The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to wage loss benefits after February 26, 2021; and 

2. They are not entitled to coverage for further chiropractic treatment after March 12, 2021.

A videoconference hearing was held on November 30, 2021 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after February 26, 2021; and 

2. Whether or not the worker is entitled to coverage for further chiropractic treatment after March 12, 2021.

Decision

1. The worker is entitled to wage loss benefits after February 26, 2021; and 

2. The worker is not entitled to coverage for further chiropractic treatment after March 12, 2021.

Background

On January 12, 2021, the employer submitted an Employer's Accident Report to the WCB reporting the worker sustained multiple injuries as the result of an incident that occurred on January 8, 2021, reported to the employer the same day. The worker reported they tripped over a pallet on the floor and fell sideways to the floor, causing injuries to various areas. The employer reported the worker completed their shift and sought medical treatment on January 11, 2021. The employer noted the worker's job duties were the "least physical" available and modified duties were not available.

The worker provided the WCB with their Worker Incident Report on January 12, 2021, reporting they tripped "…and landed hard facing forward on all fours onto the cement floor" with injuries to their right upper arm, right shoulder blade, neck, lower back, right lower leg, left knee and lower leg, both ankles and both wrists.

The worker self-treated initially, expecting to be able to return to work after the weekend but found they could not and sought medical treatment on January 11, 2021 at a local emergency department. The worker reported the trip and fall at work on January 8, 2021 and noted their whole body felt sore, with ongoing pain to their knees and elbows. The attending physician examined the worker and found bruises and abrasions on both elbows, more on the right, bilateral bruising and abrasions to the worker's knees, tenderness to touch of the soft tissues of the worker's trunk, arms and legs with full range of motion. The physician recorded a diagnosis of bilateral knee and elbow contusions and abrasions, and soft tissue pain in the trunk, arms and legs and recommended the worker remain off work for one week. The WCB accepted the worker's claim on January 13, 2021.

The worker attended for an initial chiropractic assessment on January 15, 2021, reporting neck pain, head ache, pain down their left arm and shoulder, lower back pain and knee pain. The chiropractor diagnosed whiplash associated disorders (WAD), grade 2 and recommended the worker remain off work for an additional week. On January 27, 2021, the treating family physician noted the worker was very stiff on walking and diffusely tender over their body but had no apparent deformity. The physician diagnosed diffuse musculoskeletal pain and recommended additional testing. At follow-up appointment with the treating chiropractor on February 12, 2021, the worker reported ongoing difficulties and the chiropractor noted it was 10 days post-accident with no decrease in symptoms. On February 16, 2021, the worker's treating family physician wrote to the WCB indicating they had treated the worker twice since the workplace accident approximately 5 weeks earlier, approximately three weeks apart, and "…tried multiple managements…with no improvement. I assessed [the worker] for autoimmune diseases and they are negative. The amount of symptoms and signs…is concerning specially that I do not have a clear explanation about why they are not resolving." The physician requested the worker be urgently referred to an orthopedic specialist or a sports medicine physician.

On February 18, 2021, a WCB medical advisor reviewed the worker's file. The medical advisor concluded based on the reported mechanism of injury and the report from the emergency department that the compensable diagnosis was contusions to the worker's knees and elbows, with no more significant diagnoses apparent. The medical advisor noted the worker's chiropractor reported injuries in multiple areas including the worker's entire spine one-week post-accident, which would not likely be accounted for given the mechanism of injury. The WCB medical advisor went on to indicate contusions typically resolve over a period of a few days to a few weeks, without specific treatment needed. Total disability was not accounted for over five weeks after the workplace accident and the requested referral to an orthopedic specialist or sports medicine physician by the worker's treating family physician was not recommended.

On February 18, 2021, the WCB advised the worker it had determined they recovered from the January 8, 2021 workplace accident, and their benefit entitlement would end as of February 19, 2021.

The worker requested reconsideration of the WCB's decision to Review Office on March 1, 2021 and on March 2, 2021, the worker's file was returned to the WCB's Compensation Services for further investigation. On March 15, 2021, a WCB chiropractic consultant reviewed the worker’s file in conjunction with a WCB medical advisor. The chiropractic consultant provided the diagnoses related to the January 8, 2021 accident were non-specific, non-radicular spinal pain in the multiple regions and bruises and contusions to the knees, elbows and wrists, supported by the clinical findings of the worker's treating chiropractor. The chiropractic consultant noted the absence of significant orthopedic examination findings in those areas, that there was no noted improvement in any of the areas noted and that the worker was currently reporting widespread pain but was of the view the worker's current difficulties were not accounted for in relation to the workplace accident. The consultant indicated recovery for the spinal soft tissue injuries was expected over a 6 - 8-week period, with function improving in 4 - 6 weeks and that contusions typically resolve in a few weeks without treatment. Further, the chiropractic consultant noted the current guidelines for chiropractic treatment would typically require eight weeks of chiropractic treatment.

