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 benefits after March 19, 2015. A hearing was held on November 22, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 19, 2015.

Decision

The worker is not entitled to benefits after March 19, 2015.

Background

The worker filed a WCB claim on April 10, 2015 for an incident occurring at work on October 25, 2014 that led to an injury in his lower back. The worker reported that he felt shooting pain in his low back while using a claw bar to pull railway spikes. He went to a hospital emergency department ("ER") that evening and had not worked since. He had been working with the employer for 6 months prior to his injury.

On April 13, 2015, the worker advised that he had been on and off CPP disability for 7-8 years before the incident (later established to be 2006). After his injury, he went back on CPP disability. On April 29, 2015, the worker indicated that he went on CPP disability in December 2014, for arthritis, and was still on CPP.

On April 14, 2015, the employer confirmed that the worker had worked with them from May 2 to June 20, 2014, was absent for three weeks without explanation, and then worked from July 14 to October 25, 2014. His schedule was 10 days on and 4 days off. The worker did not report an injury to his foreman or direct supervisor. The worker also did not provide an injury report or a sick note to the employer.

On April 29, 2015, the worker advised that he was on CPP disability for issues with his fingers and toes from a pre-existing rheumatoid arthritis.

A hospital emergency department ("ER") report dated October 26, 2014 notes the worker's history of "…injured back at work yesterday 'pulling spikes', patient states has history of 'bad back' but now is having increasing pain…" The report notes that the worker was on T3s for arthritis at that time.

The worker saw a physician on November 5, 2014 who ordered an x-ray which noted osteoarthritis of the lower lumbar facet joints. The worker reported low back pain since October 25, 2014 at work. Clinical findings related to the back were no swelling, no deformity, no limitation of range of motion, both sides, mild tenderness at the paravertebral area. Straight leg raises were positive. The physician provided a diagnosis of low back pain - muscular, and noted "off sick 2 weeks." The worker was given a sickness certificate to November 20, 2014.

The worker saw a second physician on January 23, 2015 and February 3, 2015. His reports indicated no neurological findings and no significant resolution of symptoms, and provided a diagnosis of back strain. The physician also ordered an MRI of the lumbar spine.

A March 8, 2015 MRI demonstrated severe bilateral facet joint osteoarthritis at L4-5 with subtle grade 1 degenerative spondylolisthesis. There was also mild foraminal stenosis bilaterally at L4-5 and L5-S1. The worker then saw the second physician on March 19, 2015 who provided a new diagnosis of degenerative disc disease, grade 1 spondylolisthesis and spinal stenosis. The physician's report indicated that a clinical examination was deferred, and a referral was made to an orthopedic surgeon.

On August 5, 2015, a WCB case manager provided a decision advising that the worker's claim was accepted based on his having sought immediate medical attention and having provided an accident description at that time that was consistent with his first report to WCB on April 10, 2015.

As to the duration of benefits, the decision noted that there were two medical authorizations for disability after the date of injury. The first authorized five days off. Then, when the worker sought further medical treatment on November 5, 2014, he was given a sick note that indicated disability only up to November 20, 2014. There was no medical information to support disability beyond that date, and benefits were therefore authorized to November 20, 2014.

The decision acknowledged that the worker had back symptoms and further treatment in 2015, but found that the diagnostic testing indicated a pre-existing back condition, in particular multilevel degenerative changes. The worker's ongoing symptoms were not related to his October 25, 2014 work injury.

On August 21, 2015, a physician noted that the worker has been off work since October 25, 2014 with severe pain on bending and moving, and can't bend well. The physician had seen the worker on April 29, 2015.

An orthopedic surgeon examined the worker on December 2, 2015. The worker's history noted that "he was off work, covered by WCB, for about twenty days. The patient then presented with more progressive pain and has not returned to work for the whole year…Since then, the patient has had chronic back pain and he does nothing more than lie on his couch all day long. However, on questioning he can sit for more than an hour and can walk for about 300 metres. The patient has not had any active intervention to date. His VAS score is indicated as 8/10 whilst his Oswestry score is 56/100 indicating a severe disability." Examination findings noted exaggerated pain patterns and some Waddell signs, and no motor-sensory deficit. The surgeon interpreted the MRI as showing disc disease at L4-5 with facet arthrosis and a very small annulus tear at L4-5, and confirmed a significant displacement at L4-5, also mild facet arthrosis and disc disease at L5-S1.

