The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no entitlement to further benefits. A videoconference hearing was held on March 14, 2023 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the worker's current upper spine and cervical difficulties as being a consequence of the September 21, 2020 accident; and 

2. Whether or not the worker is entitled to further benefits.

Decision

1. Responsibility should not be accepted for the worker's current upper spine and cervical difficulties as being a consequence of the September 21, 2020 accident; and 

2. The worker is not entitled to further benefits.

Background

On September 25, 2020, the worker filed a Worker Incident Report with the WCB, reporting he injured his neck, upper back and lower back in an incident at work on September 21, 2020. The worker described the incident as:

I was walking in a low hanging area with lots of pipes and valve handles and valves above me at about chest height. I was crouched over and I was walking down a poorly lit walkway. I walked head first into a valve. My neck compressed into my upper back and I went to catch myself as I felt (sic) to my knees and felt a twinge in my lower back…

The worker continued his shift that day, but as his symptoms worsened, he sought medical treatment at a local hospital on September 24, 2020. The WCB received a copy of the report from the treating hospital physician, who indicated the worker reported an injury to his neck and back, after he was walking with his head down and bent over at the waist, and he struck a heavy object head on. The physician noted the worker's complaints of pain to his cervical, thoracic and lumbar spine, and findings of tenderness in the cervical spine area as well as normal range of motion. The report of an x-ray of the spine taken that same day was received and placed on the worker's file. The treating physician also provided a Modified Work Form indicating the worker was capable of returning to work with no restrictions.

On September 28, 2020, the employer confirmed to the WCB that the worker returned to work and did not require modified duties as a result of the September 21, 2020 workplace accident. On October 5, 2020, the WCB advised the worker that his claim for a neck/back injury with no time loss, which occurred on September 21, 2020, had been accepted and his claim was closed.

On September 14, 2021, the WCB received a copy of a requisition from the worker's treating family physician for an MRI of the worker's cervical spine. It was noted on the form that the relevant clinical history was a "Work related compression fracture Radiculopathy."

On September 22, 2021, the WCB contacted the worker to discuss the claim. The worker advised he had not recovered from the workplace accident and continued to experience headaches and a sore back. He said the injury seemed to get a bit better, then his symptoms got progressively worse and he sought further medical treatment. The worker noted that his neck and back were aggravated at work if he sat too long, particularly if he was looking down at documents or the computer keyboard, and that he had difficulty driving, particularly when backing up, due to limited range of motion in his neck. The worker advised he sought medical attention around September 3, 2021. He noted that his family physician reviewed x-rays taken at that time and compared them to previous x-rays, and recommended he have an MRI. The worker confirmed he was still employed by the employer in the same position and had made general comments regarding his ongoing difficulties to his co-workers. The worker noted he currently experienced pain and stiffness, with limited range of motion, almost daily headaches, and a cracking every time he rotated his neck.

On September 23, 2021, the WCB requested chart notes from the worker's treating family physician for the period of September 25, 2020 to September 23, 2021. On October 6, 2021, the WCB received chart notes from the worker's family physician for appointments on August 26, 2021 and September 17, 2021. The physician's August 26, 2021 chart notes indicated the worker reported he was experiencing posterior neck pain for approximately one year after a compression injury at work. The pain was noted to be less in the mornings and worse as the day went on, and the worker reported tension headaches in his occipital region, which were relieved with pain medication. The physician documented tenderness to palpation over the worker's lower cervical spine in the midline and paravertebral region bilaterally, with range of motion restricted to lateral flexion. The physician queried if the worker had a cervical spine injury, advised the worker to support his neck while seated, and referred the worker for a neck x-ray.

With regard to the September 17, 2021 appointment, the worker's treating family again noted the worker reported posterior neck pain for approximately one year after a compression injury at work. The physician reviewed the report of an x-ray taken August 26, 2021, noting it showed "…multilevel degenerative changes with possible worsening at C4 with slight anterolisthesis compared with previous study," and recommended an MRI to assess for nerve root compression.

On October 13, 2021, a WCB medical advisor reviewed the worker's file and the medical information from the worker's treating family physician. The medical advisor opined that the worker's diagnosis related to the September 21, 2020 workplace accident was a neck and back strain, with a natural history of gradual improvement in symptoms over the next 2 to 3 weeks. The advisor further opined that the worker's current diagnosis was non-specific neck pain, and noted the worker reported he had experienced neck pain since the workplace accident, but did not seek medical treatment after September 24, 2020 until August 26, 2021. The advisor therefore opined that a causal relationship between the worker's current symptoms and his workplace accident could not be established.

