Decision #25/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further wage loss and medical aid benefits. A hearing was held on January 15, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss and medical aid benefits.
The worker is not entitled to further wage loss and medical aid benefits.
The worker, while employed as a seasonal campground worker, sustained a low back injury on May 3, 2015. The claim was accepted by the WCB. The worker attended at his chiropractor's office on May 12, 2015 who noted the worker's description of the incident as "went to move cement fire pit and felt a pull in lower back" and diagnosed him with "…muscle sprain/strain L/S (left side)."
At the May 26, 2015 doctor's appointment, the worker told the doctor that he also felt his back "stiffen up" on May 7, 2015 when moving barrels at work. The doctor indicated:
O. Pain to L4 with palpation, spasming
Pain to flexion/extension at 40 degrees
Pain to right leg raise at 40 degrees, down leg
The doctor ordered an MRI for the worker and made a referral to physiotherapy. The worker had an MRI done on June 22, 2015.
A WCB medical advisor examined the worker on July 23, 2015. The WCB medical advisor provided the following, in response to questions:
1. What is the confirmed diagnosis as related to the accident of May 2015?
The initial incidents likely represented lumbar strains. The reported pain radiating down the posterior aspect of the right leg is suggestive of a degree of right S1 radiculopathy which has apparently developed in relation to the strain injuries.
2. Is it medically accounted for in relation to the workplace injury?
Yes. The reported incidents involving flexing and twisting under load would account for a back strain and potential irritation of the lumbar nerve roots in the setting of pre-existing age related facet arthrosis (as noted on MRI).
3. On a balance of probabilities, is the worker's current presentation medically accounted for in relationship to the workplace injury?
Yes. The typical natural history of back injuries involving radiculopathy is for gradual recovery over a period of several weeks to months. It is now eight weeks since the onset of radiculopathy type symptoms and this likely continues to relate to effects of the compensable injuries.
The WCB medical advisor noted the following restrictions regarding the worker's ability to participate in work related activities, which could be reviewed after four to six weeks:
• Avoid prolonged standing or walking greater than 10 minutes at a time
• Avoid lifting or push/pull greater than 5 pounds
• Avoid repetitive or sustained bent, flexed, or stooped postures
• Allow opportunity to change position and stretch as required
It was further noted that the recovery time for back issues related to radiculopathy is typically several weeks to a few months and that the worker was within the normal recovery range for the type of injury he had.
The worker was seen again at a WCB call in examination on March 3, 2016. The WCB medical advisor commented that the worker's current presentation could be described as non-specific low back pain. The medical advisor felt this likely continues to be accounted for in relation to the May 2015 incidents.
As well, the WCB medical advisor noted the following restrictions:
• Avoid repetitive or sustained bent, flexed or stooped postures.
• Avoid heaving lifting or push/pull greater than 10 pounds
• Allow opportunity to change positions and stretch as required.
The worker advised the WCB on March 23, 2016 that he was going to accept a position with a new employer. His new position would allow him to work within his restrictions and he would not be expected to do physical labour. The WCB explained to the worker that his wage loss benefits would be paid to the start date of his new position, which was May 2, 2016.
On September 29, 2016, the WCB advised the worker that they would no longer be accepting further responsibility for his claim. The WCB's review of his claim found that given the history of the injury, the diagnosis, treatment and the length of time that had passed, it was their opinion that the workplace restrictions were no longer needed and they would not pay any additional medical treatment or expenses or time loss from work.
The worker requested reconsideration of the September 29, 2016 decision by the Review Office on April 13, 2017. The worker felt that his injury had not completely healed and was getting worse.
Review Office, in its June 7, 2017 decision, found, on a balance of probabilities, that generalized low back pain fifteen months after the accident with no evidence of structural damage to the lumbosacral spine was not sufficient to support a causal relationship between the worker's current difficulties and the workplace incident.
The worker filed an application with the Appeal Commission on August 15, 2017. An oral hearing was held on January 15, 2018.
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.
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.
Subsection 39(3) provides that where the worker is 61 years of age or older at the commencement of his loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident.
The worker has an accepted claim for an injury arising from a May 3, 2015 workplace accident. He is seeking further wage loss and medical aid benefits arising from this accident.
The worker was self -represented. He provided details of his employment duties at the time of his injury, his 2015 accident and related symptoms, and a subsequent injury that occurred in 2016.
Regarding his 2015 claim, he advised that it involved two incidents. The first incident involved moving a cement firepit and the second incident, which occurred within a week of the first incident, involved moving barrels of chlorine. He said that prior to these incidents he had never had any back pain.
He advised that in 2016 he took a less onerous job with another employer. He said that he had not recovered from his 2015 injury but that the duties were lighter than in 2015. He advised that in the fall of 2016, while working alone at his new job, he was injured in an accident. He attributed this accident to his 2015 injury.
He said that he was trying to pull a dock into shore for the winter. He bent down and attempted to connect a chain so he could pull an anchor when his "sciatic kicked in". He fell into the water when the sciatica symptoms occurred. Although he could not swim, he was able to get out of the water. He said he was in 20 feet of water about 60 feet out from the shore.
The worker confirmed that it is his position that his 2016 claim was caused by his 2015 claim and that other injuries that happened in his 2016 claim are also due to the 2015 claim. He said that he never recovered from his 2015 accident. He advised that when he decided to accept the job in 2016, the case manager on his 2015 claim advised him to get permission from his physician to go to work in 2016.
