Decision #157/07 - Type: Workers Compensation
Preamble
The worker fell at work on December 16, 2006. He applied to the Workers Compensation Board (WCB) which accepted his claim but found that the injury he sustained did not result in missed work or require medical treatment. The worker disagreed with this decision and appealed to Review Office which found that the injury was not significant and was not responsible for later wage loss or medical treatments. The worker appealed to the Appeal Commission and a hearing was held on October 9, 2007. The panel discussed the case on October 9 and October 10, 2007.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits.Decision
That the worker is not entitled to wage loss benefits but is entitled to medical aid benefits up to the date he was declared fit to return to work on January 16, 2007.Decision: Unanimous
Background
On January 31, 2007 the worker filed a claim with the WCB for a low back injury that occurred on December 16, 2006. On the day of accident, the worker slipped on an icy road and landed on his backside while on his way to the office. He said his back was sore that day but he continued working. He found it difficult to lift things but he finished the job. Then, while being off work for one month, he found new employment with a different employer starting January 16, 2007. He was now finding it hard to sit, sleep, or travel underground as is required in his job. He related his present difficulties back to the December 2006 fall.
When speaking with a WCB adjudicator on February 8, 2007, the worker stated he continued to work following the December 16, 2006 accident until December 20, 2006. A co-worker knew of his continued difficulties. He said he felt pain on the right side of his buttocks and into his right thigh. The pain was moderate. On January 9, 2007, he had a near slip and fall at a car wash which made his back worse. He thought he pulled the muscles in his back and saw a hospital physician for treatment and was prescribed anti-inflammatory medication. He said his back was feeling a bit better and he returned to work on January 16, 2007. He continued working up until February 1, 2007 but had to stop because of increased back discomfort.
On February 22, 2007, the worker advised the WCB that when he injured himself at the car wash, he grabbed the car and then sat down. He went to the hospital after that for treatment.
In late February 2007, the WCB adjudicator spoke with a witness who confirmed that the worker injured his back from a slip and fall at work and that his back continued to bother him after the accident. On March 6, 2007, the worker’s supervisor confirmed that the worker verbally reported to him that he slipped and fell on his way to the office and hurt his back. He noted that the worker continued to work his regular duties after the date of accident until they went off work for the Christmas holidays.
Medical information showed that the worker sought medical attention at a hospital on January 9, 2007 with entrance complaints of low back pain and tightness to the front of his thighs. The physician noted that the worker slipped while at a carwash and that his feet flew out from under him and he grabbed the car, landing onto his right buttock. The worker also reported a history of prior back problems 15 years ago “ruptured disc x 2”.
X-rays were taken on January 9, 2007 of the lumbar spine. The results indicated “…minor scoliosis, convex right…minimal narrowing at all levels from L3 to the sacrum. Tiny osteophytes are seen anteriorly at this level as well.”
On February 22, 2007, a CT scan of the lumbosacral spine L2 to S1 revealed a right sided disc herniation at L4-5, contacting and posteriorly displacing the right L5-S1 nerve root.
On March 8, 2007, the WCB adjudicator verbally advised the worker that his claim for compensation was being accepted for the injury he sustained on December 16, 2006 but as he continued working following the accident and did not seek treatment for the injury, the WCB was not accepting responsibility for any wage loss or medical expenses. The adjudicator noted that when the worker attended a hospital facility for treatment of his back on January 9, 2007, it was for a fall at a car wash, a non-work related injury.
In a submission dated June 7, 2007, a worker advisor presented argument that the worker’s ongoing symptoms from his initial compensable injury were primarily responsible for his non-work related fall of January 9, 2007 and that the WCB was responsible for his wage loss and medical aid benefits. In support of this position, the worker advisor made reference to WCB policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury along with the opinion expressed by the worker’s treating physician in a report dated April 3, 2007.
On June 21, 2007 Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits. Review Office’s opinion was that there was no substantive medical evidence to support the contention that the accident of December 16, 2006, was either responsible for the low back problems experienced by the worker in January 2007 or was the predominant cause of his injury on January 9, 2007. It noted that the lack of medical attention prior to the non-work related incident of January 9, 2007 suggested that the December 16 injury was inconsequential and makes any contention of an ongoing cause and effect relationship speculative. The worker disagreed with Review Office’s decision and appealed to the Appeal Commission. A hearing was then arranged.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. Subsection 4(2) of the Act provides that where a worker is injured in a workplace accident, wage loss benefits are payable for the loss of earning capacity that results from the injury but are not payable where the injury does not result in a loss of earning capacity. Subsection 27(1) provides that the WCB may provide a worker with such medical aid as it considers necessary to cure and provide relief from a workplace injury.
