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 or medical aid benefits in relation to the December 20, 2021 accident. A hearing was held on May 28, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits in relation to the December 20, 2021 accident.

Decision

The worker is not entitled to wage loss or medical aid benefits in relation to the December 20, 2021 accident.

Background

The WCB received a Doctor First Report on September 28, 2022 reporting the worker injured their right shoulder, neck, right low back, and hip as the result of an incident at work on December 20, 2021. The report described the injury as occurring when the worker fell from a ladder after their foot slipped, landing with their right side on the ladder and the concrete floor, and included an August 24, 2022 narrative report from a community medicine physician. In the narrative report, the physician noted when they examined the worker on August 4, 2022 and August 25, 2022, the worker described that when the accident occurred, their helmet did not come off their head as they fell, striking their skull at the back of their right ear as well as their right shoulder blade, side of their ribs and their right lateral hip. The worker described losing consciousness for up to 10 minutes, and that soon after, their supervisor came to the work site, and the worker described the fall to them. The supervisor called their supervisor, and a Notice of Incident Form was completed and signed by the worker and the second supervisor. Further, the worker stated they were called into a meeting the following day, which was followed by an annual four month lay-off period for all workers. The worker advised that most workers return for 10 days of work in January before the lay-off continues into April, but the worker did not work those 10 days and did not return when the lay-off ended in April 2022. The worker reported when they sought medical treatment from their family physician in December 2021 or January 2022, their back and shoulder were examined, they showed the treating physician the Notice of Incident, and they were prescribed pain relief medication. The report noted the worker sought additional medical treatment, including a visit to a local emergency department.

The community medicine physician described the worker’s current difficulties with ongoing pain and functional impairments related to their right hip region, soreness in their right low back and lateral abdominal wall extending into their right lateral thigh. In addition, they reported right torso pain, pain in the right shoulder into their chest side wall and right posterior neck area with persistent tenderness and discomfort in the area behind the right ear on the skull. On examining the worker, the physician found back stiffness on side flexion bilaterally, including the neck area with shortness in the right lateral neck with “…strong pain throughout the posterior right shoulder girdle and mid back” on active retraction of the shoulders. The physician detailed findings in relation to pain and tenderness in the worker’s right shoulder, back, buttocks, side, torso, neck, and scalp, and concluded the worker’s physical complaints and pain limitation dated back to the workplace accident of December 20, 2021.

On October 6, 2022, the employer submitted the Employer’s Accident Report to the WCB, reporting the worker suffered multiple injuries on December 20, 2021 when they fell off a ladder while at work. The employer noted the worker was advised of a lay-off in September 2021, which occurred effective December 22, 2021 and further, that the worker did not return from the layoff and did not provide the employer with medical information to support they could not return to work. On October 19, 2022, the employer advised the WCB that the worker worked their regular duties on December 21, 2021 before the layoff on December 22, 2021.

The WCB received chart notes and a narrative report from the treating family physician on October 27, 2022. The family physician noted they treated the worker since June 2017 and provided a detailed report on the worker’s treatment since then. The physician advised that the worker had various non-compensable health conditions, and that they saw the worker shortly before and after the December 20, 2021 workplace accident but the worker did not report the accident or any related symptoms to them. The family physician noted the worker sought treatment at a local emergency department on December 25, 2021 for a lacerated finger that required sutures and saw the family physician on January 4, 2022 to remove those sutures. The physician indicated at no time did the worker report the workplace accident to them and no mention was made in the emergency department report, a copy of which was enclosed with the physician’s report. The physician stated that at an appointment on May 16, 2022, the worker complained of low back pain, among other issues, after attending a local emergency department on May 7, 2022 for that complaint. On May 7, 2022, the worker reported to the treating emergency physician that they related their back pain to falling off a ladder at work approximately one year previously, for which they did not seek medical treatment as they were able to recover without any ongoing issues. On September 8, 2022, the worker attended for a further appointment with the family physician, reporting they saw the community medicine physician regarding their December 20, 2021 workplace accident consisting of a fall off a ladder. The family physician discussed the report with the worker and indicated to them they were physically well with their pre-existing non-compensable conditions causing their current difficulties.