The surgeon concluded:

Unfortunately this patient is of the opinion that all his problems are caused by his work related injury. Obviously he has significant degenerative disc disease…The patient does have a reason for mechanical back pain due to the severe instability at L4-5. I have advised facet blocks at L4-5 and L5-S1…I certainly accept that he had an aggravation of his symptoms during his work related injury. He certainly now presents with instability at the level of L4-5.

The worker then asked the WCB to reconsider its decision based on the opinion of his surgeon. In a May 16, 2016 decision letter, the case manager noted that the surgeon's letter provided a diagnosis of significant degenerative disc disease, and stated that degenerative changes occur in varying degrees in the general population and are considered by the WCB to be a disease of everyday life. These conditions were not related to specific job duties and were not considered to be arising out of or in the course of employment. The original decision of August 5, 2015 was therefore maintained.

On July 12, 2016, the worker appealed that decision to Review Office asserting that he had a slipped disc and a bulging disc, not caused by arthritis, as confirmed on the MRI. He also indicated that, prior to his injury, he had worked for 7 months which involved long days (12-14 hour shifts) without a problem. He was relying on his orthopedic surgeon who stated there was a workplace injury.

Review Office referred the file to Compensation Services to collect further information on the worker's prior medical history and from his CPP disability claim, and on whether the worker had received any medical treatment between November 5, 2014 and January 23, 2015, and to re-adjudicate the issue of ongoing benefits.

At the request of the WCB case manager, a WCB medical advisor reviewed the file and provided comments in a file memo dated November 1, 2016:

• The original ER diagnosis was mechanical back pain. • On November 5, 2014 the worker's physician noted ongoing pain and full range of motion, tenderness, and a normal neurological examination. The next visit on January 5 noted pain and a diagnosis of strain. • A March 8, 2015 scan resulted in a change of diagnosis to DDD, spondylolisthesis and spinal stenosis. This led to a referral to an orthopedic surgeon, and the worker underwent facet injections with a diagnosis of advanced osteoarthritis. • On December 2, 2015, the worker's orthopedic surgeon noted that "Unfortunately [worker] is of the opinion that all his problems are caused by his work related injury. Obviously he has significant degenerative disc disease." • In June 2016, the surgeon recommended surgery for L4-5 instability. • The medical advisor noted that the worker presented after the injury with non-radicular low back pain. While there was pain occasionally to the leg, there were no neurological symptoms. • The conclusion was that the presentation was most consistent with non-specific low back pain, which is the clinical equivalent to the mechanical back pain diagnosis provided in the ER or to a sprain/strain or soft tissue injury, all caused by abnormal force through the back. The natural history was very favourable for full recovery in 1-6 weeks. • The current presentation was consistent with degenerative disc disease and the instability noted at L4-5, which was noted both by the worker's physician and orthopedic surgeon. These pre-existing conditions were not caused by job duties. If the compensable injury had aggravated these conditions, there would have been clinical evidence soon after. However, early medical supported a strain type of diagnosis. The diagnosis only changed after the CT scan. There was no evidence of an aggravation or enhancements. The current surgery plan was not required for a strain type injury, but rather the degenerative changes which have led to the instability at L4-5.

File information from the worker's CPP disability claim noted that on September 5, 2014, the worker advised his CPP benefits manager of his current job that had started on May 18, 2014. The manager set a three month work trial from September 1 to November 30, 2014. The benefits manager noted that "client is aware that if he successfully completes the work trial then CPPD benefits will be ceased effective December 01, 2014." On November 27, 2014, the benefits manager recorded that the worker had advised that he stopped working on October 28, 2014. He had injured his joints and was in pain. It was not the type of work he should be doing and he would not be returning to that job.

On November 23, 2016, the WCB case manager issued a decision, advising the worker that the original decision would be maintained. The worker's physician noted no record of visits for back complaints in the year prior to injury. Since the injury, the worker reported he had done no self-treatment for the condition, no heating or icing of the back nor had he attempted any physiotherapy. Management of the condition was with medications and rest. The worker had already been taking T3s for arthritis, and had been on CPP disability for rheumatoid arthritis since 2011. The decision relied on the comments and opinions provided by the WCB medical advisor on November 1, 2016.

The worker appealed this decision to Review Office.

