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 further wage loss and medical aid benefits in relation to the September 11, 2021 accident. A hearing was held on August 17, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits in relation to the September 11, 2021 accident.

Decision

The worker is not entitled to further wage loss and medical aid benefits in relation to the September 11, 2021 accident.

Background

The worker submitted a Worker Incident Report to the WCB on September 13, 2021, reporting injuries to multiple areas that occurred on September 11, 2021 when they fell onto stairs that gave way, scraping the right side of their leg, and landed on the metal stairs and concrete below. The worker described feeling dizzy as they got up, with soreness in their neck and hips. The worker could not recall if they hit their head but noted that their shin was “really hurting from scraping it and bleeding." The Report indicated injury to the worker's neck, low back, right leg, knees, left ankle and wrists.

The worker sought medical treatment the same day, reporting that the stairs to the trailer they worked in gave away and they landed on cement. The treating physician noted the worker's reporting of upper back, neck, and bilateral hip pain due to the fall, and on examining the worker, found tenderness in the worker's upper back, C5-C6 area and bilateral hips. The physician recommended anti-inflammatory medication and diagnosed upper back, neck, and bilateral hip strains.

On September 16, 2021, the worker attended an initial physiotherapy assessment reporting burning pain in their right leg, scrapes on the front of their right shin, neck pain that radiated into their right shoulder and up into the back of their head, headaches, shaky feeling, pain in their lower back/hip area, elbow and wrist pain that was improving and poor sleep due to pain. The physiotherapist recorded decreased active range of motion in the worker's cervical, shoulder, lumbar, and hip areas with dizziness/nausea noted when upper extremity neurological testing was attempted. The physiotherapist noted diagnoses of cervical sprains/strains and concussion-like symptoms and lumbar sprains/strains, and that the worker reported ongoing symptoms in their right shoulder and left hip from a 2011 injury that the worker felt was aggravated by the September 11, 2021 workplace accident.

When the WCB contacted the worker on September 16, 2021, the worker confirmed the mechanism of injury and advised of their current symptoms which included a very sore neck, with pain up the back of their head and certain movements that cause dizziness, discomfort across their low back and hips and a sore left heel.

On October 5, 2021, at a follow-up appointment, the physiotherapist added a diagnosis of tibial nerve irritation. The physiotherapist outlined that the worker was capable of modified duties on reduced hours and recommended restrictions of lift/carry/push/pull a maximum of 10 pounds at waist/shoulder height and no prolonged awkward positions of the head and neck. They recommended working 3 to 4-hour shifts, 3 days per week, on alternating days. The worker returned to work on modified duties on September 28, 2021.

On October 18, 2021, the worker attended an initial chiropractic assessment. The treating chiropractor diagnosed soft tissue injuries to the neck, cervical spine, and sacroiliac joint areas, and recommended further chiropractic treatment.

A WCB medical advisor reviewed the worker's file on October 28, 2021 and opined the worker's symptoms and the clinical findings on file supported strain/sprain type injuries, which were expected to resolve within 2 to 3 months. Noting the worker’s report of some symptoms of dizziness and headache and the treating physiotherapist’s query of concussion, the medical advisor provided those symptoms were "…not specific to concussion and are more likely related to the neck injury and/or the combined effect of multiple areas being injured." The medical advisor provided it was reasonable for the WCB to support both physiotherapy and chiropractic treatment to deal with the multiple areas of injury and help speed up the worker’s recovery.

At follow-up appointments with the chiropractor on October 28, 2021 and with the physiotherapist on November 4, 2021, improvement in the worker's symptoms was noted. The chiropractor discharged the worker from chiropractic care on December 13, 2021.

In a meeting with the WCB, the employer, the worker, and a union representative on December 21, 2021, it was agreed that the worker would return to their full regular duties on January 18, 2022.

The WCB received an initial assessment from a second chiropractor on January 7, 2022 relating to an appointment on December 23, 2021. The chiropractor noted they were seeking approval for further chiropractic treatment for the worker due to ongoing and continuing symptoms and pain. On January 17, 2022, a WCB chiropractic advisor reviewed the file and noted the worker was previously discharged from chiropractic care but given the scheduled return to full duties, recommended additional chiropractic treatment until February 18, 2022. The worker was again discharged from chiropractic treatment on March 1, 2022.