On March 16, 2021, the WCB advised the worker that the previous decision was rescinded, and the worker was entitled to wage loss benefits to February 26, 2021 and to medical aid benefits for chiropractic treatment to March 12, 2021.

The worker requested reconsideration of the WCB's decision to Review Office on May 21, 2021. In their submission, the worker noted they had ongoing difficulties and provided a copy of an MRI of their cervical spine conducted on April 29, 2021 that indicated "Mild degenerative changes are present" and which the worker believed supported they were entitled to further medical treatment.

On June 3, 2021, Review Office found the worker was not entitled to wage loss benefits after February 26, 2021 nor to coverage for chiropractic treatment after March 12, 2021.

The worker filed an appeal with the Appeal Commission on August 23, 2021. A videoconference hearing was arranged for November 30, 2021.

Reasons

Applicable Legislation and Policy

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which 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.

Worker’s Position

The worker appeared in the hearing on their own behalf. The worker made an oral submission to the panel and also offered testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that they sustained injury to multiple body parts as a result of their fall in the workplace on January 8, 2021 and that they were not fully recovered by February 26, 2021 but continued to experience loss of earnings as a result of the workplace injuries. For this reason, they should be entitled to wage loss benefits after February 26, 2021. With respect to the entitlement to further chiropractic treatment after March 12, 2021, the worker’s position is that they continued to require treatment and did continue with treatment beyond that date because of the injuries sustained in the workplace accident, and therefore they should be entitled to coverage for that treatment after March 12, 2021.

The worker testified as to the initial treatment received on attending the emergency department a few days following the injury, noting that the attending physician did not really examine them, but just asked some questions, checked their elbows and knees and asked how much time off they wanted. The worker stated no imaging was taken and queried why a trip to the emergency department would have been necessary at all if they only sustained contusions as a result of the accident.

The worker indicated that the injury and resulting symptoms of pain, nausea and sleep disturbance have interrupted their life. Although they continue to work, they work no more than 5-hour shifts and often leave work in pain, unable to do much else afterwards. Although the WCB stated that the worker should have recovered in 6 – 8 weeks, the worker stated that they still have not fully recovered, more than 10 months later.

The worker noted that they sought treatment recently at a local pain clinic and the treating physician ordered a CT scan, proposed trigger point injections to the worker’s neck and back and suggested physiotherapy, but the worker noted there is a long wait list for that therapy and that they are doing daily home exercises in the meantime.

On questioning by members of the appeal panel, the worker noted that their pain is consistent, rating it at 6/10 at lowest and often at 7/10. The worker stated that they wanted to return to doing their job but are frustrated by being unable to do so without pain, noting that their pain worsens with activity or holding consistent positions. The worker indicated that they experience pain in their neck and across their shoulders, extending down their left arm and into their mid-back between the shoulder blades, as well as across their lower back. Sometimes the worker also has sudden pangs or throbbing in their shins, ankles or knees.

The worker described seeking chiropractic treatment since shortly after the date of injury. At first, their physician was concerned that chiropractic adjustments might not be helpful, and suggested the worker not permit the chiropractor to do spinal adjustments until early February but receive massage treatment only. The worker indicated they followed this instruction initially, and that they continue to seek regular chiropractic treatment, which includes sitting in the massage chair for up to an hour prior to their spinal adjustment. The worker indicated that in the past six months, they would attend for treatment approximately 2 – 3 times weekly, with some gaps and fluctuation in that schedule. They described that the treatment provides some relief, for a few days at most.

The worker described to the panel their job activities noting that repetition in activity aggravates their symptoms in their neck, lower back and into their shoulders.

Employer’s Position

The employer was represented in the hearing by its office administrator who made a submission on behalf of the employer and provided evidence through answers to questions posed by members of the appeal panel.

The employer’s representative indicated that the employer does not have any position with respect to the worker’s appeal. They confirmed that even as at the date of hearing, the worker is not able to finish most shifts, not even 4-hour shifts, and that the worker has missed quite a few days due to their pain. The employer’s representative stated that the worker was not previously the kind of employee who used their sick time and was always very conscientious in their work.

The employer’s representative confirmed to the panel that the worker returned to work after the injury on March 11, 2021, beginning with 2.5 – 3 hour shifts in the first week and slowly increasing up to a maximum of 5-hour shifts, though they are rarely able to complete a shift since the injury occurred.

The employer’s representative confirmed that the workplace is set up with different workstations that allow employees to work at different heights, with differing movements and that the worker is able to rotate through these different stations to reduce the aggravation of symptoms that comes with repetition.

Analysis

There are two issues for the panel to determine in addressing the worker’s appeal. The panel must determine whether the worker is entitled to wage loss benefits after February 26, 2021 and whether they are entitled to further chiropractic treatment after March 12, 2021. In order to grant the worker’s appeal, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond February 26, 2021 as a result of the injuries sustained in the compensable accident of January 8, 2021 and further, that the worker required further chiropractic treatment with respect to the injuries sustained in that accident beyond March 12, 2021.

