The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she had recovered from the effects of her compensable injury by April 9,2014.  A hearing was held on February10, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterApril 9, 2014.

Decision

That the worker is entitled to benefits after April 9, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back/tailbone injury that occurred on January 1, 2014. The worker reported that she was walking into a client's porch with laminated flooring when she slipped and fell onto her low back/tailbone. The worker indicated that at the time of her fall she was 13 weeks pregnant.

Following the accident, the worker was seen for treatment by a general practitioner, a physiotherapist and a chiropractor. The diagnosis outlined by each healthcare provider was low back pain, left sciatic and discogenic back pain and post-traumatic L5 disc protrusion.

On March 10, 2014, the worker was seen at the WCB offices for a call-in examination. Following the examination, the WCB medical advisor concluded that the worker's current presentation was not consistent with a pathoanatomic condition. There was evidence of abnormal pain which could not be medically accounted for in relation to the workplace injury. The WCB medical advisor opined that the worker may have sustained a strain and that full recovery would have been expected in six weeks. The pregnancy would limit treatment options, but even untreated, a strain should recover in that time.

On April 1, 2014, a WCB case manager wrote the worker to advise that benefits would be paid to April 7, 2014 as it was felt that she had recovered from the effects of the low back strain injury sustained on January 1, 2014 and that her current symptoms/difficulties could not be linked back to her compensable injury. The case manager's decision was based on the WCB call-in examination findings of March 10, 2014. The case manager stated:

This examination indicated that the compensable diagnosis was most likely a low back strain injury. It was also noted that your presentation during this exam was consistent with abnormal pain and was not consistent with radiculopathy or any other structural abnormality. This opinion was supported by:

1. Despite complaining about radiating pain into the left leg, your gait was noted to put more of the weight on the left leg.

2. You indicated that the act of squatting felt good, when this activity would normally cause difficulties in someone with radiculopathy.

3. You reported improved radicular pain with slump testing. Slump testing is a test for dural tension, so this cannot be medically accounted for.

4. You reported pain radiating down the left leg as soon as you lifted either leg off the table. There is no dural tension until approximately 40 degrees, so these symptoms are not consistent with dural tension.

5. You advised that you were only able to walk on your toes if your head was flexed, but this would be expected to increase tension, so these symptoms could not be medically accounted for.

6. Double straight leg raise in the lying position was minimal, despite being able to sit upright with your low back and hips at a 90 degree angle.

Typical recovery period for a low back strain would be in the 2 to 6 week range.

On April 14, 2014, the treating chiropractor provided a report to the WCB outlining his examination findings on January 30, 2014 and the treatment he later provided the worker to reduce the L5 disc protrusion. The chiropractor commented that the WCB call-in examination findings that the compensable diagnosis was most likely a low back strain injury was indicative of a poor examination and lack of knowledge about the neurological and orthopedic presentation of a disc injury.

The chiropractor noted further that the worker did not have any of her present complaints before the January 1, 2014 workplace injury. He said the compression type mechanism of injury was classical for an L5-S1 disc protrusion for someone under the age of 30 and that the treating family doctor supported his diagnosis. It was felt that the worker was currently unable to perform her workplace duties as a result of her workplace injury and that she should be entitled to further compensation benefits.

On April 18, 2014, the WCB medical advisor who examined the worker on March 10, 2014 indicated that the report from the chiropractor dated April 14, 2014 did not provide any new information to warrant a change in the opinion outlined at the WCB call-in examination. The medical advisor stated that the call-in examination was based on file review, evidence based medical knowledge, the mechanism of injury, recovery norms and the presentation of the worker. The medical advisor stated that the worker's presentation involved a very expressive description of her symptoms, report of 10/10 pain, and inconsistencies observed. The opinion was based on the overall presentation of the worker, not one specific test.

On May 15, 2014, a WCB claims supervisor responded to correspondence dated May 8, 2014 from the worker's union representative indicating that he supported the case manager's decision of April 22, 2014. The supervisor found that the worker's wage loss benefits should be paid to April 9, 2014 in accordance with Policy 44.30.60, Notice of Change in Benefits and Services.

On May 16, 2014, the worker's union representative appealed the May 15, 2014 decision to Review Office. The union representative submitted that the worker was entitled to further compensation benefits based on the fact that the WCB's medical opinion that the worker suffered a back strain type injury was not supported by any of her healthcare providers; there was no file evidence to show that the worker had recovered from the effects of her January 1, 2014 injury; and the April 14, 2014 chiropractic submission outlined a number of issues related to the March 10, 2014 call-in examination.

In a decision dated July 3, 2014, Review Office confirmed that the worker was not entitled to benefits after April 9, 2014 as it found no evidence to show a causal connection between the worker's current low back problems and the January 1, 2014 compensable accident. Review Office indicated that it did not see evidence to confirm that the WCB healthcare advisor did not perform her medical testing correctly or that Compensation Services completely mismanaged the worker's claim. Review Office indicated that most of the treating chiropractor's concerns appeared to be from information relayed to him by the worker.

Review Office indicated the worker's subjective pain levels, inconsistent test results and worsening of her condition cannot be explained by either a disc injury or a musculoskeletal injury. Review Office found the evidence supported that the worker's functional complaints did not hold up under medical validity testing and could not be explained on a pathoanatomical basis. On July 30, 2014, the union representative appealed Review Office's decision to the Appeal Commission and an oral 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.

