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 in relation to his compensable claim. A hearing was held on September 28, 2017, and reconvened on February 20, 2018, to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

On March 16, 2016, the worker slipped and fell off a 9 foot roof, landing on his feet on a concrete slab, then falling backwards onto his buttocks. The worker was taken to a nursing station, where it was noted that he felt tenderness across the lumbar area. The diagnosis rendered was a soft tissue injury. The worker was seen by his doctor on March 22, 2016, who noted that he had a tender low back and no cauda equina type symptoms, and ordered a CT scan.

On April 7, 2016, the worker underwent a CT scan of his thoracic and lumbosacral spine. The findings revealed degenerative changes in the lumbosacral spine with potential nerve root and central canal compromise from L2-3 through L5-S1.

The worker was examined by a WCB medical advisor at a call-in examination on April 22, 2016. Based on his review of the file information and his examination findings, the medical advisor noted that the current diagnosis was non-specific low back pain. There was no evidence of fracture or radiculopathy, and imaging demonstrated a degree of pre-existing spinal stenosis that was not clearly affected by the reported fall. The medical advisor further stated, in part: "Now at five weeks post-injury, while acknowledging reported low back symptoms, continuing to gradually resume activity would be advised…total disability would not be anticipated." The medical advisor concluded that at a minimum, the worker was likely capable of sedentary duties, and suggested work restrictions were outlined.

On May 11, 2016, a WCB case manager wrote the worker to advise that she had attempted to reach him over the past few days but there had been no answer and no option to leave a message. It was noted that there had been no new medical reporting on the worker's file since the WCB call-in examination on April 22, 2016. The case manager advised the worker that he was entitled to either physiotherapy or chiropractic treatment for his current diagnosis of non-specific back pain. The WCB would provide him with another four weeks of wage loss benefits while he underwent his choice of therapy, with the four-week period beginning May 16 and ending June 10. Once he completed the four weeks of therapy, he would be considered capable of returning to his regular job duties, effective June 13, 2016.

On May 17, 2016, the worker spoke with his case manager to advise that he was waiting to see a back specialist (appointment scheduled for June 16) and might require back surgery.

On May 19, 2016, the worker was seen by a physiotherapist for an initial assessment. The physiotherapist's diagnosis was L/S severe sprain/strain/contusion and possible compression fracture.

A report was received from a neurosurgeon dated June 16, 2016, who stated that the worker had mechanical sounding back pain. The neurosurgeon reported there was no history in keeping with radiculopathy or neurogenic claudication. The April 7, 2016 CT scan demonstrated no significant malalignment or suggestion of instability. The worker had some degenerative changes which might be contributing to his back pain, but there was no obvious pathology that would respond to surgical decompression and/or fusion. The neurosurgeon further indicated that he was arranging for an MRI of the lumbosacral spine, and would see the worker afterwards to discuss the results.

The reported impression from the MRI scan on July 20, 2016 read: "Multilevel degenerative changes as described, progressed from the previous MRI."

On July 27, 2016, the WCB medical advisor who had examined the worker on April 22, 2016, reviewed the new medical reports on file and stated:

• The diagnosis remained non-specific, non-radicular low back pain. The typical natural history would be improvement over a period of a few days to several weeks. 

• The nature of the worker's clinical presentation was not concordant with the natural history of non-specific, non-radicular low back pain. At the same time, an alternative diagnosis emanating from the March 2016 workplace accident had not been provided to account for the worker's reported presentation. 

• Note was made that the July 20, 2016 MRI was similar to the prior CT scan of April 7, 2016, and that: "A degree of lumbar disc extrusion at L4-5 is noted to be new since the prior MRI of five and a half years prior (Dec 12 2010). Any relationship of this finding to effects of the ci [compensable injury] would be considered speculative. Even considering the possibility that the L4/5 disc were injured at the time of the March 2016 injury, gradual improvements would be expected over the following four months. This has not been the case with [worker's] condition."

In a decision dated July 28, 2016, the worker was advised that based on a review of the new medical information on his claim and consultation with the WCB medical advisor, the WCB was not able to medically account for his current symptoms in relation to his workplace injury. As such, there was no further entitlement to WCB benefits and services at that time. On December 5, 2016, an advocate acting on behalf of the worker appealed the WCB decisions to Review Office.

Prior to considering the worker's appeal, Review Office asked a WCB orthopedic consultant to answer questions related to the worker's medical status. In a response provided January 4, 2017, the orthopedic consultant opined:

• The workplace injury of March 16, 2016 caused a strain/sprain of the low back. This was supported by the (disputed degree of) mechanism of injury, and the physical findings reported by the nursing station and the attending physician shortly after the injury. 

• The July 20, 2016 MRI (compared to the MRI dated December 12, 2010) was reviewed. It was probable that the disc pathology noted at the L4-5 level was not related to the workplace injury. Rather, it was more probable that the deterioration of the multilevel degenerative disc disease ("DDD") from 2010 to 2016 represented the natural history of DDD. 

