The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss or medical aid benefits after July 5, 2016. A hearing was held on May 30, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits after July 5, 2016.

Decision

That the worker is not entitled to wage loss or medical aid benefits after July 5, 2016.

Background

The worker, a journeyman HVAC (heating ventilating air conditioning) mechanic, filed a claim with the WCB for an injury to his left groin and hip that occurred at work on September 16, 2015. The worker reported that he was lowering equipment from a roof and after he bent over to untie the rope, he straightened up, turned to the right, and felt a sharp pain in his hip and groin. The worker's accident description was confirmed by the accident employer.

Initial medical reports showed that the worker was diagnosed with a left hip and groin strain. X-rays of the pelvis and left hip dated September 21, 2015 revealed the following:

"…mild narrowing of the superolateral aspect of the left hip joint suggestive of early degenerative changes. No other abnormality was identified."

The claim for compensation was accepted and benefits and services were provided.

On September 29, 2015, the worker was seen by a physiotherapist for an initial assessment. The worker reported "Constant pain in left hip/thigh. Pain increases with activity, lifting/carrying, prolonged sitting/standing. Needing to change positions frequently…tender proximal adductor, tender hip flexor, increased tone/tender glutes."

In a physiotherapy progress report dated November 6, 2015, it was reported that the worker had a deep ache in his lateral left hip following increased activity, heavy lifting or repetitive stairs.

On November 19, 2015, the treating physician reported that the worker was seen on November 17, 2015 and that he had a flare up in his left hip and groin that was secondary to his exercise program.

In a memorandum dated November 30, 2015, the adjudicator recorded that she spoke with the physiotherapist who noted that the worker's treatment had plateaued over the past couple of weeks but he was not ready to return to work at this time.

On December 9, 2015, a new treating physician reported that an MRI examination was being ordered to rule out L3 nerve root compression. The MRI later took place on December 28, 2015 which showed "Multilevel degenerative changes, most pronounced at L4-5 where there is moderate to severe central spinal stenosis and bilateral neural foraminal narrowing."

On January 28, 2016, the treating physician stated the new diagnosis was a herniated disc at L4-5 with secondary spinal stenosis.

In a report to the treating physician dated February 1, 2016, a physical medicine and rehabilitation (physiatrist) stated, in part:

MRI examination of his hip was reported as normal. At the spine there is a broad-based disc at L4-5 associated with stenosis. This results in a potential effect on the L4 nerve roots, which recently corresponds to his symptoms and physical examination findings…He attended physiotherapy with treatment focused at his hip and is just starting with treatment for the lumbar spine.

On February 2, 2016, the worker was seen at a call-in assessment by a WCB physiotherapy consultant. With respect to the initial diagnosis of September 16, 2015, the consultant stated it was a left hip sprain/strain and that the current diagnoses were non-specific proximal left thigh pain and non-specific low back pain with left leg radicular features. The low back strain occurred in the environment of multilevel lumbar spine degeneration disc and joint disease. The consultant further stated:

The diagnosis is pre-existing lumbar spine degenerative disc and joint disease. At close to five month's post-strain injury, it is likely that the pre-existing lumbar spine degenerative disc and joint disease is contributing to a delay in recovery. There is evidence of early degenerative changes of the left hip. It is not likely that the left hip degenerative changes are contributing to a delay in recovery.

In a clinic note dated March 15, 2016, the treating physiatrist stated:

This patient was seen regarding his left lumbosacral and lower limb pain. He feels that his symptoms have increased into the lower limb since he started a rehabilitation program. There have been no significant changes in terms of the quality or distribution of symptoms. A left L4-5 transforaminal corticosteroid injection was performed…

In a follow-up report dated April 18, 2016, the treating physiatrist noted that the worker had a temporary, but definite response to the transforaminal injection and it would be reasonable to repeat the procedure.

