The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss and medical aid benefits in relation to his August 14, 2013 compensable accident. A hearing was held on September 29, 2014 to consider the matter.

Issue

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

Decision

That the worker is entitled to wage loss and medical aid benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a sore low back which he related to his work activities on August 14, 2013. The worker advised that on November 1, 2013, he reported to his supervisor that he felt soreness and tightness in his low back and felt it was directly related to the strain he suffered in August 2013.

On November 8, 2013, the worker described the August 14, 2013 accident. He stated that he and other workers were lifting a piece of equipment. He said "I was in the bucket lifting the [piece of equipment], it got heavy and I did a side bend type motion because of the weight of the [piece of equipment]. This happened quickly. Immediate lower back right side pain which felt like he over stretched it. Went back to work the next day. Taking it easy at work and co workers were picking up the slack." The worker stated that he tried to make an appointment with his doctor but the doctor went on holidays for 3 weeks. The worker indicated that the pain in his back was bad for the first couple of days and that he did home exercises. He indicated that he called the doctor's office in October to make an appointment as his back pain was getting worse. His appointment with the doctor took place on October 14 and he had a follow-up appointment on November 14. The worker indicated that currently, it hurt to go from sitting to standing and it hurt to get into a car. The worker noted that he had a previous back claim with the WCB but had no residual symptoms. The worker advised that the first day he missed time from work was on November 4, 2013.

The WCB adjudicator then contacted the employer as well as co-workers identified by the worker to obtain their knowledge of the events that occurred on August 14, 2013 as well as details related to the worker's reporting of a back injury and his ongoing back complaints.

Initial medical information on file was from a physiotherapist for an assessment dated November 6, 2013. The description of accident was right sided low back pain after lifting a piece of equipment. The worker reported that he had constant right sided low back pain radiating to his posterior right calf and intermittent tingling in posterior heel. Aggravated by sitting and lifting. The diagnosis was possible L5 disc herniation with right side radiculopathy.

In a doctor progress report dated November 13, 2013, the treating physician noted that he referred the worker to a specialist for an assessment of his back complaints. The treating physician outlined his examination findings as follows: "decreased L/S ROM, flexion, R and L side bend about 30 degrees, positive straight leg raise test R side 25 degrees, weak R S1 myotome, tight R quadriceps, glutes."

On December 10, 2013, the WCB advised the worker that his claim for a workplace injury occurring on August 14, 2013 had been accepted for the incident only and any ongoing treatment and/or wage loss beyond the date of accident was disallowed. The adjudicator noted in the decision that the WCB had not yet secured the medical report for the worker's October 14, 2013 medical appointment and that the worker had not gone for any follow up medical treatment until his initial physiotherapy assessment on November 6, 2013. As the worker did not attend any medical treatment until October 14, 2013, the WCB did not have any indication that he was incapable of performing his regular duties or that further treatment was required as a result of his compensable injury.

On December 10, 2013, the treating physician provided the WCB with his October 15, 2013 chart notes. The report stated that the worker "re injured back at work recently, has had back injury previously, now R lower back pain and radiating down R leg".

On December 16, 2013, the WCB advised the worker that no change would be made to the decision dated December 10, 2013 based on the following rationale:

"Although you indicate that you were working modified duties as an accommodation within your crew, your employer did not make any arrangements for modified duties and as far as they were aware you were working your full regular duties. After your October 15, 2013 appointment with Dr. [name] you did not seek further medical treatment for this injury until November 6, 2013 when you went for an initial physiotherapy assessment."

On February 7, 2014, a worker advisor asked the WCB to reconsider its decision dated December 16, 2014. The worker advisor outlined the position that the mechanism of injury described by the worker could cause an aggravation of a pre-existing low back condition. The worker advisor referred to a co-worker statement on file dated November 12, 2013 to support that the worker was experiencing low back difficulty following the August 14 incident. It was also argued that the medical reports on file which included a submitted physiotherapy report dated December 19, 2013 supported clinical findings of low back and right leg symptoms. It was also felt that the worker explained why he delayed in seeking medical treatment and that the treating physiotherapist provided an explanation for the worker's increase in back symptoms. The worker advisor concluded that the information as a whole supported that the worker's low back symptoms were causally related to the August 14 incident and that the worker should be entitled to coverage of benefits and services.