In reply to a question from the panel about what it means when he says his sciatica kicks in, the worker provided the following description:
In my right buttock and then it'll start stiffening up and then you'll feel the back thigh and then it'll come to your front shin and then it'll work right down to your big toe. And then at night, during the night, you'll get these shooting pains from your big toe to your heel. And you know if you just get up the next morning and turn the wrong way, like everything, it's just like somebody taking a baseball bat and just hitting you in the back. And you just lose, you fall to the ground because the pain is just -- you know people complain about back problems before and I was thinking, what kind of back problem, like how can a back problem be that bad? Now, I know.
The worker acknowledged that he has good days and bad days. He said that he uses a variety of medications to deal with the pain. He also advised that he had some relief from a cortisone injection but is not sure about having a second injection.
In terms of the cause of his back problem, he advised that a WCB doctor and another physician explained that where the nerve goes through the disc in his spine it is hooking on a jagged edge.
The worker advised that his back pain has worsened since he had the accident in 2016 where he fell into the lake. He said it really set it off. Before this accident he had tingling in the bottom of his feet about 50 percent of the time, now it's 85 percent, 90 percent. He also has tightening in his calves, right more often that left. He said the symptoms are always worse in the right leg. He advised that he can control the leg pain but not the back pain.
The employer did not participate in the hearing.
At the commencement of the hearing, the worker advised that his 2015 injury had never healed and that it caused a second injury at a new job in 2016. He submitted that the 2016 injury, for which he filed an injury claim, was caused by his 2015 injury.
The panel advised the worker that it was not able to address the 2016 injury or the relationship between the 2015 and 2016 injuries. The panel noted that it did not have any information regarding the 2016 injury.
The panel found that its jurisdiction is limited to determining whether the worker is entitled to further wage loss and medical aid benefits arising from his 2015 workplace accident. The worker acknowledged the panel's position.
The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits arising from his 2015 workplace injury. For the worker's appeal of this issue to be approved, the panel must find that the worker continued to sustain a loss of earning capacity and/or required further medical aid as a result of his May 3, 2015 workplace injury. For the reasons that follow, the panel is not able to make this finding.
The panel has reviewed the medical information related to his 2015 injury. The panel notes that the worker was examined by a WCB medical advisor on July 23, 2015 and on March 3, 2016. On July 23, 2015, the WCB medical advisor diagnosed the worker's condition as a lumbar strain and noted that pre-existing age related facet osteoarthrosis is likely a factor contributing to the slow progress of recovery.
Subsequent to the March 3, 2016 examination the WCB medical advisor answered questions including the following:
1. On a balance of probabilities, is the worker's current presentation medically accounted for in relation to the workplace injury?
Yes. The workplace injury (s) involved a series of incidents likely to strain the lower back. Subsequently right leg radicular symptoms developed. It was felt that the record of injuries and subsequent symptoms was consistent with the development of an injury related to S1 radiculopathy. The typical natural history of radiculopathy is for gradual recovery over a period of several weeks to months. It is now approaching nine months since the onset of symptoms and gradual improvements are noted. The current presentation is likely most accurately now termed non-specific low back pain. Based on the record or continuity of symptoms this likely continues to be accounted for in relation to the incidents of May 2015.
5. Is the recovery of the compensable injury within the normal recovery range at this point in time?
Response: Recovery from radiculopathy is usually measured in terms of weeks to months. Now approaching nine months, recovery is slow and incomplete. Further recovery is anticipated.
6. A pre-existing condition has been identified, is this significantly prolonging the worker's recovery from the compensable injury? If yes what is the diagnosis?
Response: The MRI identified a degree of age related facet joint osteoarthrosis, which is likely a factor contributing to a delay in recovery from the initial strain and radiculopathy.
7. Is there medical evidence that the workplace accident either aggravated or enhanced the pre-existing condition?
Response: There is no objective evidence of material aggravation or enhancement of the pre-existing osteoarthrosis.
8. Is there medical evidence to indicate that the workplace accident is contributing to a material degree of the ongoing symptoms and limited ability to work? If so what is the evidence?
Response: Specific objective medical evidence is lacking. There is record of continuity of symptoms since the onset in relation to workplace activities. There is MRI evidence of pre-existing osteoarthrosis contributing to functional stenosis, which would place [worker] at risk for nerve root irritation/injury aka radiculopathy.
On September 21, 2016 the WCB medical advisor opined, in part, that imaging has not demonstrated any structural abnormalities on which to base imposing ongoing restrictions.
As referenced in the WCB medical advisor's opinions, an MRI performed on June 15, 2016 noted mild to moderate degenerative facet changes throughout the lumbar spine and some mild bilateral foraminal encroachments at the L5-S1 level bilaterally
The panel also notes that on July 22, 2015 the worker's treating physician provided a diagnosis of mechanical back pain and on May 3, 2016 provided a diagnosis of chronic back pain. As well, the physician's reports indicate that the worker's symptoms appeared to move along his spine shifting from various levels: L4-L5, L1-L3, SI joint, L2-L4, L4-L5, SI joint, L4-L5, SI joint, L1-L3.
The panel finds that the above noted medical information does not support that the worker is entitled to further wage loss and medical aid benefits as a result of the May 2015 accident. The panel accepts the above medical information and accordingly, the panel finds, on a balance of probabilities, that the worker is not entitled to further wage loss and medical aid benefits as a result of the May 2015 accident.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of February, 2018