The worker contacted the WCB on May 5, 2022 to advise that after returning to their permanent position, they experienced an increase in symptoms on May 2, 2022. The worker described that their “…muscles were tightening up, more pressure at the back of the head, burning of muscles and started experiencing shakiness…” as well as feeling nauseated and having double vision. The worker left work around noon that day to seek medical treatment. Prior to that date, the worker noted they were still having upper back and neck tightness. On May 8, 2022, the WCB received a copy of the treating physician’s report from the appointment on May 2, 2022, which outlined ongoing difficulties in the worker’s upper back and neck pain and that the worker was removed from work.

A narrative report from the treating chiropractor received by the WCB on May 10, 2022 outlined that the chiropractor was treating the worker from December 23, 2021 to the present. On May 4, 2022, the worker reported hand tremors and a burning sensation in their upper back after working with a client for an hour and a half, following which they attended for medical treatment with their family physician and was placed off work. The treating chiropractor stated that:

“Upon examination, a cranial nerve screen was normal. Jackson, Spurling, and Kemp’s tests in the cervical spine were all tender bilaterally, giving pain to the area of the trapezius muscles. Trapezius muscles we (sic) very tight bilaterally. Kemp’s test in the lumbar spine was negative bilaterally, heel to buttock test was positive on the left. Joint play revealed tender restrictions at C1-3 bilaterally, T3-6 bilaterally, and at the left SI joint.”

The treating chiropractor provided that until May 4, 2022, they noted improvement in the worker’s symptoms, in their range of motion and mobility in their cervical spine, and decreased pain and tenderness, but after the May 4, 2022 appointment, the worker should not be working full regular duties, noting the worker’s prognosis was complicated by the return of the hand tremors.

At the request of the WCB, the worker attended a call-in examination on August 30, 2022. On examining the worker and reviewing the medical reporting and file, the WCB medical advisor concluded that the September 11, 2021 workplace accident caused upper back, neck, and shoulder girdle strains which, after treatment, improved sufficiently for the worker to return to work in January 2022. The medical advisor noted that recovery of strain injuries 4 months after the accident was “…at the outer limits of the anticipated recovery duration…” and concluded the strain had likely materially healed by that date. The medical advisor recorded the worker’s report of worsening symptoms after an incident at work on May 2, 2022 while they were bent over a resident for one and a half hours, with ongoing discomfort in the occiput of their head with pressure to the back of their neck. The medical advisor noted that a strain of the worker’s neck resulting from the May 2, 2022 incident would have recovered by the time of the August 30, 2022 call-in examination. The medical advisor further noted the worker reported resting tremors of their head, neck, torso and both hands along with balance issues, which were not medically accounted for in relation to the September 11, 2021 workplace injury. On speaking with the worker’s treating physician, the medical advisor noted the worker was referred to a neurologist for further investigation of those symptoms.

On October 6, 2022, the WCB advised the worker that their current difficulties were not medically accounted for in relation to the September 11, 2021 workplace accident and as such, they were not entitled to further benefits.

On December 9, 2022, the worker’s representative submitted additional medical information, including an October 27, 2022 report from a physician at a spine assessment clinic, and requested the WCB reconsider its decision. The physician noted the worker described symptoms of degenerative/mechanical neck pain with a likely myofascial component, along with ongoing tremor, intermittent blurred and double vision, trouble concentrating, frustration, occasional clumsiness and persistent headache. The treating physician opined that the worker’s cervical spine difficulties may be contributing to the worker’s reported headaches and dizziness, but the assessment and diagnostic imaging did not provide an explanation for all the worker’s symptoms. The physician recommended further treatment. The additional information also included was a November 30, 2022 report from the treating neurologist, who opined the worker had an “…essential type tremor, precipitated/brought out by the neck stiffness and pain secondary to the spine degenerative changes (with her reported injuries aggravating the neck condition, obviously).” The neurologist also recommended further treatment.

The new medical information and the worker’s file were reviewed by a WCB medical advisor on January 3, 2023 who agreed with the August 30, 2022 opinion of another WCB medical advisor after the call-in examination. The medical advisor concluded the worker’s strain injuries from the September 11, 2021 workplace accident were resolved and the worker’s current difficulties were not medically accounted for in relation to the accident.