In a report to the WCB dated May 3, 2016, the treating physiotherapist stated:

"[Worker] stated that his symptoms are improving, however that he still has significant pain to the left hip and bilateral lower back. He reported that the pain in his left hip is the most significant. He described the pain to his lower back and hip to be intermittent aches that worsen with activity. [Worker] reported the exacerbating factors to include extended sitting or standing, and heavy lifting. He reported the abating factors to include physiotherapy…Although [worker] is making improvements, he has a long way to go before he is able to tolerate full duties at his workplace…"

On June 1, 2016, a WCB medical advisor stated:

[Worker's] symptoms and findings prior to December 1, 2015 (notwithstanding the described left buttock tenderness, which is non-specific) were all related to the left hip and groin. Hip and groin symptoms can occur on the basis of lumbar spinal pathology. However, the spinal level involved would be L1 or L2. [Worker's] December 28, 2015 lumbar spine MRI reportedly documented no pathology at T12-L1, L1-2, or L2-3. As such, his left hip and groin symptoms do not appear to be medically accounted for on a spinal pathology basis.

In addition, the provocation of pain with left hip ROM [range of motion] and the tenderness to palpation over the left hip flexors, outlined above, point to a local left hip etiology for [worker's] left hip and groin complaints, most likely to hip osteoarthritis, which was suggested on the September 21, 2015 x-rays.

The later occurring left leg complaints, first documented on December 1, 2015 -- almost 3 months post-workplace accident, though possibly medically accounted for in relation to spinal pathology (as outlined on the December 28, 2015 lumbar spine MRI), are not medically accounted for in relation to said accident.

As such, any treatment directed at the back, including the L4-5 foraminal injections, given March 15, 2016, and the left L4 transforaminal injection, given May 10, 2016, is not medically accounted for in relation to said workplace accident.

On June 30, 2016, the treating physiatrist stated:

My impression is that his symptoms are related to the findings on his imaging affecting the left L4 nerve root. This would account for the pain that he experiences into the left gluteal region and area that he refers to as his "hip" extending distally down the thigh and into the lower leg. These symptoms were reproduced at the time the first injection was being performed as the injected medication was traversing the nerve root.

On July 19, 2016, the worker was advised by Compensation Services that based on the accident description, diagnosis, recovery norms for a localized strain (6 to 14 weeks), treatment rendered, and current medical findings, it was the case manager's decision that he had recovered from the effects of his workplace injury and any ongoing difficulties were unrelated. As such, the WCB would not accept further responsibility for any medical treatment costs or wage loss benefit beyond July 5, 2016.

On December 19, 2016, a worker advisor wrote to Review Office requesting reconsideration of the decision dated July 19, 2016. The worker advisor opined that the medical evidence supported a causal relationship between the worker's current diagnosis and the September 2015 compensable injury. Their opinion was based on the fact that the worker's onset of radicular symptoms occurred thirteen days after the injury and the treating physiatrist's diagnosis of L4 nerve root irritation through MRI and clinical findings.

On August 22, 2016, a WCB medical advisor noted to the file that the worker's left hip degenerative changes identified in the September 21, 2015 left hip/pelvis x-ray report would be considered a pre-existing issue and may have prolonged symtpomatology from a left hip/sprain.

On January 31, 2017, Review Office determined that the worker's back difficulties were not a consequence of his compensable injury and that there was no entitlement to wage loss or medical aid benefits after July 5, 2016. Review Office found the evidence to show that the worker injured his left hip and groin at the time of his workplace accident. It noted the worker's recovery from this injury was prolonged due to pre-existing degenerative changes in his hip.

Review Office found no evidence of an injury to the worker's back at the time of the workplace accident or evidence of a further injury subsequent to the compensable injury. Review Office noted that while progression of the worker's exercises may have increased his signs and symptoms and symptomatically exacerbated his pre-existing degenerative pathology in his hip and spine, there was no evidence that a back injury occurred through the delivery of treatment for his original compensable injury or out of a situation for which the WCB had direct control.

Review Office found no evidence that the worker's hip and groin injury continued to result in a loss of earning capacity or requirement for medical aid after July 5, 2016. The worker's loss of earning capacity and medical aid was due to his back difficulties which were not causally related to the compensable injury.

On February 22, 2017, the worker advisor 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 WCB's 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 the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work 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.

