The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB")that she did not sustain a secondary injury while participating in a reconditioningprogram and that she had recovered from the effects of her compensable injuryby November 14, 2014.  A hearing washeld on June 23, 2015 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's subsequent injury; and

Whether or not the worker is entitled to benefits after November 14, 2014.

Decision

That responsibility should not be accepted for the worker's subsequent injury; and

That the worker is not entitled to benefits after November 14, 2014.

Decision: Unanimous

Background

On March 12, 2014, the worker was assisting a co-worker lift an unconscious patient from the floor onto a stretcher when the worker felt a twist in her low back. As the day progressed, the worker stated her back condition progressively worsened. Following the incident, the worker was diagnosed with an acute lumbar sprain and was referred for physiotherapy treatment. The claim for compensation was accepted by the WCB and benefits were paid accordingly.

File records showed that the worker was seen at the WCB for a call-in assessment on July 14, 2014 and in August 2014 she began a four week reconditioning program. The worker's progress during the reconditioning program is on file dated August 11, 2014 and August 22, 2014. On September 8, 2014, the worker underwent an MRI assessment of her lumbar spine.

On September 24, 2014, a WCB medical advisor commented that the MRI showed multilevel disc changes consistent with degenerative disc disease related to ageing and not the compensable accident. Any nerve impingement seen on the MRI was not clinically significant. With respect to the reconditioning program, it was reported that the worker's strength had improved significantly however the worker was considered to be pain focused. The medical advisor stated that the best treatment for the worker in this situation was to return to normal activity. There were no acute changes on the MRI so there was no evidence that the pre-existing condition had been materially changed by the workplace accident.

In early October 2014, the treating physician called the WCB to advise that there had been some changes in the worker's presentation at the end of the reconditioning program. The worker reported radicular symptoms that she had not previously experienced.

On October 2, 2014, the WCB case manager called the physiotherapist who stated:

...the worker did report on August 11/14 - a two day history (sic) back and buttock pain. The worker reported numbness in the butt during the last week that she was having a pinching/numb feeling. Testing was done when the worker reported difficulties and there were no neurological findings that would have supported a disc injury. On August 22 the worker reported an intermittent pinching/numbness sensation, right greater than left, into the buttock. She advised that it was very intermittent not constant...it did not go down her leg or into the foot....at the time of discharge there was nothing that would have supported an acute disc injury.

The WCB case manager spoke with the treating physiotherapist again on October 17, 2014 and he confirmed that an acute disc injury was not supported when testing was completed at the time of discharge.

A WCB medical advisor reviewed the updated medical information on file and stated:

The doctor has submitted reports advising of a change in clinical status. Since approximately October 2, 2014 the worker has reported radicular pain and paraesthesia. On exam there are noted to be changes in an L5 distribution with positive SLR. This presentation is consistent with a radiculopathy.

A new onset of radiculopathy almost 7 months post accident cannot be medically accounted for in relation to the initial accident. A physiotherapy consultant has reviewed the file and indicated that the radiculopathy cannot be accounted for in relation to the treatment provided. So the new dx (diagnosis) cannot be medically related to the C/I (compensable injury). There is no evidence to change the opinions previously provided...

In a decision dated November 5, 2014, the worker was advised that the WCB was unable to relate her current symptoms to the workplace accident of February 1, 2014 and that benefits would be paid to November 14, 2014 inclusive. The case manager stated that based on the information provided, a new and/or secondary accident could not be established as having occurred on or around August 8, 2014 while participating in the reconditioning program. The case manager opined that the worker sustained a lumbar strain on February 1, 2014 and that she had recovered from this condition based on the medical evidence.

On December 10, 2014, the worker's union representative appealed the case manager's decision of November 5, 2014 to Review Office. A copy of the submission was forwarded to the employer and the employer's submission to Review Office is dated January 6, 2015. The union representative's final submission to Review Office is dated January 23, 2015.

Based on its review of the file information which included reports from the treating physician and physiotherapist along with medical opinions expressed by WCB healthcare advisors, Review Office stated on February 5, 2015 that it could not find that a further compensable injury had arisen out of the delivery of the reconditioning program or that the worker had a further loss of earning capacity or required medical aid after November 14, 2014. On February 25, 2015, the worker's union representative appealed the decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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 resulting from the accident ends. 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) will apply to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

The Worker’s Position

The worker was assisted by a union representative at the hearing. It was submitted that responsibility should be accepted for the worker’s subsequent injury and the worker should be entitled to benefits beyond November 14, 2014.

