The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current lower limb and back pain was not related to her compensable injury of August 6, 2011. A hearing was held on July 22, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after September 1, 2011.

Decision

That the worker is entitled to wage loss benefits after September 1, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for low back discomfort that began during her shift on August 6, 2011 which she related to her job duties as a grocery cashier which involved lifting heavy items. The worker indicated that she reported her back discomfort to her supervisor on the day of accident.

In a letter to the WCB dated August 18, 2011, an employer representative indicated that the worker had commenced employment on November 30, 2008 as a part-time cashier. On August 12, 2011 (the employer later clarified that the correct date was August 6, 2011), the worker reported to her supervisor that she was experiencing discomfort in her back and that she was unaware of how her discomfort arose. The worker did say, however, that it could possibly be related to scanning heavy items during the course of her shift. The employer indicated that the worker's job duties have remained the same and that the worker was unable to positively confirm that her discomfort was a result of her employment. The employer questioned whether the claim met the WCB's criteria for entitlement.

On August 18, 2011, the worker spoke with a WCB adjudicator about her injury. The worker indicated that her low back felt okay prior to the start of her shift on August 6, 2011. She said her low back started to bother her about one hour into her shift on August 6, 2011. She was picking up heavy grocery items such as cat litter bags to scan and was twisting and turning. She said her supervisor came to tell her to take her break and that she told the supervisor that her back was sore and that she had back pain.

Hospital information showed that the worker was seen for treatment on August 6, 2011. The worker complained of vague abdominal pain for several months, progressing to the left flank and dysuria. The diagnosis was abdominal pain not yet diagnosed.

A CT scan dated August 7, 2011 stated "No etiology for the patient's clinical presentation is evident."

A doctor first report showed that the worker attended for treatment on August 8, 2011. The worker reported that she felt sudden low back pain at work and that she had attended an emergency facility for treatment. The physician's diagnosis was probable muscular back pain.

On September 6, 2011, Rehabilitation and Compensation Services accepted that the worker suffered an injury to her low back on August 6, 2011 and benefits and services were paid.

On September 23, 2011, the worker spoke with a second WCB adjudicator. The worker indicated that she tried to go to the bathroom at home (an exact date was not given) and when she sat down she could not feel her buttocks and she could not get up. The worker reported numbness into her right leg and tingling in her low back. The worker indicated that she saw her physician and had an MRI. She was instructed to continue with physiotherapy treatment and was referred to a specialist.

MRI of the lumbosacral spine dated September 8, 2011 showed the following:

"At L4-L5 there is a bulging disc with a large central annular tear. As well, the bulging disc contacts the traversing L5 nerve roots."

A WCB orthopaedic consultant reviewed the worker's file on September 29, 2011. The consultant noted that the first reference to lower limb pain was on the report of the attending physician dated September 1, 2011. The current low back pain and lower limb pain was probably caused by degenerative disc disease as demonstrated on the MRI. He said it was not possible to relate the degenerative disc disease to a workplace injury with the information currently on file. The consultant indicated that the diagnosis was probably renal colic as a cause for flank pain and haematuria. "Renal colic would be expected to resolve in the absence of a calculus, which if present had probably passed."

On October 19, 2011, the worker was advised that the WCB was reversing its initial decision to accept her claim and any injuries related to August 6, 2011. The adjudicator stated: "Given that the most probable diagnosis for your abdomen and flank pain was renal colic on the date of the accident, the current complaints of lower limb pain did not show up for almost a month and imaging only noted degenerative lower back disease, I cannot find that any accident happened resulting in injury which would be considered as arising out of and in the course of your employment on August 6, 2011."

On June 8, 2012, the worker's union representative submitted a medical report dated May 22, 2012 authored by a physical medicine and rehabilitation specialist. The specialist stated in part:

"My clinical impression was that her presentation was secondary to the findings noted on her MRI at L4-5. This included the annular tear and discopathy reported. There were degenerative changes noted as well, which would be considered pre-existing. On balance I would have related the disc findings to her work injury based on her history that indicated no prior symptoms and the mechanism of injury that involved lifting and twisting. It is difficult to determine to what extent the pre-existing/degenerative findings noted on her MRI were contributing to her symptoms. At the time of her last visit, it did not appear that her symptoms had returned to the pre-injury level. My knowledge of her condition prior to the injury date is based on the history that she provided at the time of her initial examination with me."

On July 4, 2012, the worker's union representative was advised that the new information did not alter the evidence on file that the most probable diagnosis for the worker's abdomen and flank pain was renal colic on the date of the accident. The worker's further complaints of lower limb pain did not show up for almost a month and imaging only noted degenerative lower back disease. The adjudicator was unable to find that any accident happened resulting in injury which would be considered as arising out of and in the course of the worker's employment on August 6, 2011. On September 6, 2012, the union representative appealed the decision to Review Office.