The WCB medical advisor went on to note that a review of the x-ray taken September 24, 2020 indicated the worker had "…degenerative cervical spine disease at C3-C4, C4-C5, C5-C6, and C6-C7" and the cervical spine x-ray taken August 26, 2021 indicated "…degenerative changes from C4-C7 with possible worsening at C4 with slight anterolisthesis." The medical advisor opined that all the changes noted on the x-rays were degenerative changes which were not related to the September 21, 2020 workplace accident. On October 14, 2021, the WCB advised the worker that a relationship between his current difficulties and the September 21, 2020 workplace accident could not be established.

On March 31, 2022, the worker underwent an MRI of the cervical spine. The MRI, along with the worker's file, was reviewed by the WCB medical advisor on July 28, 2022. The medical advisor noted the MRI showed "…multilevel degenerative changes of the cervical spine with foraminal narrowing at multiple levels most severe on the right at C3-C4" and opined that a probable cause and effect relationship between those multilevel degenerative changes and the workplace accident could not be established based on the information currently on file. On July 29, 2022, the WCB advised the worker that there was no change to their October 14, 2021 decision that his current medical complaints were not related to his September 21, 2020 workplace accident.

On August 19, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker noted he continued to experience difficulties as a result of the workplace accident and his treating healthcare provider had agreed that the early progression of his degenerative condition was caused by the September 21, 2020 workplace accident. On September 13, 2022, the employer provided a submission in support of the WCB's decision.

On September 29, 2022, Review Office determined that there was no entitlement to further benefits. Review Office found that based on the mechanism of injury, the worker's areas of complaints and the initial medical findings, the compensable diagnosis was a neck and back strain. Review Office also found that the degenerative changes seen on the September 24, 2020 x-ray results were longstanding and represented a pre-existing condition, and that any residual neck and back complaints were likely due to such longstanding changes and were not related to a compensable condition. Review Office further found that the worker had degenerative disc disease which was not caused or structurally altered by the September 21, 2020 workplace accident. Review Office concluded that they were unable to find a causal connection between the worker's current symptoms and the original September 21, 2020 compensable back and neck injury, and that the worker was therefore not entitled to further benefits.

On November 10, 2022, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.

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 4(2) provides that 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.

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.

The WCB's Board of Directors has established Policy 44.10.20.10, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

The Workers Compensation Board (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 the employment." The WCB 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 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.

The WCB's Board of Directors has also established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences), to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. The Policy provides, in part, that the WCB will determine the worker's current condition to be a recurrence if the previous workplace accident is the dominant cause of the renewed symptoms or increase in permanent impairment.

Worker's Position

The worker was self-represented on the appeal. The worker provided a written submission with his appeal form, together with a September 28, 2022 report from a spine assessment clinic. The worker made an oral submission at the hearing, and responded to questions from the panel.

The worker's position was that the WCB should accept responsibility for his ongoing upper spine and cervical difficulties as they are the result of his workplace accident.

The worker submitted that he had no pain or indication of a problem with his upper spine or cervical areas prior to the workplace incident. In describing the incident, the worker noted that the collision was "a compressive one on the top of my head" and that he heard "several cracks and crunches from my skull to midway down my back." The worker stated that the "impact was hard enough to drop me to my hands and knees, but I regained consciousness before falling to the ground totally."

The worker stated that he had been able to work through previous injuries, and assumed he could do the same in this instance. When his symptoms started getting worse, he tried to seek help, but was faced with a number of problems, including that he lived out of town; that he was working almost every day as the employer was shorthanded; that he had recently returned to the province and had to apply for a new health card as his old one had expired; that applying for a new health card took a lot of time given the pandemic and living out of town; and that he could not afford to pay out of pocket for medical help. The worker submitted that when he finally received his health card, he started setting up medical appointments.

The worker noted in his written submission that while he continued working and was "officially…on normal duty," he was able to go on "the equivalent light duty, as I could lay down and stay in my office and wear a neck brace as required," and that this was done "with permission from my superior." At the hearing, the worker stated that "As the symptoms progressed, I explained to my immediate supervisor that I was suffering and started to take days off randomly. And after some discussion, we'd agreed that I could perform light duty and just not push myself too hard physically. I had to start wearing a neck brace in the office and laying down to try and relieve the pain."

The worker submitted that the September 21, 2020 injury has ruined his quality of life, his earning capability and his self-image. He said that he has constant headaches, which vary in intensity, and the headaches and neck pain cause nausea. He is prone a good part of the day, and goes into traction every day to try and help alleviate the pain. He said he is not able to work, and has a very hard time concentrating since his injury, "due to lack of sleep, frequent strong headaches, spinal discomfort and various other issues."

