Decision #58/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after August 30, 2013 in relation to her compensable injury. A hearing was held on March 21, 2017 and continued on March 8, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after August 30, 2013.
That the worker is not entitled to benefits after August 30, 2013.
On May 14, 2013, the worker reported an injury to her low back while taking part in a CPR recertification course the previous day. The worker reported "My back felt a little tight at first. After 2 hours the pain increased. I started icing in the evening. Later I was laying in bed and in constant pain. It is still very sore. I am having difficulty walking and feel a pinching in my buttocks. My right foot feels numb."
On May 14, 2013, the worker attended a chiropractor for treatment and was diagnosed with a lumbar sprain of L5-S1. The claim for compensation was accepted and the worker was paid wage loss benefits commencing May 14, 2013.
On May 19, 2013, the worker was seen by a sports medicine physician due to ongoing pain complaints in her back. The worker was diagnosed with acute discogenic pain. A lumbar spine x-ray taken the same day revealed a shallow scoliosis convex left with the apex at L3, possibly on the basis of muscle spasm. No fracture or malalignment was seen.
The worker underwent an MRI of her lumbosacral spine on June 18, 2013. The findings showed mild degenerative changes in the lower lumbar spine most prominent at L4-L5 and L5-S1.
On July 14, 2013, a WCB medical advisor opined that the MRI findings did not correlate with the worker's complaints of back and left leg pain. There was no radiation of pain in the S1 distribution and the disc extrusion did not appear to impinge the nerve roots or neuroforamina. The medical advisor said the mechanism of injury, performing CPR on a mannequin, was suggestive of a strain. The MRI findings were degenerative in nature and more likely than not represented a pre-existing degenerative condition.
In a telephone conversation on August 16, 2013, the WCB case manager advised the worker that responsibility for her claim would end as of August 26 as it was felt that the mechanism of injury was consistent with a strain injury and MRI findings were pre-existing in nature. The worker advised the case manager that the MRI findings occurred at the time of her 2011 workplace injury.
On August 21, 2013, a WCB orthopedic consultant reviewed the worker's previous WCB claim files in conjunction with the current claim. The consultant opined that the worker's current symptoms were related to the multi-level degenerative lumbar disc disease demonstrated on the June 18, 2013 MRI. There was no evidence that the disc pathology was caused by trauma rather than degeneration.
In a decision dated August 23, 2013, the worker was advised that based on a review of her claim which included consultation with a WCB medical advisor, the WCB was unable to accept ongoing responsibility after August 30, 2013 in relation to her workplace injury of May 13, 2013.
On February 5, 2014, a physical medicine and rehabilitation specialist ("physiatrist") provided a narrative report to the worker's union representative based on his review of the worker's file, the WCB medical opinion dated July 14, 2013 and his clinical encounters with the worker.
On February 13, 2014, the WCB orthopedic consultant stated, in part:
In terms of disc pathology as a probable cause of symptoms, [the physiatrist] and I appear to be in agreement. We agree that degenerative disc disease is a chronic condition. Where we differ is in whether or not the mechanism of the workplace injury would have caused the disc pathology. [The physiatrist] stated:
Given the above clinical report card, there is a good correlation between the claimant's history of symptoms, including their onset, the physical examination and the MRI scan study. Based on this presentation, I concluded that she was presenting with clinical evidence of an acute disc herniation with radicular pain and dural tension. The term "lumbar strain" is insufficiently specific for this clinical presentation.
My opinion was that the mechanism of the workplace injury is more in keeping with a non-specific sprain/strain in the environment of degenerative lumbar disc disease. The frequently reported abnormal clinical findings are, in my opinion, entirely consistent with chronic disc pathology, not necessarily an "acute disc herniation."
On March 28, 2014, the worker was advised that based on a further review of her claim with the WCB orthopedic consultant, there was no change to the previous medical opinion that her ongoing difficulties were not related to the workplace injury.
On April 1, 2014, the worker was seen by a neurosurgeon at the request of the treating sports medicine specialist. The neurosurgeon stated:
I discussed with [the worker] the clinical presentation and radiological findings. The lumbosacral and gluteal discomfort are very probably musculoskeletal. The pain extending to the left lower extremity may be radiculopathic, but the MRI does not provide any obvious radiological correlate.
