The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to further benefits in relation to his claim for injury occurring on July 28, 2011. A hearing was held on May 6, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 31, 2013.

Decision

That the worker is entitled to wage loss and medical aid benefits after May 31, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury he sustained to his groin and abdomen during the course of his employment as a masonry helper on July 28, 2011. The worker reported that he was holding a pail approximately at his waist and was taking concrete from a boom. He leaned forward but the weight of the concrete caught him off guard and he felt a sudden pain to his low back and a shooting pain from his groin into his abdomen. The accident description was confirmed by the accident employer. The claim for compensation was accepted and benefits were paid to the worker based on the diagnosis of a left hip flexor strain.

On January 17, 2012, the worker was seen at the WCB's offices for a call-in assessment. The examining medical advisor stated:

"A review of the method of injury indicates an acute flexion and an acute strain on the left hip area, the acute flexion coming from the left back.

On examination, the claimant has reduction of range of movement of the lumbar spine. He has some loss of lumbar lordosis, some reduction in strength in the left leg on examination, and he has reduction in reflexes on the left leg compared to the right. The impression of a possible radiculopathy is present on the left leg. In terms of examination of the groin, there is evidence of muscular strain particularly at the origin of the adductor muscles and the pubic ramus on the left side. Also, there is some discomfort on palpating the rotators of the left thigh and pain on palpating the piriformis area, giving rise to some evidence of irritation of the sciatic nerve on the back of the left leg...I feel that we should now order an MRI and have this worker seen by Dr. [neurosurgeon] for the low back pain and possible involvement of the left SI nerve root as indicated by the examination."

An MRI of the lumbar spine dated January 31, 2012 read: "Left paracentral L5-S1 disc protrusion affecting the left S1 root."

On April 25, 2012, the treating neurosurgeon reported that the MRI of January 2012 showed evidence of a small left medial lateral disc herniation at L5-S1. The disc material contacted the left S1 root but he could not appreciate any significant distortion of the neural structures.

In response to questions posed by initial adjudication, a WCB medical advisor stated on May 30, 2012 that based on the mechanism of injury and the medical findings reported on file, the likely initial diagnosis was left lower abdominal musculotendinous insertion strain and non specific mechanical low back strain. The medical advisor indicated that the aforementioned diagnoses would have resolved over the course of 10 months and that the left pain symptomatology would not be consistent with S1 nerve root impingement, the current diagnoses would be non-specific low back pain and non-specific left lower abdominal/groin pain.

The worker was seen at the WCB's offices on July 9, 2012 for a joint call-in examination. Following the assessment, it was concluded that there was no evidence of left inguinal hernia, left inguinal peripheral nerve pathology or left groin musculotendinous insertion pathology that would account for the worker's left lower abdomen, left hip or left leg symptomatology.

An MRI of the lumbar spine dated December 11, 2012 revealed: "Persisting but improved left L5-S1 disc protrusion."

On May 21, 2013, the worker was again seen at the WCB for a call-in assessment. The examining medical advisor stated that there did not appear to be a medical indication for restriction of usual activities based on the favorable examination findings. He concluded that no further treatment was required in relation to the workplace injury.

In a decision dated June 13, 2013, the WCB advised the worker that based on the recent call-in examination findings, it was determined that he had recovered from the workplace injury of July 2011 and that he was not entitled to further wage loss or medical expenses beyond May 31, 2013.

In March 2014, the worker submitted to Review Office that he was still suffering from the effects of his compensable injury. Included with the submission was an October 21, 2013 report from his treating neurosurgeon and a doctor progress report dated 2013.

On May 22, 2014, Review Office contacted the worker for additional information. The worker indicated that he did not feel capable of performing his pre-accident job and his employer had no light duties. He said his leg goes numb and he was unable to do clean-up as this would require repeated bending which he was unable to do.

On May 26, 2014, Review Office determined that the worker was entitled to wage loss and medical aid benefits after May 31, 2013 as it was felt that he continued to suffer from the effects of his compensable injury and that it resulted in a loss of earning capacity and a requirement for medical aid.

Review Office accepted the medical opinion outlined in the neurosurgeon's October 21, 2013 report that the worker still required medical treatment to stabilize and recondition his lumbosacral spine and that he should avoid strenuous physical activities involving repetitive bending and heavy lifting. Review Office noted that the worker's pre-accident employment as a masonry helper required him to lift 50 pounds often and bend repeatedly and this was outside of his compensable physical restrictions. Review Office felt that the worker's subjective complaints and objective findings supported a continuance of the compensable injury. On January 9, 2015, the accident employer's 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.

Subsection 4(1) of the Act 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.

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 employer is appealing the WCB Review Office decision that the worker is entitled to wage loss and medical aid benefits after May 31, 2013.

Employer's Position

The employer was represented by an advocate who outlined the employer's reason for appealing the claim. He advised that the employer's concern with respect to the worker's 2011 accident is:

"...the time it’s taken for that original injury which was not quite as severe as what he’s dealing with now. And that’s what we’re questioning, is that it should have been healed a long time ago. And that any other injuries caused should not be the responsibility of [the employer]."