On March 8, 2017, Review Office provided a decision that extended wage loss benefits beyond November 20, 2014, but sent the file back to Compensation Services to adjudicate how long the benefits would continue. Review Office relied on continuity of complaints beyond November 20, 2014 as the basis of its decision to provide further benefits, noting in particular: • The worker had persistent complaints and symptoms in his back for which he took medication, and continued to be followed by his doctors. • On February 3, 2015, his physician noted "no significant resolution of his symptoms." • On December 2, 2015, his orthopedic surgeon opined that the worker had an aggravation of his symptoms during his work related injury. • On November 1, 2016, a WCB medical advisor noted that initial assessments even up to January 2015 remained consistent with the strain type diagnosis. • The worker's injury was sustained in a bad back and disability norms would not apply. At the time of the accident, the worker experienced an aggravation of his pre-existing pathology in his spine. • There were no signs that the worker had been seen for any prior back complaints, despite the worker having significant pathology in his back. The worker was also able to work full days at long hours prior to the compensable injury.

Subsequent to that decision, medical information was added to the claim indicating that the worker had low back surgery on February 2, 2017. The operative report indicated: chronic spinal stenosis at L4-5, failed conservative management; significant facet arthrosis at L4-5 and less at L5-S1; Bilateral facetectomy and foraminotomy; significant overgrowth was found left greater than right, although the worker's symptoms were worse on the right side.

On March 22, 2017, the file and new medical evidence were again reviewed by the WCB medical advisor.

On March 23, 2017, a WCB case manager extended wage loss and medical aid benefits from November 20, 2014 to March 19, 2015, noting that the worker's surgery would not have been required for a temporary aggravation, but rather for the pre-existing condition itself which would be expected to cause long term/permanent effects. A new diagnosis had been provided on March 19, 2015 of degenerative disc disease, spondylolisthesis and spinal stenosis. It would be difficult to relate those conditions to the compensable injury five months earlier. Furthermore, these conditions were degenerative in nature and were caused by changes to the structures of the spine with age. The surgery itself was for spinal stenosis, which must have remained the clinical diagnosis between March 19, 2015 and February 2017. The case manager found that the effects of the temporary aggravation resolved around March 19, 2015, and the worker's ongoing difficulties were related only to the pre-existing diagnosis of spinal stenosis.

In April 2017, the worker appealed this decision to Review Office, seeking to extend his benefits beyond March 19, 2015. He indicated that he had never been to his doctor about his back before this happened, and that his specialist "said my surgery was for an injury…and he also said anybody who read the operative report would know that...My case is simple, went to work Oct 25/2014 hurt myself that day and have had a miserable quality of life since."

On June 6, 2017, Review Office denied the worker's appeal for benefits after March 19, 2015. It noted that at the outset of claim, the worker did reference "sore backs" prior to this claim, citing 2002 and 1995 references as well as the October 26, 2014 ER report which noted a history of a bad back, and a past medical history of chronic back pain. Review Office made a finding that the x-rays and MRI (and the March 19, 2015 physician's report) had changed the diagnosis to degenerative disc disease, spondylolisthesis and spinal stenosis. It concluded that the worker had pre-existing conditions that were not caused by the compensable injury.

The worker filed a Notice of Appeal on June 14, 2017, and a hearing was held on November 22, 2017.

Reasons

Applicable Legislation and Policy

The worker is seeking further benefits beyond March 19, 2015 on an October 25, 2014 claim that has been accepted by the WCB.

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.

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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the Policy:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by legal counsel who made a submission on behalf of the worker and also asked questions of the worker. The panel also asked questions.

The worker described his job duties on October 25, 2014 and indicated that he went to the ER that evening, where he was told to take six days off work and to see his doctor. He did see his doctor and was told to take another 20 days off. The worker denied telling the hospital or WCB about any previous back problems, and states that he did not have any such problems. He does have rheumatoid arthritis which affects his feet and hands, which involved swelling of his joints. He was first prescribed T3s at the hospital and has been on them ever since. He now takes other medications as well.

The worker noted that his condition was getting somewhat better after the injury, but at about 5 months, his pain increased again, mostly when he would bend down.

The worker's counsel was not specific as to which specific low back conditions were related to the work injury and continued to affect the worker after the termination of benefits in March 2015. He took the general position that the worker was asymptomatic before the workplace event in October 2014 and was unable to work since. Counsel also noted that WCB did provide compensation to the worker for several months because the injury had aggravated a problem, and the worker has had continuity of the same symptoms since October 2014 and since the termination of benefits.

In response to questions from the panel, the worker and his counsel did not provide a position on whether the medical conditions identified in the MRI report were caused, aggravated or enhanced by the compensable injury, just that there were ongoing symptoms from that date forward. They did not point the panel to any doctors' opinions that might support that the worker's low back condition was enhanced by the injury, or to the source of the spinal stenosis injury that was identified by the surgeon at the time of the surgery.

