The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury by May 7, 2012. A hearing was held on November 2, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after May 7, 2012.

Decision

That the worker is not entitled to wage loss benefits after May 7, 2012.

Background

The worker filed a claim with the WCB for a low back injury that occurred at work on March 1, 2012 when she lifted a pail of liquid. Her claim for compensation was denied by the WCB and was later accepted by the Appeal Commission. For complete details regarding claim history, please refer to Appeal Commission Decision No. 174/13 dated December 17, 2013.

On March 17, 2014, a WCB medical advisor answered questions posed by the WCB case manager regarding the worker's low back condition.

In a decision dated March 18, 2014, the worker was advised by Compensation Services that she was entitled to wage loss benefits and the costs associated with physiotherapy treatment up to May 5, 2012 in relation to her workplace accident. The decision stated:

Based on the mechanism of injury (lifting the pail of laundry detergent) the accepted compensable diagnosis has been determined as a low back strain and right sciatica perturbation (temporary worsening).

…

Medical information on file confirms that you had sciatica prior to the March 1, 2012 accident. By the physiotherapy appointment of May 3, 2012 the medical supports that the symptoms related to your compensable injury had resolved and the remaining symptoms were what had existed prior to the March 1, 2012 workplace accident. You attended physiotherapy treatment related to the compensable injury up to and including May 5, 2012. (Physiotherapy treatment beyond that date was confirmed to be for injuries sustained in a motor vehicle accident).

…in the opinion of Compensation Services your compensable injury would have resolved by May 5, 2012. Therefore, responsibility for physiotherapy expenses incurred and wage loss benefits will be accepted to May 5, 2012 inclusive and final.

In a further decision dated May 5, 2014, Compensation Services advised the worker that it had reviewed new information submitted by her treating physician which included a report from a neurosurgeon dated January 7, 2013 and that the information offered no new historic information, clinical evidence, findings or test results to support a change to the decision of March 18, 2014.

On November 25, 2014, the treating chiropractor provided the WCB with his chart notes and a summary of his examination findings related to the worker's low back for the period November 28, 2011 to May 23, 2012.

On January 12, 2015, a WCB medical advisor reviewed the chiropractic information and concluded that the chiropractor's notes were concordant with the previous determination of a probable recovery to baseline by about May 5, 2012. The medical advisor noted that in the chart notes dated May 14, 2012, the chiropractor stated: "Noted on file care is supportive in nature and that findings most likely secondary to DDD at possibly L4-L5 with frequent exacerbations."

Based on the WCB medical opinion dated January 12, 2015, the worker was advised that the WCB remained of the opinion that her compensable injury resolved by May 5, 2012.

On October 30, 2015, the worker's legal representative appealed the case manager's decision to Review Office. On December 7, 2015, the employer's representative submitted to Review Office that they supported the WCB's decision that there was no entitlement to wage loss benefits beyond May 5, 2012.

Prior to considering the worker's appeal, Review Office sought medical advice from a WCB orthopedic consultant. On December 16, 2015, the WCB orthopedic consultant reviewed all medical reports which included MRI findings of May 20, 2013 and September 14, 2012 and an x-ray of the lumbosacral spine dated January 19, 2010. The consultant said the evidence supported a diagnosis of longstanding degenerative lumbar disease. It was opined that the diagnosis of the workplace injury was a strain/sprain of the low back in the environment of pre-existing degenerative pathology of the lumbar spine.

Based on its review of the file evidence, Review Office concluded on January 7, 2016, that the worker sustained a strain/sprain of her low back as a result of the workplace accident which resulted in a loss of earning capacity up until May 7, 2012. Beyond this time period, the worker's need for any restrictions/loss of earning capacity was not related to her compensable injury. On January 26, 2016, the worker's legal representative appealed Review Office's decision to the Appeal Commission and an oral 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 WCB 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 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.

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 39(3) provides for wage loss benefits in the case of workers who are 61 years or older at the commencement of their injury.

The WCB Board of Directors established Board Policy 44.10.20.10, Pre-existing Conditions, which deals with cases involving an injury that aggravates or enhances a worker's pre-existing condition.

The worker has an accepted claim for an injury arising from a March 2012 accident. She is seeking wage loss benefits after May 7, 2012.

Worker's Position

The worker was represented by legal counsel. She was assisted by an interpreter.

The worker's counsel reviewed the background to the worker's claim noting that in December 2013, the Appeal Commission determined that the claim was acceptable. He said that the Appeal Commission found:

…following the date of the accident, there was a distinct change in her level of function, and she was no longer able to regularly carry out her duties. After reviewing the evidence as a whole, they were satisfied on the balance of probabilities that an accident did occur on March 1, 2012, as a result of which, the worker suffered a lower back injury and corresponding loss of earning capacity.

The worker's counsel also referred to portions of the transcript of the prior hearing to confirm that the worker disclosed that she was seeing a chiropractor prior to the date of the injury.

In response to a request, the worker pointed to where she felt pain after the incident. She also drew a mark on a chart to the area of her back where she felt pain. The marked chart was received as Exhibit 1. Subsequently the worker confirmed that her right hip was painful.

In answer to questions, the worker confirmed that she did not have pain in her hip prior to the accident. Through the translator, the worker explained that she now has problems with both legs:

Because she compensates and she uses the other leg much more than the painful one, so she is ending up with pain in both legs…

In answer to a question from her counsel, the worker explained that sometimes she falls because her leg is numb. The worker also gave evidence that her condition has not returned to its pre-accident state and that she is not able to work.

