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 wage loss and medical aid benefits. A videoconference hearing was held on April 26, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits.

Decision

The worker is not entitled to wage loss and medical aid benefits.

Background

The worker filed a Worker Incident Report with the WCB on April 11, 2022 reporting that on February 26, 2022 while working with a coworker to assist a resident out of bed, they pulled the resident with all of their strength. They described:

I heard a crack in the middle of my neck. There was stiffness in my neck when turning left or right.

The next day I was feeling tired and there was some discomfort in my arms and neck.

On April 18, 2022, the WCB received a copy of a Doctor First Report for an appointment the worker had with their family physician on March 29, 2022. The worker described the incident to the physician and reported neck pain. The physician examined the worker and found pain with neck flexion and extension. X-rays, muscle relaxant medication and physiotherapy were recommended and restrictions of no bending, turning or lifting for 2 weeks were noted. The treating physician diagnosed the worker with a neck muscle strain. A cervical spine x-ray taken on April 6, 2022 was noted to be normal.

The worker attended for an initial physiotherapy assessment on April 11, 2022 reporting central neck/upper back pain that travels to both shoulders, increased pain with quick arm movements and all neck movements, particularly when looking down, rolling over in bed and taking a deep breath and inability to drive. After examining the worker, the treating physiotherapist recorded guarded head and neck movements, decreased sitting tolerance with the worker visibly uncomfortable after sitting for 10 minutes. Decreased active range of motion was noted in the worker’s cervical and shoulder areas with tenderness on palpitation also indicated. The physiotherapist diagnosed the worker with neck and bilateral shoulder strain and recommended the worker remain off work for one week due to “Poor sitting tolerance and has very little neck ROM (range of motion), and very little arm function. Is not capable of sedentary work.”

The WCB contacted the worker on April 20, 2022 to discuss their claim. The worker confirmed the mechanism of injury and noted their neck immediately stiffened up and they had a difficult time turning their neck from side to side, with the pain getting progressively worse throughout their shift. The worker noted the incident was witnessed by the coworker they were working with that shift and was reported to their supervisor on the same date. The worker advised they initially self-treated their injury, hoping it would improve on its own and when it didn’t, they sought medical treatment from their family physician on March 29, 2022, who recommended physiotherapy. The worker advised the WCB they continued to work their regular duties until they were placed off work by their treating physiotherapist. Currently, the worker advised their neck symptoms were worse, they had mobility issues with not being able to turn their neck from side to side or up and down without pain and stiffness. The worker also described difficulty sleeping due to the sharp constant pain but noted the pain in their upper back/shoulders was improving.

On April 20, 2022, the employer submitted an Employer’s Accident Report to the WCB noting the workplace accident was only reported to the employer that day, after the physiotherapist had submitted their report. In a discussion with the WCB on April 29, 2022, the employer advised the worker’s supervisor did not recall the worker reporting an incident on February 26, 2022 and noted the supervisor would have completed an incident report and/or sent the worker home had the incident been reported. It was further noted based on when the supervisor and worker were on shift together, the correct incident date was February 19, 2022. The employer also provided the WCB with contact information for the worker’s coworker who witnessed the incident. On May 3, 2022, the WCB spoke with the worker’s coworker who advised the WCB they couldn’t recall the exact date when the incident occurred but did recall the worker stating during one of their shifts that they had hurt their upper back/neck area. The coworker could not recall what they were doing at the time the worker advised the incident occurred. On May 3, 2022, the WCB advised the worker their claim was acceptable however, they were not entitled to wage loss or medical aid benefits as the worker delayed in reporting the incident and seeking medical treatment. On May 9, 2022, the worker contacted the WCB to provide contact information for another coworker who they spoke with immediately after the workplace incident. The WCB spoke with the second coworker on May 11, 2022 who advised the worker described the incident with the first coworker and confirmed the worker advised they injured their neck as a result. The second coworker could not recall the specific date the incident occurred or other details beyond what the worker described to them. On May 11, 2022, the WCB verbally advised the worker the information from the second coworker did not change the earlier decision they were not entitled to wage loss or medical aid benefits.

The worker requested reconsideration of the WCB’s decision to Review Office on July 26, 2022. In their submission, the worker noted their coworkers were aware of the incident and noted their belief their injury was not severe and did not require immediate medical treatment. The worker felt they had taken reasonable steps to self-treat their injury until it worsened to the point they could no longer self-treat, they sought medical from their family physician and a physiotherapist and now required further treatment, including wage loss for the recommended time off work to recover.

