The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that there was no causal connection between the compensable accident and her low back/L4 radicular symptoms and that she was not entitled to wage loss and/or medical aid benefits.  A hearing was held on November 15, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's L4 radiculopathy is related to the September 24, 2014 compensable accident; and Whether or not the worker is entitled to wage loss and/or medical aid benefits.

Decision

That the worker's L4 radiculopathy is not related to the September 24, 2014 compensable accident; and That the worker is entitled to wage loss to attend appointments and medical aid benefits for physiotherapy and related medications to April 23, 2015.

Background

The worker filed a claim with the WCB for an injury to her low back that occurred on September 24, 2014 while assisting to hold up a patient weighing 150 pounds.

Initial medical reports showed that the worker was seen by a physician on February 20, 2015 and was diagnosed with back pain, facet impingement and disc protrusion. The worker was next seen by a physiotherapist on February 24, 2015 and was diagnosed with right L2 & L3 radiculopathy.

The claim for compensation was accepted and the WCB authorized 14 visits of physiotherapy treatment. As of April 23, 2015, the worker ceased working due to ongoing pain complaints.

On May 6, 2015, an MRI of the lumbar spine was read as follows:

There is compression on the right L4 nerve root with potential for irritation of the right S1.

A WCB medical advisor reviewed the file information on May 12, 2015 and stated:

• The reported [mechanism of injury] would be consistent with a lumbar strain injury. The apparent lack of significant symptoms, functional, impairment, or need to seek medical attention in close temporal proximity to the [compensable injury] would argue against any more significant injury/condition.
• The report of right leg symptoms and correlating MRI findings are consistent with a diagnosis of right L4 radiculopathy…this is not the diagnosis specifically reported by the [physiotherapist] or [attending physician] who noted no neurological findings, or findings involving other nerve roots (L2 and 3).
• If a disc injury resulting in radiculopathy occurred in relation to the compensable injury, there would be an expectation of relatively acute onset of pain with associated impairment of function and requirement for medical attention. [The worker's] demonstrated ability to continue with her physically demanding job duties and not require medical attention until five months later is inconsistent with an acute disc injury [and/or] radiculopathy. The recent MRI demonstrates age related multilevel disc degeneration… Nerve root compression may become symptomatic at any time, often without a specific recognized trigger.

In a decision dated May 21, 2015, the worker was advised of the WCB's position that she had recovered from the effects of the September 24, 2015 work injury and that her ongoing complaints were not medically related to the work accident. Benefits were payable to May 27, 2015 inclusive and final.

In a doctor's progress report dated May 25, 2015, the attending physician reported that the worker's radicular pain was improving with medication and straight leg raising remained positive through the right side of leg. The physician noted that the worker's difficulties were related to her compensable injury and suggested that WCB benefits should continue.

On May 28, 2015, a WCB medical advisor noted to the file that he spoke with the attending physician. They agreed that the diagnosis of lumbar radiculopathy was not in dispute; rather, at issue was how the development of radiculopathy relates to workplace duties, and in particular the incident of September 24, 2014. The medical advisor stated: "Typically, an injury/incident resulting in an acute disc injury or acute radiculopathy is associated with relatively acute onset of pain and associated functional limitations, with gradual improvements over time subsequently.

Unaccountably, based on the information on the WCB file, the reverse has been true in [worker's] case."

On June 1, 2015, the WCB confirmed its position that, on a balance of probabilities, the current L4 radiculopathy was not causally related to the September 24, 2014 workplace accident.

On November 27, 2015, the WCB advised the worker that it had reviewed a letter from the attending physician dated September 25, 2015; however, as there was no new medical information provided, the WCB was unable to change the decision of May 21, 2015.

On February 17, 2016, the Worker Advisor Office asked Review Office to reconsider the decision made by case management that there was no association between the worker's diagnosis of L4 radiculopathy and the September 24, 2014 compensable injury. The worker advisor opined that the mechanics of lifting a heavy weight in an upward motion for a minute and a half on an already compromised back condition could result in injury to a disc. It was also opined that the May 6, 2015 MRI showed the cause for consistent complaints of right sided symptoms. Literature on disc herniation explained how radicular leg pain can have a slow onset due to delayed inflammation. Therefore, the evidence supported an association between the September 24, 2014 injury and the diagnosis of L4 nerve root compression.

In a submission to Review Office dated April 7, 2016, the employer's representative contended that the radiculopathy condition did not arise out of and in the course of the worker's employment and it followed that the need for medical treatment five months post-injury and time loss from work beginning from May 23 to May 27, 2015 be rescinded.

The employer's submission of April 7, 2016 was provided to the worker for comment. Her response (undated) is on file.

