The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to additional wage loss and medical aid benefits in relation to the March 20, 2019 accident. A videoconference hearing was held on January 20, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to additional wage loss and medical aid benefits in relation to the March 20, 2019 accident.

Decision

The worker is not entitled to additional wage loss and medical aid benefits in relation to the March 20, 2019 accident.

Background

An Employer's Accident Report was received by the WCB on March 22, 2019. The employer reported the worker injured their upper back and neck when 5 to 10 gallons of water poured down onto the worker, striking them in the back of the head and their back on March 20, 2019.

The worker attended for medical treatment the following day on March 21, 2019, reporting stiffness between their shoulder blades and stiffness across their mid-back, which worsened with position changes. The treating nurse practitioner examined the worker and found full range of motion in the worker's spine, with right rotational and lateral bending producing increased pain to their left trapezius and tenderness across their back at the T-10 area, extending to their lateral chest area bilaterally. The nurse practitioner recommended restrictions of climbing stairs and ladders as tolerated; lifting up to 25 pounds; push/pulling up to 25 pounds; and no bending/kneeling. The worker was accommodated by the employer with modified duties.

The worker attended for an initial physiotherapy assessment on March 28, 2019 reporting pain in their neck and back and was diagnosed with a back strain/sprain. At a follow-up appointment on April 11, 2019, the worker reported their pain was improving and the physiotherapist noted the worker's range of motion was within normal limits. The worker's restrictions were updated to no push/pull/lift greater than 25 pounds and to rest as needed. A May 23, 2019 follow-up appointment found the worker only had low back pain with prolonged wearing of their tool belt and it was recommended the worker be able to remove their tool belt as needed. A further physiotherapy report on May 30, 2019 noted the worker was working their regular duties at full hours. On June 18, 2019, the worker spoke to their WCB adjudicator to advise they had been laid off from their employment with the employer.

On June 19, 2019, the worker contacted the WCB to advise they had attended an appointment with their family physician and an x-ray taken had identified a new diagnosis of a T12 compression fracture. The treating physician's report from the June 18, 2019 appointment was received by the WCB on July 12, 2019, along with a copy of the May 29, 2019 x-ray. The report noted the worker's complaints of lower back pain and the treating physician's findings of mild back tenderness on palpation of the worker's thoracic and lumbar spine areas and a positive Faber test on the worker's right leg, with the pain radiating to the worker's left sacroiliac joint. The physician noted the May 29, 2019 x-ray was attached, indicating an abnormality at the T12 area of the worker's spine and that an MRI study had been requested. The treating physician recommended the worker remain off work until the investigation of the abnormality was completed.

The medical information from the worker's treating family physician and the worker's file were reviewed by a WCB medical advisor on August 4, 2019. The advisor provided the worker's initial diagnosis was of a neck and low back strain/sprain, with a natural recovery period of 1 week to 8 weeks. The worker's current diagnosis was a recovering low back and neck strain/sprain, which was medically accounted for in relation to the March 20, 2019 workplace accident. The WCB medical advisor noted the medical findings were restricted range of motion in the neck and low back with tenderness, but that there was no tenderness noted in the thoracic area, specifically the T12 region, indicated by the worker's treating healthcare providers. The advisor further opined the T12 compression fracture had not been clinically verified and was likely an incidental finding on the x-ray. On August 7, 2019, the worker was advised by the WCB it had been determined they had recovered from the workplace accident and were not entitled to further benefits.

The worker's representative submitted additional medical information to the WCB, including a copy of the September 14, 2019 MRI study, which indicated, in part, there was a "Very minor T12 compression fracture." Also provided by the legal representative was a January 9, 2020 report from the worker's treating chiropractor and a January 13, 2020 report from the worker's family physician. The treating family physician noted the "suspected compression fracture on T12" was confirmed on the MRI study to be minor, however, the worker was referred to a neurosurgeon for further investigation. The consultation with the neurologist took place on January 16, 2020. After reviewing a bone scan with the worker, the treating neurologist opined the scan indicated "…the T12 is actually an old, or rather, healed fracture…" and recommended the worker undergo a bilateral facet block at T11-L1 to confirm the source of the worker's pain.

On February 4, 2020, the additional medical evidence and the worker's file were reviewed by a WCB medical advisor. The advisor confirmed the accepted diagnosis of a neck and low back strain/sprain and further, the recovery period for such injury would have been four to six weeks maximum. Further, the WCB medical advisor provided the additional medical evidence did not change the opinion stated in the August 4, 2019 WCB medical advisor's opinion. On February 6, 2020, the WCB advised the worker that after review of the medical information provided, there would be no change to the August 7, 2019 decision they were not entitled to further benefits.