• There was no reliable objective clinical evidence to support that the current lumbar disc pathology was a result of the workplace injury and/or was the probable source of what appeared to be non-specific or mechanical low back pain extending beyond June 10, 2016.

On February 6, 2017, Review Office determined there was no further entitlement to benefits. Review Office referred to the early medical information from the nursing station and the report from the attending physician dated March 22, 2016. Review Office noted that the nursing chart notes showed no evidence of any neurological symptoms and no spinal tenderness with palpation. The attending physician noted no "cauda-equina type symptoms" and only lumbar tenderness a full six days after the initial injury. Review Office said that if the worker had sustained a neurological injury at the time of the accident, it would be expected to be symptomatic immediately.

Review Office indicated that it accepted the WCB orthopedic consultant's opinion that the probable diagnosis in relation to the workplace injury was a lumbar strain/sprain. Review Office acknowledged that the worker had multiple significant underlying degenerative conditions in his spine. It stated that the interplay of the compensable soft-tissue injury and the worker's multi-level DDD impacted not only the worker's symptoms and recovery, but likely also his perception of injury.

Review Office accepted that the progression of the worker's DDD was in keeping with the natural history of DDD and stated that given the absence of neurological findings seen in the medical reporting, it was not able to conclude that the worker suffered an enhancement of his pre-existing condition(s).

Review Office noted that following the April 22, 2016 call-examination, it was recommended that the worker increase his activity levels, and 21 physiotherapy treatments were authorized. Review Office stated that the worker's disability and complaints were based primarily on his subjective complaints and it was unlikely that he would still be suffering from the effects of the compensable strain by that time.

On February 27, 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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

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 assisted by a family member/advocate, who provided a submission in advance of the hearing and made a presentation to the panel on the worker's behalf. The worker responded to questions from his advocate and the panel.

The worker's position was that the evidence demonstrates, on a balance of probabilities, that he has not recovered from the effects of his workplace injury and is entitled to further wage loss and healthcare benefits and services.

The advocate divided his presentation into two components, the first of which related to the worker's entitlement to wage loss benefits from June 11, 2016 to September 12, 2016 (the date of the physiotherapist's discharge report) and the second to his entitlement to further benefits and services from September 13, 2016 to date.

With respect to the first component, the advocate submitted that the WCB's May 11, 2016 decision appeared to be based solely on its medical advisor's April 22, 2016 opinion, which prompted the WCB to foresee that the worker would be able to return to work in his pre-injury occupation after June 10, 2016. The advocate questioned the WCB's ability to make such a prediction into the future, in the absence of any hands-on assessment by a healthcare provider. He submitted that contrary to the WCB's decision, the evidence demonstrated that none of the healthcare providers who were actually seeing and treating the worker between May 11 and June 10, 2016 determined that the worker was capable of returning to his regular work.

The advocate submitted that the WCB decision, which seemed to indicate that the worker was expected to complete a 21-session course of physiotherapy in four weeks, was not reasonable. He noted that he worker had not received active treatment for his compensable injury prior to starting physiotherapy on May 19, 2016, and submitted that continuing the course of treatment to mid-September 2016, as requested by the attending physiotherapist, would have been consistent with the medical evidence. The advocate further submitted that a course of physiotherapy running through to mid-September 2016, concurrent with full wage loss benefits, would not have been unusual for the worker's type of injury.

It was noted that the attending physiotherapist treated the worker from May 19 to at least the end of July 2016. The WCB denied a request for further treatment on August 4, 2016, saying that responsibility for the claim ended on June 17, 2016, except for the remaining number of treatments out of the 21 which were previously approved. In the advocate's submission, it was important to note that the September 12, 2016 discharge report from the physiotherapist indicates that the worker was being discharged solely due to the WCB's refusal to approve further treatment, and not because he had recovered or achieved maximum medical improvement.

The advocate submitted that greater weight should be assigned to the evidence from the primary healthcare provider, i.e. the attending physiotherapist, who was actually treating the worker, than to the opinion of the WCB medical advisor back in April 2016. In their view, this should lead to the conclusion that the worker was unable to do his regular work by June 10, 2016, and was still unable to do it as of September 12, 2016. Rather, he was still experiencing the effects of his workplace injury, and was only able to work with suitable accommodation, which was not available with the employer. He was therefore still experiencing a loss of earning capacity and was entitled to wage loss benefits.

With respect to the second component of the worker's claim, relating to the worker's entitlement to further benefits and services beyond September 12, 2016, the worker's position was that the evidence indicates, on a balance of probabilities, that he has continued to be unable to return to his regular work due to the direct effects of the compensable injury and/or an unresolved aggravation or enhancement of his condition.

