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 benefits. A teleconference hearing was held on November 24, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

An Employer's Accident Report was received by the WCB on September 23, 2016, indicating the worker had injured his lower back during an incident at work on September 21, 2016. In a Worker Incident Report filed September 27, 2016, the worker described the September 21, 2016 incident as:

I was working on the deck area. We use a crane to help stack the decks. We were stacking the decks and we also have to push them together and that was when I felt a pinch and shooting pain in my lower back. I did not finish my shift.

The worker sought treatment at a local urgent care centre after the incident. An x-ray of the worker's lumbosacral spine, taken September 22, 2016, noted "…mild degenerative retrolisthesis of L3 on L4 by approximately 3mm…No fracture is identified. Mild facet arthropathy is present in the lower lumbar spine." The worker was diagnosed with lower back pain with possible sciatica, and it was recommended he remain off work for two days and follow up with his physician.

On September 26, 2016, the worker was seen by his family physician, who noted that the worker reported 3/10 pain in his lower back, radiating occasionally to his left buttock and down to his left knee. The physician reported decreased range of motion in the worker's lumbar spine and tender left lumbar paravertebral muscles. The physician diagnosed the worker with a lumbar strain, and recommended physiotherapy and that the worker remain off work.

On September 26, 2016, the WCB's Compensation Services accepted the worker's claim, and wage loss benefits for September 22, 23 and 26, 2016 were approved. The worker returned to work on modified duties on September 27, 2016, and to his full regular duties on October 11, 2016.

On May 12, 2017, the worker contacted the WCB to advise that he had been referred for an MRI of his back due to ongoing symptoms that he related to his September 21, 2016 accident, from which he felt he had never recovered. He further advised that he had seen his family physician once a month for back pain since the accident. The worker noted he continued to work his regular duties, while wearing a back brace, but made complaints to his co-worker and his lead hand about his ongoing difficulties. The worker indicated he had been placed on lighter duties two weeks earlier. He reported he did not attend for physiotherapy as his family physician had recommended, and had not had any new accident at work or at home.

The WCB requested further information from the worker's family physician, who provided a report on May 19, 2017. The report indicated the family physician had seen the worker on a monthly basis since the workplace accident in September 2016. The physician noted the worker "…continued to complain of lower back pain since the accident. He did return to work and has managed reasonably well with use of back support and taking occasional breaks." The physician further noted that the worker had initially complained of intermittent left buttock pain that radiated down to his left knee, which continued for several months but was not progressive. The physician stated that an April 22, 2017 CT scan of the worker's lower back indicated "…a small central disc protrusion with indentation of the thecal sack [sic] anteriorly and it was reported to be possibly contacting the traversing nerve roots." He noted that an MRI had been ordered but had not yet been performed. The physician also noted the worker had a history of neck and left upper extremity pain, which began in 2004 following a C5-6 disc herniation and subsequent discectomy.

On June 7, 2017, the employer advised that they were not aware the worker continued to have ongoing difficulties with his lower back related to the workplace accident. The employer further indicated that the worker had been off work recently due to reported chest pains and issues with his blood pressure, and had not mentioned anything about his back.

On July 4, 2017, Compensation Services advised the worker that they had reviewed his claim and determined his current symptoms were not medically accounted for in relation to the September 21, 2016 workplace injury.

On September 7, 2017, the worker requested that Review Office reconsider Compensation Services' decision. In a letter which accompanied his request, the worker referred to his working conditions when he returned to work and submitted that his employer would not support his light modified duties. The worker said he continued working with a support belt as he felt intimidated and afraid of being pushed out of his job. The worker noted he continued to get worse over time and to seek medical treatment for his ongoing difficulties.

On October 20, 2017, Review Office determined the worker was not entitled to further benefits. Review Office noted that the worker had a number of healthcare problems. Review Office went on to state that for the purposes of their review, their focus was on the worker's lower back problems and whether they could be related to the injury that was accepted on the claim.

Review Office found that the medical evidence did not support the worker sustained an injury greater than a lumbar strain from the workplace accident, which would typically recover in a few days or weeks. Review Office noted the worker had degenerative changes which could have prolonged recovery, but found that given the six month period of time since the accident, the worker's ability to continue working his regular duties without restrictions, and the lack of medical treatment directed to his lower back, the worker had recovered from the workplace accident and was not entitled to further benefits.

On May 6, 2020, the worker appealed the Review Office decision to the Appeal Commission and a teleconference 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 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 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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is set out, in part, as follows:

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

The worker's position was that the injuries he received while working for the employer were ongoing and have left him disabled. The worker stated that he hurt his lower back on September 21, 2016, while stacking decks at work, and his back has not improved over time. He said he has been seeing doctors on an ongoing basis because of his back injury and other health issues. The worker noted that he went to a hospital emergency department on May 3, 2017 where they found he also had a hernia.

The worker submitted that at the end of the day, he is disabled and unable to work due to his workplace injuries, and there is more than enough evidence on file to show that this is the case. He said the decision to deny him further benefits was unfair and has caused him hardship. In summary, the worker submitted that his ongoing injuries and difficulties are related to his September 21, 2016 workplace incident and injury, and he is entitled to further benefits as a result.

Employer's Position

The employer was represented by its Health Management Specialist. The employer's position was that the decision that the worker was not entitled to further benefits was correct, and his appeal should be dismissed.

The employer's representative submitted that the employer was more than willing to accommodate any requirement for modified duties which was related to the worker's September 21, 2016 workplace injury. The representative noted that after the incident, the worker provided a physical capabilities form which indicated he needed modified duties, and these were provided. The representative submitted that the employer always worked within the worker's documented restrictions.