The worker contacted the WCB on February 11, 2020 to provide additional information for their claim, including contact information for a witness to the workplace accident. On February 19, 2020, the employer provided additional information from the date of the workplace accident and contact information for the worker's supervisor. On February 25, 2020, the witness provided a statement to the WCB and on March 3, 2020, the worker's supervisor also provided a statement describing the incident. On March 10, 2020, the worker was again advised by the WCB there would be no change to the earlier decision.

The worker's representative requested reconsideration of the WCB's decision to Review Office on September 14, 2020. In their submission, the representative provided the argument the worker either did not have the T12 compression fracture prior to the March 20, 2019 workplace accident or the compression fracture was an asymptomatic pre-existing condition that was aggravated by the workplace accident. On November 17, 2020, Review Office found the worker was not entitled to further benefits. Review Office found the worker had been cleared for their full regular duties by their treating physiotherapists and the medical evidence on file did not support the T12 compression fracture was aggravated as a result of the workplace accident.

The worker's representative filed an appeal with the Appeal Commission on June 14, 2021. A videoconference hearing was arranged for January 20, 2022.

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 the 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 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 because 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.

WCB Policy 43.20.25 - Return to Work With The Accident Employer provides that if a worker experiences a prolonged work interruption to a point where similarly employed workers are pursuing other employment opportunities, and the injury places the worker at a competitive disadvantage in the labour market, that the WCB will determine whether there is further entitlement to wage-loss benefits and rehabilitation services.

Worker’s Position

The worker was represented at the hearing by legal counsel who both participated via video conference. In addition, the worker’s treating neurosurgeon gave evidence at the hearing via tele-conference. The worker as well as their treating neurosurgeon answered questions posed to them by the worker’s legal counsel as well as by the panel.

The worker’s neurosurgeon advised the panel that they first met the worker on December 3, 2019 complaining about pain in their mid-back focused at the T12 vertebrae level. The treating neurosurgeon also stated that the worker had pain “slightly higher up than that area.”

When asked how long a fracture in the spine would usually take to heal, the worker’s neurosurgeon stated, in part, “As we advance in age, the process is slower, but an average for a middle-aged person, three months is the number that we use to expect that fracture had healed if appropriately managed.”

The treating neurosurgeon told the panel that the worker had an x-ray on May 29, 2019, an MRI on September 14, 2019 as well as a bone scan on December 11, 2019. It was their opinion that, because the fracture was no longer active and had healed, they could not provide an opinion as to how long the fracture had been healed for.

The worker’s treating neurosurgeon told the panel that they were treating the worker with “facet blocks” which involved treating the sources of pain with a cortisone-based injection. However, this did not result in a significant improvement. The treating neurosurgeon advised the panel that the worker began complaining of pain higher up in the area between the shoulder blades, which was also treated with facet block injections.

When the treating neurosurgeon was asked by the panel to explain how a person could develop a T12 vertebrae fracture from the injury, they provided the following:

… the mechanics of this is very well studied, actually. There's multiple factors, you have to understand that the thoracic vertebrae are usually more fixed. You need a lot of force to break thoracic vertebrae from T10 to T1, because as mentioned earlier, the rest are all attached to the front, so it's like a girdle 

… 

And T11, T12, even though they are thoracic, because they, they're not attached to the same barrel, and so they tend to be the first victims. That T11 to L1, actually a very common area for wedge fractures when actually vertical impact, because when something drops in (sic) your, like, if you are walking and somebody drop a ball on your head, a tendency is to lean forward. You move forward because the impact, the first thing is you protect is your head, your neck. Those are the areas that, our reflexes try to protect, moving forward, away, and that leads to a vertical impact goes all the way to the spine, to the thoracic...And it's the force that's so sudden and so strong, the discs will not provide enough cushion to protect the bone. And the movement forward and the wedging could lead all upper body weight plus the weight of the object that fell, transmitted instantly onto the vertebrae and cause fracture. So the kind of fracture that [the worker] sustained is, it's a vertical with forward flexion, so [the worker] leaned forward when a cold, heavy cold water hits you, you're not going to look up, you're going to jump forward or lean forward, and that fits with the shape of injury [the worker] had.”