The WCB advised the worker on November 2, 2022 that the claim was accepted for a workplace accident that occurred on December 20, 2021, but the worker was not entitled to wage loss or medical aid benefits as the medical evidence did not support a finding that the current and ongoing difficulties were related to that accident.

On May 18, 2023, the worker requested Review Office reconsider the WCB’s decision as they were unable to work due to the December 20, 2021 workplace accident, with the injuries detailed in the August 24, 2022 report from the community medicine physician and as such, should be entitled to benefits. On June 15, 2023, the employer provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on June 16, 2023 and who provided a response on June 26, 2023. Review Office found on June 29, 2023 that the worker was not entitled to wage loss or medical aid benefits. Review Office acknowledged the worker was not familiar with the WCB process but found the worker attended for medical treatment several times over the course of 8 months without reporting the workplace accident or any symptoms related to that accident and determined that indicated the worker did not have a loss of earning capacity related to the December 20, 2021 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on February 8, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

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. The provisions of the Act and WCB policies 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 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.”

Worker’s Position

The worker appeared in the hearing and was represented by a worker advisor and assisted by an interpreter. The worker advisor provided an oral submission and relied upon a written submission provided in advance of the hearing, on behalf of the worker. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined in the worker advisor’s submission, is that the worker is entitled to wage loss benefits and medical aid benefits arising from the injury sustained in the accident of December 20, 2021.

The worker advisor’s submission noted the significant language barriers faced by the worker, both in the workplace and in their interactions with medical professionals, and submitted that because of that barrier, the worker could not effectively communicate their medical needs and symptoms resulting from the accident. Therefore, the worker advisor submitted that the panel should place little reliance upon the medical reporting of the various physicians who treated the worker following the accident and should give significant weight to the report from the community medicine physician who assessed the worker in August 2022, through the assistance of an interpreter.

The worker advisor submitted that the August 24, 2022 report from the community medicine physician “…represents the best evidence regarding the worker’s accident-related injuries and of their impact upon [the worker], including causing an inability to work regular or modified/alternate work duties….” The worker advisor urged the panel to consider that if the worker could have seen this physician nearer to the date of accident, the findings would likely have been the same.

The worker advisor noted that although the worker maintains they showed the Notice of Incident form to their medical providers, this is not reflected in any of the chart notes of the various physicians providing treatment. The worker advisor submits that the medical reporting does not disprove that the worker continued to deal with the effects of the workplace accident, that the worker tried to communicate this to their medical providers, that the worker had a loss of earning capacity as a result of the injury and that the worker required medical aid in relation to the injury.

The worker advisor submitted that the worker should be entitled to wage loss in relation to the ten day call-back beginning January 31, 2022, noting that the worker phoned the employer “sick line” on each of those ten days to report they could not work, but the employer did not follow up with the worker. Further, the worker should be entitled to additional wage loss benefits in relation to their absences from work when the annual layoff period ended as of April 12, 2022. The worker advisor noted that the worker did not give up their job but was terminated by the employer, and as such the worker did not have any possibility of returning to modified or alternative work duties. As such, the worker advisor submitted that the worker’s termination from their employment should not terminate their eligibility for wage loss benefits.

The worker testified that they were in a lot of pain after the accident and that they really struggled emotionally and could not continue with their usual family activities. The worker described their challenges after the accident as the hardest thing they ever experienced, noting that the difficulties with communication left them feeling helpless to find a solution. The worker described that their symptoms have worsened since the injury and stated they could not afford to seek physiotherapy as recommended by their doctor. The worker also testified that they now use a cane for support, and that their doctor told them they could use it but did not prescribe it.

Employer’s Position

The employer did not participate in the appeal.