The worker submitted that every doctor or specialist he has seen who is not affiliated with the WCB or the employer agrees that the September 21, 2020 workplace incident is the cause of his pain and symptoms. He submitted that although it has been proven that he has degeneration, this was definitely aggravated or accelerated by the workplace incident. He noted that the doctors have said that if this incident had not happened, he would probably not even have known he had degeneration until he reached old age.

Employer's Position

The employer was represented at the hearing by their HR, Disability Management Coordinator and by a Superintendent. The representatives relied on a written submission dated December 21, 2022 which was filed in advance of the hearing, and made a joint submission at the hearing on behalf of the employer.

The employer's position was that the Review Office decision was correct; that the worker's ongoing medical issues are not due to the September 21, 2020 workplace accident or injury, but to degenerative changes, and the worker is not entitled to any further benefits.

The employer's Disability Management Coordinator noted that the employer did not dispute the worker suffered an injury at the workplace, or that it occurred as he described, where he hit his head on a low hanging pipe in one of their industrial areas and sought medical attention on September 24, 2020. The Coordinator submitted that while the worker may have an ongoing issue, this is not a direct result of the September 21, 2020 workplace incident or injury.

The Coordinator noted that Review Office reviewed the mechanism of injury of September 21, 2020 and the subsequent medical report dated September 24, 2020, which noted that the worker had musculoskeletal neck and back pain and that no further restrictions were required. It was submitted that Review Office correctly found, based on the mechanism of injury, the lack of ongoing medical care, the lack of evidence of an acute injury or fracture at the time, and the two reports from the WCB medical advisor, that while the worker likely has ongoing issues related to the degenerative condition in his neck and spine, those issues did not arise from the workplace accident.

The Coordinator further noted that the medical reports from the worker's treating healthcare providers consistently indicated the worker was suffering from ongoing degenerative changes, and that his condition had worsened, as would be expected from degenerative changes. The Coordinator stated that the employer agreed with the Review Officer's statement that the worker's ongoing discomfort was not caused by or structurally altered by the September 21, 2020 workplace accident.

The Coordinator submitted that additional medical reports further support the previous decision that the worker is not entitled to further benefits and that this is not a workplace injury. The Coordinator submitted that the September 28, 2022 report from the spine assessment clinic which the worker filed with his appeal supports the employer's position that the worker was not entitled to further benefits, as the spine clinic assessment found the worker has degenerative changes, and referred him for physiotherapy. It was noted that an initial physiotherapy report dated October 24, 2022, which is on file, further supported the worker was experiencing degenerative changes and was not disabled from work.

The employer's Superintendent provided additional clarification with respect to the worker's absences from work. The Superintendent submitted that the worker's first date of absence following the September 21, 2020 incident, in terms of a sick absence, was not until April 19, 2021, or roughly six or seven months after the injury. The representative noted that there was no indication on the absence report as to whether the absence was related to the worker's injury or ongoing difficulties.

In conclusion, it was submitted that the Review Office decision should be upheld, and the worker's appeal dismissed.

Analysis

Issue 1: Whether or not responsibility should be accepted for the worker's current upper spine and cervical difficulties as being a consequence of the September 21, 2020 accident.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's current upper spine and cervical difficulties are causally related to his September 21, 2020 workplace accident or injury.

Based on our review of all of the evidence and submissions which are before us, the panel is unable to establish a causal connection between the worker's current upper spine and cervical difficulties and his September 21, 2020 workplace accident or injury.

In describing his injury, the worker indicated that the collision was "a compressive one" on the top of his head, and that he suffered "a very hard compression injury to my cervical area." When asked whether he was referring to a medical diagnosis, the worker stated that this was his description of the injury and that he was using it to indicate that this was different from simply hitting your head when you are walking. When asked if it was his understanding that the injury was initially diagnosed as a sprain strain type of injury, the worker said he thought so.

When asked about his reference to "regaining consciousness" before falling to the ground totally and whether he lost consciousness, the worker stated that it was hard to explain, "but I – I was losing consciousness and, like, fell down to one knee and caught myself before a total blackout." The worker further indicated that the only relevance to this was that he was trying to explain how hard the hit was, "because it was so hard." The panel notes, however, that the worker also confirmed, when asked, that he was wearing a regulation hard hat at the time, which would have contacted the valve, and that he indicated he did not crack the hard hat, although it was "pretty beat up."

The panel finds that the gaps in terms of the worker seeking medical attention are problematic and troubling. Information on file shows that the worker sought medical attention on September 24, 2020, or three days after the workplace incident, at which time x-rays were taken and the treating physician advised that he was capable of returning to work with no restrictions. The evidence shows that the worker did not seek any further medical attention until August 26, 2021, more than 11 months later.

