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 February 22, 2017. A teleconference hearing was held on July 23, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 22, 2017.

Decision

That the worker is not entitled to benefits after February 22, 2017.

Background

On January 23, 2017, the worker filed a Worker Incident Report with the WCB, indicating he injured his lower back and right leg in an incident at work on December 8, 2016. The worker described having stepped into a snow-covered tire rut, which caused him to twist his lower back and fall.

The employer filed an Employer's Incident Report with the WCB on January 26, 2017. The employer provided correspondence from the worker's supervisor, in which the supervisor noted the worker had told him he had a pre-existing back problem, and had complained of back pain on several occasions prior to December 8, 2016.

On January 30, 2017, the WCB contacted the worker to discuss his claim. The worker advised that he continued working until December 15, 2016, then with a combination of days off and holiday time, was off work until January 3, 2017. He returned to work on January 3, 2017, and worked for 8 days until he had to take time off due to his back being sore. The worker advised that he sought treatment from his chiropractor on January 13, 14 and 15, and attended at a local emergency department on January 14 and 15, 2017 due to pain. On January 18, 2017, he saw his family physician who referred him for a CT scan and physiotherapy and prescribed pain medication. The worker confirmed that the CT scan was performed on January 23, 2017, and he attended an initial physiotherapy assessment that same day. The worker saw his family physician again on January 26, 2017, and was cleared to return to work on January 30, 2017, with restrictions. The worker noted that he had experienced prior episodes of difficulties with his back, but felt it was in a different area this time.

Copies of medical reports were received and place on file. In a Chiropractor First Report relating to an assessment on December 28, 2016, the chiropractor noted that the worker reported right hip and low back pain and that there was decreased extension in the worker's low back. The chiropractor diagnosed the worker with a discal injury, adding that "at the time of initial exam sprain of the low back however symptoms persisted and slowly got worse since then…to discal."

Copies of the hospital reports from the worker's emergency department visits on January 14 and 15, 2017 were also received. The January 14, 2017 report indicated that the worker complained of back pain since a fall in late December, followed by hip pain for the past few weeks. A history of back injury with torn muscles a few years ago and a few recurrences was noted. The worker was diagnosed with muscular back pain and sciatica and given an injection for pain. The January 15, 2017 report indicated the worker returned to the emergency department, reporting the pain was now radiating to his right leg. Another pain injection was administered, and the worker was diagnosed with low back pain.

In the report of an initial physiotherapy assessment on January 23, 2017, it was noted that the worker reported intense pain down his right hip to his ankle and that the anterior of his right lower leg felt numb. The physiotherapist noted the worker entered the clinic "…bent over, unable to stand erect" and was using the furniture for support. The physiotherapist noted that it was very difficult to accurately test the worker, and diagnosed the worker with an acute right L4 nerve irritation.

In the report of the worker's follow-up appointment with his family physician on January 26, 2017, the physician noted the worker's symptoms had improved significantly after attending for physiotherapy and that those symptoms had "…really started after the chiropractor manipulation that the [worker] had." The physician noted the January 23, 2017 CT scan showed "areas of irregularities." The physician further indicated that he provided the worker with a note clearing him to return to work with lighter duties.

On March 24, 2017, the worker's file was reviewed by a WCB medical advisor, who opined that the worker sustained a low back strain as a result of the workplace accident, and stated that an uncomplicated strain would typically resolve over a period of 6 to 8 weeks.

By letter dated March 24, 2017, the WCB's Compensation Services approved chiropractic treatment to February 22, 2017. On April 6, 2017, Compensation Services advised the worker that his claim had been accepted, and wage loss benefits were paid from January 11, 2017 to January 29, 2017. On June 7, 2017, the worker contacted the WCB to advise that he had been terminated from his employment.

On April 18, 2018, Compensation Services advised the worker that a review had been conducted on his file, and it had been determined that any current and ongoing difficulties were related to the worker's pre-existing chronic back difficulties and not the workplace incident. Compensation Services noted that based on the typical recovery time for his compensable diagnosis of a back strain, wage loss benefits were paid from January 11 to 29, 2017 and medical aid benefits for chiropractic treatment were approved to February 22, 2017. Compensation Services further noted that the worker returned to work on January 30, 2019 and continued working until his employment was terminated in June 2017. Compensation Services advised the worker that the WCB was therefore unable to accept responsibility for any ongoing entitlements on this claim.

On October 28, 2019, the worker requested that Review Office reconsider Compensation Services' decision, noting that he continued to experience difficulties with his back injury and back surgery had been recommended.

On December 2, 2019, Review Office determined that the worker was not entitled to benefits beyond February 22, 2017. Review Office accepted the opinion of the WCB medical advisor that the worker's likely compensable diagnosis was a low back strain, which would typically resolve within 6 to 8 weeks. Review Office further noted that the worker's back difficulties were longstanding and that they did not find evidence to support the workplace accident caused these back difficulties to change.

On February 1, 2020, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on July 23, 2020.

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 October 21, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 authorizes the WCB to 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 states 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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy states that the 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.

The Pre-existing Conditions Policy further provides that when it is determined that a worker's inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing an on-going loss of earning capacity the WCB is responsible so long as the loss of earning capacity continues.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides, in part, that a further injury occurring subsequent to a compensable injury is compensable when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation, and responded to questions from the panel.