Worker’s Position
The worker attended the hearing and explained the substance of his appeal.
The worker submitted that the injury he sustained at work on December 16, 2006 did not resolve and was responsible for his ongoing back problems and wage loss. He advised that this injury continued to cause wage loss and be symptomatic until June 7, 2007 when a physician indicated he could return to work.
The worker explained that he did not initially seek medical attention because he was working at an isolated site and would require a special trip to be flown out for medical care. He said he had four days remaining in his current shift and then had one month scheduled off. He decided to work the four days and expected to heal over the next month. He had no intention of applying for WCB benefits. He acknowledged that he did not seek medical attention when he returned to Winnipeg.
He advised that on January 9, 2007 he slipped at a carwash and as a result attended a hospital. He indicated that as he was obtaining medical care, he told the physician about the symptoms related to his work injury and the carwash incident. In his opinion he injured a different part of his back in the incident at the carwash. He described the symptoms from this injury as muscular. He said these cleared up in four or five days but he was left with the symptoms from the workplace injury. He described the workplace symptoms as pain in his low back towards his buttock and in his right thigh.
The worker advised that while he was on the break in January 2007 he found a new job with a different employer. The new job was in the same field as his prior job which involved very physical work. He started work on January 16, 2007. He advised that he passed a physical examination conducted by the employer’s physician shortly after starting the new job. He indicated that at first he had pain in his back and “stuff” but that it was not unbearable. However, his condition worsened and he was only able to work until February 1, 2007 when he had to lay-off because he was unable to do the job. He attributed his inability to work and ongoing medical condition to the workplace injury.
The worker stated that “The fact is that I had hurt myself at work and the injury was at work, and yes, I had a fall at a carwash and I never hid that, I never tried to lie, I tried to be honest about this. But, on the other note, the injuries got worse while I was at work again…”
The worker indicated that he has had muscular problems in his back in the past and that he is “constantly battling with these muscle pulls”. He also advised that the discs that he believes were ruptured in the December 2006 workplace accident were previously ruptured in an earlier workplace accident.
Analysis
Subsection 4(1) of the Act provides that where a worker suffers personal injury in a workplace accident, compensation is payable. Compensation can include wage loss benefits and the cost of medical treatments. In this case the fact that an accident occurred in December 2006 has been accepted by the WCB. However, the WCB has not accepted that the accident caused a loss of earning capacity or resulted in medical treatments.
The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits. For the appeal to be successful, the panel must find that the worker was unable to work and required medical treatments as a result of the workplace injury.
The worker contends that the December 16, 2007 injury continued to be symptomatic and caused him to lay-off work on February 1, 2007 and to remain off work until June 7, 2007. There are several significant facts which the panel finds to be inconsistent with the worker having incurred a serious injury on December 16, 2006:
- the worker was injured on December 16, 2006 but continued to work for four additional days.
- the worker did not seek medical attention for the workplace injury at the time of the injury, or when he returned home to the Winnipeg area.
- the worker only sought medical attention after an intervening accident on January 9, 2007 at a carwash.
- the worker underwent and passed a physical examination by the new employer’s physician shortly after January 16, 2007.
- the worker commenced a new job on January 16, 2007 in the same field as his accident employment which involved heavy physical labour and the operation of a drill that weighed 120 pounds. He worked for two weeks.
While the panel accepts that the worker injured his low back when he slipped and fell at work on December 16, 2006, the panel finds, on a balance of probabilities, that the worker’s injury did not cause a loss of earning capacity and was resolved by the time that the worker had commenced his new employment on January 16, 2007. The panel notes there is no medical information for the period from December 20, 2006 until January 9, 2007 and that the medical information from January 9, 2007 is in relation to the accident at the carwash on January 9, 2007. Hence, there is no medical information to support a loss of earning capacity. The panel is not able to relate the medical information received after January 16, 2007 to the December 16, 2006 injury.
The panel finds that any ongoing symptoms related to the December 16, 2006 injury had resolved by January 16, 2007 when he commenced new employment and passed a physical examination. The panel is unable to attribute any symptoms after January 16, 2007 to the December 16, 2006 injury.
With respect to medical benefits, the panel finds that the worker is entitled to receive such benefits for the period from December 16, 2006 to January 16, 2007 when he commenced a new job but notes there is no indication on file that the worker received any treatments for the December 16, 2006 injury.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerB. Simoneau, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 21st day of November, 2007