injury of June 20, 2018.

In considering the question before it, the panel took into account the oral submissions and testimony of the worker as well as the reports and documents in the worker's WCB file.

Compensation benefits, including wage loss and medical aid benefits, are payable under the Act and policies of the WCB only when there is evidence of a disability arising from a compensable accident. In other words, there must be a causal link between the disability and the compensable injury sustained in the accident.

The worker's position here is that as a result of the workplace accident that took place on June 20, 2018, which WCB has accepted as compensable, he experienced a loss of earning capacity that continued beyond the injury date and that he required medical treatment to cure and provide relief from that injury. In considering the questions before it, the panel carefully reviewed the medical opinions provided by the worker and on file, placing significant weight upon the following: 

• June 26, 2018 report from the worker's family physician, recommending the worker avoid heavy lifting, diagnosing muscle strain and indicating objective findings of negative straight leg raise test, no midline tenderness, decreased range of motion, and no obvious deformity; 

• August 8, 2018 report from the family physician, continuing the recommendation to avoid heavy lifting and noting tenderness and stiffness of the worker's para-spinous muscles and decreased range of motion; 

• Results of x-ray taken August 8, 2018 indicating no evidence of issues other than right-sided sacroiliitis; 

• August 15, 2018 report from the family physician, noting the worker has regained full range of motion and there is no evidence of neurological deficits; 

• August 20, 2018 report from the family physician, reporting a decreased range of motion and no neurological deficits; 

• WCB chiropractic consultant file review of August 23, 2018, determining that the compensable diagnosis was a lumbosacral strain-sprain type of injury; and 

• WCB chiropractic consultant memorandum of October 31, 2019 indicating that the onset of the worker's acute symptoms on June 23, 2018 is not medically accounted for in relation to an otherwise mild sprain/strain injury.

Having reviewed the medical reports and findings, the panel is satisfied that there was a continuity of development of the worker's symptoms arising out of the compensable accident and that these were fully developed within a few days following the injury. Further, the medical evidence supports a finding that by August 15, 2018, the worker had fully recovered from the effects of the compensable injury, having regained full range of motion, with no neurological deficits identified as arising out of the compensable injury.

While the worker continued to experience pain symptoms, including occasional flare-ups of those symptoms beyond August 15, 2018, the panel finds that the evidence does not support that there is a causal link between those symptoms and the accepted diagnosis of a mild lumbosacral strain-sprain injury.

The evidence before the panel supports that the worker was disabled from returning to his work duties until his family physician reported on August 15, 2018 that the worker's range of motion was full and he was not experiencing any neurological deficits. The panel finds that the worker was recovered from the compensable injury by that date.

On the basis of the evidence before us, we conclude, on a balance of probabilities, that the worker's symptoms and impairment of function beyond the date of the accident are related to and arising out of the workplace injury of June 20, 2018, but that the worker had recovered from effects of the compensable injury by August 15, 2018.

The worker is therefore entitled to wage loss benefits and medical aid until August 15, 2018.

The worker's appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of January, 2020