On January 9, 2023, the WCB advised there would be no change to the earlier decision they were not entitled to further benefits.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on January 23, 2023. The representative submitted that the medical evidence provided supports the worker suffered an accident on May 2, 2022 and continued to report ongoing difficulties as a result. Additional information was provided on January 25, 2023. On March 2, 2023, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was provided to the worker and their representative on March 7, 2023.

On March 23, 2023, Review Office determined the worker was not entitled to further benefits. Review Office found the worker did not report any difficulties after their return to work in January 2022 and completed their chiropractic treatment on February 18, 2022 with no further concerns or additional treatment requested, which indicated the worker was recovered from the September 11, 2021 workplace accident. Review Office concluded that a causal connection between that accident and the worker’s current difficulties could not be established.

The worker’s representative filed an appeal with the Appeal Commission on May 3, 2023 and a hearing was arranged.

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. 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 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. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

The WCB has established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) 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. In such situations, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate event. The Recurrence Policy provides that the WCB will determine the worker’s current condition is a recurrence if the previous workplace accident is the dominant cause of the renewed symptoms or increase in permanent impairment, considering the following questions:

1. Was there an intervening incident, event or exposure ("intervening event") between the previous workplace accident and the renewal of symptoms or increase in permanent impairment (the “current condition”)? If there was no intervening event, the WCB is more likely to determine that there is a recurrence. 

2. If there was an intervening event, was it significant enough to be the cause of the worker's current condition? If the WCB determines the intervening event was significant enough to cause the worker's current condition, there is no recurrence. The WCB will adjudicate the claim in the same manner it would a new workers compensation claim. 

3. Are there indicators that the worker's current medical condition is consistent with the injury caused by the previous workplace accident? In making this determination, the WCB will look for evidence that: 

• the parts of the body or anatomical sites currently affected are the same as those affected by the previous workplace accident; 

• the physical or psychological functions affected are the same or similar as those affected by the previous workplace accident; 

• the degree to which physical or psychological functions are currently affected is similar to the degree to which they were affected by the previous workplace accident; 

• the worker is currently experiencing physical or psychological symptoms similar to those they had experienced after the previous workplace accident. 

4. Are there indicators of consistency between the worker's previous workplace accident and their current condition? In making this determination, the WCB will look for evidence that: 

• the worker received additional or continued medical care since the previous workplace accident; 

• the worker experienced continuing physical or psychological symptoms since the previous workplace accident. 

• the worker reported concerns about their physical or psychological condition to supervisors, co-workers or others; 

• the worker altered their regular activities after the previous workplace accident; 

• the accident required work restrictions or job modifications.

The WCB has also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, 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 Pre-existing Policy includes the following definitions: 

• 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 appeared in the hearing with a union representative who made an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by their representative and by members of the appeal panel. A colleague of the worker attended the hearing as a support to the worker.

The worker’s position, as outlined in their representative’s submission, is that the worker was not fully recovered from the compensable injuries sustained in the workplace accident of September 11, 2021 when the WCB determined that the worker was not entitled to further benefits, and when the worker returned to their return to their pre-accident, pre-secondment duties on May 2, 2022, the worker experienced an increase in their symptoms related to that accident.

The worker’s representative outlined the medical reporting in support of the worker’s position, noting a consistency of symptoms reported after the initial injury and after May 2, 2022, including dizziness and nausea, pain in the worker’s neck, hips and leg, and lower back. The worker’s representative noted that in May 2022 the worker again reported an increase in pain in their back and hips, bilateral tremors, and nausea.

The worker described to the panel the nature of their job duties on May 2, 2022, noting that they first felt tightness in their upper back and shoulders, and developed pain in the back of their head and shakiness, with some double vision later. The worker’s representative noted that although the worker had a “second” working with them that day, the worker did most of the physical labour which included forward-bending, lifting, holding, and repositioning the clients with outstretched arms. The worker stated they believe it was the duration of these duties that caused their symptoms to increase, noting that they were unable to complete their job duties that day and went home early.

The worker outlined that the treatment of their continuing symptoms has included multiple injections and well as physiotherapy and chiropractic care. The worker confirmed that they did not previously have any tremors, and that although they had prior cervical spine issues, they were not seeking any medical treatment for that condition prior to September 11, 2021. The worker also confirmed that prior to their secondment in fall 2020, they did not have any restrictions in place in relation to their regular job duties, which they were in since 2014. 