Analysis:

The question on appeal relates only to the worker’s entitlement to benefits arising from the workplace accident of December 20, 2021. To grant the worker’s appeal, the panel would have to find that the worker had a loss of earning capacity as a result of the accident or required medical aid as a result of that accident. As set out in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The panel acknowledges and accepts that the worker was injured when they fell off a ladder at work and notes that the WCB also accepted this, and therefore accepted the worker’s claim. The question before us however relates only to benefit entitlement. For the worker to be entitled to wage loss benefits the panel must be satisfied that it is more likely than not that the worker’s ability to work was impacted by the compensable injury or injuries and that they had a resulting loss of earnings. For the worker to be entitled to medical aid benefits, the panel must be satisfied that the worker required treatment to cure and provide relief from the injury arising from the accident.

The panel considered the worker’s testimony that the employer provided them with over-the-counter pain relief medication immediately after the accident, and that they completed their shift on the date of injury, and went to work the next day, driven by a coworker. On December 21, the worker did not undertake their regular job duties but attended a meeting with their supervisors, and remained at work until their coworker’s shift was complete. The panel noted the evidence that December 22 was the beginning of a previously scheduled annual layoff period. The evidence further confirms that during a ten-day callback to work beginning on January 31, 2022, the worker did not attend work but rather called in sick each day, and further confirms the worker did not return to work when the annual layoff ended on April 12, 2022, but continued to call in sick after that date.

The panel also noted the evidence that in April 2022, the employer advised the worker they would be terminated unless they provided medical information to the employer by May 2, 2022 to support their absences, and the worker confirmed in the hearing that they did not do so and as a result, lost their job. The panel accepts and relies upon this evidence.

The panel therefore reviewed the evidence to determine whether there is medical support for the worker’s position that they could not work during the January return because of the injury sustained on December 20, 2021. We note that although the worker sought medical treatment at an emergency room on December 25, 2021, it was not in relation to any injury sustained at work, but the result of another injury that occurred that day, and that as a result of that injury, the worker followed up with their family physician on January 4 and 26, 2022. The panel noted that while the chart notes from those visits relate primarily to follow-up treatment of the worker’s non-compensable finger injury, the physician recorded on January 4, 2022 that the worker was laid off from work at that time, and on January 26, 2022, that the worker was going to try to go to work on January 31 as their non-compensable injury was much better and the worker had full grip strength.

The medical reporting does not include any indication of report of right side or back complaints until January 31, 2022 when a walk-in clinic physician noted the worker was “[c]omplaining of back pain. Localized to the mid back and present for several weeks” and that there was no radiation of pain to the legs and no neurological issues. The panel noted the physician did not comment as to the impact of the worker’s complaints on their ability to work on that day, which was the first day of the ten-day callback period and did not recommend any treatment for the worker’s back complaint. We further noted that the same physician also saw the worker on January 14, 2022 in relation to another medical issue, unrelated to the compensable injury and there is no indication in those chart notes of any discussion regarding the worker’s employment or ability to work at that time.

Similarly, the panel noted the medical reporting provides no indication that the worker was unable to work when called back by the employer as of April 12, 2022. A report from another walk-in clinic physician indicates that on April 12, 2022 the worker sought treatment in relation to a cough and nasal congestion. The physician’s assessment indicated the worker was experiencing other health conditions, but the panel cannot relate those to the workplace accident. There is also evidence that the worker saw the treating family physician on February 18, 2022 with respect to another medical condition that the panel finds does not relate to the workplace accident, and again in follow-up on March 21, 2022 after various investigations were completed. At the follow-up, the worker reported sore muscles in their neck, back and legs, and the physician advised the worker “to go back to work to [their] job” and follow up in three months. No treatment was recommended or offered, and there is no indication that the worker was not capable of returning to work. As such, the panel is satisfied that there is no basis in these medical reports to find that the worker was wholly disabled from all work because of the injuries sustained in the workplace accident.

