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 chiropractic treatment in relation to the February 5, 2019 accident. A videoconference hearing was held on March 17, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to chiropractic treatment in relation to the February 5, 2019 accident.

Decision

That the worker is not entitled to chiropractic treatment in relation to the February 5, 2019 accident.

Background

On February 7, 2019, the worker filed a Worker Incident Report, reporting that he injured his back, neck and shoulders at work on February 5, 2019, when he slipped and fell approximately 4.5 to 5 feet, landing on his back.

The worker attended a walk-in clinic on February 5, 2019, complaining of a headache, with some nausea but no vomiting, and pain in his neck and back. The walk-in clinic physician noted pain over the worker's cervical and thoracic spine area centrally, that the worker was holding his neck in partial flexion, had full function of his upper and lower extremities, and there were no neurological findings. No diagnosis was provided, but the physician recommended limiting bending, lifting and turning, as well as the use of a soft collar, as needed. An x-ray of the worker's cervical and thoracic spine taken that same day did not reveal any fractures.

On February 7, 2019, the WCB spoke to the worker to discuss his claim. The worker confirmed the mechanism of injury and noted his back was very sore and tender, and he still had swelling in his neck. The worker advised he felt more discomfort and pain when sitting, and moving alleviated his symptoms. On February 8, 2019, the worker saw his family physician, who diagnosed him with backache and recommended physiotherapy. The worker attended an initial physiotherapy assessment on February 11, 2019, where he was diagnosed with a back sprain/strain (lumbar and thoracic), cervical sprain/strain and concussion symptoms. On February 13, 2019, the WCB's Compensation Services advised the worker that his claim was accepted and benefits were approved.

In a telephone conversation with the WCB on February 13, 2019, the worker advised that his physiotherapist had indicated he could probably return to work the following week if his condition continued to improve, but he would require some help with the physical parts of his job duties. The worker returned to work on February 19, was absent on February 22 due to neck pain, then returned to work on Monday, February 25, 2019. On February 27, 2019, the worker advised the WCB that he had been cleared to return to his full regular duties. The worker noted that his symptoms were steadily improving, with his main concerns being ongoing stiffness in his neck and residual sciatic pain, but these did not affect his ability to perform his pre-injury duties.

On April 3, 2019, the worker attended his family physician, complaining of "….some progressive pain with restricted movements at the neck," and pain now at the left trapezius. The physician found a "slightly swollen muscle at the left side of the neck with restricted ROM [range of motion]" and tenderness over the worker's cervical spine and left side of the neck. The worker was referred for an MRI of his cervical spine, which was performed on April 24, 2019. The stated impression from the MRI was "…potential irritation of the exiting left C6 nerve root." On May 9, 2019, following receipt of the MRI results, the worker's family physician referred the worker to an orthopedic surgeon.

On May 29, 2019, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's current diagnosis was "…a resolving episode of non-specific pain." The WCB medical advisor opined that the MRI findings were "…degenerative in nature given the multilevel involvement and the presence of the osteophytes" and that the February 5, 2019 workplace accident "…did not cause the changes as they are age related changes." The medical advisor further opined that the family physician's referral of the worker to an orthopedic surgeon was related to the changes noted on the MRI, not the effects of the compensable injury.

On August 20, 2019, the worker was seen by the orthopedic surgeon, who reported he was "…hard-pressed to consider any surgery" for the worker, but prescribed medication and recommended chiropractic treatment. On August 27, 2019, Compensation Services advised the worker that they had determined he had recovered from the effects of his February 5, 2019 workplace injury and was not entitled to further benefits.

On August 28, 2019, the WCB medical advisor reviewed the orthopedic surgeon's report, noting that the surgeon did not recommend surgery, but did recommend chiropractic treatment. The WCB medical advisor expressed some surprise with respect to the orthopedic surgeon's recommendation of chiropractic treatment, noting that "…many doctors won't recommend manipulations if there is a concern about nerve impingement in the neck." The medical advisor stated that the new information did not change the May 29, 2019 opinion that the MRI findings were degenerative in nature and could not be accounted for in relation to the compensable injury.

On October 1, 2019, the worker's orthopedic surgeon provided a letter of support for the worker, noting he had been attending chiropractic management and had "greatly improved" and that there was "no doubt this is related to the injury as described to me in February."

On October 17, 2019, the WCB received a Chiropractor First Report for a September 25, 2019 examination and assessment of the worker. The chiropractor noted the worker was complaining of neck pain, left shoulder blade pain, numbness and tingling to both arms, and diagnosed him with "cervical degeneration, irritation L [left] C6 nerve root." On October 30, 2019, the WCB medical advisor reviewed the chiropractor's report and provided an opinion to file. On October 31, 2019, the WCB advised the worker that they had reviewed the chiropractor's initial report, but were unable to accept responsibility for the chiropractic treatment.

On January 6, 2020, the worker requested that Review Office reconsider Compensation Services' August 27, 2019 decision, noting he was still experiencing symptoms in his neck, shoulders and arms from the workplace accident and was seeking compensation for the chiropractic treatments his surgeon had suggested.