In response to questions, the worker also explained his job duties in detail. He had been using a 6' pry bar to remove spikes from rail ties, and was removing approximately 200 ties per day, with 8 spikes per tie. The worker denied any prior back problems, and when asked again about hospital records that indicated prior issues, the worker advised that the interviewers must have misunderstood him, and that he was describing his current back problem to them. The worker provided non-specific answers to the panel's questions about the ongoing status of his back since the October 2014 injury, as to whether it stayed the same or got better or worse in the period leading to his February 2017 lower back surgery.

The worker was also asked questions regarding his CPP disability benefits claim.

The worker's position was that he had not recovered from his initial injury in October 2014 and is therefore entitled to benefits. He has been disabled from working since that time and his February 2017 surgery was a consequence of the work injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is seeking benefits after March 19, 2015. For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after March 19, 2015 as a result of his October 25, 2014 work injury. For the reasons that follow, the panel is unable to make that finding.

At the outset, the panel has considered the reliability of the worker's evidence as provided at the hearing, and has made a finding that the worker is a poor historian, especially in regard to what was happening in the earlier stages of the claim. The panel notes, for example, that the worker had no recollection at all of a number of significant conversations that he had with his CPP benefits administrator in 2014. The worker's evidence that he only started T3s at the time of his accident is also inconsistent with the earliest medical report that he had been on T3s prior to the injury date, for arthritis. As well, despite persistent questioning from the panel, the worker was very non-specific, to the point of vagueness, in describing his initial and ongoing back symptoms over the course of the claim. In the panel's view, this lack of recall affects the weight that the panel can place on the worker's evidence on other events earlier in the claim. The panel therefore places greater weight on available contemporaneous evidence from that period of time.

In coming to our decision, the panel places considerable weight on the following evidence and findings:

• The worker has significant pre-existing lower back conditions, as demonstrated in the March 8, 2015 MRI. The report notes severe bilateral facet joint osteoarthritis at L4-5 with subtle grade 1 degenerative spondylolisthesis, and mild foraminal stenosis bilaterally at L4-5 and L5-S1. These conditions are significant and take considerable time to develop, and in the panel's view, the timing of the MRI, less than five months post-injury, suggests that the workplace injury did not cause the severe degeneration noted on the MRI. The panel's finding is also supported by the worker's orthopedic surgeon in his December 2, 2015 report.

• The panel also finds that the worker did have low back pain and problems prior to his October 25, 2014 injury, and places greater weight on external documentation than the worker's evidence at the hearing in making this finding. The panel accepts the ER October 26, 2014 records which document the worker's report of a two day history of back pain that moved around the back, getting sudden jolts of pain across the lower back and occasionally into his leg. The report also notes "the patient states has history of 'bad back' but now is having increasing pain." There is also a reference to an "ED Past Medical History 2012" notation of "Smoker, Chronic back pain, Arthritis" suggesting to the panel that the worker has a prior relationship with the emergency department and a prior disclosure, two years earlier, of a chronic back pain issue even at that time.

• The panel notes that it would be expected that chronic pain would accompany severe degenerative low back conditions and that the pain may wax and wane over various periods of time, even allowing the worker to work, much as the worker did, between May and October 2014.

• The panel further notes that the worker did suffer a workplace injury and the WCB did accept his claim. The worker did work heavy duties until October 26, 2014 and the ER report does confirm the worker's report of increasing pain, a "shocking pain" that is in the low back radiating up to his upper back.

• The panel then considered what the compensable diagnosis was, and accepts the opinion and conclusions of the WCB medical advisor who reviewed this claim on November 1, 2016, stating that "the presentation is most consistent with non-specific low back pain. This would be a clinical equivalent to the mechanical dx (diagnosis) provided in ER. It is also the clinical equivalent to a strain/sprain or soft tissue injury, if it occurs after an abnormal force through the back. The natural history of this dx is very favourable for full recovery, usually within 1-6 weeks."