The evidence before us also includes a May 7, 2022 emergency visit summary that sets out the worker:

“Recounts injury to [their] lower right back 1 year ago and a fall from a ladder at work. Says [they] did not have x-rays at that time, was able to recover without ongoing issues. For the past month has been having increasing back pain, difficult for me to know if this started with an acute injury though [the worker] says it may have been from lifting at work. [The worker] has pain with movement, twisting, riding in a car which [they do] for 1 hour to and from work each day.”

The emergency visit summary notes go on to indicate an impression of musculoskeletal back pain with no red flags and that the worker was provided with a prescription for pain relief medication “to use sparingly as necessary” and follow up with their own physician. The panel noted the notes contain no other treatment recommendations nor any comments as to the worker’s ability to work or the necessity to restrict their activities in any way. The panel further noted the family physician’s May 16, 2022 follow-up chart notes indicate the worker reported they gave up their job, that they went to the emergency room for treatment in relation to chronic pain and that the worker was awaiting a further procedure related to the non-compensable health condition. The family physician did not prescribe or recommend any treatment in relation to the worker’s back pain.

The worker’s representative urged the panel to rely primarily upon the medical information outlined in the August 24, 2022 report from the community medicine physician who twice met with the worker, assisted by an interpreter each time. The panel noted that this physician’s report outlines the worker’s description of how the accident occurred, what occurred at work afterwards and the worker’s description of the treatment they sought and obtained. The panel noted that the information in the report is consistent with the information in the treating physicians’ chart notes, with the exception that the treating physicians do not indicate that the worker reported their back symptoms at each appointment and nor that the worker offered the Notice of Incident report for their review. The community medicine physician reported that the worker stated they did not return to work due to their “pain condition from the injury” and lost their job as a result. On assessing the worker on August 4, 2022, the physician recorded their clinical findings and concluded “By my assessment [the worker’s] physical complaints and pain limitation date back to the December 20, 2021 fall at work.”

The panel noted the community medicine physician did not comment as to the need for workplace restrictions, nor as to the worker’s ability to work, or the need for further treatment of any kind. The panel also noted the physician did not offer a diagnosis, whether in relation to the accident or otherwise. Given that this assessment did not occur until nearly eight months after the accident occurred and given the physician’s reliance entirely on the worker’s recollections at that time which are not fully supported by other evidence and given the physician did not review or consider the prior medical reporting, the panel gives less weight to their opinion, even though the information obtained from the worker was with the assistance of an interpreter.

The worker’s position is that the panel should give minimal weight to the earlier medical reporting, submitting that the absence of an interpreter in the worker’s assessment by those treatment providers means that those physicians could not accurately reflect and record the worker’s concerns in their medical chart notes. The panel noted that this would include information provided by the worker’s family physician who was treating the worker since 2017, as well as two walk-in clinic physicians, and the emergency room physicians from December 25, 2021 and May 7, 2022. While the panel accepts that the worker’s ability to communicate with all those physicians may have been hampered by the worker’s English language capabilities, we do not accept that this means the worker could not effectively communicate their concerns. We note from the time of the accident through to August 2022, the worker sought treatment for numerous other medical complaints that, according to the medical records in evidence, appear to have been appropriately assessed and treated despite this language barrier. Further, we note that the worker’s complaints about back pain are included in chart notes and records from March 2022 and May 2022, despite the language barrier. As such, the panel is not prepared to give the reports from these treating physicians less weight because of the worker’s communication challenges, although we acknowledge that there may be some resulting miscommunications or omissions in the information recorded.

On considering the evidence before the panel as a whole, the panel finds that the evidence does not support the worker’s position that they were unable to work at all as a result of the workplace accident, nor that they required any specific medical aid in relation to the injuries arising out of the workplace accident.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel finds that the worker is not entitled to wage loss or medical aid benefits in relation to the December 20, 2021 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 June, 2024