On April 9, 2014, the worker's union representative asked Review Office to reconsider the decision of August 23, 2013 as the worker believed she had not recovered from the effects of the May 13, 2013 accident and her ongoing symptoms were not related to degenerative disc disease as was suggested by the WCB's medical consultant.
In a submission to Review Office dated June 4, 2014, the employer's representative outlined their position that they agreed with the WCB that the worker had recovered from her strain injury and her ongoing difficulties were attributable to her pre-existing degeneration.
On June 24, 2014, Review Office determined that the worker was not entitled to benefits beyond August 30, 2013. Review Office stated, in part, that it placed weight on the worker's mechanism of injury and the delay in her initial symptoms. It also accepted the WCB medical opinions outlined on July 14 and August 21, 2013, and February 13, 2014 and the neurosurgeon's comments of April 1, 2014. Review Office said it preferred the opinions of the WCB orthopedic consultant and neurosurgeon over that of the physiatrist as the MRI did not provide correlation to the worker's reported symptoms.
Review Office referred to the union representative's submission that the neurosurgeon's comments indicated the worker was not suffering the effects of degenerative changes but rather an injury to her muscles and tendons. The representative's position was that the soft tissue injury occurred during the accident from which the worker had not yet recovered. Review Office said it could not relate ongoing musculoskeletal issues in April 2014 to a workplace injury occurring almost one year prior. Review Office acknowledged that the worker was having ongoing issues with her lower back, but was not able to relate these issues to the May 13, 2013 workplace accident.
On July 17, 2014, the union representative asked the WCB to convene a Medical Review Panel ("MRP") on the grounds that there was a difference in diagnosis between the WCB medical consultant and the treating physiatrist. The request was granted by the WCB and an MRP took place on May 22, 2015.
In a further decision dated August 7, 2015, Review Office confirmed that the worker was not entitled to benefits beyond August 30, 2013. Review Office accepted the MRP's findings that the initial diagnosis was left sided sciatica with L5 radiculopathy. It stated that the MRP findings were not conclusive in finding a positive ongoing correlation between the worker's current presentation and her compensable diagnosis. Review Office was therefore unable to find that the worker's current presentation was related to the compensable injury. Based on these findings, there was no change to their prior decision to disallow benefits beyond August 30, 2013.
On January 19, 2016, the worker's union representative appealed Review Office's decision to the Appeal Commission, and an oral hearing was convened on March 21, 2017.
Following the hearing, the panel requested additional information. The requested information was received and was forwarded to the interested parties for their information and review. The hearing reconvened on March 8, 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'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 states 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 18.104.22.168, 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 worker was represented by a union representative, who made a submission on the worker's behalf. The worker was accompanied by her spouse at the hearing, and responded to questions from her union representative and the panel.
The worker's position was that she sustained a serious injury on May 13, 2013, and that the information provided supports that this was a classic mechanism for lumbar disc injury. Further, it was their position that the initial diagnosis which the WCB accepted on this claim is wrong; the compensable diagnosis should be a sciatica condition and the worker is entitled to benefits after August 30, 2013 as a result of her workplace injury.
It was submitted that their position in this regard was supported by the MRP, who felt that the initial diagnosis was left sided sciatica with L5 radiculopathy. In their view, that is the correct diagnosis.
The union representative submitted that the diagnosed degenerative disc disease did not cause the worker's injury, but it did delay her recovery. Had the worker's symptoms been related to the diagnosed degenerative disc disease alone, she would still be disabled. However, she is not. Rather, with continued medical monitoring and treatment, the elimination of opioid medication and her perseverance, she has returned to being near her functional baseline.
The union representative noted that the worker incurred a loss of earning capacity as a result of the May 13, 2013 workplace injury. She submitted that due to a previously unknown pre-existing condition of degenerative disc disease, the worker's recovery time was delayed. In their view, the worker needed a longer period of recovery time and benefits, and is therefore eligible for wage loss and medical aid benefits up until the time she was medically fit to return to work.
The employer was represented by an advocate. The employer's position was that there is no further entitlement to benefits as the worker's ongoing difficulties are not related to her workplace accident.