The worker referred to several reasons why he did not seek medical attention during this period of time. The panel is unable to attach much weight to at least some of these reasons. The panel notes, for example, that although the worker indicated he lived out of town, the evidence showed that he was not that far from town and would travel to town for work. Regardless of that, the worker could have contacted the WCB during this period of time, but did not do so. The panel notes that the October 5, 2020 letter from the WCB which indicated that the original claim was accepted went on to state that the worker should contact the WCB if he experienced further symptoms or required further medical treatment related to his injury. The reasons which the worker identified with respect to the delay in seeking medical attention do not explain why he would not have contacted the WCB, particularly once he was missing work.

The panel found that the worker was a poor historian, who was challenged in recalling and relating details of his claim and prone to exaggeration. The worker's evidence was at times inconsistent and unclear and did not align with the medical reporting.

The panel questioned the worker at length as to when his symptoms started getting worse and became so bad that he had to start missing time at work. The worker initially responded that this was probably within a year of the injury. When it was put to the worker that the employer had said the first time he missed time was on April 19, 2021, or approximately seven months after the injury, and he had previously seemed to be disputing this and indicating it was earlier than April 19, the worker stated he did not have a record as to when he missed time and he guessed he would have to agree that the earliest he started missing time at work would be April 19, 2021 when employer says he started missing time.

While the worker indicated in his submission that the WCB had incorrectly stated he resumed his duties as normal following his injury, the panel is of the view that the evidence indicates that the worker did in fact resume his duties as normal. When the panel put it to the worker that the worker's condition might have started to deteriorate after seven or more months, but not in the immediate vicinity of the injury, the worker acknowledged that in that sense "my statement is incorrect because I did resume at that time." The worker further agreed that the earliest he would have had permission from his superior to do light duties would have been April 19, 2021. When asked what happened during that eight-month period between the date of the injury and the spring of 2021, where he was doing his job and not missing time, the worker stated that "What’s going on during that period of time is it's bothering me, but I mean, I – I'm not complaining about it…I'm getting some headaches. I'm not sure if it's from the accident, you know? I’m – yeah, I'm sore and, you know, and I -- and I just keep – well, I – I got to go to work, I'll walk it off, like don't worry about it. Like you know, and then it just progressed."

The worker has argued that every doctor or specialist he has seen has agreed that the workplace incident is the cause of his ongoing pain and symptoms. When asked for clarification, the worker stated that he was referring to the spine assessment clinic by his treating family physician. The worker said that he had the conference with the spine assessment specialist, and "that this is what they said to me…he said, I mean, he goes, 'Look, you had no problems before this happened. Things progressed.' He says it's -- it's very simple to understand."

When the worker was asked what he meant when he submitted that his degeneration was definitely aggravated or accelerated by the workplace incident, the worker stated that "apparently I had this condition that I knew nothing about…I never had – any issues with it…And then this happens and all of a sudden my issue that I'm finding out about is accelerating or progressing."

The panel carefully reviewed the report from the spine assessment clinic dated September 28, 2022. While the report appears to be fairly comprehensive, the panel was unable to identify any reference to a connection between what the clinic was seeing and diagnosing and the 2020 workplace accident. The panel notes that the report indicated the worker reported he believed his symptoms started with the workplace injury while the specialist was noting that this was a degenerative issue. When asked about this, the worker stated that "I guess that's where, maybe, where there's a missing and either myself or the doctor that when we were having the conversation he implied or agreed or said that, 'Yes.' And he said it was going to be in his report. So that's where I get that from."

Similarly, with respect to his family physician, the worker said that "Her whole thing was she totally agreed with me or -- I don't know if agreed is the right word. But she totally supported that this was due to the injury, but she also said that because she's just a general practitioner, she was not prepared to contradict anyone else."

Based on the foregoing, and on a balance of probabilities, the panel finds, that the worker's current upper spine and cervical difficulties are not causally related to his September 21, 2020 workplace accident or injury. The panel therefore finds that responsibility should not be accepted for the worker's current upper spine and cervical difficulties as being a consequence of the September 21, 2020 accident.

Issue 2: Whether or not the worker is entitled to further benefits.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity or required further medical aid as a consequence of the September 21, 2020 accident.

Given our finding on Issue #1 above, that responsibility should not be accepted for the worker's current upper spine and cervical difficulties as being a consequence of the September 21, 2020 accident, the panel finds that the worker did not sustain a further loss of earning capacity or require further medical aid. The worker is therefore not entitled to further benefits.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of May, 2023