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 benefits after March 1, 2021. A videoconference hearing was held on March 17, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 1, 2021.

Decision

The worker is not entitled to benefits after March 1, 2021.

Background

The WCB received an Employer’s Incident Report on December 15, 2020, reporting the worker injured their left wrist in an incident at work on December 8, 2020. The employer noted the worker advised that while driving a truck on December 8, 2020 “…there was a steering wheel failure that caused the worker to jar his back and hurt his L (left) wrist.” Further, the employer indicated the worker advised their wrist injury had fully resolved and they had not sought medical treatment for that injury during a virtual call with their physician on December 14, 2020.

On December 23, 2020, the WCB spoke with the worker to discuss the claim. It was noted at the time, the worker also had an earlier WCB claim and the discussion covered both claims. The worker advised on December 8, 2020, the steering wheel of the vehicle they were driving was not set and when they had to brake quickly, the steering wheel moved forward, jarring their left wrist and aggravated an injury to their back they sustained in their earlier WCB claim. In speaking with their treating physician on December 14, 2020, the worker reported the physician advised they had “…pulled/strained a bunch of muscles”, with the worker advising the physician they were working reduced hours due to the earlier WCB claim. The worker further advised the physician noted the worker should have healed from the earlier injury and encouraged the worker to continue working until they felt “…things start to seize, then leave work for the day.” The physician further advised that if the worker’s symptoms did not improve, they may consider a week off work to help the worker heal.

At a follow-up appointment with their treating family physician on January 6, 2021, the worker was provided a diagnosis of localized lumbar back pain after reporting a tense sore lower back with occasional popping sensation and the sciatica neuropathy in both legs had subsided. Physiotherapy and remaining off work until January 13, 2021 was recommended. In a discussion with the WCB on January 13, 2021, the worker advised they had seen both their treating physician and the physiotherapist on January 11, 2021. The worker noted the physiotherapist advised their expected recovery was about three months with continued treatment. Also, the worker advised their treating physician had recommended they remain off work for the following week. A sick note was provided indicating the worker should be off work until January 22, 2021, with a possible return to work on January 25, 2021.

The worker’s file was reviewed by a WCB medical advisor on January 15, 2021. The advisor opined the diagnosis related to the December 8, 2020 workplace accident was a strain injury to the upper and lower back, with recovery expected in six to eight weeks. The WCB medical advisor went on to further opine the worker’s current symptoms were medically accounted for in relation to the accident. On January 22, 2021, the worker attended for a follow-up physiotherapy appointment, where restrictions were provided. The WCB contacted the physiotherapist on January 25, 2021 for clarification on the amount of hours the worker could work and on the same date, the employer was provided with the worker’s restrictions of able to work four hours per day; sedentary duties; no bending; able to lift/carry up to 15 pounds; avoid repetitive twisting; avoid overhead lifting; able to sit up to 30 minutes, then break; able to stand up to 45 minutes, then break; and able to walk up to 30 minutes, then break. On January 26, 2021, the employer advised the WCB they could not accommodate the worker.

On February 8, 2021, the worker underwent a CT scan of their cervical spine, which indicated “No disc protrusion/neural foraminal narrowing in the cervical region.” The worker’s file and the CT scan were again reviewed by a WCB medical advisor on February 22, 2021. The advisor opined the CT scan indicated “…disc protrusions at L4L5 and L5S1. There was no neural foraminal narrowing to support nerve root irritation. There was indenting of the thecal sac but not appreciable compression. The multilevel disc changes would be related to degeneration, not a specific accident or activity.” The WCB medical advisor went on to opine the worker’s claim was accepted for a strain, with recovery expected within six to eight weeks, and now eleven weeks past the December 8, 2020 workplace accident, the worker’s ongoing difficulties could not be medically accounted for. On February 22, 2021, the worker was advised their entitlement to benefits would end as of March 1, 2021 as it had been determined they had recovered from the December 8, 2020 workplace accident.

The worker provided the WCB with additional information on March 25, 2021, including a detailed report of the mechanism of injury, a sick note from their treating physician indicating the worker was to remain off work until April 9, 2021, a Progress Report dated March 2, 2021 from the physician reporting a diagnosis of “disc protrusion L4-5 level symptomatic” and recommending restrictions of unable to do repetitive bending/twisting of lower back, no lifting over 20 pounds and no slouching recommended and a letter from the worker’s treating physician, also dated March 2, 2021, indicating the worker was unable to continue their studies to become a gym instructor due to their recent injuries. On April 12, 2021, the employer responded to the WCB’s request for clarification on the worker’s reporting that the steering wheel in the vehicle they were driving was broken. The employer confirmed the steering wheel was not broken and provided the WCB with a video of how a worker would enter and exit the vehicle the worker was driving on the date of the workplace accident. This new information was reviewed by a WCB medical advisor on April 12, 2021 who, in a note to the worker’s file, indicated the new information did not change their opinion of February 22, 2021. On April 19, 2021, the worker was advised there would be no change to the earlier decision their entitlement to benefits ended as of March 1, 2021.