The employer's representative stated that there is no question this is a complex medical case. In their view, there is also no question that the worker has significant pre-existing multi-level degenerative disc disease. It was submitted that at most, the CPR recertification training resulted in a strain type injury, and the short-lived physical effort which was involved did not cause, aggravate or enhance the worker's degenerative disc disease. The representative stated that the employer shares the WCB orthopedic consultant's opinion that the worker's chronic difficulties are attributable to her pre-existing degenerative disc disease, and not to her CPR recertification course, and urged the panel to accept his opinion.
In summary, the employer is of the view, based on the extensive medical evidence on file, the mechanism of injury, significant pre-existing degenerative disc disease and a history of back problems with little or no provocation, the opinions of two WCB doctors and of the treating neurologist, the fact that the worker's symptoms evolved and continued despite the passage of time and that she still does not have restrictions, that the worker's ongoing difficulties are solely due to her pre-existing back problems.
The issue before the panel is whether or not the worker is entitled to benefits after August 30, 2013. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required medical aid after August 30, 2013 as a result of her May 13, 2013 workplace injury. The panel is unable to make that finding, for the reasons that follow.
The worker's union representative has argued that the accepted compensable diagnosis of a lumbar strain is not correct, and that the appropriate compensable diagnosis is left-sided sciatica with L5 radiculopathy.
The panel accepts the diagnosis of sciatica as a compensable injury. The panel is satisfied that the medical evidence, particularly that which was provided closest to the date of accident and to August 30, 2013, indicates that the worker sustained a disc injury as a result of her May 13, 2013 workplace accident.
The panel finds, however, on a balance of probabilities, that the medical evidence also indicates that the compensable injury had substantively resolved by August 31, 2013. The panel places particular weight on our review of the medical reports following this which do not show that the acute injury continues to be in play.
On August 8, 2013, the treating sports medicine physician referred the worker to a physiatrist. On September 23, 2013, the physiatrist noted that the worker "has a clinical presentation consistent with an acute disc herniation with radicular pain, blocked range of motion and mild dural tension. She has been advised that her condition is degenerative. There is no evidence to support this notion." Epidural injections were proposed.
The panel notes, however, in a subsequent letter dated December 10, 2013, the physiatrist wrote that worker had been treated with two epidural injections, the first of which had not resulted in any pain relief, and the second of which had provided relief which lasted only two days. As the worker had not responded to the epidural injection, no further injections were proposed. This suggests to the panel that the disc area was not in fact a pain generator.
Further evidence provided at the request of the panel indicates that by October 15, 2013, the worker had minimal symptomatology. In particular, the October 15, 2013 report of a collaborative rehabilitation assessment of the worker, conducted at the request of the worker's union by a multidisciplinary team consisting of a physiatrist, a physiotherapist, an occupational therapist, an athletic therapist and a health management specialist on October 9, 2013. With respect to the conclusions or impressions from that assessment, it was stated that:
The current clinical examination did not suggest any ongoing or active nerve compression. There was no evidence of dysfunction of any of the lumbosacral nerve roots except for subjective decreased sensation at the border of the left foot. The earlier file symptoms suggested disc injury with some of the left lowest lumbosacral nerve roots. The current clinical examination did not suggest any ongoing nerve compression or involvement. There were some mild neuropathic symptoms that were still persisting however.
The worker was later referred to an orthopedic surgeon by the treating sports medicine physician, with respect to complaints of left L5 radicular pain. On April 9, 2014, the orthopedic surgeon wrote:
In view of the lack of response to the targeted corticosteroid injections as well as imaging, which did not demonstrate any compromise of the neural elements, we feel [worker] should be managed non-operatively at this stage.
In arriving at our decision, the panel also places weight on the May 10, 2017 opinion of the treating neurosurgeon, who opined:
My clinical impression is that the [worker] has radiculopathy, the source, nature, and prognosis; I am unable to comment at this juncture…
…at the present time, it would appear [the worker] is a patient with radiculopathy due to disc disease. As to its relationship to trauma, this is difficult if not impossible to prove or disprove and one would have to rely entirely on the temporal nature of [the worker's] symptom complex, and what documentation was present at the time of the injury.
In summary, based on our review of all of the evidence which is before us, on file, as presented at the hearing and as provided to the panel at our request, the panel is unable to find that the worker continued to suffer from the effects of her May 13, 2013 workplace accident beyond August 30, 2013.
As a result, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid after August 30, 2013 as a result of her workplace accident, and is not entitled to benefits after August 30, 2013.
The worker's appeal is dismissed.
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 4th day of May, 2018