The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility was not accepted for their lung condition as being a consequence of the November 15, 2021 accident; and 

2. They are not entitled to wage loss and medical aid benefits.

A hearing was held on November 2, 2023 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the worker's lung condition as being a consequence of the November 15, 2021 accident; and 

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

Decision

1. Responsibility should not be accepted for the worker's lung condition as being a consequence of the November 15, 2021 accident; and 

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

Background

On December 23, 2021, the worker provided a Worker Incident Report to the WCB reporting a respiratory injury that occurred at work on November 15, 2021. In discussion with the WCB on December 29, 2021, the worker advised that as they were leaving a building in the course of work, they slipped on ice, fell, and landed on their right side, specifically their shoulder and knee. The worker noted they also hit a rack on the way down, sustaining injuries to both knees and their right hip. The worker advised there was a witness to the incident and provided contact information for the witness. The worker explained they did not report the incident to the employer as they did not believe their injuries were serious, but when blood clots were found in their lungs during a CT scan, they notified the employer immediately.

The WCB received medical reports including a November 24, 2021 report from the treating cardiologist outlining that a CT scan performed on November 18, 2021 indicated “…multiple pulmonary emboli…” in the right lobe of the worker’s lung, and that the worker “…had no shortness of breath, and no evidence of a DVT (deep venous thrombosis).” A report from the treating family physician dated December 13, 2021 noted the worker had “shortness of breath with exertion” after returning to work for 1 day and placed the worker off work until January 3, 2022.

When the WCB spoke with the employer on January 11, 2022, the employer advised the worker had not reported an incident that occurred on November 15, 2021. The employer confirmed that on receiving the report from the WCB, they contacted the worker who advised them there was no new incident, but they had sought medical treatment for an old injury.

On January 13, 2022, the WCB advised the worker the evidence on file did not support a relationship between the worker’s current difficulties and a workplace incident on November 15, 2021.

The WCB received copies of further medical reports from the treating healthcare providers dealing with various injuries including piriformis/mechanical right hip difficulties and left knee osteoarthritis. On March 15, 2022, the worker saw a physician with an interest in occupational medicine who recorded the worker’s history and noted that on November 15, 2021, the worker reported falling on their right hip and injuring their left knee. The physician outlined that a pre-scheduled CT scan on November 18, 2021 revealed pulmonary emboli in the worker’s right middle and lower lobes of their lung and as a result, the worker was advised to seek treatment with their family physician. The physician noted the worker’s report of persistent shortness of breath and a non-productive cough and stated that pulmonary emboli were normally associated with “…having blood clots in the leg veins, being sedentary along with tendencies to form blood clots.” As the worker did not have a history of blood clots, was not sedentary prior to the November 15, 2021 injury and had not reported any leg symptoms to their family physician, the physician concluded that the pulmonary emboli were associated with trauma and opined that the worker’s fall on November 15, 2021 likely “…precipitated [their] development of pulmonary emboli.” The physician referred the worker to a lung specialist for further treatment.

On April 4, 2022, the WCB sent a decision letter to the worker confirming the previous decision that the worker’s claim was not acceptable as after review of the new medical information, a connection between the worker’s difficulties and the workplace accident could not be established.

At the request of the worker, the WCB attempted to contact the witness to the November 15, 2021 incident. On June 23, 2022, the WCB spoke with the witness who confirmed they witnessed the worker fall backwards on snow-covered steps, landing on their lower back, glutes and then slide down. The witness advised that they, along with another witness, helped the worker up and took the worker home. On June 24, 2022, the WCB spoke with the other witness who confirmed the information provided by the first witness, and noted that after the incident, they saw the worker limping and struggling to walk.

The employer provided an Employer Incident Report on July 13, 2022, indicating the worker had not reported information regarding an incident on November 15, 2021.