Worker's Position

The worker was represented by an advocate from the Workers Advisor Office.

At the hearing, the worker provided a detailed description of the events that occurred on September 16, 2015 as well as his ongoing problems and the ensuing medical treatment.

The worker stated that after the injury, the pain in his hip progressed down his leg. He indicated there was numbness and tingling that remains presently.

The worker advised the panel that in early November 2016 he experienced an aggravation which he attributed to a change in activities at physiotherapy. The worker stated: "The hip was still sore, but then I started getting some pain in my back, too, at that time."

When asked by his advocate when the pain in his leg developed, the worker said the following:

"Well, the leg, it’s hard to tell because I had pain in my hip the whole time, which kind of was in my leg, but then it kind of, a little bit further down. And then at that, as I was working out over those three months, it slowly got worse and worse, and it wasn’t getting better, and physio, they couldn’t really figure out what was going on. They thought this would be working, but it wasn’t. "

The worker also stated that he had to remove his personal tools from his company van in November as his employer required the van back. He stated that his personal tools involved his tool bag and a nitrogen tank. He stated that unloading the van "really aggravated" his back.

The worker advised that his treating physician retired and that he then began receiving treatment by a new physician in December 2015, who referred him for an MRI as his injury was not "getting better." Once the worker's new treating physician received the results from his MRI he advised the worker that the problem was in his back.

In response to a question from his advocate as to what his treating physician told him about the results on the MRI, the worker advised the panel:

"Oh, at that point we found out that the problem was my back, I had two herniated discs in my lower back, L3/4, 4/5, I believe, and that we needed to treat that and not treat the hip, because the hip, the MRI said there was no problem with the hip.

There was a tiny bit of arthritis, or osteoarthritis, whatever, and he said that had, there was no bearing on the injury at all, that the pain was coming from my lower back that was radiating into my hip."

The worker then advised the panel he was referred to another physician (the physiatrist) in February 2016 who administered the first of two cortisone injections into his back which the worker stated helped for about a week and then the pain returned.

The worker also stated that he started a new rehab program with a different physiotherapist and continued to experience pain all the time. The worker advised the panel that although he continued to participate in physiotherapy it did not provide any improvement.

When asked by his advocate how his back has been since he ceased his physiotherapy, he stated:

"Well, it hurts, and sore all the time, back and hip now. Hip is still sore, and I have to move around all the time. If I sit too long, I have a hard time getting up, it’s stiff, and then like a question mark when I stand up until I get loosened up and moving a bit. Yes, it hurts all the time."

The worker advised the panel that he was scheduled for back surgery for the next Monday following the date of the hearing.

The worker's advocate then summarized the worker's position that the information on file supported that the worker was entitled to coverage of benefits and services beyond July 5, 2016. She stated that although the injury was originally diagnosed as a left hip and groin strain (which was accepted by the WCB), his initial symptoms became progressively worse and that the physiotherapist's report dated November 4, 2015 as well as a physician's report dated November 19, 2015 confirm that his symptoms were exacerbated with exercise. Further, although the MRI examination of his hip was normal, at the spine there was a broad based disc at L4/5 associated with stenosis.

The worker's advocate advised the panel that it was the WCB's position that the compensable injury was a left hip/groin strain and stated that:

It is also the Board’s position [the worker's] ongoing difficulties are related to osteoarthritis of the left hip, and the pathology at the L4 level of his lumbar spine is unrelated to the September 16, 2015 injury.

The worker's advocate suggested that the key piece of evidence was the treating physiatrist's June 30, 2016 medical report that identifies the cause of [the worker's] condition as being compression of the left L4 nerve root, and that the treating physiatrist is associating it to the left hip.

The worker's advocate further stated that:

Medical information shows [the worker] has experienced left-sided symptoms since the time of the injury, including gluteal tenderness and pain. The September 29, 2015 physiotherapy assessment and the November 4, 2015 physiotherapy report confirmed clinical findings of left gluteal tenderness and pain. [The worker's doctor] stated in his June 30, 2016 report, the pain in the left gluteal region is associated to the L4 nerve root.