On April 27, 2016, Review Office confirmed that the L4 radiculopathy was not accepted in relation to the compensable accident and that the worker was not entitled to any benefits on the claim.

Review Office accepted the comments of the WCB healthcare advisor that the onset of radiculopathy due to a traumatic disc protrusion is typically immediate. The worker clarified that her low back symptoms were manageable at first and that symptoms typical of a disc protrusion, radiculopathy, did not start until three months after the accident.

Review Office agreed with the WCB medical opinion that the worker's symptomology and her presentation following the accident was, on a balance of probabilities, explained by a strain. Had the worker suffered a disc protrusion at the time of the accident, Review Office indicated that her symptoms of radiculopathy would have been more acute. A strain injury would resolve within a couple of weeks to a few months and would have resolved by the time the worker started to experience symptoms of a disc protrusion at three months post injury. Review Office concluded that the worker was not entitled to any benefits on this claim.

On April 29, 2016, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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.

The Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted on behalf of the worker that a causal relationship should be found between the L4 radiculopathy and the September 24, 2014 compensable injury.

The worker provided a detailed narrative of the accident and mechanism of injury. She stated that although she noticed immediate right sided lower back pain at the time of the incident, she continued to work through her shift and did not seek immediate medical attention. She explained she thought that with conservative treatment, her injuries would heal. She continued to work her regular shifts over the next couple of months and coped with her symptoms by using over the counter medication and stretching. 

The worker notes that during this time, she was also very preoccupied with certain major stressors in her personal life. As her personal issues eased in or around December 2014, the worker began to grow frustrated that her pain symptoms were not improving. At about this time, the worker says she noticed that her symptoms were progressing and she was now having difficulty lifting her right leg and climbing stairs. She therefore made an appointment to see her physician on February 20, 2015. Her physician referred her to physiotherapy for several weeks, during which time she also continued to work. Although she says that there were times when she experienced temporary relief of her pain, the pain persisted nonetheless and her doctor recommended she take time off work, which she did. She was subsequently referred for an MRI which showed compression on the right nerve root with some degenerative changes in the lumbar spine.

The worker submitted that although the medical information does not establish exactly when the right sided radiculopathy occurred, it was her position that the symptoms began with the September 24, 2014 incident and became progressively worse over time. She further submitted that her diagnosis of L4 radiculopathy was causally related to her compensable injury and for that reason she should be entitled to coverage of medical aid and time loss benefits.

Employer’s Position

An employer advocate was present at the hearing.

Although the employer did not dispute that the worker suffered a low back strain as a result of the September 2014 incident, it was submitted that the development of disabling symptoms several months post-incident was not compatible with the establishment of a causal connection to the workplace injury. Although the employer agreed that the diagnosis of radiculopathy was consistent with the MRI findings, in the absence of an acute onset of pain and functional limitations at the time of the September 2014 incident, the diagnosis was not associated with the workplace injury. In the circumstances, any medical treatment and time loss in the spring of 2015 should not be covered by the WCB.

Analysis

The issues before the panel are twofold: whether or not the worker's L4 radiculopathy is related to the September 24, 2014 compensable accident and whether the worker is entitled to wage loss and/or medical aid benefits. In order for the worker’s appeal to be successful, the panel must find that the low back difficulties and radiculopathy the worker experienced were related to the injuries she sustained in the workplace accident of September 24, 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 both credible and forthright. The issue for the panel, however, is whether a causal relationship can be established between the on-going radiculopathy symptoms experienced by the worker and the workplace accident.

On a balance of probabilities, we find that although the worker sustained a strain/sprain injury as a result of the workplace incident of September 24, 2014, we do not find that the worker’s on-going difficulties, including the radiculopathy, were attributable to the compensable incident. In coming to our decision, the panel notes that the following the workplace incident, the worker was able to continue working in a physically demanding position. The symptoms described by the worker in December 2014, including the leg pain and the difficulties with sitting and sleeping, cannot be tied back to the initial symptoms diagnosed as a strain but were, rather, consistent with the development of a parallel non-compensable condition.

We further find that by April 23, 2015, the strain had resolved as a result of treatment and that the worker’s ongoing complaints at this point were related to the radiculopathy. We further note that the MRI testing done at roughly this time shows age-related multilevel disc degeneration with potential for nerve root involvement at several levels, a condition which may become symptomatic at any time without the necessity of a specific trigger.

Accordingly, the panel finds that the worker’s radiculopathy is not causally connected to the initial compensable injury. We further find that worker is entitled to wage loss and medical aid benefits to April 23, 2015.

Panel Members

K. Wittman, Presiding Officer

A. Finkel, Commissioner

P. Walker, Commissioner

Recording
Secretary, B. Kosc

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of January, 2017