On July 25, 2022, the WCB advised the worker their claim was acceptable for a right hip and glute injury that occurred on November 15, 2021; however, they were not entitled to wage loss or medical aid benefits. The WCB noted the witnesses confirmed the worker fell and injured their right hip and glute area. but the incident was not reported to the employer nor did the worker seek medical treatment until December 13, 2021. Medical reports from February 2022 indicated a diagnosis of soft tissue injuries resulting from the workplace accident, and recovery from such injuries would typically occur in 4 to 6 weeks. As such, the WCB determined the worker recovered from the workplace injury and was not entitled to benefits.

On July 29, 2022, the worker’s representative requested Review Office reconsider the WCB’s decision. In their submission, the representative noted the worker’s claim should be accepted as the worker’s “…chest and musculoskeletal injuries from the November 15, 2021 incident are work-related…” and likely led to the worker’s development of pulmonary emboli. Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB adjudicator requested further medical information from the treating healthcare providers. On August 8, 2022, the WCB received a report from the treating cardiologist and on October 18, 2022, received detailed chart notes from the treating family physician.

A WCB medical advisor reviewed the new medical information and the worker’s file on November 15, 2022, noting the worker reported falling on November 15, 2021 and attended for a pre-scheduled CT scan on November 18, 2021 which indicated the worker had multiple pulmonary emboli in the right lower lobe of their right lung. The medical advisor noted the August 5, 2022 report from the treating cardiologist recorded that the worker was first seen on April 8, 2021 due to another health concern and a CT scan at that time “…showed possible pulmonary emboli in the right lower lobe.” Further, the WCB medical advisor found the medical reports on file around the time of the workplace injury indicate the worker did not report any shortness of breath or chest pain. The medical advisor reviewed the report from the physician with an interest in occupational medicine including the provided medical case studies and opined the evidence did not support the worker’s current difficulties were medically accounted for in relation to the November 15, 2021 workplace accident. On November 18, 2022, the WCB advised the worker the previous decision remained unchanged.

The worker again requested Review Office reconsider the WCB’s decision on December 13, 2022, providing additional medical information, including a November 3, 2022 report from the treating cardiologist indicating the worker suffered from “post PE (pulmonary embolism) syndrome” and required restrictions limiting their aerobic capacity at work. The worker noted their belief that this information supported the need for further benefits.

On January 18, 2023, Review Office determined the worker’s lung condition was not compensable and the worker was not entitled to wage loss and medical aid benefits. Based on the evidence, Review Office concluded the November 15, 2021 workplace accident did not cause or contribute to the worker’s current lung difficulties, diagnosed as a pulmonary embolism. With respect to wage loss and medical aid benefits, Review Office found the worker’s claim was accepted for a right hip/glute soft tissue injury, and the medical evidence supported the worker had longstanding and pre-existing degenerative conditions that account for the worker’s current difficulties. As such, the worker was not entitled to wage loss and medical aid benefits.

The worker’s representative filed an appeal with the Appeal Commission on June 12, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on January 18, 2024 to discuss the case and render a decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation 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. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB has 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 Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy outlines that when a 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 WCB will accept responsibility for the full injurious result of the compensable injury, but that 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 WCB has also established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) which applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This Policy sets out that a further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker’s Position

The worker appeared in the hearing, represented by a worker advisor, and accompanied by a support person. The worker advisor made an oral submission in support of the worker’s appeal and the worker offered testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that as a result of the accident of November 15, 2021 in which they slipped and fell down icy stairs, the worker sustained injuries to their chest and knees, which resulted in internal bruising and bleeding which either caused blood clots to form or to release which resulted in the finding of pulmonary emboli November 18, 2021. The worker’s position is that this condition is not a pre-existing condition but a further injury subsequent to the compensable injury and that the evidence establishes that the cause of the pulmonary emboli is the workplace accident. As such, the WCB should accept responsibility for the worker's lung condition as a consequence of the November 15, 2021 accident.

The worker’s position with respect to their entitlement to further wage loss and medical aid benefits is that the evidence supports a finding that the worker continues to require treatment and remains unable to return to work as a result of the injuries to their right hip and left knee, and the subsequent pulmonary emboli.

