Decision #101/24 - Type: Workers Compensation
Preamble
The worker appealed from the decision of the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the October 12, 2022 accident. A hearing was held on August 28, 2024 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further benefits in relation to the October 12, 2022 accident.
Decision
The worker is not entitled to further benefits in relation to the October 12, 2022 accident.
Background
On October 18, 2022, the employer provided an Employer’s Accident Report to the WCB, indicating the worker injured their left knee and trunk in an incident at work on October 12, 2022 when they tripped on a metal frame placed at the base of a staircase and fell onto their left side. The employer noted the worker sought medical treatment for the injury.
The WCB received copies of chart notes from the employer’s first aid station for the worker’s attendance between October 12 and October 20, 2022. The notes indicated that the worker went to the first aid station on October 12, 2022 reporting the fall and that coworkers found the worker and helped them walk to the station. The first aid attendant noted the worker fell to the floor and complained of a headache, and the attendant coached the worker to get up and walk to an examination room where they complained of pain in their left knee and left trunk from hitting that region on the stairs. The worker also complained of a headache but noted they did not hit their head when they fell. On examining the worker, the attendant noted a dime-sized abrasion to the left knee with no swelling or bruising and full range of motion. There was no redness, bruising or swelling to the worker’s left trunk or right wrist, with full range of motion in the wrist and full range of motion with no swelling in the right shoulder. The employer offered alternate duties, but the worker opted to go home due to the headache. The attendant recommended icing and anti-inflammatory medication and asked the worker to return the next day. On October 13, 2022, the worker reported to the first aid station, indicating their left knee was feeling a bit better but their right knee was sore that day and they had continued pain in the left shoulder and trunk. The attendant noted the worker’s pain with reaching and bending and recommended alternate duties. The worker attended again on October 14, 2022, reporting pain to their chest, left shoulder, trunk, and right knee and that they wanted to return home to rest. After the worker signed a refusal of alternate work, they left. On October 17, 2022, the worker reported they would see their family physician the next day and they worked alternate duties. On October 18, 2022, the worker reported not sleeping well due to pain and worked alternate duties until leaving for their appointment with their family physician. On October 19, 2022, the attendant noted the worker saw their family physician the previous day and had a sick note taking them out of work until October 25, 2022 due to the workplace accident. The first aid attendant advised the treating family physician that the worker was accommodated in a position without lifting which they could perform at their own pace and the physician confirmed those duties would be acceptable. The October 20, 2022 chart note indicates the attendant advised the worker that the family physician agreed the modified duties were acceptable, but the worker advised they did not want to return to work.
The WCB received a Doctor First Report for the worker's attendance at a local walk-in clinic October 13, 2022. The treating physician outlined the worker’s report of pain in their lower chest after a fall at work and diagnosed chest wall pain based on findings of tenderness in the left anterior, lower chest region. The physician prescribed deep breathing exercises and anti-inflammatory medication.
The worker saw their treating family physician on October 18, 2022, presenting with left shoulder, back and right knee pain after a fall at work. The worker advised they were accommodated with restricted duties at work but felt unable to lift any weight and would prefer a sick note. On examination, the physician found no wounds or abrasions and local tenderness at the left shoulder, back and right knee. X-rays of that date indicated mild spondylosis in the lower thoracic and lumbar spine, no vertebral fractures and mild osteoarthritis in the right knee. The physician diagnosed trauma to the left shoulder, back and right knee and provided a sick note to October 25, 2022.
On October 19, 2022, the worker saw a chiropractor who recommended the worker to remain off work one week as recommended by the family physician and then return to work with light duties on October 26, 2022. In their October 21, 2022 report to the family physician, the chiropractor noted the worker had "…severe acute pain…" in their left posterior-lateral thoracic and rib cage area and requested the physician order thoracic spine x-rays. The x-rays completed on October 24, 2022 indicated "…mild spondylosis in the mid thoracic spine unchanged from January 10. There are no vertebral fractures. No other abnormality is seen." The family physician discussed the x-ray findings with the worker on October 25, 2022 and noted there was no change in the worker's clinical presentation.
On November 7, 2022, the worker advised the WCB of their symptoms after the accident and noted that since returning to work on October 26, 2022, they continued to experience difficulties with prolonged sitting and ongoing pain to their back and knees. The worker described their symptoms as improving but noted continuing pain in their neck, left shoulder and lower back. The WCB advised the worker their claim was accepted.
In a physiotherapy assessment on November 21, 2022, the worker reported pain to their entire back, left greater than the right, with the most pain in their mid-back on the left side, burning feeling to their back that increased with bending, pain to their left neck with tightness and soreness with movement, anterior pain to their left shoulder on lifting, and decreased range of motion. The physiotherapist noted decreased range of motion in the worker's lumbar, thoracic, and cervical spine and left shoulder and tenderness on palpitation to the longhead bicep, upper trapezoid and rhomboid area of the worker's left shoulder and diagnosed multi-site strain. The physiotherapist outlined workplace restrictions, which were provided to the employer on December 2, 2022.