The worker contacted the WCB on May 25, 2021 and noted their disagreement with the WCB medical advisor’s opinion. On the same date, the worker provided a video to the WCB showing the function of the steering wheel after their body weight had gone into it. In a further telephone conversation on May 28, 2021, the worker confirmed the steering wheel had been locked into place prior to the workplace accident, which then caused it to become loose. This information was again reviewed by the WCB medical advisor who again opined, in a note to the worker’s file on May 28, 2021, there was no change to their earlier opinion. On June 2, 2021, the worker was again advised there would be no change to the WCB’s earlier decision.

On September 2, 2021, the worker’s representative requested reconsideration of the WCB’s decision. In their submission, the representative presented the argument the worker’s injury with respect to the December 8, 2020 workplace accident was more than the accepted strain injury and as a result, their symptoms had not resolved within the six to eight week timeframe set out by the WCB and the worker required further benefits.

Review Office upheld the decision of the WCB on November 8, 2021 and found the worker was not entitled to benefits after March 1, 2021. Review Office agreed with and accepted the opinions of the WCB medical advisor and found the mechanism of the injury did not support the worker sustained a more sinister injury than a strain, which would have recovered by March 1, 2021.

The worker’s representative filed an appeal with the Appeal Commission on December 2, 2021. A videoconference hearing was arranged for March 17, 2022.

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 is injured in an accident, the worker 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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” 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 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

The Workers Compensation Board 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 Workers Compensation Board 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 Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The following definitions are set out in the Policy:

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

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.

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

Worker’s position

The worker represented himself at the hearing. It was the worker’s position that he ought to be entitled to benefits beyond March 1, 2021. He submitted that the second accident aggravated the injuries sustained in the first accident which delayed his recovery.

The worker described both accidents. The first accident occurred on November 24, 2020. At the time of the first accident, the worker said a problem had been noted with the trailer and he was trying to resolve it. He was crouched underneath the trailer when the plug suddenly exploded into sparks. The worker said he immediately tried to jump backwards from his crouched position to avoid an electrical shock. In doing so, he sustained injury to his left leg and the muscles in his back. He used his knowledge from a previous attendance at physiotherapy and his knowledge from training to be a personal trainer to self-treat himself with exercises to help his back recover. In the meantime, he continued to work as best he could and would leave work when the pain became too much.

The worker said that he had not fully recovered from the first accident when he sustained further injury at the time of the second accident on December 8, 2020. At the time of the second accident, the worker said that he had unhooked the trailer and was in the truck in the process of backing the truck up. He had his left hand on the steering wheel and was turned to the right to see behind him with his body in a twisted position to the right when he suddenly had to slam on the brakes, causing his body to lurch forward into the steering wheel. As his body struck the steering wheel, the steering wheel released, causing him to jar his left wrist and aggravate his back injuries from his prior accident. He described his entire back as being in pain following the accident. The pain was particularly acute in his lower back. He also began to experience some sciatica symptoms.

The worker said he continued to experience pain well beyond the expected 6 to 8 week recovery period for a typical strain/sprain injury. Further medical investigation was therefore undertaken which revealed issues with some of the discs in his back. Although not totally disabled, the worker was restricted to modified duties which the employer was unable to accommodate. He was eventually required to find alternate employment.

The worker gave evidence that he had never had difficulty with his back prior to two workplace accidents that occurred on November 24, 2020 and December 8, 2020. He added that he worked out regularly to keep himself healthy and as part of his training to become a personal trainer. In his view, the December 8, 2020 accident caused an aggravation or enhancement of the injuries sustained in the prior accident which prolonged his recovery period. He therefore submitted that he ought to be entitled to benefits beyond March 1, 2021.

Employer’s Position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel is whether the worker is entitled to further benefits beyond March 1, 2021 in relation to the December 8, 2020 workplace accident. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker experienced a further loss of earning capacity and/or need for medical treatment as a result of the accident. For the reasons that follow, we are unable to make that finding.

The panel has carefully considered the worker’s description of the accident and has reviewed the medical information on file. The panel is satisfied that the worker sustained a sprain/strain injury on December 8, 2020 from which he ought to have recovered within 6 to 8 weeks. The worker, however, continued to experience symptoms well beyond the typical recovery period.

Although the panel does not dispute the extent of the worker’s current and continued symptoms and has sympathy for the worker, the panel is unable to conclude that the current or continued symptoms are causally related to the accident. The worker’s initial presentation and description of the mechanism of injury were consistent with a sprain/strain injury. Although diagnostic testing revealed multilevel disc changes and disc protrusion, the panel is not satisfied that the evidence establishes a causal connection between the multilevel disc changes and the compensable injury. The mechanism of injury involved a low-speed sudden deceleration which, according to the evidence on file, is unlikely to cause multilevel disc changes or disc protrusion. Further, and again according to the medical evidence on file, the presence of multilevel disc changes is more commonly related to or associated with degeneration, not a specific accident or activity. The medical evidence, in other words, suggests that the injury sustained by the worker was a sprain/strain injury in the context of an environment of degenerative changes.

Consequently, while the panel accepts that the worker has continued to suffer from back pain, the panel is unable to find that any ongoing difficulties beyond March 1, 2021 are causally related to the workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is not entitled to further benefits beyond March 1, 2021.

The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of May, 2022