The worker’s representative submitted that the evidence is sufficient for the panel to find either that a new accident occurred on May 2, 2022, or that the worker’s injury on September 11, 2021 or on May 2, 2022 caused an enhancement of the worker’s pre-existing degenerative back condition.

In sum, the worker’s position is that they continue to experience symptoms arising from the accident of September 11, 2021 which increased upon their return to their pre-secondment duties on May 2, 2022. Therefore, the worker should be entitled to further wage loss and medical aid benefits in relation to the September 11, 2021 accident and the appeal should be granted.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer.

The advocate outlined the employer’s position that the evidence indicates the worker recovered from the injuries sustained in the accident of September 11, 2021, and that the primarily neurological symptoms that later arose are not related to that accident.

The advocate urged the panel to rely upon the December 30, 2022 opinion of the WCB medical advisor who concluded that, by that date, the worker would have been expected to be recovered from the shin contusion, wrist strains and neck strain arising out of the September 11, 2021 accident. The advocate acknowledged that in March 2022, the treating chiropractor placed restrictions in relation to the worker’s job duties but submitted that these restrictions did not relate to the injuries incurred in September 2021 but to the worker’s pre-existing back condition.

The employer’s advocate submitted that the question of aggravation or enhancement of the worker’s pre-existing back condition arising out of either the September 11, 2021 or the May 2, 2022 incidents has not been previously adjudicated by the WCB and therefore is outside the jurisdiction of the appeal panel in this case. Furthermore, the advocate submitted that the WCB has not adjudicated whether the worker is entitled to benefits in relation to the worker’s accident claim of May 2022 and therefore the panel also does not have jurisdiction to determine that question.

In sum, the employer’s position is that the worker recovered from the effects of the September 11, 2022 accident by the time the worker returned to their pre-secondment job duties on May 2, 2022 and that the worker’s ongoing symptoms are not related to the injuries sustained in the accident of September 11, 2022. Therefore, the worker is not entitled to further wage loss and medical aid benefits in relation to the accident of September 11, 2022 and the worker’s claim should be denied.

Analysis

The question for the panel to determine is whether the worker is entitled to further wage loss and medical aid benefits in relation to the September 11, 2021 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker’s continuing difficulties are causally related to that accident claim. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel reviewed the medical reporting in relation to the injuries the worker sustained in the September 11, 2021 accident as well as the opinions of the WCB medical advisors in relation to the worker’s recovery from those injuries. The accepted compensable diagnoses in relation to that accident are neck/upper back strain, shoulders strain, low back/hips strain, left ankle strain and right shin abrasions. The panel noted that the worker was approved for a gradual return to work as of September 28, 2021 and a complete return as of January 18, 2022. In the intervening period, the worker’s various injuries were treated with physiotherapy and chiropractic care. The panel noted that by December 20, 2021, the treating physiotherapist indicated the worker was limited only in terms of lifting, carrying, push/pull and grip/grasp up to 20 pounds with a return to full regular duties by January 18, 2022. When the worker was assessed by a second chiropractor on December 23, 2021 who noted the worker was “still experiencing pain” after they were discharged by the previous chiropractor. The WCB chiropractic consultant agreed on January 11, 2022 that “the compensable injury would still be considered to be playing a role in the claimant’s persistent symptoms” but also noted that “Given the time since injury and treatment to date, the claimant is probably at maximal therapeutic benefit with respect to chiropractic treatment. Additional treatment would not be expected to result, in and of itself, in sustained progressive improvement in symptoms or function.” At that time the WCB authorized a limited course of additional chiropractic care “to support the claimant’s full return to work” with weekly treatment until February 18, 2022.

The panel noted that the second treating chiropractor outlined additional restrictions on March 11, 2022 and again on April 25, 2022 to apply until the worker’s secondment position concluded, suggesting a review would be necessary before the worker returned to their pre-secondment job duties. These restrictions were more limited than those in place in December 2021. As noted by the WCB medical advisor following the August 30, 2022 call in examination, the worker’s acute symptoms following the initial accident were improved such that the worker was able to return to their pre-accident duties in January 2022, and a “…recovery period of four months would be at the outer limits of the anticipated recovery duration for the September 11, 2021 strains. As such, the strains of September 2021 had likely materially healed by January 2022.” This view is supported by the prior opinions of the treating physiotherapist and initial treating chiropractor, as well as by the WCB chiropractic advisor, as well as by the January 2023 opinion of another WCB medical advisor.