On September 8, 2022, Review Office determined the worker was not entitled to benefits. Review Office was unable to establish the worker sustained a loss of earning capacity or required medical aid due to the worker’s delay in seeking medical treatment until 5 ½ weeks after the workplace accident. Review Office found the worker’s symptoms immediately after the February 19, 2022 workplace accident were likely more acute and was unable to accept the worker requiring medical treatment more than 5 weeks post-injury as a strain type injury would typically not progress in intensity but the symptoms would subside in that time.

The worker’s representative filed an appeal with the Appeal Commission on December 8, 2022 and a hearing was arranged.

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 June 29, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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. The provisions of the Act in effect as of the date of the worker's accident are applicable.

A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Where the WCB determines that a worker has sustained a loss of earning capacity, an impairment, or requires medical aid as a result of an accident, compensation is payable under section 37 of the Act.

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.

Worker’s position:

The worker was represented by a worker advisor. It was the worker’s position that she ought to be entitled to benefits.

The worker described the mechanism of injury. She said that, at the time of the injury, she was working predominantly as a COVID screener. She would occasionally assist other health care aides with their duties. On the day of the incident, she was asked to assist a co-worker with the transfer of a resident with mobility issues. As she attempted to do so, she heard a crack in the middle of her neck. She immediately noticed stiffness when turning left or right. The incident was observed by a co-worker and reported to the worker’s supervisor.

Although the worker was able to return to her screening duties within a few days, she says that she continued to experience pain and discomfort. She attempted conservative treatment at home. She says her pain and symptoms grew worse over time, leading her to eventually seek assistance from her physician. Her physician diagnosed a Musculo-skeletal strain, for which she recommended muscle relaxant medication, physiotherapy, and light duties. The worker began physiotherapy on April 11, 2022. She continued with physiotherapy for several weeks and experienced a gradual recovery over time.

The worker takes the position that her recovery was complicated by returning to heavy duties too quickly after the initial incident. She says that once she began receiving regular physiotherapy, she experienced a gradual and progressive recovery, as reflected in the physiotherapist’s chart notes. Although the worker acknowledges that there may have been a delay in seeking treatment, it ought not to preclude her from entitlement to wage loss and medical aid benefits.

Employer’s Position:

The employer did not participate in the hearing.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained an injury for which she is entitled to wage loss and medical aid benefits. For the reasons that follow, we are unable to make that finding.

The panel has carefully considered the worker’s description of the workplace incident and has reviewed the medical information on file. We note that the medical evidence on file confirms the mechanism of injury and that the worker sustained a musculo-skeletal strain injury. The worker, however, did not seek treatment for the injury until well after 5 weeks post-injury and in response to what the worker described as a deterioration of symptoms.

While the panel does not dispute that the worker sustained an injury, given the mechanism of injury as described by the worker and the worker’s physician’s diagnosis, the injury sustained by the worker was identified as a strain/sprain injury. The normal recovery period for a sprain/strain injury is a matter of several weeks. Typically, the acute phase of the injury occurs in the first few weeks after the injury, after which it typically starts to show improvement. In this case, however, the worker’s condition deteriorated, rather than improved, over time and she experienced an increase in intensity in symptoms over time, rather than a decrease. By the time the worker first attended physiotherapy, which was now over 6 weeks post-injury, the worker described her condition and symptoms as having worsened to the point that she had difficulty breathing deeply, was unable to sleep, and was largely incapacitated such that she required assistance getting in and out of bed.

The medical information on file offers no explanation as to why this worker’s condition deteriorated so significantly after what would typically be considered the acute phase of the injury. X-rays taken on April 6, 2022, did not reveal any findings which would explain the worker’s ongoing problems or progress in intensity of symptoms. Physiotherapy reports similarly offer no explanation as to why the worker’s symptoms increased in intensity over time, rather than decreased.

In the circumstances, the panel is unable to find, on the basis of the evidence before it, and on a balance of probabilities, that the workplace accident caused the worker’s ongoing and increased symptoms. The panel is therefore not persuaded that, as a result of a workplace accident, the worker sustained a loss of earning capacity or required medical aid. As such, we do not find that the worker is entitled to wage loss or medical aid benefits.

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 10th day of August, 2023