On March 2, 2020, Review Office determined that the worker was not entitled to chiropractic treatment. Review Office placed weight on the WCB medical advisor's opinion that the chiropractor's diagnosis and request for treatment were based on the MRI findings, which were degenerative in nature and were not aggravated by the workplace accident. Review Office determined that given the evidence and the medical advisor's opinion, the requested chiropractic treatment was unrelated to the effects of the February 2019 compensable injury.

On September 16, 2020, the worker appealed the Review Office decision to the Appeal Commission and a videoconference 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 (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy's purpose is described, 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.

The following definitions are set out in the Policy:

1. Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

2. Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

3. Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

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 indicated that chiropractic treatment, as recommended by his orthopedic surgeon, is related to, and has provided significant relief from, the effects of his February 5, 2019 workplace accident and injury.

The worker said he went back to work much earlier than he should have following his accident. He noted that his benefits were cut off before he was able to see the orthopedic surgeon, who recommended he see a chiropractor for a particular style of treatment. The worker said he did not go for chiropractic treatment before seeing the orthopedic surgeon because the only treatment he knew about involved manual manipulation, which he did not believe he could endure. He said he did not know another style of treatment existed.

The worker described the treatments he received from his chiropractor as involving the use of a small spring-loaded, plunger-style instrument which "tweaked the vertebrae" and adjusted the spine. He said the treatments reduced his pain and discomfort, and provided relief from his symptoms, noting that his fingers were generally not numb at night anymore and he was no longer getting pain in his elbow.

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 chiropractic treatment in relation to the February 5, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker required chiropractic treatment to cure and provide relief from an injury resulting from the February 5, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The Chiropractor First Report documented that the worker presented at his initial assessment on September 25, 2019 complaining of neck pain, left shoulder blade pain, numbness and tingling to both arms. The chiropractor diagnosed the worker at that time with "cervical degeneration, irritation L [left] C6 nerve root," and proposed treatment to his "cervical spine and lumbosacral." Based on the evidence, on file and as presented at the hearing, the panel is unable to relate that diagnosis or the proposed treatment to the February 5, 2019 workplace accident.

In arriving at that conclusion, the panel notes that following the February 5, 2019 workplace accident, the worker sought medical attention, including physiotherapy treatment. The evidence shows that the worker's symptoms steadily improved, to the point that he was cleared to return to work and returned to his full regular duties by the end of February 27, 2019.

On April 9, 2019, the worker reported to the WCB that while doing a delivery on April 3, 2019, he stepped down, turned his head, and felt a sharp pain in his neck. The worker returned to see his family physician, who ordered an MRI of the cervical spine. The MRI, performed April 24, 2019, showed diffuse disc osteophyte complexes and foraminal narrowing at several levels, with possible irritation of the left C6 nerve root.

After reviewing the MRI results, the worker's family physician referred him to the orthopedic surgeon, who then referred him for chiropractic treatment. The panel finds that these referrals were based on the findings on the MRI. The panel further concludes that the findings on the MRI were degenerative in nature, and were not related to the February 5, 2019 workplace accident or injury.

In the panel's view, such a conclusion is supported by the chiropractor's diagnosis of "cervical degeneration;" the identification on the MRI of diffuse disc osteophytes at several levels of the cervical spine, which the panel does not believe would have developed within the relatively short period of time of 12 to 14 weeks between the accident and the MRI; and findings of no neurological symptoms in the medical reports close in time to the accident.

In addition, while there is reference in the September 25, 2019 chiropractor's report to the worker's complaints of numbness and tingling to the arms, the panel is unable to connect such complaints to the February 5, 2019 accident. In this regard, the panel notes that information on file shows an absence of complaints of arm pain or tingling, numbness or weakness in the worker's arm until at least April 3, 2019, when he experienced another incident at work.

The panel further notes that when describing the improvement in his symptoms and condition as a result of his chiropractic treatments at the hearing, the worker noted in particular that his fingers were generally not numb at night anymore and he was no longer experiencing pain in his elbow. The panel finds that such improvements, relating to difficulties with his arm, would not be related to his February 5, 2019 accident.

The worker relied on the October 1, 2019 letter of support from his orthopedic surgeon, in which the surgeon opined that the worker had "greatly improved" with chiropractic management and there was "no doubt that this is related to the injury as described to me in February." The panel is unable to place weight on that opinion. The panel notes in particular that the surgeon did not provide clinical findings to support his opinion or explain how the worker's ongoing difficulties or symptoms or the chiropractic treatments were related to the workplace accident.

In response to questions from the panel in this regard, the worker stated that the surgeon had explained to him that "when you have trauma to the spine or any bone structure, a calcium structure like that, it does create spurs, because it is a bodily reaction to trauma." With respect to the WCB saying the problems were due to a pre-existing, degenerative condition, the worker said he could not dispute that everyone's body degenerates as they age, but submitted that a person falling from a significant height and landing on frozen ground, as he did, will "incur trauma and that will cause something."

In this instance, given the absence of clinical findings or further explanation as to how, in this case, the February 5, 2019 workplace accident actually caused the development, or aggravation or enhancement, of bone spurs or conditions identified on the MRI, the panel finds the orthopedic surgeon's opinion is hypothetical or speculative.

Based on the forgoing, the panel finds, on a balance of probabilities, that the worker did not require chiropractic treatment to cure and provide relief from an injury resulting from the February 5, 2019 workplace accident. The worker is therefore not entitled to chiropractic treatment in relation to that accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of May, 2021