The worker advisor noted the Review Office comment that the WCB has not adjudicated whether the worker is entitled to benefits in relation to a left knee injury arising from the workplace accident and directed that this be investigated further. Nonetheless, the worker advisor submitted that the panel has jurisdiction to determine the worker’s entitlement to further benefits in relation to their left knee, as well as the other injuries to the worker; however, if the panel determines it does not have such jurisdiction in relation to the worker’s left knee injury, the worker asserts their right to pursue further appeals in relation to that injury if the WCB does not adjudicate that question in the worker’s favour.

The worker advisor submitted that the evidence supports a finding that the worker has a continuing loss of earning capacity as their job duties are physical and require that the worker be capable of driving, squatting and kneeling as well as walking up and down stairs, which activities the medical reporting confirms are difficult or painful for the worker to undertake. Further, the employer has confirmed they cannot accommodate any requirement for modified duties.

The worker advisor noted that there were multiple communication challenges that complicated WCB decision-making in relation to this claim, but that the mechanism of injury is consistently described in the reporting by the worker, the medical treatment providers, and the witnesses.

Further, the worker advisor submitted that the medical reporting supports the worker’s position that as a result of the compensable fall on November 15, 2021, the worker sustained an injury to their right hip that was more significant than contusion and soft tissue injury, but also caused a suspected muscular injury and further, likely aggravated the worker’s pre-existing right hip osteoarthritis.

In sum, the worker’s position is that the evidence supports a finding that their lung condition is a consequence of the injuries sustained in the compensable workplace accident of November 15, 2021 and further that the evidence supports a finding that the worker sustained a loss of earning capacity and required medical aid as a result of that fall.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal arises from the WCB’s decisions that the worker’s lung condition is not a consequence of the November 15, 2021 workplace accident and that the worker is not entitled to wage loss and medical aid benefits. For the worker’s appeal to succeed, the panel would have to determine that the worker’s lung condition is causally related to the November 15, 2021 compensable accident and further, that the worker sustained a loss of earning capacity and required medical aid as a result of the injuries sustained in that accident. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The panel noted the submissions on behalf of the worker that addressed the reported injury to the worker’s left knee as a consequence of the workplace accident of November 15, 2021. The panel noted that left knee complaints are referenced in Review Office’s request for further investigation of the claim of July 26, 2022 but that the WCB did not note any findings specifically in relation to a left knee injury in their decision of November 16, 2022 and that Review Office also did not address this question in their decision of January 18, 2023. As a left knee injury has not been specifically adjudicated in relation to the claim arising from the November 15, 2021 workplace accident, the panel finds it does not have jurisdiction to make any determination at this time in relation to this aspect of the worker’s claim.

The panel considered the description of the accident as provided by the worker and the witnesses to the worker’s fall. The worker initially described falling on ice and injuring their chest, knees, lungs, and hips. In the hearing, the worker confirmed that when they slipped, they landed on their lower back and gluteal muscles, on the right side. The worker stated it happened quickly and they recalled twisting to the right, and that they were limping afterward. The evidence from the eyewitnesses, provided to the WCB, confirms the worker fell onto their side and back, and was helped to their feet and struggled to walk afterward.

We further noted that although there is evidence that the worker had difficulty walking immediately after the fall, the worker did not initially seek medical attention in relation to any injuries sustained in the fall. The evidence confirms that worker sought care from their family physician on November 23, 2021, November 25, 2021, and December 2, 2021 specifically in relation to the pulmonary emboli discovered in the unrelated and previously scheduled CT scan of November 18, 2021. The worker also sought care from another family physician in the same clinic on December 7, 2021, December 8, 2021, and December 13, 2021, again, in relation to the PE only. The panel finds that the evidence indicates that in these six appointments in the weeks immediately following the accident, the worker did not report any symptoms or concerns requiring medical attention resulting from or following the accident, other than the pulmonary emboli.