The WCB discussed the proposed restrictions with the worker and the employer on November 21, 2022, and the worker noted their ongoing difficulties with their left shoulder, left knee and lower back made the alternate duties difficult. The worker noted any movement with their left arm caused pain, which worsened when grabbing items with their left hand, and that the alternate job duties required use of both arms. The worker also indicated their low back pain increased with prolonged sitting and that they did better when standing, and that while their left knee was improving, they still had difficulty with stairs. The worker advised the WCB that they struggled with the alternate duties provided on November 7, 2022 and the employer confirmed they were attempting to accommodate the worker.
The worker contacted the WCB on December 5, 2022 to advise they were seeking medical treatment as they were in severe pain and could not work due to their symptoms. The employer confirmed the worker called in sick. On December 6, 2022, the employer contacted the WCB to express concern about the worker’s absence from work and noting the worker's treatment providers supported a return to work on alternate duties which the employer accommodated.
On December 5, 2022, the treating family physician recorded the worker presented with a chest cold and chest and body pain. A chest x-ray was taken which indicated "No acute cardiopulmonary process is seen." On December 7, 2022, the worker returned to review the x-ray results, reporting ongoing chest and back pain. The physician recommended over-the-counter pain medication and provided a copy of the x-rays to the worker's treating physiotherapist. In follow-up on December 9, 2022, the treating physician provided a note indicating the worker could return to regular duties. On December 15, 2022, the physician noted the worker requested a note to extend their restrictions, which the physician did not provide.
After reviewing the worker’s file, a WCB physiotherapy consultant spoke with the treating physiotherapist on December 20, 2022, who advised the worker's left shoulder range of motion and muscle power were good and all shoulder testing indicated pain reporting but no rotator cuff injury. Further, the worker's thoracolumbar range of motion was good and there were no adverse neurological findings. On reviewing this information, the physiotherapy consultant concluded that workplace restrictions were not medically accounted for in relation to the workplace accident. In a report relating to treatment on January 27, 2023, the physiotherapist reported the worker had improved active range of motion but continued to report pain to the left shoulder and left lateral neck, which increased with use of their arm and ongoing pain to their mid-lower back, which increased with movement. The physiotherapist outlined restrictions and a schedule for a gradual return to regular duties beginning February 6, 2023 with a return to full time regular duties by March 13, 2023. The WCB provided the restrictions and schedule to the employer on February 7, 2023.
On February 24, 2023, the worker attended a call-in examination with a WCB medical advisor. The medical advisor noted findings of full active cervical spine range of motion, full bilateral shoulder range of motion, limited lumbar spine forward flexion but full range of motion in other planes and no evidence of left knee effusion or temperature change. The medical advisor also noted significant pain behaviour through the examination. The medical advisor reviewed the previous medical reports and noted the initial injuries of left knee abrasion and left anterior chest wall contusion/strain would typically resolve in a few days to a couple of weeks. The medical advisor also noted degenerative findings in the thoracic and lumbar spine, and in both knees, which would not be accounted for in relation to the workplace accident. With respect to the left shoulder complaints, the medical advisor noted findings of full range of motion on October 14, 2022. The WCB medical advisor concluded that the worker's current difficulties were not medically accounted for in relation to that accident.
On March 22, 2023, the WCB advised the worker that they were not entitled to wage loss benefits after October 25, 2022 and were not entitled to further benefits in relation to the October 12, 2022 workplace accident. On April 3, 2023, the worker requested Review Office reconsider the WCB's decision to end their entitlement to wage loss and other benefits, noting they continued to experience difficulties because of the workplace accident and required further wage loss and medical treatment. Review Office determined on May 5, 2023 that the worker was not entitled to further benefits. Review Office found the injuries sustained in the October 12, 2022 workplace accident, being strains/contusions to the left chest wall, back, left shoulder, right knee, right hand/wrist, left hip and left knee were materially resolved within weeks after the accident.
The worker appealed to the Appeal Commission on April 4, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information, which was provided to the parties for comment. On November 5, 2024, the appeal panel met again to discuss the case and render a decision on the issue 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 compensation under s 4(1) of the Act when it is established that they sustained personal injury 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 their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.
When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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 to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”
The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The Pre-existing Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. As well, workplace injuries can impact pre-existing conditions. A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of a workplace injury is an enhancement of the pre-existing condition. The Pre-existing Policy provides that wage loss benefits will cease when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.
Worker’s Position
The worker appeared at the hearing on their own behalf, with assistance and support from their spouse and an interpreter. The worker made an oral submission in support of their appeal, and both the worker and their spouse provided information to the panel in response to questions posed.