The worker provided a detailed narrative of the accident and mechanism of injury. Although the worker was originally diagnosed with a sprain/strain injury to her lower back and was expected to recover from her injuries within 6 to 8 weeks, both the worker and her physician became concerned about the length of time her back injury was taking to resolve. An MRI was therefore requisitioned.

In the meantime, the worker was referred to a work hardening program during July and August of 2014. The worker explained that she experienced considerable difficulties with certain tasks during the work hardening. Although her overall strength improved, she also noted a definite worsening of symptoms during the third week of the program, including radicular symptoms.

Although the worker acknowledged that the subsequent MRI results indicated that she had a pre-existing degenerative condition in her back, the worker insisted that any degenerative changes were entirely asymptomatic prior to the workplace injury and prior to the work hardening program.

The worker takes the position that at no time prior to August 10, 2015, did she fully recover to her pre-accident status. In the alternative, the worker submits that her pre-existing condition was aggravated both by the workplace accident and the work hardening program. She should, therefore, be entitled to benefits beyond November 14, 2014.

Employer’s Position

An employer advocate was present at the hearing. The employer supported the decision made by the WCB and submitted that the worker’s on-going symptoms and disability were due to her pre-existing degenerative condition and not to the acute effects of her workplace accident. The worker’s injuries consisted of a fairly straightforward sprain/strain muscular back injury. Because the injuries were superimposed upon extensive pre-existing degenerative changes in the worker’s spinal column, the worker’s recovery was extended. The worker had, however, recovered from the acute effects of the injury as of at least November 14, 2014 and any on-going symptoms were due solely to the worker’s now well-documented non-compensable pre-existing degenerative back condition.

Analysis

The issues before the panel are twofold: whether responsibility should be accepted for the worker’s subsequent injury and whether the worker is entitled to benefits beyond November 14, 2014. In order for the worker’s appeal to be successful, the panel must find that the low back difficulties and radiculopathy the worker continued to experience were related to the injuries she sustained in the workplace accident of February 1, 2014 or the work hardening program. Alternatively, the panel must find that the worker’s radiculopathy constitutes a further injury resulting from the primary compensable lower back strain/sprain. On a balance of probabilities, we find that the work related sprain/strain injury had resolved by November 14, 2014.

This was a difficult case to decide. The panel does not dispute that the worker has been suffering from radiculopathy and is very sympathetic to the fact that she has been hurt. The panel also finds the worker to be credible and forthright. The issue for the panel, however, is whether a causal relationship can be established between the symptoms experienced by the worker and either the workplace accident or the subsequent reconditioning program.

In coming to our decision, the panel notes that the worker did not initially have any radicular pain or neurological symptoms following the accident; these symptoms, rather, emerged some several months later during the work hardening program. The WCB medical advisor concluded that the onset of radicular pain or neurological symptoms some several months after the initial workplace accident cannot be accounted for in relation to the compensable injury. Further, the MRI results show multilevel disc changes consistent with degenerative disc disease, a condition not typically caused by a specific accident but related to aging. She concluded therefore that the diagnosis as a result of the initial workplace injury was a sprain/strain, the recovery from which was prolonged as a result of significant degenerative changes in the worker’s back. We agree with that conclusion.

As far as a relationship between the radiculopathy and the work hardening program is concerned, the panel notes that the physiotherapy consultant who reviewed the file concluded that the radiculopathy could not be accounted for in relation to the treatment provided. The panel also

questioned the worker carefully with respect to the type of activities involved in the reconditioning program and the emergence of her radiculopathy symptoms. The panel notes that there was a three day delay between the onset of the radicular symptoms and the worker’s last attendance at the work hardening program. The worker had no particular memory of a bad session or experience at her last attendance at work hardening before the onset of symptoms, nor did she recall any particular exercise or movement that caused her unusual pain or difficulty. The panel therefore concludes that the necessary nexus or connection between the work hardening program and the onset of the radicular pain has not been established.

With respect to the issue of the radiculopathy being a further injury pursuant to the Further Injuries Policy, the panel, as noted above, is unable to find a relationship between the work hardening program and the radiculopathy. Accordingly, the panel finds that the worker’s radiculopathy is not predominantly attributable to the initial compensable injury.

Finally, we note that there was also no evidence and no suggestion that the radiculopathy was related to the performance of work duties after the worker’s return to work in the fall of 2014.

Accordingly, given that the panel finds that the radiculopathy was not causally connected to the initial compensable injury or to the work hardening program, we find that the worker is not entitled to wage loss or medical aid benefits subsequent to November 14, 2014.

The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer

Signed at Winnipeg this 17th day of December, 2015