In conclusion, clinical findings support [the worker] had left gluteal symptoms early in the claim, and [the worker's doctor] is associating these symptoms to the MRI findings of L4 nerve root pathology.

Therefore, medical evidence supports [the worker's] back difficulties are a consequence of the September 16, 2015 compensable injury, and he should be entitled to coverage of benefits and services beyond July 5, 2016.

Employer's Position

The Employer did not participate in the hearing

Analysis

The worker is appealing the WCB decision that he is not entitled to wage loss or medical aid benefits after July 5, 2016 in relation to his accident of September 16, 2015. For the worker's appeal to be accepted, the panel must find that the worker incurred a further loss of earning capacity and/or required additional medical aid benefits as a result of the accident. The panel is not able to make this finding.

The panel finds, on a balance of probabilities, that the worker is not entitled to further benefits beyond July 5, 2016 in relation to his accident of September 16, 2015 for the reasons that follow.

The initial description of the injury by the worker was that when he straightened up and turned to the right after untying his equipment on September 16, 2015, he felt a sharp pain in his left hip and groin.

The left hip/groin problems continued through October with the worker's treating physician noting "improving L hip/groin pain and mobility." When the worker's treating physician examined him on November 3, 2015 as well as reporting "minor improvement hip int/ext rotation & adduction, pain on extremes ROM L hip," as objective findings, he indicated that recovery was satisfactory.

The worker had initially commenced physiotherapy on September 29, 2015 and the physiotherapist commented in her November 4, 2015 report that the worker's subjective complaints were "Deep ache in lateral left hip following increased activity, heavier lifting, repetitive stairs." The same physiotherapy report also stated that progress was satisfactory and it was anticipated that the worker would be capable of returning to his full work duties in 1-2 weeks.

The worker's treating physician noted an exacerbation of symptoms with exercise when he was examined on November 17, 2015. However, physiotherapy was still prescribed as part of the treatment plan.

The worker's case manager noted on October 22 that the worker stated he was "getting better slowly is doing exercises physio has provided." As well there is also a file note dated November 18, 2015 when the case manager had spoken to the worker and the worker indicated "it is getting better slowly."

When the worker's case manager spoke with the treating physiotherapist on November 30, the physiotherapist stated that the worker had plateaued over the last couple of weeks and that the worker should return to (the Clinic) to see if his doctor recommends an MRI.

The worker then attended his treating physician on December 2, 2015. The worker's subjective complaints were of a painful hip. The objective findings were "tender anterior, superior iliac spine, tender hip flexors." The treating physician referred the worker for more physiotherapy to "treat hip pointer."

It was not until the treating physician examined the worker on December 9, 2015 that the worker's subjective complaints were "last two nights the whole leg has been numb and tingling, woke him up, still has pain all inside the leg." At this time the worker was scheduled for an MRI for his lumbar spine and hip.

The relative findings of the December 28, 2015 MRI report are as follows:

"There is loss of normal disc hydration at L4-5 and L3-4 with moderate loss of disc height at L4-5. There is no significant listhesis.

At L3-4, there is a moderate central disc protrusion. An annular tear is seen within the disc posteriorly. There is moderate bilateral facet osteoarthritis. The disc indents the thecal sac anteriorly and abuts the traversing nerve roots. There is no significant foraminal narrowing.

At L4-5, there is a large broad-based disc bulge. There is a superimposed right posterolateral disc protrusion. There is moderate to advanced bilateral facet osteoarthritis with thickening of ligamentum flavum. These findings results in moderate to severe central spinal canal narrowing. The disc abuts the thecal sac and contacts the traversing nerve roots. In addition, there is a moderate to severe bilateral neural foraminal narrowing and the exiting L4 nerve roots are likely contacted with the neural foramin.

At L5-S1, there is moderate bilateral facet osteoarthritis.

IMPRESSION

Multilevel degenerative changes, most pronounced at the L4-5 where there is moderate to severe central spinal stenosis and bilateral foraminal narrowing."

The December 28, 2015 MRI of the worker's left hip did not note any significant abnormalities.