The worker’s position is that they continue to experience the effects of the injuries sustained in the workplace accident of October 12, 2022 and that because of those injuries, they require further medical treatment and continue to experience a loss of earning capacity. For this reason, the worker believes that they are entitled to further benefits.
The worker submitted that the medical reports in relation to this claim are not reliable because of their language barrier and inability to understand what the treatment providers are saying in those reports. The worker submitted that their injuries from the accident were more significant than is recorded in the medical reports. The worker submitted that they remain unable to work but before the injury they never missed work due to injury or illness. The worker stated their back, shoulders and neck regions were not a problem before this accident but have been since then. The worker noted they re-injured their left knee when they fell at work and are now awaiting the scheduling of surgery on that knee.
Employer’s Position
The employer was represented in the appeal by an advocate who provided an oral submission and provided information in response to panel questions.
The employer’s position is that the worker is not entitled to further benefits arising from the accident of October 12, 2022. The employer’s advocate noted that, on the evidence before the panel, it is difficult to justify the extent of the benefits already provided to the worker, and further, that there is no evidence to support any entitlement to further benefits. Therefore, the worker’s appeal should be denied.
The employer’s advocate noted the evidence that the worker’s left shoulder condition is the result of a degenerative condition, which is pre-existing and not related to the workplace accident. They noted the evidence that the worker reported their left knee pain resolved by October 14, 2022. The employer’s advocate submitted the panel should rely upon the findings from the WCB’s call-in examination of February 24, 2023 and in particular, the conclusion that the worker’s current presentation is not in keeping with any accident-related injury or condition.
Analysis
This appeal is about the worker’s entitlement to benefits arising out of the accident of October 12, 2022. For the appeal to succeed, the panel would have to decide that when the WCB ended the worker’s benefits, the worker continued to have a loss of earning capacity or continued to require medical aid arising out of the injuries sustained in the workplace accident. For the reasons outlined below, the panel was not able to make such findings and therefore the worker’s appeal is denied.
The panel considered the medical reports from the treating family physician and the workplace healthcare provider following the accident. Based on the initial reporting, we are satisfied that the worker sustained soft tissue or strain type injuries to their knees, left side of their upper body and left shoulder regions. Further evidence confirms that by October 14, 2022, the worker was no longer concerned about their left knee and had full range of motion in their right knee and left arm, with no swelling in the trunk area. The first report from the treating family physician indicated clinical findings of local tenderness at the left shoulder, back and right knee, but no wounds or abrasions. The panel also noted that the initial chiropractic report to the WCB referenced upper, mid, and lower back pain which the family physician investigated by ordering X-ray imaging. That imaging did not indicate any traumatic injury in those regions, but did reveal mild spondylosis in the lower thoracic and lumbar spine. The X-rays also indicated some degenerative narrowing in the right knee spaces and mild osteoarthritis.
The panel relies on the diagnostic imaging as confirming the worker has several chronic health conditions, including osteoarthritis in their left and right knee, spondylosis in the thoracic and lumber spine, and multi-level cervical spine degeneration. The panel finds and is satisfied that these conditions are not the result of or related to the workplace accident but are pre-existing and non-compensable conditions. The panel further noted there is a lack of evidence that these pre-existing conditions were aggravated or enhanced because of the workplace accident, although we accept that the worker’s recovery may have been prolonged by their pre-existing conditions.
Based on the medical reports, including the findings of the February 24, 2023 call-in examination, the panel finds that the worker recovered from the soft tissue and strain injuries sustained in the accident by late February and was capable of a return to work without restrictions relating to those injuries by that time. Further, the evidence supports a finding that the worker did not require further treatment arising from the compensable injuries beyond that provided to March 2023. The clinical findings and opinions of the treatment providers, the WCB physiotherapy consultant and the WCB medical advisor all support this conclusion. While the worker continued to raise various concerns with their treatment providers, the panel finds that these concerns did not relate to the compensable injuries, but more likely than not relate to the worker’s pre-existing and non-compensable health conditions.
In considering whether the worker sustained a loss of earning capacity arising from the compensable injuries, the panel noted that the treatment providers supported the worker’s removal from work until October 25, 2022 while further investigations took place but after that point in time, the medical reports from the various treatment providers indicate the worker could return to work with restrictions in place. The panel further noted that the employer offered and provided modified job duties to the worker throughout the course of this claim and could accommodate the worker’s restrictions arising from the compensable injuries. As such, we are satisfied that if the worker had any loss of earning capacity beyond October 25, 2022, it was not because of the injuries sustained in the workplace accident but, rather, the result of the worker’s choice not to participate in those duties or because of other non-compensable health conditions.
Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker did not have a further loss of earning capacity or require further medical aid because of the injuries sustained in the workplace accident of October 12, 2022. Therefore, the worker is not entitled to further benefits in relation to the October 12, 2022 accident. The 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 14th day of November, 2024