The worker’s treating neurosurgeon was also asked by the panel about their reference to the timeline for a T12 fracture to heal as being approximately three months and how the appropriate management of the injury would affect the recovery. In response, the worker’s treating neurosurgeon stated the following:

A … yes, it depends on the degree of the fracture and what the person was doing too.

I mean, somebody who works in construction and continued to working (sic) and do heavy lifting and bending, the fracture will, could progress farther. And if somebody was cautious and because of pain, limited, because the idea of having pain is an alarm system, it can stop you from hurting yourself. The more you do the more it hurts so you back off. But if we saw, and for example, in the first month or a week, or so, we put [the worker] in a brace, expected by three months, it should have healed. By then he should be brace free and gradually back to physio and work.

Q Great. And I thought you had mentioned the brace before. So are you saying that the brace then would be there for that period of time, the three-month period of time, or just in the first week, or –

A Yes, no, three months.

Q And do you know how the worker's back was managed after his injury, before you saw [the worker]?

A As far as I know, nothing had been done. There was just, [the worker] was having some imaging done. Had an x ray and was waiting for the MRI, until I saw [the worker], but I don't have the details if anything else was done.

The worker also provided information to the panel through questions that were posed to them by their counsel.

The worker provided a brief description of the events that led up to the March 20, 2019 injury.

The worker stated that immediately after the injury they were assigned to perform modified duties which involved working at the gate for two days to monitor vehicles travelling in and out of the worksite. After that the worker stated that they were tasked with “…picking up garbage, bending, stooping, lifting, pulling, dragging stuff.” The worker performed those modified duties until returning back to work with their normal crew. At that juncture, the worker stated that, although they continued to perform the same tasks, they were able to obtain assistance from their co-workers so they did not have to drag the debris by themself all the time.

The worker explained that they continued to work during this period although they were still experiencing ongoing pain in their back. The worker told the panel that they continued to work in this capacity until they were laid off. The worker stated they were unable to secure alternative employment after their lay-off as a result of the ongoing effects of their compensable injury.

The worker’s legal counsel summarized their evidence they wished the panel to consider and concluded their presentation by stating their belief that the panel possessed the evidence to support that the worker’s current injuries and issues are a result of the workplace accident.

Employer’s Position

The employer representative participated in the hearing via teleconference in addition to providing a written submission to the panel prior to the hearing. However, prior to the employer providing their presentation to the panel, they advised that they would not be continuing to participate in the hearing and stated that the hearing could proceed without them prior to the employer representative discontinuing their teleconference link. As such, the panel was not provided with the employer’s oral submission with respect to the claim. The employer’s written submission confirmed they agreed with the WCB’s determination that the worker’s claim should be accepted as strain injury that would resolve in 6-8 weeks and that any ongoing issues after that period would be pre-existing and non-compensable.

Analysis

The issue before the panel is whether the worker is entitled to additional wage loss and medical aid benefits in relation to the March 20, 2019 workplace injury. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had not recovered from their injury when they were laid off from their employment on June 14, 2019. The panel is unable to make that finding for the reasons that follow.

While the panel acknowledges that the worker sustained an injury on March 20, 2019 when a volume of water was inadvertently dropped on them from above, the panel is unable to accept that the events of that date resulted in a fracture at T12 which was the focus of the worker’s submission.

The panel notes that the May 30, 2019 x-ray identified the T12 fracture as being of indeterminate age. Based on the evidence provided to the panel by the worker’s treating neurosurgeon, a properly managed fracture of this nature would take approximately three months to heal. The panel is of the view that if the x-ray had demonstrated an unhealed fracture, then that would have been indicated in the report. Further, the x-ray was taken less than 2 ½ months after the injury. Given the recovery timeline provided by the worker’s neurosurgeon, the panel is of the view that, had the worker’s March 20, 2019 injury resulted in a T12 fracture, the x-ray would have demonstrated an unhealed fracture, which was not indicated on the imaging.

The worker’s neurosurgeon also stated that the three-month recovery period was based on the premise that the fracture was properly managed by the worker’s caregivers. The worker’s treating neurosurgeon referred to the use of a back brace or some other treatment as being appropriate in the worker’s management. The panel notes that such treatment was not provided to the worker in this instance. The worker confirmed that, after two days of light duties working at the gate, they were assigned to cleaning the worksite, which involved repetitive lifting, stooping, bending, pulling and dragging during their eight-hour shifts. All tasks which would not have been, in the panel’s view, optimal in regards to the management of a fractured T12 vertebrae. Based on the information provided by the worker’s treating neurosurgeon, if the worker did incur a T12 fracture on March 20, 2019, their recovery would have been significantly delayed as a result of the worker's ongoing job duties that continued until their lay-off on June 14, 2019, which was two weeks after the May 30, 2019 x-ray.