The employer representative said that he does not see the connection between the original injury and the nerve pain which the worker now suffers from. He noted that the first MRI did not show a tear while the more recent MRI showed a tear.

In closing, the employer representative said that the employer's real concern is what, if anything, happened outside of the injury occurring in 2011 that causes the worker to still experience the same pain as a month after the injury. He said that after all the treatment and appointments and physiotherapy, nothing has changed, and if anything, the worker has gotten way worse.

Worker's Position

The worker was self-represented. The worker said that he initially thought he had a hernia and described the pain as:

"When I first injured myself, we had no idea that it was, like, I was getting my nerve pushed in. So I remember in the beginning, I was getting crazy pain signals kind of everywhere. That’s why I was, like, pain in the hip, pain in leg, like, my doctor didn’t even understand at that point what it was. When I first went, he thought it was an abdomen strain or something coming up my, like, because it zang all the way up here.

Like, I was feeling my pain shooting kind of all around the hip, kind of bursting out, but a lot up here and a lot in the groin. And so I was thinking, I had a hernia a couple of, about a year and a half before that or two years before that.

So I was thinking, oh, man, I’ve probably got a hernia, because I felt it in the groin and in the stomach."

Regarding the pain in his leg, the worker said that he had leg pain right from the beginning. He described the pain as "weird little pains." He said that he still gets burning that wraps around his whole hip from his back and goes up the back just a little and then burning in the back of the thigh. He referred to it as itchy, burning, stabbing, like a cramping. He said "...almost like just a cramping down the whole leg, kind of a cramping feeling and just tingles in the feet." He confirmed that the pain is always on the left side, he has no problem with the right leg.

The worker said that he was told about a tear but was not told to change his routine and exercise due to the tear.

The worker also answered questions regarding his current activity.

Analysis

The employer has appealed the WCB Review Office decision that the worker is entitled to benefits after May 31, 2013. For the employer's appeal to be approved, the panel must find that the worker's loss of earning capacity and his medical condition after May 31, 2013 are not related to his workplace accident.

The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's loss of earning capacity and medical condition after May 31, 2013 are related to his workplace injury of July 28, 2011.

The panel notes that the September 29, 2011 physiotherapist report indicates "increase in complaints over left S1 joint and low back while sleeping and while walking." This is the first of many reports noting issues in the S1 area.

The worker was examined by a WCB medical advisor on January 17, 2012. The medical advisor noted possible involvement of the left S1 nerve root as indicated by examination.

The panel attaches significant weight to the opinion of the neurosurgeon who examined the worker on three occasions and had similar findings on each occasion which confirm an ongoing lumbosacral injury:

· April 25, 2012 examination:

- lumbar spine restricted with some 70% flexion and extension

- rotation and lateral bending were approximately 70-80%

- some tightness but no deformity of lumbosacral segment

- Schober was 10-13 and Lasegue was bilaterally negative

- heel and toe walking were unrestricted

- plantar response was downgoing

- diagnosis: lumbosacral gluteal and also inguinal discomfort probably musculoskeletel

- pain extending into lateral aspect of left thigh and numbness may be radiculopathic

- disc herniation is fairly contained

- recommendation: patient should return to physiotherapy/aquacising program

· October 21, 2013 examination:

- patient still experiencing tightening sensation extending to the left thigh but stopping above the knee, numbness has subsided lumbar spine restricted with 80% flexion and 70% extension

- rotation and lateral bending was approximately 80% and paravertebral muscles were somewhat tight

- some loss of lordosis of the lumbosacral segment

- Schober was 10-14 and Lasegue was bilaterally negative

- toes and heel walking were unrestricted

· October 14, 2014 examination:

- clinical condition has partially improved particularly upon restarting physiotherapy but still low back discomfort and occasional pin in left calf

- lumbosacral spine is restricted some 70% flexion and 60% extension

- rotation and bending approximately 70%

- Schober was 10-12 and Lasegue was bilaterally negative

- heal and toe walking were unrestricted

- patellar and ankle reflexes were weak and symmetrical

- plantar response was down going

- Diagnosis: lumbosacral discomfort and intermittent spasm is probably musculoskeletal

- pain of left calf and paresthesia are probably radiculopathic that is fairly contained

- recommendation: conservative treatment with emphasis on physiotherapy/aquacising

The panel also relies upon the opinion of the WCB orthopedic consultant who examined the worker November 27, 2014 and found, in part:

• clinical findings on examination similar to the treating neurosurgeon
• current symptoms were caused by lumbar disc lesion at L5-S1 with nerve root irritation in the left lower limb involving left S1 nerve root. "This diagnosis is related to the workplace injury, on a balance of probabilities."

Based upon the above medical evidence, the panel finds that the worker's symptoms continued after May 31, 2013 and that he continued to be eligible for benefits after this date.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of June, 2015