The worker submitted that he got injured while working for the employer. He said that as he had a claim with the WCB, he figured he was okay to go back to work. His doctor did not disagree with his returning to work, so he went back to work on January 30, 2017.

The worker said that the employer released him from his employment in June 2017 because he was at high risk for getting injured. He said he eventually got another job, and was still working at that job at the time of the hearing.

The worker submitted that as time went on and his back was still giving him problems, he asked his doctor if something could be done for him, and he was referred to a specialist, who ordered another MRI. After reviewing the MRI, the specialist told him he had a herniated disc pushing against the sciatic nerve, and this was what was causing his pain. The worker said the specialist told him he should not be working because of his back injury. The specialist said this was still related to his workplace injury, and he should appeal the WCB's decision to terminate his benefits.

The worker said that he still has pain every day. He noted that he has not been hurt or done anything since December 2016 which would have caused his current difficulties. He said his doctor has given him one injection for his back so far, and is awaiting permission from the WCB before proceeding with further injections to see if they would help. He said he needs to have back surgery as a result of his injury, and is seeking coverage so he can have the surgery, recover from it and return to work. The worker said he just wants to get his back fixed and get on with living his life.

Employer's Position

The employer provided a written submission dated July 16, 2020, but did not otherwise participate in the hearing of the appeal.

The employer's position, as set out in their written submission, was that the WCB's decision to stop the worker's benefits was sound, and the worker's appeal should be denied.

The employer submitted that the evidence showed the worker had a long history of medical treatment for chronic back problems. The workplace injury was determined to be a low back strain, requiring a 6 to 8 week recovery period. The worker was on scheduled vacation shortly after the incident, then returned to work with some work modification.

It was submitted that the worker managed well until chiropractic treatment apparently exacerbated his condition, requiring him to be off work for a short period of time. The worker returned to work on January 30, 2017, almost 8 weeks after the initial injury, and was provided with modified work to allow him to recover. The employer submitted that the worker returned to full duties with no additional medical concerns related to his workplace injury.

The employer noted that while recent medical information appeared to show a change in the worker's medical status from 2018 to the present, the worker was not employed by the employer after June 2017. It was submitted that any such change in the worker's medical status would be as a result of employment and/or activities the worker engaged in after his employment with the employer, and not as a result of the December 2016 workplace injury.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 22, 2017. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required benefits beyond February 22, 2017 as a result of his December 8, 2016 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for a sprain/strain injury.

In the course of the hearing, the panel reviewed the mechanism of injury with the worker. Based on our review of the evidence, on file and as presented at the hearing, the panel is not satisfied that the mechanism of injury, as described, would have resulted in a more sinister injury than a sprain/strain to the worker's lower back.

The panel is further satisfied, based on the evidence and on a balance of probabilities, that the worker's sprain/strain injury would have resolved within a relatively short period of time, and that the worker's ongoing condition and difficulties are not causally related to his December 8, 2016 workplace incident.

In arriving at that conclusion, the panel finds that the worker has a long history of chronic back problems. The medical evidence, on file and as obtained subsequent to the hearing in response to requests from the panel, confirms that the worker has had back problems dating back to at least 2009. The panel notes that there are numerous references in the chart notes from 2009 forward to complaints with respect to back pain and to the worker having chronic back pain and mechanical back pain which flares up intermittently.

The evidence shows that the first time the worker saw his family physician following the December 8, 2016 incident was on December 30, 2016. The family physician's chart notes relating to that visit indicate that the worker was "Complaining of some lower back discomfort not affecting the legs." It was also noted that "Musculoskeletal back pain was discussed at length." The panel notes, however, that there is no mention in the December 30, 2016 chart notes of the December 8, 2016 incident or injury. In the panel's view, this supports that the injury was relatively minor.

While the family physician indicated in his January 26, 2017 report that chiropractic treatment had worsened the worker's low back symptoms, the panel is unable to accept that the chiropractic treatment which the worker received resulted in a worsening, or aggravation or enhancement, of the worker's compensable injury.

At the hearing, the worker confirmed that he returned to work on January 30, 2017, working his same full-time regular duties. The worker further confirmed that he continued to perform his same job duties up until June 2017, when his employment with the employer ended.

The panel notes that there is a lack of communication or contact from the worker between July 2017 and April 2018, when Compensation Services advised the worker that they had reviewed his file and no further responsibility would be accepted for any ongoing entitlements on his claim. The panel would have expected the worker to contact the WCB during that period of time if he was experiencing ongoing difficulties as related to his December 8, 2016 workplace injury.

The panel notes that the medical evidence, including the more recent MRI, indicates that the worker's condition has been getting worse overall. The panel finds that there is an absence of medical evidence to support that the worsening of the worker's condition and ongoing difficulties are reasonably related to his compensable injury. When asked about this at the hearing, the worker stated that he did not know why his back was getting worse. Based on the evidence which is before us, the panel is unable to account for any such worsening of the worker's condition in relation to his December 8, 2016 compensable injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require benefits beyond February 22, 2017 as a result of his December 8, 2016 workplace incident. The worker is therefore not entitled to benefits after February 22, 2017.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of November, 2020