On December 19, 2012, Review Office considered the submissions made by the worker's union representative as well as the employer's representative. Review Office concluded that the worker's claim for compensation was acceptable and that there was entitlement to wage loss benefits to September 1, 2011. Review Office outlined its position that:

• the file evidence supported that the worker developed a gradual onset of back pain on Augusts 6, 2011 and that the worker likely sustained a strain type injury on that date.
• the opinion provided by the worker's treating physical medicine and rehabilitation specialist was based on information that was inconsistent with what the worker provided to the WCB.
• the accident description provided by the treating neurosurgeon (dated October 16, 2012) that "the patient lifted a heavy bag of groceries and developed low back pain…" was provided to the neurosurgeon by the worker more than a year after the workplace injury. This was not consistent with what was reported in August 2011.
• it agreed with the opinion outlined by the WCB's orthopaedic consultant that the worker's low back pain and lower limb pain was probably caused by degenerative disc disease as demonstrated on the MIRI. The degenerative disc disease would not be related to the duties performed by the worker on August 6, 2011.

Review Office noted that given the minor nature of the mechanism of injury, the documented evidence of degenerative disc disease and the increase in symptoms following an incident at home, that it was unable to conclude that the worker's loss of earning capacity beyond September 1, 2011 was related to the August 6, 2011 workplace accident. Therefore there was entitlement to wage loss benefits to September 1, 2011.

On February 26, 2013, the union representative requested Review Office to reconsider its decision based on new medical information dated November 7, 2012 and February 13, 2013 along with WCB Policy 44.10.20.10, Pre-Existing Conditions.

On April 21, 2013, Review Office determined that no change would be made to its decision of December 19, 2012. Review Office indicated that the neurosurgeon's opinion outlined on February 13, 2013 was limited and the specialist did not have the worker's full claim file in front of him. Review Office indicated that the worker did not report any kind of leg(s) symptoms when describing the accident and its injury to the WCB, to the employer or to the initial treating physician. The neurosurgeon was not aware of these particulars when he provided his report to the worker.

Review Office also referred to the November 7, 2012 medical report. It stated that the information presented was not consistent with the worker's initial reports. There was no evidence that the compensable injury had aggravated or enhanced a pre-existing degenerative condition.

On May 27, 2013, the worker's union representative filed an appeal with the Appeal Commission related to Review Office's decisions dated December 19, 2012 and April 21, 2013 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim. She is seeking further wage loss benefits. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

The parties agreed at the hearing that a decision accepting the worker's appeal for further wage loss benefits includes entitlement to further medical aid benefits.

Worker's Position

The worker was represented by WCB advocates from her union. One of the advocates made an oral presentation to the panel on behalf of the worker and asked the worker questions.

The worker's representative reviewed the WCB Review Office decisions which found that the worker was not entitled to benefits after September 1, 2011.

The worker's representative noted that English is not the worker's first language and that as a result she has had communication issues which have complicated her case.

The worker's representative asked the panel to attach weight to the opinion of the neurosurgeon. The representative disagreed with the Review Office finding that the neurosurgeon's opinion was not well informed. He noted that the neurosurgeon, in reviewing the worker's file was provided with the worker's chart, the neurologist's report and a letter from the worker's representative's office. He noted the neurosurgeon's February 15, 2013 opinion was on the balance of probabilities, the back pain that the patient was experiencing beyond September 1, 2011 was at the least partially the result of the injury that the patient sustained on August 6, 2011.

The worker described her August 6 accident and resulting injury to the panel. She told the panel:

"I was picking up the heavy items, like everything. So it was first I feel like someone is poking something in my lower back, it was like big knife going in my back, and I feel, I thought it’s really it’s I’m busy or whatever, I start, still I was working and then it was like I couldn’t go farther and I tried to contact with the Customer Service and I didn’t get it and around three hours my Supervisor, [name], she came to me for a break and she told me to take a –- I told her I have too much pain in my lower back. She take me, it’s going to be okay, you take the break now."

The worker said the pain was so bad she did not return to her duties, rather she drove herself home. She then took a taxi from her home to the hospital.

The worker also told the panel about an incident which occurred late on Sunday August 7 or early Monday August 8, when she was using the toilet. She said that as she attempted to get up from the toilet she was unable to feel her lower body and had a shocking pain.

The representative noted there was some issue of when this incident occurred and asked the panel to accept the worker's evidence that it occurred at the time noted which was shortly after the workplace accident. The worker's representative said this was a minor incident and not a new accident as the WCB found. He submitted that if it is a new accident it is compensable as a further injury under WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury.