Based on his examination on December 30, 2015 as well as the review of the MRI, the worker's treating physician provided a new diagnosis of a herniated disc L4-5 with secondary spinal stenosis. The worker's treating physician indicated in his report under subjective findings: "Leg is hurting more than ever, moving causes pain, physio not helping."

The worker's treating physiotherapist's report dated January 12, 2016 indicated that the worker was treated twice at the beginning of December and once in January on the 11th. Under subjective complaints the following is noted "LBP (low back pain), L hip pain. Pain has progressed into L L/E to ankle. Aggravated w/lifting, stairs, bending, twisting."

The worker's treating physician reported on January 7, 2016 under subjective complaints: "the leg is better than before not as painful as before, still numbness." The treating physician still prescribed that physiotherapy should continue.

In the treating physician's January 14, 2016 report he states under subjective complaints: "The gabapentine has not helped yet, in the hip and ache, tingling kinda achey." Again the treating physician prescribed that physiotherapy continue.

The panel notes that although there is a general acceptance that the workers ongoing problems are attributable to the findings as noted on the December 28, 2015 MRI results. The panel does not accept that any of the findings are related to the compensable injury of September 16, 2015.

In support of this the panel notes the following:

• The initial injury was reported by the worker to have caused "sharp pain in hip and groin area." There is no mention of radicular symptoms until several months later.
• The initial diagnosis by the treating physician at the emergency department one day after the injury (September 17, 2015) as well as the worker's treating physician on September 21, 2015 was a soft tissue type of injury to the left hip/groin. 
• The reporting early on in the fall of 2016 to WCB representatives, as well as noted by worker's treating physician was that the worker's injury was improving.
• The MRI of the worker's lumbar spine dated December 28, 2015 notes that there is moderate bilateral osteoarthritis at L3-4 as well as moderate to advanced bilateral facet osteoarthritis at L4-5. The panel accepts that osteoarthritis is a degenerative condition caused by the natural aging process and would not be caused by or enhanced by the workplace injury of September 16, 2015
•  There are no medical reports on file that opine that the findings of the December 2015 MRI were caused by the September 2015 workplace injury.
• Although the worker has not worked since the time of workplace injury in September 2015 and has not received any further physiotherapy since mid 2016, his medical problems still continue to the point where he now requires back surgery.

The panel also accepts the WCB medical consultant's opinion dated June 1, 2016 as noted in the background of this decision regarding the etiology of the worker's condition both prior to and after December 2015.

The panel notes that the WCB medical advisor's opinion dated June 1, 2016 indicates that the worker's first complaints of low back and left lower extremity first occur on December 1, 2015 based on a physiotherapist's report that states "pain has progressed in to L L/E to ankle." However the panel notes that this report refers to treatment dates in both December 2015 and January 2016 and the report is date stamped January 12, 2016. The panel concludes that the physiotherapy report is from January 12, 2015 not December 1, 2015.

At the hearing, the worker submitted that his physiotherapy treatment program had exacerbated his initial workplace injury. The panel recognizes that the worker may have experienced an increase of symptoms at the beginning of November 2015 that may have been caused by the rehabilitation program occurring at that time. However the objective findings noted by the treating physician on November 3, 2015 were "Limitation of L hip ROM esp int/ext rotation and adduction." The panel does not accept that an increase in symptoms with activity means that a new injury occurred or that an existing injury was aggravated or enhanced. The panel finds that the physiotherapy program itself did not aggravate or enhance the workers accepted hip/groin strain injury or aggravate or enhance the workers pre-existing degenerative back problems.

The worker also brought to the panel's attention that when he unloaded his personal items from his work van he "really aggravated" his back. The panel finds that there is no evidence that this event aggravated or enhanced the workers accepted hip/groin strain injury or aggravated or enhanced the workers pre-existing degenerative back problems.

Given the mechanism of injury, the initial symptomology and the noted improvements in the worker's condition in the fall of 2015, the panel, on a balance of probabilities, finds that the worker has recovered from his original hip/groin injury of September 15, 2016. The panel therefore finds the worker is not entitled to wage loss or medical aid benefits after July 5, 2016.

As a result, the worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of July, 2017