In addressing these questions, the panel first considered the worker’s testimony and the medical reporting as to their recovery from the multiple injuries sustained in the workplace accident. The worker testified to continuing to experience consistent symptoms arising out of the injury even to the present date, noting these are aggravated by activity or holding a position too long.

The panel considered that on initial examination at the emergency department on January 11, 2021, the treating physician diagnosed bilateral knee and elbow contusions and abrasions and soft tissue pain in the worker’s trunk, arms and legs. A few days later, on January 15, 2021, the treating chiropractor diagnosed Whiplash Associated Disorder (grade 2-3), noting symptoms of neck pain, headache, pain into the worker’s left arm and shoulder, low back pain and knee pain. On January 27, 2021 the treating family physician diagnosed diffuse musculoskeletal pain based on the worker’s report of widespread body pain and findings of decreased active and passive range of motion secondary to that pain. The physician at that time noted an absence of improvement with findings of stiffness on walking, diffuse tenderness over the worker’s body and reduced active and passive range of motion due to pain. X-rays taken February 12, 2021 indicated no abnormalities in the worker’s ankles, left knee, left humerus and left wrist, with normal lumbar spine imaging and some cervical lordosis with fractional narrowing at C5-C6 noted. In a note to the WCB dated February 16, 2021, the physician noted that assessment of another possible explanation for the worker’s symptoms was negative and that they were uncertain as to why the worker was not improving as anticipated. The physician requested urgent referral to an orthopedic or sport medicine specialist.

When the WCB medical advisor reviewed the worker’s file on February 18, 2021 they noted that the initial diagnoses of bilateral knee and elbow contusions should have resolved in a few weeks and concluded that the further diagnoses offered by the chiropractor were not accounted for in relation to the mechanism of injury. The medical advisor therefore stated that the proposed referral requested by the treating family physician would not be required in relation to the effects of the accepted compensable injury.

The WCB chiropractic advisor reviewed the file on March 15, 2021 and provided an opinion that the medical reporting supported a compensable diagnosis of non-specific, non-radicular spinal pain, multiple regions, noting this would be commonly considered as spinal sprain/strain injuries, as well as bruises/contusions to the knees, elbows and wrists. The chiropractic advisor stated that the worker’s lack of improvement and ongoing widespread pain at that time were not accounted for in relation to the compensable diagnoses, noting that spinal soft tissue injuries without radiculopathy typically resolve in 6 – 8 weeks and contusions typically resolve in few weeks. The chiropractic advisor further stated that 8 weeks of chiropractic treatment would be typical for the worker’s injuries. The panel notes this opinion was reviewed with the WCB medical advisor.

The panel considered that the WCB decision that the worker was not entitled to further wage loss benefits was largely made on the basis that they should have recovered from the diagnosed contusions by February 26, 2021 but did not also take into account the spinal soft tissue injuries the worker also sustained in the workplace accident. As set out in the WCB chiropractic advisor’s March 15, 2021 opinion, such injuries typically resolve in 6 – 8 weeks, but the evidence heard by the panel and contained in the medical reports on the WCB claim file confirms that the worker was not recovered from the injuries sustained in the workplace accident by February 26, 2021. Further, on the recommendation of the treating physician, the worker did not return to work until March 11, 2021 and the employer confirmed that the worker initially returned on a gradual basis and has continued to sustain a loss of earnings even since that date.

The panel is satisfied on the basis of the evidence before us and on standard of a balance of probabilities that the worker continued to sustain a loss of earning capacity beyond February 26, 2021 as a result of the compensable workplace injuries sustained on January 8, 2021.

In light of this finding, the panel also considered the WCB decision to terminate the worker’s entitlement to further chiropractic treatment after March 11, 2021. We note that this decision aligns with the opinion provided by the WCB chiropractic advisor that the worker’s symptoms as of March 15, 2021 were no longer related to the compensable injuries and further that 8 weeks of chiropractic treatment would typically be sufficient to address spinal soft tissue injuries without radiculopathy. We also note the worker’s testimony that despite some 10 months of continuing chiropractic treatment, the treatment provides at most a few days relief of their symptoms. The panel also notes the treating chiropractor’s comment in their final report to the WCB dated May 7, 2021 that the worker should be referred to a physician for further care. The panel is satisfied that there is no evidence of any sustained benefit of the further chiropractic treatment provided to the worker beyond March 11, 2021.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that further chiropractic treatment beyond March 11, 2021 was not required to cure and provide relief to the worker from the compensable injuries sustained on January 8, 2021.

In sum, the panel determines the worker is entitled to wage loss benefits after February 26, 2021 and their appeal is granted on this question. The panel further determines the worker is not entitled to coverage for further chiropractic treatment after March 12, 2021 and the worker’s appeal of this question is denied.

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 23rd day of December, 2021