The worker's counsel noted that the worker has severe degenerative disc disease. He submitted:

What’s in contention right now is, was it enhanced by lifting the pail on the date of the accident, and whether or not at her age now, of 76, a person with this enhancement, which was recognized by the first panel, is able to return to work, without any surgical intervention and so forth.

The worker's counsel submitted that:

So it’s [worker's] position that in light of the pre-ex severe degenerative disc disease that was noted and on the table at the last hearing, that this accident by lifting the pail, the 50-pound pail, had worsened it and, in fact, is the cause of the disc herniation. There’s nothing prior, showing that she had a herniated disc, although most likely nerve involvement and possibly that’s the reason she was having the pain in the hip, in the knee, off and on. But it definitely turned a lot worse after she lifted that pail.

The worker's counsel suggested that a disc bulge actually broke open and there was now a disc herniation. He said this is supported by her testimony at the first hearing, that when she lifted the pail something different happened, she heard a click, she felt a click, something changed in her body.

Employer's Position

The employer was represented by an advocate. Two human resources officers attended with the advocate.

The employer's representative advised that it is the employer's position that the worker is not entitled to further wage loss benefits after May 7, 2012. She said this is based on:

…extensive medical evidence indicated a resolution of symptoms from the workplace low back strain injury, a return to baseline condition, no continuing medical care by the attending practitioners, that’s the chiropractor and the physiotherapist. The presence of severe pre-existing degenerative disc disease and spinal stenosis, which was symptomatic both before and after the workplace incident.

The employer's representative noted that the previous appeal panel did not have the reports from the treating chiropractor documenting 19 visits immediately prior to the workplace incident. She noted this information wasn’t provided until November 25, 2014. She also noted that the worker's April 29, 2013 appeal letter indicated that she had a problem with her knee before, but did not advise of a problem with her back.

The employer representative noted that after the March 1, 2012 incident, treatment helped and the worker's symptoms settled back down to baseline. She referred to various medical reports in support of this position.

In response to the worker's counsel assertion that the workplace incident was the triggering event causing the worker's disc pathology, the employer representative submitted that the panel should place weight on the opinion of the WCB’s orthopedic specialist, supported by clinical notes from attending medical practitioners and diagnostic testing.

The employer representative submitted that:

  …Our position is if the worker couldn’t return to work it was due solely to her severe pre-existing conditions, and that there is no medical evidence whatsoever of an enhancement of her degenerative back condition as evidenced by repeat diagnostic testing and clinical findings from a neurologist.

Analysis

At the commencement of the hearing, the worker's counsel asked the panel's position on the extent of the Appeal Commission's prior decision and whether it addressed the issue of duration of benefits. The panel noted that the decision spoke only to claim acceptance and not entitlement to benefits. The panel asked that the parties address the issue of entitlement to benefits beyond May 7, 2012.

The worker is seeking wage loss benefits after May 7, 2012. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, the worker sustained a loss of earning capacity after May 7, 2012 as a result of her workplace injury. The panel was not able to make this finding.

Having considered all the evidence, including the evidence provided at the hearing, the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond May 7, 2012. The panel finds that the worker sustained a low back strain/sprain and right sciatica perturbation and had recovered from the workplace injury by May 7, 2012.

In reaching this decision, the panel places weight on;

• March 17, 2014 opinion of the WCB medical advisor. The medical advisor noted that the May 20, 2012 lumbosacral MRI, ordered for right sciatica symptoms on February 3, 2012, before the date of the workplace accident, documented degenerative changes with no likely pathoanatomical spinal change related to the March 1, 2012 workplace accident. The medical advisor concluded the worker likely returned to baseline following the March 1, 2012 accident by May 5, 2012, this being the last date of physiotherapy treatment provided in relation to the March 1, 2012 workplace injury.
• May 7, 2012, treating chiropractor chart note which indicates worker reports "doing quite a lot better with some aches in the buttock down to posterior thigh and hip." The panel notes that the chiropractor does not report treatment to the worker's back.
• May 14, 2012, treating chiropractor's chart note which indicates that the worker's chief complaint is pain in her right hip and trochanter regions. He noted that "Findings were suggestive of trochanteric bursitis with myofascial pain of the paraspinals and QL." The panel notes that the chiropractor refers to right hip pain which is not related to the workplace injury. He also indicates that "on file care is supportive in nature and that findings most likely secondary to DDD at possibly L4-L5 with frequent exacerbations." The panel notes that the worker's DDD is not related to the workplace injury.

At the hearing, the worker's counsel advanced the position that the workplace accident is the cause of the disc herniation noted on the worker's January 7, 2013 MRI. The panel finds that the evidence does not support this assertion. The panel notes that before the workplace accident the worker had signs of disc-related problems. On November 16, 2011, the family physician noted 20 degrees of straight leg raise on the right and by December 6, 2011, he referred to right S1 area and right sciatic pain, still persisting and worse with a cough. On February 3, 2012, the family physician ordered an MRI "in view of ongoing sciatic pains," to assess the discs. The MRI was ordered before the workplace injury. The panel also notes that the treating chiropractor referred to right sciatica before the workplace injury. The panel also notes that, after the accident, a neurologist and neurosurgeon both found a normal exam with no neurological findings. The panel finds the evidence supports a finding that the sciatic symptoms are consistent with a disc herniation that preceded the workplace accident and was not enhanced or permanently altered at that time. Rather, the medical evidence supports that the right sciatic condition was perturbed (or aggravated) and had returned to baseline, given the lack of symptoms on May 7, 2012.

The panel also finds that the worker's evidence at the hearing was not consistent with the early file evidence or the worker's medical history.

The panel finds the worker is not entitled to wage loss benefits after May 7, 2012.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of December, 2016