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 further benefits after January 15, 2016 in relation to his lower back injury. A hearing was held on February 6, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after January 15, 2016 in relation to his lower back injury.

Decision

That the worker is entitled to further benefits from January 15, 2016 to February 13, 2017 in relation to his lower back injury.

Background

The worker filed a claim with the WCB on October 29, 2015 for an injury to his right knee and back which occurred on October 26, 2015. The incident was described by the worker as follows:

On Monday we do our weekly inspections of our auxiliary equipment including saws and spreaders, etc. I removed the saw, inspected and run it. I then removed the PPV fan out of the compartment of the [vehicle]. The fan would weigh around 80 pounds. When I pulled it out, I made a right turn, and I felt a sharp pain in my lower back and right knee. I dropped the fan. I had my [co-worker] help me walk and he took me to the lunch room. I lay on the floor. I waited until an employee could drive me to [location] for assessment.

The worker was seen on October 26, 2015 by a sports medicine physician, who diagnosed him with "Acute lumbar strain, ? disk, R knee medial meniscal irritation," and referred him for physiotherapy. On October 29, 2015, the worker saw a physiotherapist, who diagnosed him with "? protruded disc lower lumbar spine, R knee medial meniscus pathology."

An MRI of the worker's lumbosacral spine on November 18, 2015 indicated: "Multilevel degenerative disc disease is present. No focal disc herniation or nerve root compression is present."

At a follow-up appointment with the sports medicine physician on December 4, 2015, the worker was diagnosed with "discogenic and SI [sacroiliac] joint pain" and referred to a pain clinic for further treatment options.

In a report dated December 23, 2015, the treating physiotherapist noted:

Pt [patient] made appt yesterday evening as had re-aggravation to Right knee while walking in parking lot out of doctor's appt, heard a noise when it happened. Knee is very painful. Had to take more pain meds last night than usual and ice was not working for pain. Cannot walk properly due to pain, is limping. Back aggravated more due to inability to walk due to knee and unable to move full ROM [range of motion].

A WCB medical consultant reviewed the worker's claim on January 4, 2016 and opined that the current diagnosis related to the worker's back was non-specific low back pain and his current low back symptoms were likely a result of multilevel degenerative changes as documented on the November 18, 2015 MRI, rather than the compensable injury. The WCB medical consultant also opined that the diagnosis for the worker's back on the date of injury was a low back strain and the expected recovery time for that diagnosis would typically be six to eight weeks.

By letter dated January 15, 2016, Compensation Services advised the worker that they had determined he had recovered from the low back injury sustained October 26, 2015.

On April 19, 2016, a worker advisor acting on behalf of the worker submitted further medical evidence and asked the WCB to review its January 15, 2016 decision. Following consultation with a WCB orthopedic consultant, Compensation Services advised the worker on May 31, 2016, that there was no change to the January 15, 2016 decision. On June 14, 2016, the worker advisor requested reconsideration of the WCB decisions by Review Office.

On August 23, 2016, Review Office determined that there was no entitlement to benefits in relation to the worker's low back beyond January 15, 2016. Based on the mechanism of injury, Review Office found that the worker likely sustained a low back strain on October 26, 2015. Review Office noted that this was the initial diagnosis by the treating sports medicine physician and was supported by the WCB medical consultants who reviewed the file. The MRI results indicated multilevel degenerative changes in the worker's lumbosacral spine and did not indicate a traumatic injury.

Review Office accepted the WCB medical and WCB orthopedic consultants' opinions that the mechanism of injury, as described, would not have been sufficient to have structurally changed or materially influenced the multilevel degenerative changes as documented on the MRI of November 18, 2015. Review Office determined that the worker's loss of earning capacity and need for treatment relating to his low back beyond January 15, 2016 were not related to the workplace accident, and responsibility for benefits in relation to the worker's low back was therefore not accepted beyond that date.

On May 9, 2017, the worker advisor provided further medical evidence and requested that Review Office reconsider its decision. On August 16, 2017, Review Office advised that its decision remained unchanged.

On August 29, 2017, the worker appealed the Review Office 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'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.

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 (the "Policy") 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.

Worker's Position

The worker was assisted by a worker advisor, who provided two written submissions in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that he was entitled to benefits after January 15, 2016 for his compensable lower back injury, as the medical evidence supported a continuity of symptoms and disability which were caused by the October 26, 2015 accident beyond January 15, 2016.

It was submitted that the worker sustained an acute disabling lower back injury on October 26, 2015 through a twisting mechanism. The severity of the twist injury was supported by the description of the incident and the surrounding circumstances.

The worker advisor reviewed the medical information on file in detail. She noted that the sports medicine physician who attended the worker provided a diagnosis of an "acute" lumbar strain, and identified the area of injury as the L4 and L5 areas on the day of the accident. He also identified a facet joint relationship to the accident early on in the claim.

The worker advisor submitted that there is a wealth of evidence both before and after January 15, 2016 documenting complaints and examination findings which supported a continuity of lower back difficulties, particularly to the right side, due to the workplace accident. The worker advisor submitted that the evidence on file confirmed that the specific area of injury included the L4-L5 and the S1 facet joint areas of the lower lumbar spine, that the worker's symptoms and disability were related to a facet joint sprain injury which arose from the workplace accident, and that the worker had not recovered from the effects of the accident by January 15, 2016.

