The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to medical aid benefits after May 12, 2020. A teleconference hearing was held on March 9, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to medical aid benefits after May 12, 2020.

Decision

That the worker is entitled to medical aid benefits after May 12, 2020.

Background

On May 4, 2020, the employer filed an Employer's Accident Report with the WCB reporting the worker injured her back, neck and knee at work on January 24, 2020 when she "….stepped on some uneven ground and fell backwards and twisted her knee and landed on her back hitting her head on the ground."

In a Worker Incident Report filed May 5, 2020, the worker indicated that on January 24, 2020, she slipped on the snow and ice and "…fell backwards and twisted my knee and hit my head and back and tailbone. My lower back is what hurt the most at the time." The worker noted she reported the incident to the employer the same day. The worker further noted she did not miss any time from work but sought medical attention at a walk-in clinic on January 27, 2020, was prescribed medication and had x-rays taken.

On May 5, 2020, the WCB received a report from the walk-in clinic physician with respect to her January 27, 2020 attendance at the clinic, as well as an x-ray report from the same date. The medical report indicated the worker reported she had slipped and fallen backward and was complaining of "low back pain aggravated by movement." The physician noted tenderness in the worker's paraspinal soft tissue, and referred the worker for an x-ray of the lumbosacral spine. Anti-inflammatory and pain medications were prescribed, and a diagnosis of lower back pain was provided.

A WCB adjudicator contacted the worker on May 5, 2020 to discuss her claim. The worker confirmed the mechanism of injury with the adjudicator and advised that she did not lose consciousness when she hit her head on the ground. She noted the workplace accident took place on a Friday, she rested over the weekend, and sought medical attention the following Monday. The worker advised she had indicated to the treating physician that the discomfort was mostly in her lower back area, but had also mentioned having injured her left knee and neck. The worker also advised she had continued to work her regular duties, then went on a pre-booked holiday, after which she returned to work. The worker said that due to Covid-19, she was laid off from work on March 20, 2020. The worker noted she had not been able to seek physiotherapy or chiropractic treatment as the clinics were also closed due to Covid-19. By letter dated May 5, 2020, the worker was advised that her claim was approved.

On May 6, 2020, the worker's file was reviewed by a WCB medical advisor. The medical advisor opined the worker suffered a non-specific strain/sprain to her low back, but could not provide a diagnosis for an injury to the worker's head or knee as there was no medical information on the file for these areas. The advisor further opined that the natural history of recovery from that type of low back injury was for gradual improvement with time, with most people achieving full biological and functional recovery within six weeks.

On May 12, 2020, the WCB's Compensation Services advised the worker that they had accepted her claim, but were unable to accept responsibility for any ongoing medical treatment or entitlements beyond that date. Compensation Services noted that as the worker continued to perform her regular duties, had not sought additional medical treatment and the natural recovery for her type of injury was six weeks, they were unable to relate her current symptoms to her January 24, 2020 compensable injury.

On June 1, 2020, the worker requested that Review Office reconsider Compensation Services' decision. In her submission, the worker noted she had sought chiropractic treatment for her difficulties, which was helping, and requested further medical aid benefits to continue treatment.

On July 29, 2020, Review Office determined that the worker was not entitled to medical aid benefits after May 12, 2020. Review Office noted they were unable to find evidence in the medical information or the worker's statements to support the January 24, 2020 workplace fall remained responsible for her continued lower back issues in May 2020. Review Office placed greater weight on the findings of the worker's January 27, 2020 x-ray, which they felt would be more responsible for her ongoing lower back issues.

On September 21, 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.

Section 37 outlines the compensation which is payable to workers as follows:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

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."

WCB Policy 44.10.20.10, Pre-existing Conditions, 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.

Worker's Position

The worker was self-represented, and provided a written submission in advance of the hearing. The worker also made a presentation at the hearing, and responded to questions from the panel.

The worker's position, as set out in her Appeal of Claims Decision form, was:

I continued to work my regular hours after the accident because even though I was in pain, I felt that I was still capable of doing my job and I've never taken a sick day in the 15 years I've been working at the [worksite]. I took a prescheduled holiday…thinking it would give me a chance to heal, but I had to deal with the pain and discomfort my entire trip and after my return home. Someone from the [worksite] advised me to see a chiropractor because it was apparent that I was still in a lot of pain. Due to the coronavirus, it took a long time to be able to see the chiropractor, so I had to wait while in pain. The pain was a direct result of my fall and the chiropractic sessions have helped considerably. I've asked for no lost wages, only to have my chiropractic sessions covered.