• The panel notes that the actual progress of the worker's medical condition mirrored the WCB medical advisor's expectations. At the hearing, the worker confirmed that he did not seek any medical treatment subsequent to his November 5, 2014 visit with his attending physician until his next visit in late January 2015, and did not do anything at home for self-treatment of his low back condition. The worker also confirmed at the hearing (with a similar history provided to his orthopedic surgeon on December 2, 2015) that his condition was improving in the period following the injury, and then his pain increased, leading to his March 8, 2015 MRI, and issues of pain caused when he would bend over. This narrative is supported by the early medical evidence:

o The November 5, 2014 physician report indicated that the worker had no swelling, no deformity and full range of motion. This was 11 days after the worker's injury.

o The January and February 2015 medical reports are silent in terms of worker complaints or clinical findings related to restrictions of range of motion and associated pain. As well, an April 29, 2015 medical report continued to indicate full range of motion.

o In an August 21, 2015 letter from this last physician there is a first indication that the worker had been reporting severe pain on bending and moving.

o The orthopedic surgeon's December 2, 2015 report attributes the worker's pain and loss of range of motion to instability at the L4-5 disc (which later led to the need for the worker's surgery). The panel finds that this disc instability and the associated symptoms were a later development on the worker's claim and are related to the worker's pre-existing degenerative conditions. Our review of the medical evidence does not support that these issues were present in the early stages of the claim.

• Given these findings, the panel places little weight on the worker's assertion that he was functionally unable to work in the months following his injury. The panel notes that the November 5, 2014 physician's report only indicated a need for two additional weeks off work. After that, the worker did not follow up with his doctor for further extensions or treatment until January 23, 2015, and did not contact his employer or anyone else in the intervening period about returning to work. Instead, the worker re-engaged with his CPP disability manager on November 28, 2014 in order to reactivate CPP disability benefits just days before his three month work experience would have ended (and with it, the formal ending of his CPP disability benefits). The panel finds that it was the worker's decision, within a month of the claim, to disengage fully from the workforce and to declare himself totally disabled.

• The panel does not accept the worker's reliance on the December 2, 2015 opinion of his orthopedic surgeon that his current low back issues continue to be related to his workplace injury, making him unfit to work. In assessing the weight to be provided to the surgeon's comments, the panel finds that the surgeon was relying on a post-injury history that is not consistent with our findings as to the worker's status either at the time of his reentry into the CPP disability program on November 27, 2014 or in the months following. While the panel appreciates the orthopedic surgeon's later support of medical continuity as establishing an ongoing aggravation of the pre-existing condition, the panel notes that it relies on the worker's historical narrative of continuous symptoms and functional limitations. We accord lesser weight to the surgeon's opinions, given our different conclusions on what transpired in the early months of the claim.

• The panel then assessed the duration of the worker's benefits to determine if there is a basis to extend benefits beyond March 19, 2015. The evidence discloses that the worker noted some improvement soon after the claim and then later reported increased pain which led to his January 23, 2015 visit with his doctor and the eventual referral for the March 8, 2015 MRI. Subsequent to the MRI, the worker's doctor provided a "new diagnosis" on March 19, 2015 that listed the significant degenerative conditions as noted on the MRI report. The panel finds that the MRI findings and the "new diagnosis" are consistent with the increasing symptomology that would be expected of chronic and severe degenerative low back conditions. The panel therefore finds that the new diagnoses and the increased pain noted by the worker in 2015 are not related to the worker's compensable injury but rather to the expected course of the worker's pre-existing low back conditions.

• In the panel's view, the worker had a soft tissue injury overlaid on a pre-existing low back condition. This soft tissue injury did improve, as would be expected, in the months following, given the absence of medical treatment and the worker's reporting of improvement, and his not working which would have allowed for healing to occur. The panel finds that the March 19, 2015 date provides a reasonable termination date for benefits, being the date when the diagnostic findings from the MRI were assessed and accepted by a physician as being an accurate reflection of the worker's medical condition at that time. As these conditions are pre-existing and non-compensable, the worker would no longer be entitled to benefits after that date.

After careful consideration of all the evidence, the panel finds, on a balance of probabilities, that the worker's original soft tissue injuries had resolved by March 19, 2015, at which time a different diagnosis -- a number of pre-existing low back conditions -- was established by the worker's doctor as accounting for the worker's ongoing symptoms and ultimately his low back surgery. The panel further finds that the medical evidence does not support that the worker suffered an ongoing aggravation or an enhancement of his pre-existing conditions, given our finding that the worker had experienced improvement in his symptoms and then a later worsening in 2015, many months after he was off work and not getting medical treatment.

The panel therefore finds that the worker is not entitled to benefits beyond March 19, 2015. The worker's appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
P. Walker, Commissioner
A. Finkel, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 11th day of January, 2018