A WCB medical advisor noted in a memo to file dated March 20, 2014 that the reported mechanism of injury on August 14 would account for a back strain/injury. He noted that the worker continued to perform his regular duties without formal restrictions and did not attend for medical care until October 15. At the October 15 visit, a back injury was noted and sedentary duties were advised. The worker continued to work until early November. The medical advisor indicated that the typical natural history of back injuries was for pain and disability to be most significant in the acute stages with gradual subsequent recovery. Total disability from November onwards would not be expected in relation to the injury in August.

On March 21, 2014, the WCB adjudicator informed the worker advisor that no change would be made to her previous decision. The WCB remained of the view that the worker's time loss beginning November 4 until his return to work on December 2, 2013 was not related to the incident that occurred at work on August 14, 2013.

On May 6, 2014, the WCB received consultation reports from a sports medicine physician who initially saw the worker on February 4, 2014. The diagnosis outlined at this visit was "lumbar disc herniation with spinal nerve compromise ? L5 ? S1."

In its decision dated May 28, 2014, Review Office outlined its position that there was no entitlement to wage loss and medical aid benefits as it was unable to find that the worker's condition, described as a possible L5-S1 disc herniation was the result of the August 14, 2013 accident. Review Office concluded that the probable diagnosis related to the compensable injury was a soft tissue injury such as a low back strain. The evidence supported that after a few weeks of working lighter duties, the worker was doing his full regular duty with minimal complaints and no medical follow up. It felt that the evidence also captured a significant change in the worker's level of back pain and function occurred in late October, however this was unexplained in relation to a probable soft tissue injury occurring roughly 10 weeks earlier. It felt that there was no clear chain of causation evident that supported a cause and effect relationship between

the worker's reported low back pain in mid to late October and the accident that occurred on August 14. On June 4, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The worker has an accepted claim arising from an injury that occurred on August 14, 2013. He is appealing the WCB decisions that he is not entitled to wage loss and medical aid benefits.

In dealing with this appeal, the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.
• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
• ss. 39(2) 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.
• ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was represented by a worker advisor who made a submission on his behalf.

The worker answered questions from his representative and the panel.

The worker's representative submitted that the evidence shows a relationship between the August 14, 2013 incident and the worker's ongoing low back symptoms and diagnosis. She noted that the diagnosis of an increased L4-L5 central/right paracentral disc extrusion compressing the L5 nerve could have resulted from the mechanics of the August 14, 2013 injury. A co-worker provided a description of the worker's symptoms following the incident which supports that the worker was suffering from a back injury. The medical reports of the family physician, physiotherapist and sports medicine physician all suspected injury to the L5 disc.

The worker described the incident which occurred when he was working in a bucket and holding a heavy piece of equipment. He said that he did a "side bend" and immediately felt a right burning pain. He said his co-worker witnessed the incident and indicated he heard a pop. His supervisor was aware that he was injured. He advised that his lead hand and co-workers accommodated him by doing the heavier work and leaving the lighter duties to the worker until he changed to another crew in September.

The worker advised that, at first, the pain was not as severe as the pain he experienced when he injured his back in 2008. He said the pain decreased at first but then worsened. He was never pain free but felt he could cope. When the pain did not resolve, he saw his physician who prescribed a pain medication, a muscle relaxant, and anti inflammatory medication. He also went to a physiotherapist and saw a chiropractor. He said that he sees a sports medicine physician on a monthly basis. The sports medicine physician ordered an MRI. He told the worker that his condition has worsened and has referred him to an orthopedic surgeon.

Employer Position

The employer was represented by an advocate and its WCB case worker.

The employer representative advised that the employer agrees with the Review Office decision. She noted that the worker indicated that he was not bad at first and the worker continued working without any time loss. She said that in November 2013, the worker's symptoms significantly increased and he missed work. She submitted that there was no connection between his condition in November and the workplace injury.

The employer representative agreed with the WCB medical advisor opinion of March 20, 2014 that "The typical history of back injuries is for pain and disability to be most significant in the acute stages with gradual recovery subsequently. Total disability from November onward would not be expected in relation to the injury in August."

