Decision #11/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further benefits in relation to the February 12, 2020 accident. A videoconference hearing was held on June 3, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the February 12, 2020 accident.
That the worker is not entitled to further benefits in relation to the February 12, 2020 accident.
The worker filed a Worker Incident Report with the WCB on March 23, 2020 reporting he injured his back in an incident at work on February 12, 2020, which he described as follows:
I was in a…truck and we hit a bump. I flew off the seat and hit the seat, bounced and hit it again. I finished my shift. At the time, I didn't really notice anything until later in the afternoon. It felt a little sore and I felt really tired.
That night, when I went to bed, I woke up in serious pain, and was nauseous.
It was further noted in the Report that the worker:
…went back for half a day (4 hours) on March 9 and was put on the same…truck. The same thing happened again.
He went and got a doctor's note to be off work.
The WCB received a hospital report from the worker's attendance at a local hospital emergency department on February 13, 2020. It was noted in the hospital report that the worker reported a sore lower back for 24 hours after hitting a bump "…yesterday driving…truck". The worker was diagnosed with musculoskeletal back pain.
On March 25, 2020, the WCB contacted the worker to discuss the claim. The worker confirmed he was a passenger in the truck when the February 12 and March 9, 2020 incidents occurred, and provided the WCB with the names of his co-workers. The worker noted the suspension in the truck was not very good, and because of the suspension, "…when hitting bumps in the road he would bounce off his seat and come back down; seat does not have much for cushioning and felt his back jar as a result of the bouncing up and down."
At an appointment with his family physician on April 6, 2020, the physician noted that the worker reported he initially felt pain through his whole back, but it was now mostly confined to his lower back. The physician noted subjective improvement, and recommended home exercises and the continued use of analgesics. At a follow-up assessment on April 16, 2020, the treating family physician noted continued improvement "but no complete relief" and recommended an x-ray. The x-ray of the worker's spine, taken April 17, 2020, noted degenerative changes in the thoracic and lumbar spine and that no compression fractures were identified.
At a further assessment on April 23, 2020, the treating family physician reported the worker's symptoms had improved and he could return to work on April 27, 2020, as his injury had resolved. On May 5, 2020, the employer confirmed to the WCB that the worker returned to his full regular duties on April 27, 2020.
On May 5, 2020, the worker's treating family physician provided a Doctor First Report to the WCB indicating the worker aggravated his low back on May 4, 2020 after "Power brooming…" and could not get up from bed the following morning due to pain. The physician recommended pain medication and time off work.
At a follow-up assessment on May 19, 2020, the treating family physician noted the worker was complaining of "severe sharp low back pain. Even subtle movements rotating side to side are disabling to him, causing pain to radiate up his back to shoulder blades. A couple of weeks ago was using weed whacker & this caused the resurgence in symptoms." The physician noted there were no radicular symptoms going into the worker's legs, recommended he stay active within the limits of pain, attempt core-strengthening exercises and remain off work, and ordered an MRI of the lumbosacral spine.
The worker's file was reviewed by a WCB medical advisor on June 4, 2020. The medical advisor opined that the worker's diagnosis at the time of the February 12, 2020 accident was a low back strain, from which he appeared to have recovered on or about April 27, 2020. The WCB medical advisor opined that the worker's current symptoms as reported at the May 5, 2020 assessment by his treating physician were likely secondary to the use of the weed whacker rather than an ongoing effect of the February 12, 2020 workplace accident.
On June 15, 2020, the WCB's Compensation Services advised the worker they had determined he had recovered from the workplace accident and further responsibility for his claim would not be accepted.
On August 19, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the February 12, 2020 workplace accident was the cause of his ongoing difficulties and that this was what his doctors were telling him.
On September 29, 2020, Review Office determined that the worker was not entitled to further benefits in relation to the February 12, 2020 accident. Review Office placed weight on the length of time since the February 12, 2020 accident, the compensable diagnosis, the treatment provided and that the worker was able to return to his regular duties on April 27, 2020. Review Office also noted that a specific work activity on May 4, 2020 was identified as a new cause for the worker's difficulties.
On February 1, 2021, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for June 3, 2021.
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 December 16, 2021, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.
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.
WCB Policy 184.108.40.206.10, Recurring Effects of Injuries and Illness (Recurrences), distinguishes between a new and separate accident and the recurring effects of a previous injury or illness. The policy states, in part, that:
…The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury…
The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to a previous injury or illness…
If there was an intervening incident, event, or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate accident.