The advocate submitted that this is a "classic" claim, where an acute trauma is superimposed on a pre-existing condition. The advocate argued that the WCB medical advisor focused almost exclusively on degenerative changes identified by the April 7, 2016 CT scan, and skipped over findings that can be related back to the workplace injury. It was noted that the attending neurosurgeon indicated in his June 6, 2016 report that the April 7 CT scan showed a disc protrusion at L4-5 that may be encroaching on nerve roots and indicated that it would be reasonable to proceed with an MRI. The advocate argued that the WCB failed to sufficiently consider this finding under the Policy on pre-existing conditions. The neurosurgeon also suggested more aggressive medical management, which could have been pursued by the WCB, but was not.

It was submitted that the results of the July 20, 2016 MRI include findings which, on a balance of probabilities, can be related to the workplace injury, given the mechanism of injury where the worker fell off a roof from a distance of approximately 9 feet and the fact that he was able to sustain employment in his chosen field of work prior to the accident. In the worker's view, the MRI findings explain the worker's continued signs and symptoms and indicate that further healthcare intervention was and is required to sufficiently assess the findings and recommend next steps. As the July 20, 2016 MRI demonstrates that the pre-existing condition has changed from prior imaging, and the only intervening event is the compensable injury, either the disc involvement is directly related to the compensable injury or the pre-existing condition has been changed by the compensable injury through an enhancement which is causally connected to the compensable injury.

In summary, it was submitted that the evidence from the worker's healthcare provider, the CT scan and MRI results which demonstrate changes pre versus post-injury, the neurologist's recommendation for more aggressive medical management, the worker's ongoing signs and symptoms, and his sustained ability to work in his chosen occupation prior to the compensable injury, outweigh the WCB medical advisor's April 22, 2016 opinion which was relied upon by the WCB in arriving at its decision.

It was submitted that, on a balance of probabilities, the medical evidence is too close to call in terms of separating the effects of the injury from the degenerative condition. There is disc involvement which should be viewed as related to the injury, and the most reasonable conclusion is that through the combined effect of both the pre-existing condition and compensable injury, the Policy applies and the WCB is also responsible for wage loss benefits beyond September 13, 2016, as well as further healthcare benefits and services.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required further medical aid as a result of his March 16, 2016 compensable injury. The panel is unable to make that finding, for the reasons that follow.

Based on our review of the evidence, the panel finds, on a balance of probabilities, that the worker suffered a strain/sprain injury on March 16, 2016, from which he had recovered by June 10, 2016. The panel finds that the evidence from the outset of the claim suggests that the worker's injury was not particularly problematic. He was treated at the nursing station on the day of the accident, where it was noted that he was tender across the lumbar area and the diagnosis was a soft tissue injury. Six days later he was seen by his own physician, who similarly found that he had a tender lower back and did not provide a diagnosis.

The panel places weight on the WCB medical advisor's report, following his review of the worker's file and call-in examination of the worker on April 22, 2016, in which he opined that the worker was likely capable of sedentary duties at a minimum. Acknowledging the worker's reported low back symptoms, the medical advisor further opined that continuing to resume activity gradually would be advised, and that physiotherapy or chiropractic treatment could be considered to assist with mobilization.

The panel is satisfied that the worker was sent to physiotherapy as essentially a reconditioning program, as opposed to active treatment for his injury. In the panel's view, the physiotherapy sessions were intended to support and assist the worker in preparing for his return to work, which would be consistent with the expectation that he complete the 21 treatments within a relatively short period of time.

The panel is unable to find information in the file which would suggest that it was unreasonable to end the worker's benefits effective June 10, 2016. The panel recognizes that the worker continued to complain of ongoing problems and an inability to return to work beyond June 10, 2016, but is unable to find, on a balance of probabilities, that the worker's reported difficulties and inability to work at that point were related to his compensable injury.

The panel notes that the WCB recognized the worker had not completed his physiotherapy program by June 10, 2016, and allowed the worker to continue with the remaining pre-authorized sessions beyond that date if he felt this would be beneficial, with the expectation that the sessions would be completed in a timely manner. The panel is satisfied that this is consistent with the goal of supporting and assisting the worker in returning to work.

The panel is further unable to accept the worker's argument that the workplace accident resulted in an aggravation or enhancement of the worker's pre-existing degenerative back condition. In advancing that argument, the worker's advocate relied in large part on changes which were noted in the worker's 2016 MRI. The panel is unable to find, however, that those changes as compared to the previous MRI, done more than five years earlier, were due to the March 2016 workplace accident. Rather, the panel is satisfied, on a balance of probabilities, that the noted deterioration in the worker's DDD from 2010 to 2016 is not related to the workplace injury and is more likely a result of the natural history of DDD.

The panel notes that in arriving at our decision, we were unable to attach much weight to the attending physiotherapist's reports of the worker's symptomatology, which we find to be inconsistent with examination findings and observations of the worker by both the WCB medical advisor and the neurologist, who both recorded concerns with respect to discrepancies in the worker's stated and demonstrated or observed capabilities.

Based on the foregoing, the panel finds that the worker did not have a further loss of earning capacity or require further medical aid as a result of his March 16, 2016 compensable injury. The panel therefore finds that the worker is not entitled to further benefits.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of April, 2018