In answer to a question from the panel about her current health, the worker advised that she has low back pain everyday for 24 hours. She said she takes pain medications and a muscle relaxant.

The representative submitted that the worker continued to feel the effects of her compensable injury after September 1. She continues to feel them now, and she ought to receive the wage loss and medical aid benefits accordingly.

Employer's Position

The employer was represented by an employer advocate who participated in the hearing via telephone conference call. He advised that the employer agrees with the decision of the WCB Review Office.

The employer representative reviewed the worker's duties as a cashier. He said given the light duties the worker performed, she could only sustain a minor injury, not one which would cause a disc injury or aggravate a pre-existing condition. He said that the worker had no risk of a repetitive strain injury. He noted that the worker did not initially have radiating pain into her legs and that the symptoms after September 1, 2011 are not caused by the work injury.

The employer representative said the worker is not a good historian and has provided different versions of the incident and onset of pain.

The employer representative said that the employer is not responsible for non-compensable degenerative conditions and that the accident did not aggravate the worker's pre-existing condition.

In closing the employer representative submitted that:

"The original injury was very minor at best. So minor that it was accepted for only a minor muscle strain. It was not accepted in this claim that the original accident, that of performing regular duties as a cashier in various grocery items was consequential enough to cause an aggravation of the pre-existing condition. This claim was accepted for a muscle strain, and as an aggravation of the pre-existing condition was not accepted as a compensable injury in this claim, we submit that the incident arising or the toilet incident on September 1st, 2011 had apparently aggravated a condition that was not accepted as part of this claim, and therefore, the accident while at home, aggravated the pre-existed condition, did not worsen or aggravate the compensable injury. "

Analysis

This appeal deals with the worker's entitlement to benefits after September 1, 2011. For the worker's appeal to be successful, the panel must find on a balance of probabilities that the worker's inability to work after September 1, 2011 was caused by the worker's workplace injury. The panel was able to make this finding.

The panel finds, on a balance of probabilities, that the worker aggravated her pre-existing degenerative disc disease at work on August 6, 2011. In reaching this decision the panel notes:

• treating physician's first report of August 8, 2011 in which the physician noted "was at work - felt sudden low back pain." She found that the "ROM back limited due to pain." The panel finds this report supports a finding that the worker did suffer a back injury at work on August 6, 2011.

• physiotherapist report of August 9, 2008 in which the physiotherapist noted objective findings including "poor, slow mobility (all painful) Lumbar ROM assessment: limited ++ (pain restricted) Tender with palpation of lumbar, thoracic, and gluteals bilaterally. Passive hip flexion less than 100 degrees Weakness with bilateral calf raise increased tone bilat illiopsoas right > left (very tender with palpation)." She assessed the worker with LBP NYD (lower back pain not yet diagnosed.) The panel finds this report supports a finding that the worker was experiencing back pain shortly after the incident.

• report of WCB orthopedic consultant dated September 29, 2011. The consultant noted that the first diagnosis provided was probably renal colic based on information from the Emergency Department of the hospital the worker attended on August 6, 2011. However, the consultant opines "Current LBP and lower limb pain is probably caused by degenerative disc disease as demonstrated on MRI." The panel notes the consultant's diagnosis of pain from degenerative disc disease and finds this is consistent with its conclusion that the worker aggravated her pre-existing degenerative disc disease in the workplace accident of August 6, 2011.

• report of neurosurgeon dated February 15, 2013. The neurosurgeon stated that "It is my opinion that, on a balance of probabilities, the back pain that the patient was experiencing beyond September 1, 2011 was at least partially the result of the injury that the patient sustained on August 6, 2011. In other words, the work-related injury at least resulted in deterioration of pre-existing condition, the latter being the degenerative disc disease visualized on MRI."

• physiotherapist report dated October 5, 2011 which notes that "Some days symptoms of pain + numbness improve + are manageable, other days (today) has increased pain/ reduced function." The panel notes these fluctuating symptoms are consistent with pain resulting from degenerative disc disease, and with the symptoms described prior to September 1, 2011.

The panel is not able to find that the worker suffers from radicular pain or that the injury caused a disc injury. The panel notes that the worker's symptoms and complaints have not been radicular in nature.

There was discussion about an incident which occurred at the worker's home where the worker was unable to get up from the toilet. At the hearing, the worker advised that this incident occurred late in the night of August 7 or early in the morning of August 8 in her home. The panel accepts the worker's evidence. The panel also finds that this was a minor incident rather than a new and separate injury, and was not responsible for the worker's ongoing inability to return to work.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of August, 2013