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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker attended the hearing and was assisted by a union representative. It was submitted that on January 1, 2014 the worker suffered a serious slip and fall injury while at work and had almost immediate symptoms of an acute disc injury to her low back, which became progressively worse over the course of her shift that day. She reported for work the next day but was unable to continue to work in her physically demanding position as a health care aide. The treating chiropractor described the compression-type mechanism of injury as being classical for a L5-S1 disc protrusion for a person under the age of 30.

It was submitted that when the worker's benefits were terminated on April 9, 2014, there was no credible evidence of her recovery. The treating chiropractor outlined his opinion on diagnosis and concerns with the WCB medical advisor's call-in examination, but the Review Office relied solely on the WCB medical opinion to terminate the worker's benefits. It was clearly identified that the nature of the worker's injury was more serious than a strain injury, but the WCB chose to disregard other opinions on file. It was submitted that recent MRI results further evidenced the extent of the worker's injury and confirmed that the WCB erred when they terminated the worker's benefits on April 9, 2014.

Employer's position:

The employer was represented by an employer advocate. The employer's position was that the MRI was new information which did show evidence of a disc protrusion affecting the nerve roots. The employer acknowledged that these new findings could potentially cause the WCB and its medical advisor to change their opinion and determine that the worker's injury was more

than just a sprain/strain injury. The employer's position was that further medical opinion was required to determine whether the findings on the MRI were the result of the work injury.

Analysis:

The issue before the panel is entitlement to benefits after April 9, 2014. In order for the appeal to succeed, the panel must find that the worker's compensable injury either required medical aid or caused her to suffer a loss of earning capacity beyond April 9, 2014. On a balance of probabilities, we are able to make that finding.

The main question in this case concerned the nature of the worker's injury. There was no dispute that the area of injury was the worker's low back, but there was a divergence of opinion as to the extent of the injury. Based on a call-in examination conducted on March 10, 2014 where the worker demonstrated abnormal pain behaviour and inconsistent results, the WCB medical advisor opined that the worker's injury was limited to a low back strain which should have resolved within two to six weeks. The treating chiropractor disagreed with this assessment and opined that the worker had suffered an acute post-traumatic L5 disc protrusion which impinged on the worker's left SI nerve root. Difficulties with assessment in this case were complicated by the fact that the worker was pregnant at the time of the injury. She subsequently gave birth in mid-July, 2014.

At the hearing, the panel was provided with an MRI dated January 24, 2015. The MRI noted the following findings in the worker's low back:

L3-L4: Moderate disc desiccation is present. There is a moderate sized broad based central disc protrusion along with a central annular tear. The disc protrusion just contacts both L4 nerve roots and could irritate either root. The central canal and foramina are well maintained.

L4-L5: Moderate disc desiccation is present along with mild disc space height loss. There is a large focal central disc extrusion that compresses the left L5 nerve root in the left lateral recess and to the lesser extent of the right L5 nerve root in the right lateral recess. The disc extrusion also contacts the descending S1 nerve roots. There is moderate narrowing of the central spinal canal. The foramina are patent.

L5-S1: Moderate disc desiccation is present. There is a small to moderate sized focal central disc protrusion that approaches and appears to just contact the S1 nerve roots. The central canal and foramina are well maintained.

The MRI results identify a number of abnormal findings in the worker's lumbosacral spine, particularly in an individual as young as the worker. The overall impression was that: "At L4-L5 there is a large central disc extrusion that compresses both L5 nerve roots greater on the left and also contacts both S1 nerve roots. Disc herniations are also noted at L3-L4 and L5-S1."

The findings are consistent with the chiropractor's diagnosis of a left SI nerve root impingement. The findings do, however, also identify a number of conditions in the worker's lumbosacral spine which appear to be degenerative, rather than acute, in nature.

The MRI was only performed a few weeks before the Appeal Commission hearing and the results were never forwarded to the WCB as new information for further adjudication. At the hearing, the worker and her union representative were given the option of adjourning the hearing to have the matter reconsidered by the WCB in light of the new information. This option was declined.

In the panel's opinion, the MRI findings are, sufficient to satisfy us on a balance of probabilities that at the time of her work-related fall, the worker had pre-existing degenerative changes in her lumbosacral spine which were, at minimum, aggravated by the impact of her fall. Following the workplace accident, there was a distinct change in the worker's presentation and functional abilities which continued beyond April 9, 2014. The panel does not accept that the compensable injury was limited to a back strain which ought to have resolved within two to six weeks. We find that there was, at minimum, an aggravation of a pre-existing condition which continued to impact the worker beyond April 9, 2014. This, in all likelihood, was compounded by the worker's pregnancy. At the hearing, the worker's evidence was that by the end of September 2014, approximately two and a half months after she gave birth, the condition started to resolve.

The panel stresses that this decision does not extend to a determination as to whether or not the MRI findings were limited to an aggravation of the pre-existing condition. There remains the possibility that the pre-existing condition was enhanced by the workplace fall but any such adjudication will require further investigation. We will refer the matter back to the WCB to obtain medical input as to the extent to which the MRI findings were caused by the January 1, 2014 fall and to adjudicate any ongoing responsibility for the claim.

We therefore find that the worker is entitled to benefits after April 9, 2014. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of March, 2015