The worker advisor referred to medical reports which had been provided in advance of the hearing, including two reports from the pain clinic of medial branch block injections. The worker advisor noted that the medial branch block injections were done exclusively to the right side, which connected these treatments to the compensable injury being primarily right-sided joint tenderness. The injections confirmed the pain generator and helped to alleviate the worker's disabling symptoms. The worker advisor submitted that the worker's low back difficulties continued on an ongoing basis until he received the appropriate treatment by medial branch blocks, which finally relieved his accident symptoms to the point that he was able to return to work.

It was submitted that regardless of the fact that there were pre-existing conditions, where the workplace injury of a strain superimposed on one or more of the lower facet joints is responsible for the ongoing effects of the workplace accident, there is a WCB responsibility until the aggravation has resolved or allowed an injured worker to return to work.

In response to questions from the panel, the worker indicated that he had been cleared to return to work in June 2016 in relation to his knee injury, but there were no light or modified duties for him at that time due to his ongoing problems with his back and he was placed on disability. The worker received SI joint injections on April 15 and August 10, 2016, but the first SI joint injection provided only temporary relief, and the second did not provide any relief. The attending anesthesiologist then administered the medial branch block injections, on December 9, 2016 and January 13, 2017, respectively, and these worked really well. The worker said that the result from the first medial branch block injection was excellent, and the relief lasted "For quite some time until -- I asked for a second one because I was wanting to go back to work no matter what, and so I asked for a second one in January."

The worker also indicated that starting in October 2016, he was put through a very strict reconditioning or work-hardening program by another benefit provider, to get him ready to go back to work. That program ended on Friday, February 10, 2017, and he returned to work the following Monday, on February 13, 2017.

The worker stated that he has done well since returning to work in February 2017. He has continued to perform his regular duties, and is able to do everything he is assigned to do. He watches what he is doing, even outside work; he maintains a regular exercise program to keep himself in shape, and has not had to seek any further medical attention in respect of his back since his return to work.

Employer's Position

The employer provided a letter in advance of the hearing indicating that they wished to remain neutral. The employer did not otherwise participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits after January 15, 2016 in relation to his lower back injury. For the worker's appeal to be successful, the panel must find that the worker continued to sustain a loss of earning capacity and/or require medical aid after January 15, 2016 as a result of his October 2015 lower back injury. The panel is able to make that finding, for the reasons that follow.

Based on our review of the information before us, on file and as presented at the hearing, the panel finds that the worker has a compensable diagnosis of a facet joint sprain in the environment of significant pre-existing facet joint osteoarthritis. The panel finds that the diagnosis of a facet joint sprain is consistent with the mechanism of injury suffered by the worker and with the original location of pain as reported by the worker on the date of the injury and subsequently. The panel is also satisfied that this diagnosis is one that would be caused by an acute injury.

The panel further finds that the diagnosis of a facet joint sprain is supported by the evidence regarding the medial branch block injections on December 9, 2016 and January 13, 2017 and the positive results from those injections. It is the panel's understanding that medial branch block injections can be used as a diagnostic indicator as to the source of back pain. If the injections are successful, this suggests that the facet joints are likely the primary generator of the back pain. The reports of the medial branch block treatments indicate that the injections were to the right side, at the L3-L5 levels. A notation on the second report also confirms that the worker had a "very good response" to the first medial branch block. The panel accepts the worker's evidence that the injections had excellent results and provided him with lasting relief.

The panel also accepts the worker's evidence with respect to his participation in the reconditioning program and its successful completion on February 10, 2017, and his return to work with full duties and no restrictions on February 13, 2017.

In arriving at our decision, the panel places significant weight on the March 29, 2017 opinion of the treating sports medicine physician, who wrote:

Since my last update…of March 2, 2016, [worker] has made steady improvement… During this time, he has had a significant improvement with the use of the [pain clinic] procedures including medial branch blocks of his posterior facets. These injections provided excellent pain relief and his therapy program has been able to allow him to return to a level of function which permitted his return to work. These injection responses confirm the clinical suspicion of posterior element etiology to his pain. It is consistent with him having sustained a sprain to his lumbar facets. It is possible that his pre-existing degenerative changes has (sic) slowed his recovery…

It is my opinion that the mechanism of his injury, specifically forward flexed rotational stress, is consistent with his injury and pain pattern.

Presently, [worker's] symptoms have improved such that I do not believe he requires any physical restrictions in his workplace. With a combination of his structured rehabilitation program and focused injections have (sic) provided the desired result in improvement in function.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and required medical aid after January 15, 2016 due to his October 2015 back injury.

In response to a question from the panel as to the length of time for which benefits were being sought, the worker advisor confirmed that they were seeking benefits up to February 13, 2017, when the worker had recovered and returned to work on a full-time basis.

Based on the evidence which is before us, the panel is satisfied that the worker continued to sustain a loss of earning capacity and need for medical aid due to his lower back injury through to February 13, 2017, when he had completed his reconditioning program and returned to his full regular duties, without restrictions.

The panel therefore finds that the worker is entitled to further benefits from January 15, 2016 to February 13, 2017 in relation to his lower back injury.

The worker's appeal is accepted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of April, 2018