While the worker’s restrictions were increased in limitation by the second treating chiropractor in March 2022, the evidence does not support that this was due to the injuries sustained in the workplace accident of September 11, 2021. The panel also noted that the worker did not at that time request further coverage for their continuing medical care from the WCB, suggesting that the worker also did not relate the increase in restrictions to their compensable injury. It was only when the worker resumed their pre-secondment job duties on May 2, 2022 that the worker again contacted the WCB, ultimately initiating a new accident claim in relation to their specific job duties on that date. The WCB determined at first that there was not a new accident but a recurrence of the worker’s September 11, 2021 injuries and adjudicated further on that basis.

The panel therefore also considered the application of the Recurrence Policy to the worker’s claim. The Recurrence Policy requires that the following questions be addressed:

1. Was there an intervening incident, event or exposure ("intervening event") between the previous workplace accident and the renewal of symptoms or increase in permanent impairment (the “current condition”)? 

As noted above, in this case the worker reported an intervening incident that took place on May 2, 2022 and the WCB opened a new claim file in relation to that incident based upon the reports from the employer and the worker. This suggests to the panel that there may have been an “intervening event” that would not support the finding of a recurrent condition. 

2. If there was an intervening event, was it significant enough to be the cause of the worker's current condition? 

The evidence indicates that the employer and the worker both were of the view that the intervening event was significant and was the cause of the worker’s current condition, resulting in the filing of a new claim in July 2022. The employer and worker representatives confirmed this in their submissions to the panel in the hearing. The panel also noted that a very different mechanism of injury is described in this claim than in the September 11, 2021 accident claim. We are satisfied that this intervening event was “significant enough” to have potentially caused another injury, but not that the medical opinions in evidence have not specifically addressed the relationship between this mechanism of injury and the worker’s current condition. 

3. Are there indicators that the worker's current medical condition is consistent with the injury caused by the previous workplace accident? 

While the evidence indicates some similarities in terms of the body or anatomical sites affected on and after May 2, 2022 and after the fall on September 11, 2021, there are also significant differences in that the worker’s ankle and leg are not involved, there are new symptoms reported, in terms of tremors, and the degree of symptoms is more significant than after the initial accident, in that the worker has not been able to return to work whereas after the initial injury the worker was back at work, with restrictions, approximately two weeks later. Furthermore, new, and different medical investigations are ongoing. The panel does not find that the evidence supports that the worker’s current medical condition is consistent with the injuries caused by the previous workplace accident. 

4. Are there indicators of consistency between the worker's previous workplace accident and their current condition? 

The evidence confirms that the worker continued with chiropractic care after February 2022, with some continuity of back and neck related symptoms but that this did not affect the worker’s ability to continue to do their job leading up to resuming their previous position on May 2, 2022. While some restrictions were placed on the worker by the second treating chiropractor after February 2022, the panel is not able to causally relate these to the workplace accident in September 2021 on the basis of the evidence before us.

Having considered these questions in light of the evidence before the panel, we are unable to find that the worker’s symptoms after May 2, 2022 are a recurrence of the injuries sustained on September 11, 2022, nor that these symptoms are a continuing result of those injuries. We are satisfied based on the evidence before us and on the standard of a balance of probabilities that the worker was functionally recovered from the injury sustained on September 11, 2021 by February 2022 and did not require additional medical aid or wage loss benefits arising out of that accident beyond that date. The panel notes that this is consistent with the WCB’s determination that the worker’s symptoms that arose during and following their return to work on May 2, 2022 were not a recurrence of the injury sustained on September 11, 2021, but we also note that the WCB failed to then adjudicate the new accident claim filed by the employer on July 5, 2022 and by the worker on July 15, 2022. As that claim is not before the panel, we are unable to make any findings related to it.

The panel also considered the worker’s submission that the evidence supports a finding that the worker’s pre-existing multilevel degenerative spine condition may have been enhanced or aggravated by either the September 11, 2021 accident or the events of May 2, 2022; however, as there has been no investigation or determination by the WCB as to the possible impact of either event on the worker’s pre-existing back condition, the panel does not make any findings in that regard.

Therefore, based on the totality of the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker is not entitled to further wage loss and medical aid benefits in relation to the September 21, 2021 accident. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of September, 2023