Analysis

The issue before the panel is whether the worker is entitled to wage loss and other benefits arising from his accepted August 14, 2013 workplace accident. For the worker's claim to be accepted, the panel must find, on a balance of probabilities, that the worker continued to suffer the effects of the workplace injury resulting in a loss of earning capacity and need for further medical aid benefits. The panel did make this finding.

In making this decision, the panel notes:

• the worker had a prior workplace disc herniation injury to his back and recovered from this injury to the extent that he returned to work and was symptom free for a number of years.
• a co-worker who was in close proximity to the worker was aware of the injury.
• the worker immediately advised his lead hand that he was injured.
• the worker's supervisor and co-worker confirm that the work crew assisted the worker with his duties for the remainder of the month while he was in that crew.
• the worker's symptoms were similar to his symptoms when he was injured in 2008 and had sustained an L5 disc herniation. He described a shooting fast pain and said that sitting worsened his pain.
• the symptoms reported by the family physician are consistent with a radiculopathic injury. The first report from the family physician, dated October 15, 2013, noted "now R lower back pain and radiating down R leg." This visit was prior to the escalation of pain and function that caused the worker to stop working in early November.
• the family physician and treating physiotherapist provided clinical findings of positive straight leg raises and loss of range of motion.
• the family physician prescribed, at the outset, a significant mix of medications which were consistent with treatment of a radiculopathic injury.
• the sports medicine physician who the worker saw on February 4, 2014 noted clinical findings consistent with a radiculopathy and provided a diagnosis of lumbar disc herniation.
• an MRI dated July 20, 2014 found that "At L4-L5 a large paracentral disc extrusion has increased slightly in size from 2008 and compresses the right L5 nerve root within the lateral recess."
• the mechanism of the injury, bending sideways due to the weight of the material, is consistent with the diagnosed injury.

The panel notes that the worker has successfully continued to work after the accident and continuing to the day of the hearing. He advised that he has missed some time due to the injury but that he generally feels better working than staying home. He acknowledged that he has been transferred to a physically less demanding position than he held at the time of the injury and that this has facilitated his ability to continue working. The worker told the panel that he has attempted to adapt his posture and practices to avoid painful movements and has modified the manner in which he performs his duties. He said that he always thinks about his movements and is getting "smarter" with bending and crouching.

The panel notes there was concern that the worker's condition suddenly worsened in November 2013, suggesting that a new diagnosis had arisen for a different back condition that was not related to the worker's August 2013 work injury. In contrast, the worker's position and evidence at the hearing was that he had the same type of symptoms, consistent with a disc injury, on a continuous basis right from the outset, although the pain varied at times (i.e. he would have less pain standing, more pain sitting) and on occasion fluctuated (waxed and waned). He also indicated that the different duties he performed also impacted on his pain levels.

In considering whether the current medical condition can be related back to the August 2013 compensable accident, the panel found the worker's evidence to be credible and reliable.

In this regard, the panel notes that the worker continues to work full time, even in the presence of a diagnosed large disc extrusion at L4-5 and the associated radiculopathy that has been confirmed by clinical tests. The worker's evidence, confirmed by his attending physician's medical report, is that he was prescribed with a breakthrough pain medication on October 15, 2013, well before his first absence from work in early November 2013 and before he established a WCB claim, that has helped him to manage his pain and continue to work. In the panel's view, the worker's ability to work after the August 2013 injury was not as a result of recovery from a strain/sprain type injury but rather because of careful management of his ongoing disc symptoms which can be attributed to the following factors:

·He had been supported by both work crews (and by his employer on an ongoing basis) in terms of job modifications and   alternate work right from the outset of the claim.

· The worker was careful to work within his physical limitations, which he figured out by himself.

· Medication for breakthrough pain which was prescribed to him and used to assist him to work.

· A high pain threshold and a strong work ethic, as evidenced by his current ability to perform full time work.

 In conclusion, the panel finds, on a balance of probabilities, that the worker suffered a disc injury while working on August 14, 2013 and continues to suffer the effects of the injury. The worker is entitled to wage loss and medical aid benefits on this claim.

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of October, 2014