Decision #15/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there is not a relationship between the worker's current difficulties and the October 31, 2008 accident. A videoconference hearing was held on January 12, 2022 to consider the worker's appeal.
Whether or not there is a relationship between the worker's current difficulties and the October 31, 2008 accident.
There is no relationship between the worker's current difficulties and the October 31, 2008 accident.
An Employer's Accident Report was filed with the WCB on November 6, 2008 indicating the worker injured their left upper leg in an incident at work on October 31, 2008. The employer described:
Employee states that Friday Night noticed pain and discomfort on Front and Back of Left Upper Leg at home. He had experienced a slight slip during day-shift but felt no pain or discomfort at that time.
A Chiropractor First Report for the worker's appointment on November 3, 2008 was received by the WCB on November 4, 2008. The worker reported slipping and their leg shot out from underneath them, then feeling a stretch in the back of their thigh. They further reported posterior thigh pain, limping ambulation, difficulty with full weightbearing and weakness of knee flexion. The treating chiropractor noted no obvious bruising or discolouration to the worker's thigh, mild swelling and point tenderness of the belly of the hamstring group, straight leg raise testing negative for dural tension and active pain referring trigger points. The chiropractor diagnosed the worker with a hamstring strain due to ballistic stretch and recommended restrictions. The employer accommodated the worker's restrictions and by November 20, 2008, the worker returned to their full regular duties. On December 12, 2008, the worker was discharged from chiropractic care, with the treating chiropractor noting the worker did not attend for their last treatment.
On May 30, 2019, the worker's representative contacted the WCB to advise they would be providing updated medical information regarding the worker's ongoing difficulties. On June 14, 2019, the WCB received a copy of a May 27, 2019 report from the worker's treating orthopedic surgeon. The surgeon noted the worker had a prior "…significant injury and there has been some soft tissue and groin injury…" which resulted in the worker requiring a hip replacement. The treating surgeon further noted the information provided to them around the time of the replacement surgery indicated the worker had mild osteoarthritis. As well, the orthopedic surgeon indicated further orthopedic surgery would not resolve the worker's pain, noting the pain was the result of the injury the worker sustained as a result of a workplace accident, and not related to the hip replacement. On July 5, 2019, the worker's representative provided the WCB with copies of additional medical information including the worker's application for disability insurance, which indicated the worker suffered from right hip osteoarthritis, reports from the worker's treating orthopedic surgeon who performed a right hip replacement in January 2017 and from the worker's treating family physician indicating the worker had chronic pain as a result of the October 31, 2008 workplace accident.
The WCB advised the worker on July 12, 2019, the new medical information was reviewed and it had been determined they were not entitled to further benefits. The WCB noted the compensable diagnosis related to the October 31, 2008 workplace accident was a left hamstring sprain, with a typical recovery time of 4 to 6 weeks and as it had been approximately 10.5 years since that accident and no mention had been made of an injury or symptoms involving the worker's right hip, the WCB found the worker's current difficulties were not related.
The worker's representative requested reconsideration of the WCB's decision to Review Office on August 27, 2020, noting the worker's treating healthcare providers supported the worker had ongoing difficulties and chronic pain related to the workplace accident in October 2008. On September 11, 2020, Review Office was unable to establish a relationship between the worker's current difficulties and the October 31, 2008 workplace injury. Review Office found the worker's initial diagnosis was of a left hamstring strain with no evidence on the worker's file to indicate they did not recover from that injury. Further, Review Office noted the worker continued to work after the workplace accident with no reported difficulties. As such, Review Office determined the worker was not entitled to further benefits.
The worker's representative filed an appeal with the Appeal Commission on August 23, 2021. A videoconference hearing was arranged for January 12, 2022.
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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
The WCB's Board of Directors has established WCB Policy 188.8.131.52.10, Recurring Effects of Injuries and Illness (Recurrences) (the "Recurrence Policy") which addresses the circumstances where a worker returns to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity. The WCB will consider that the further loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to the previous injury or illness. If the WCB determines that the loss of earning capacity is not the result of a new and separate accident, then the further loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness.
The WCB's Board of Directors has also established WCB Policy 184.108.40.206, Pre-existing Conditions (the "Pre-Ex Policy") which deals with issues involving pre-existing conditions. The WCB is responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment. 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 employment.
The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.
The worker stated that the accident report was submitted by the employer without the worker’s signature and was incorrect; it was not a “slight slip” but something more serious. When the worker slipped, the left leg took most of the stress of the fall but a month later the worker’s right side started hurting.
The worker saw a chiropractor for the left side but about a month later the right leg was dragging, which continued on and off for months. The worker advised that the chiropractor’s note was incorrect insofar as the worker did not stop attending for chiropractic treatment but rather the chiropractor discontinued practicing and the worker was unable to attend another provider because of extended work hours.
The worker described gradual onset of right-sided pain which, by 2010, left the worker unable to walk at times due to “on and off” pain. The worker had constant pain which they believed was not caused by arthritis, notwithstanding an arthritis diagnosis. The worker received a medical opinion that the right hip replacement undertaken in 2017 should not have been undertaken. The worker submitted that the compensable injury never healed and the worker was left disabled and in chronic pain.
The employer participated in the hearing, asked questions of the worker, and made a submission to the panel. The employer’s representative summarized the medical evidence at the time of the compensable injury and the worker’s return to work, as well as the length of time between the 2008 accident and contact with the WCB in 2019 regarding this claim. The worker’s later diagnosis of bilateral facet joint osteoarthritis was noted. The employer’s position is that there is no direct correlation between the 2008 accident and the worker’s current condition, given the lack of medical support for such a conclusion.
The question before the panel is whether or not there is a relationship between the worker’s current difficulties and the October 31, 2008 accident.
In December 2008, the chiropractor’s report noted that the worker was demonstrating positive and progressive improvement and the worker did not attend for treatment after the fourth visit. Although the worker advised the panel that a failure to continue chiropractic treatment was due to the unavailability of the chiropractor, no evidence of the worker having sought other treatment, including chiropractic treatment, was submitted. The worker was performing the usual duties of their position approximately one month after the accident and did not report any difficulties. Between 2008 and 2019 there were no reports made to the employer of symptoms, no communication with the WCB concerning the worker’s claim, and no medical reports were provided which indicated that any treatment was sought in relation to this injury.
The worker reported a left hip injury in 2010, which the worker described as “gradual onset”, and underwent one session of physiotherapy but the worker continued on full duties. Although the worker made a claim in 2014 in relation to their right hip, the worker did not follow up on this claim and no medical evidence was submitted.
The panel considered the statement made by the worker’s orthopedic surgeon in 2019 that the worker had a significant injury that resulted in a right hip replacement and that the worker’s pain was a result of the 2008 injury. However, the panel gives little weight to this statement as it was made some eleven years after the date of the accident and is not supported by medical evidence.
Having considered all of the evidence, the panel finds, on the balance of probabilities, that there is no relationship between the worker’s current difficulties and the October 31, 2008 accident. Accordingly, the appeal is dismissed.
K. Gilson, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of February, 2022