The panel also considered the medical reporting on file. Of particular note was the May 23, 2019 medical report from the worker’s treating physician which stated, “only pain being w/prolonged wear (sic) of tool belt” and provided a restriction of “Ability to remove tool belt as required.” Further, the physiotherapy report dated June 13, 2019 stated that the worker is “Doing well...” and “c/o tool belt causing low back pain.” The physiotherapist stated that the worker could participate in regular duties but indicated, “Please accommodate [the worker] to allow removal of tool belt as needed.” In the panel’s view, the medical reporting from this period supports that the worker had essentially recovered from the workplace injury and that any ongoing problems, if related to the compensable injury, were minimal.

The panel also noted that the worker continued to be medically cleared to work their regular duties until the June 18, 2019 medical exam that was performed by the worker’s treating physician. On that report the worker’s treating physician stated that the worker was incapable of alternate or modified work and stated, “It is unsafe for the patient to work before confirming the lesion on T12 nature even if clinical condition is improving.” It appears to the panel that the purpose of restricting the worker from working was more precautionary in nature as opposed to the result of ongoing symptoms.

It was also noted by the panel that, given the worker’s neurosurgeon’s evidence that the T12 fracture was healed, at the very latest, by December 11, 2019 as confirmed by a bone scan on that date, there was no medical explanation provided as to why the worker continued to experience ongoing symptoms in their spine and/or how the facet block injections being administered by the worker’s treating neurosurgeon were related to a healed T12 fracture or the compensable injury that was accepted by the WCB.

The panel also reviewed the nature and circumstances of the March 20, 2019 injury as to whether it is probable that the mechanism of injury would have resulted in a fracture of T12 vertebrae as submitted by the worker.

The panel notes that the evidence is consistent that there was a volume of water poured onto the worker from a distance above them. While there may be some differing views as to the elevation where the water fell from and the amount of the water that fell on the worker, the panel is satisfied that the water fell from approximately 30-60 feet above the worker. The panel does not accept the disparity in the elevation would significantly affect the impact of the water. In the workplace incident report filled out by the worker on March 21, 2019, they stated that “5-10 gallons hit me in the back of head & back.” As this information was most proximate to the date of the injury, the panel accepts that it is likely to be the most accurate. The panel acknowledges that trying to determine the exact volume of water that fell on the worker would be difficult in this instance. However, the panel accepts that the volume of water that fell on the worker was the approximate amount stated by the worker.

Based on a careful examination of the information available, the panel’s determination is that it is not probable that the events that occurred on March 20, 2019 would lead to the worker experiencing a fracture of their T12 vertebrae. In the panel’s view, the volume of water identified in the worker’s incident report falling from above onto the worker in the manner described would not, on a balance of probabilities, result in a fractured vertebrae.

In considering the worker’s submission, the panel specifically reviewed the information provided by the worker’s treating neurosurgeon. The panel considered the treating neurosurgeon’s explanation as to how an impact from above could possibly cause a fracture to the T12 vertebrae. The treating neurosurgeon stated that there would need to be a force that is “…so sudden and so strong, the discs will not provide enough cushion to protect the bone.” The panel’s finding is that, although the water falling from above would have indeed been sudden, the 5-10 gallons of water that fell on the worker would not provide the required force to cause a fractured vertebrae.

The panel’s determination that a T12 fracture did not occur on March 20, 2019 is also based on the reporting by the nurse practitioner who examined the worker on March 24, 2019. That report, which occurred within days of the compensable injury, does not identify any disc issues, which the panel understands would have needed to be compromised prior to a disc fracture occurring. Further, the panel notes that the exam at that time did not identify any swelling, redness or bruising on the worker’s spine. The panel is of the view that, if the worker had sustained an injury that was of such force that they experienced a fracture at their T12 vertebrae, there reasonably would have been some physical signs of that impact in the area of the injury.

Based on the available information, the panel’s determination is that the defect noted at the T12 vertebrae did not occur as a result of the March 20, 2019 workplace injury and further, the panel accepts that the worker was no longer suffering from the effects of the March 20, 2019 workplace injury when they were laid-off on June 14, 2019.

Based upon a review of all the information available to the panel, the worker’s appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of March, 2022