In conclusion, the employer's representative submitted that everything that was required as a result of the worker's September 21, 2016 incident was provided, and the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of his September 21, 2016 workplace incident. The panel is unable to make that finding.

The panel notes that the worker's claim has been accepted for a lumbar strain. While the worker indicated at the hearing that he had been told in May 2017 that he also has a hernia, it was noted in a memorandum on file dated September 8, 2017, that the worker was relating the hernia to his general job duties and preferred to begin a separate claim for the hernia. It was further noted that the worker agreed that the appeal to Review Office was for the low back only. Review Office subsequently confirmed in their October 20, 2017 decision, that "…the worker has a number of healthcare problems" and that "For the purposes of this review, our focus is on his lower back problems, and whether or not they can be related to the injury that was accepted on this claim." The worker similarly confirmed at the hearing that the focus of this appeal was on the worker's lower back injury and difficulties, and that the hernia was a separate matter.

Based on our review and consideration of all of the evidence which is before us, on file and as presented at the hearing, the panel is unable to relate the worker's ongoing low back difficulties or conditions to his September 21, 2016 workplace incident or injury.

In arriving at that conclusion, the panel notes that the worker returned to work on modified duties on September 27, 2016, less than one week after the workplace incident, and to his full regular duties two weeks after that, on October 11, 2016. Information on file shows that after speaking with the worker on September 27, 2016, the WCB did not hear anything further from him until May 12, 2017, more than seven months later, when the worker called and advised that he would be going for an MRI on May 17, 2017 and that this was related to his injury as his back had never gotten better.

When asked at the hearing why he did not contact the WCB if he was having ongoing difficulties with his lower back and required accommodation, the worker responded that he was "hoping for the best" and he "never thought of it at that time. Like, I was going to my doctor, kept complaining about my lower back issues. And complaining at work to the supervisors, the charge hands, even my partner." The panel notes that when asked whether it would be fair to say that he was familiar with the WCB process, having had a number of different claims in the past, the worker responded "Somewhat, yes."

The panel further notes that although the worker said he continued to see his family physician and to complain of ongoing back pain following his return to his full regular duties, no medical reports were submitted to the WCB between the end of September 2016 and mid-May 2017.

In response to a request from the WCB for details relating to the worker's treatment since September 26, 2016, the worker's family physician provided a narrative report dated May 19, 2017 in which he indicated that the worker "…comes in monthly for a blood pressure check and monthly medication refills." While the physician further advised that the worker had continued to complain of lower back pain since the September 21, 2016 incident, he also noted that the worker "…did return to work and has managed reasonably well with use of back support and taking occasional breaks." The panel notes that the worker's reported complaints as set out in the physician's May 19, 2017 report are vague and there is a general lack of clinical findings with respect to the worker's low back complaints over time.

The evidence indicates, and the worker confirmed at the hearing, that no other restrictions were provided by his physician or any other healthcare provider between the time he went back to his regular duties on October 11, 2016 and his contact with the WCB on May 12, 2017. The worker further confirmed that he was continuing to perform his regular job duties during this period of time. The panel is satisfied that the worker had ample opportunity to ask his doctor to provide a medical note or restrictions in respect of any ongoing low back difficulties during that period of time, particularly as he was seeing his doctor on a monthly basis.

The panel notes that the worker indicated at the hearing not only that his back did not get better, but that it got progressively worse through 2016 and 2017. The panel further notes that the May 19, 2017 physician's report refers to additional complaints and symptoms which were not present in September 2016, including pinching symptoms in both legs and pain in the worker's calves. The panel is unable to account for this worsening or change in the worker’s symptoms in connection with the worker's workplace incident.

The evidence also shows that the worker had a number of healthcare problems, including pre-existing issues with his cervical spine, and that the May 17, 2017 MRI which the worker referred to when he contacted the WCB on May 12, 2017 was of the cervical spine, not the lumbar spine. The worker underwent a further MRI of both the cervical spine and the lumbar spine on July 19, 2017, which showed, with respect to the lumbar spine, that there were "Disc degenerative changes at L4-5 and L5-S1, as described." The panel is unable to relate those degenerative changes, or previous findings on the April 22, 2017 CT scan of the lumbar spine which the panel also understands to be degenerative in nature, to the worker's September 21, 2016 workplace accident.

While the worker also stated at the hearing that he missed a lot of days of work between October 2016 and May 2017 because of back issues, he was unable to provide specifics as to the days he missed. Referring to her records, the employer was able to identify only five days when the worker was away during that period of time, and the worker acknowledged that these were consistent with his recollection. The worker further confirmed that on those occasions, he had simply advised the employer that he was sick and had not indicated he was absent because of his back.

The worker further indicated that he did not attend physiotherapy treatment for his low back injury, as had been recommended by his physician, although he said that he did do his exercises at home.

In conclusion, the panel is satisfied that the evidence shows that the worker did not require workplace restrictions or modified duties as a result of his compensable lumbar strain, or attend the physiotherapy treatment which his physician had recommended for his injury, in the more than six-month period following his return to his full duties on October 11, 2016. In the circumstances, the panel is satisfied, on a balance of probabilities, that the worker had recovered from his compensable injury by May 12, 2017, when he next contacted the WCB.

The panel therefore finds that the worker did not suffer a further loss of earning capacity or require further medical as a result of his September 21, 2016 workplace incident, and is not entitled to further benefits.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of January, 2021