The worker was self-represented, and was accompanied by his partner at the hearing. The worker's position was that his lower back difficulties all stemmed from the initial accident on February 12, 2020, and he is entitled to further benefits in relation to that accident.
The worker submitted that he has been off work since the February 12, 2020 accident due to the effects of the lower back injury he sustained at that time. He noted that the pain has been in the same spot throughout and has not changed since the initial accident. The worker noted he had never before felt back pain like he experienced following the February 12, 2020 incident and has continued to experience since then.
The worker submitted that the injury he sustained as a result of the February 12, 2020 accident was much worse than a strain injury, and the pain he experienced on May 4, 2020 was from the initial accident or a recurrence of the initial injury. He said that if the initial incident and injury had not occurred, his back would still be fine and he would still be working.
The worker submitted he never recovered from his initial injury. He went back to work on April 27, 2020, but could not continue, and was taken off work again on May 5, 2020 due to lower back pain which was related to his initial workplace incident and ongoing injury. The worker said the WCB did not listen to him when he told them his pain was from the initial injury. He stated that although he filed a second claim with the WCB on June 8, 2020 with respect to the May 4, 2020 incident, he believed the May 4 incident and injury were still related to the initial accident and should have been accepted on his initial claim.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the February 12, 2020 accident. 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 February 12, 2020 workplace accident. For the reasons that follow, the panel is unable to make that finding.
In considering this appeal, the panel carefully reviewed the information on the claim file, as well as the worker's WCB file relating to the May 4, 2020 accident, the worker's evidence and submission at the hearing, and the further medical information provided to the panel at their request following the hearing.
Based on the mechanism of injury, as described on file and by the worker at the hearing, and the available medical information, the panel is satisfied, on a balance of probabilities, that the worker sustained a relatively minor injury as a result of the February 12, 2020 workplace accident.
In arriving at that conclusion, the panel notes that the hospital report from the worker's attendance on February 13, 2020 diagnosed the worker as having musculoskeletal back pain. The worker was seen by his treating family physician on February 24, 2020, who diagnosed the worker with low back pain. The worker attended several other assessments with his family physician between February 24, 2020 and April 16, 2020, and the reports from those assessments indicate continuing improvement overall.
On April 23, 2020, the worker's family physician noted that his symptoms were improved and he was "willing to go back to work." The physician went on to indicate that the worker's recovery was satisfactory and the injury had "Resolved". It was further noted that the worker could return to his regular duties on April 27, 2020, without restrictions.
When asked at the hearing about his progress as noted in the reports from his treating family physician and the indication that he was feeling better and seemed to have recovered, the worker stated that he did not remember the visits and did not really remember if he was feeling better or was following his doctor's recommendation when he returned to work on April 27, 2020.
While the worker's evidence at the hearing was that the pain he experienced on May 4, 2020 and took him off work was cumulative and attributable to the initial incident, the panel is unable to make that finding. The panel notes that in the May 5, 2020 Doctor First Report from the worker's treating family physician, the physician reported that the worker "Recently recovered from back pain & returned to work. It was good until yesterday. [The worker] did power brooming... Could not get up from the bed today due to pain…" The panel places weight on the treating physician's May 5, 2020 report, noting it was written closest in time to the incident, and identified a particular activity as having resulted in the worker's lower back difficulties that day and his being taken off work.
On June 8, 2020, the worker filed a new claim for a lower back injury sustained on May 4, 2020, which was accepted by the WCB and benefits were paid. At the hearing, the worker confirmed that it was his position that the May 4, 2020 incident should not have been treated as a separate claim; rather, it should have been treated and accepted as a recurrence on the initial claim, and he should not have had to file a second claim. The worker argued that the May 4, 2020 event may have aggravated his initial injury, but the pain was the same as since the initial accident.
The panel noted that the worker had previously referred to his physicians telling him that his ongoing issues were related to the initial incident and injury. When asked about this at the hearing, the worker stated that his current family physician has told him that "there is something in there that's wrong that shouldn't be wrong." The panel accepts that the worker has significant ongoing pain and low back difficulties. The panel is unable to find, however, that the evidence supports that the May 4, 2020 incident resulted in a recurrence of the worker's February 12, 2020 workplace injury or that the worker's ongoing back difficulties or issues are causally related to the February 12, 2020 workplace accident or injury.
In conclusion, the panel finds, on a balance of probabilities, that the worker's ongoing lower back difficulties are not causally related to his February 12, 2020 workplace accident or injury. The panel therefore finds that the worker did not suffer a further loss of earning capacity or require further medical aid as a result of the February 12, 2020 accident, and is not entitled to further benefits in relation to that accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of February, 2022