In her written statement and in her evidence at the hearing, the worker explained that she was able to continue working and not miss any time because her work involved a limited number of hours of work, with lengthy breaks in between, where she was able to rest and ice her back. The worker said that this made her work at least bearable. The worker said that if she had been required to work a longer day, she would never have been able to do so.

The worker indicated that she knew she was going on vacation, from February 15 to March 9, 2020, and had hoped her back would improve during that time. She said that while they drove to their destination, she did not drive but remained in the back seat, and stopped to take frequent rest breaks where she was able to move around. She noted that she had her medication with her, and basically rested around the pool and did not really do anything during her vacation.

The worker indicated that when she returned to work, she continued treating her back with rest, ice and medication, hoping it would get better, but it did not improve. She explained that she was "super apprehensive" about seeking further medical treatment and having anyone look at or manipulate her neck or back, as she had previously undergone surgery where her neck was "…fused and there's a plate in my neck, and I was really scared about going." The worker described, however, how she was in a lot of pain and discomfort, where she could not sleep due to the pain, and said that she finally had to put aside her fears of seeking further treatment as she could not continue with things as they were.

The worker said she started calling to get an appointment with a chiropractor towards the end of March 2020, but was unable to do so as the clinic was closed due to Covid. The worker said she continued calling for an appointment almost daily after that, but the first appointment she was able to get was at the end of May, which she was then able to have rescheduled to May 14, 2020 due to a cancellation.

The worker said she attended 21 sessions with the chiropractor, in addition to the initial assessment, and that the treatments made a huge difference and solved her problem, where nothing else had helped. She stated that her back is fine now. The worker noted that the WCB did pay for the initial assessment on May 14, 2020, but did not pay for any other chiropractic treatments after May 12, 2020.

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 medical aid benefits after May 12, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker required medical aid beyond May 12, 2020 as a result of her January 24, 2020 workplace accident. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker had not recovered from the effects of her January 24, 2020 workplace accident as at May 12, 2020 when her benefits ended.

The panel notes that the worker notified the employer of her injury almost immediately after the accident, and sought medical attention a short time after that. The worker explained that she did not file a report at the time, as she did not know she had to do so since she was not missing any time, and she hoped her injury would improve.

The panel is satisfied that the worker continued to suffer from the effects of her workplace accident and injury through to and beyond May 12, 2020. The evidence shows that the worker was able to continue working due to the nature of her work, the limited hours she worked and the lengthy breaks between the times she was required to be at work, where she could rest and treat her symptoms.

The panel is satisfied that the May 12, 2020 decision to deny further benefits, based on the limited medical information on file, was premature. The worker had phoned the WCB on May 12, 2020 to advise that she would be seeing the chiropractor on May 14, 2020 and was told that the WCB would cover the initial assessment. While the initial report from the chiropractor was provided to the WCB on May 15, 2020, it does not appear to have been considered by the WCB or the WCB medical advisor.

The panel places weight on the Chiropractor First Report dated May 14, 2020, in which the chiropractor noted the worker described the incident on January 24, 2020, noting that she slipped at work and fell backwards, twisting and landing mostly on her lower back and struck her head. The chiropractor noted the worker was complaining of sacroiliac/low back pain since her fall and that the sacroiliac pain had persisted and could be severe. Clinical findings included that the worker had significantly increased pain and palpable tenderness with spasm in the right L5 paraspinal, sacroiliac, glute and piriformis. The chiropractor provided a diagnosis of "chronic R [right] sacroiliitis – following R SI and lumbar sp/st [sprain/strain] (fall) with assoc. myofascial spasm." It was further noted in the report that the worker had been attempting to see the chiropractor but office closures during the pandemic had prevented this, and that the worker's symptoms had persisted and she had been unable to get treatment due to the pandemic.

The panel further accepts the worker's evidence that the chiropractic treatments made a significant difference with respect to resolving her symptoms, where nothing else had helped, and that her back is fine now.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker required medical aid beyond May 12, 2020, including in particular, coverage for chiropractic treatments, as a result of her January 24, 2020 workplace accident. The worker is therefore entitled to medical aid benefits after May 12, 2020, the extent of which is to be determined by Compensation Services.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of May, 2021