We note the worker advisor’s submissions that the emboli likely developed as a result of the worker’s fall on the icy stairs, and that the emboli were discovered on November 18, 2021. We further noted that the information provided by the WCB medical advisor that indicates “Post-traumatic pulmonary embolism has been recognized following major trauma requiring hospitalization for severe injuries. Pulmonary embolism (PE) has traditionally been thought to occur between 5 and 7 days after major injury.” The consulting physician with an interest in occupational health also noted that “Pulmonary emboli have…been associated with trauma, typically this is related to people being hospitalized and immobilized” but went on to provide two case reports where such emboli developed “with more moderate to mild trauma.”

The worker advisor further submitted that the timing of the development of the worker’s shortness of breath, a symptom of a pulmonary embolism, following the workplace accident indicates a relationship to that event and that the emboli developed after that event. The panel noted however that the medical reporting does not indicate that the worker developed this symptom following the accident. The first note of this symptom is contained in the report from the treating family physician to the WCB of December 13, 2021; however, the panel noted that the physician’s chart note of the same date states specifically the worker did not have shortness of breath but stated that the worker “reported to the work place that [they have] shortness of breath.” The panel finds that the evidence does not support the worker’s position in this regard. The fact that the worker said they told their employer they have shortness of breath is not equivalent to a clinical finding of shortness of breath, and in fact there were no such findings recorded at that time.

Further, we find that the mechanism of injury described in the evidence did not result in major trauma nor any subsequent period of hospitalization and immobilization, such as would be a risk factor for the development of a pulmonary embolism. While the panel accepts the evidence that a pulmonary embolism could be caused by a traumatic injury sustained in a fall, the evidence here does not bear that out. Both the treating specialist and consulting physician with an interest in occupational medicine opined that this was a possibility in the worker’s case, but the panel noted that their opinions rely primarily upon the timing of the finding of the pulmonary emboli as supporting a cause and effect relationship. Further, there is a lack of evidence that the worker sustained any injury requiring treatment in the four weeks immediately following the accident. The panel finds that the evidence does not support a finding that the pulmonary emboli were more likely than not a result of the workplace accident.

The panel also considered whether the evidence indicates the worker sustained any loss of earning capacity or required medical aid arising from injuries sustained in the workplace accident. We find a lack of evidence in the medical reporting to support that the worker was unable to continue with their job duties due to an injury to their hip and gluteal region; rather, the evidence indicates the worker was removed from work in mid-December due to concerns they raised arising from the diagnosed pulmonary emboli. Further, the evidence nearest the date of accident does not provide any support for the worker’s position. The panel noted that the first report of more significant hip symptoms is recorded on February 1, 2022 when the worker described right buttock pain and occasional right groin pinching that worsened with walking. The panel noted the comments of the new treating physician on that date that the worker’s right hip and buttock pain is new and “does indeed seem related to [the worker’s] fall” but we also note that this comment is based solely on the worker’s report and does not address the lack of any report of significant symptoms in the 11 weeks since the fall occurred. Specifically, the panel noted the treating family physician commented on December 7, 2021 as to the worker’s ability to “Walk normally no restrictions” in response to the worker’s concerns about their pulmonary embolism and that on December 22, 2021 the worker complained to the physician of left knee symptoms but noted that they were walking normally, with no limp. In the subsequent three medical chart notes from the treating family physician, there is no reference to any right hip symptoms, until on February 3, 2022, the physician recorded the worker’s report of a request for referral to physiotherapy regarding “Left knee joint pain and right hip joint pain”.

Given the significant gap between the date of the workplace accident and the worker’s report of right hip symptoms, the panel is unable to confirm find support for a causal relationship between the compensable accident and the worker’s right hip concerns in February 2022. The medical reporting and the description of the mechanism of injury support this conclusion. We find that the evidence indicates the worker sustained a relatively minor injury to their right hip, consistent with a soft tissue, contusion-type injury as accepted by the WCB. Furthermore, the panel finds that there is no evidence that the accident aggravated or otherwise impacted the worker’s pre-existing right hip osteoarthritis as argued by the worker advisor.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s lung condition is not a consequence of the November 15, 2021 accident and the worker is not entitled to wage loss and medical aid benefits arising from the injuries sustained in that accident. Therefore, the worker’s appeal is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of February, 2024