The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her accident of June 10, 2011. A hearing was held on February 15, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to her accident of June 10, 2011.

Decision

That the worker is not entitled to further benefits in relation to her accident of June 10, 2011.

Background

This claim has been the subject of two previous appeals on this claim and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision Nos. 58/14 and 65/15, dated May 13, 2014 and May 27, 2015, respectively.

On June 10, 2011, the worker slipped and fell while going down a flight of stairs and injured her right knee, low back and hip. Her claim for compensation was accepted based on the diagnosis of a right knee sprain/strain, and benefits were paid up to May 31, 2012. No specific diagnoses were given with respect to the worker's right hip, thigh or low back.

On May 13, 2014, the Appeal Commission determined that the worker was entitled to benefits beyond May 31, 2012. (Decision No. 58/14) The Appeal Commission found that "the continuity of symptoms identified in the SI [sacroiliac] joint is sufficient to satisfy us that the worker suffered injury to her SI joint when she fell down the stairs on June 10, 2011." The Appeal Commission noted that the treating anesthesiologist had indicated that the most likely diagnosis for the worker's ongoing pain was right SI joint arthritis. The panel did not accept that the right SI joint arthritis itself was compensable. It accepted, however, that the worker's SI joint arthritis was a pre-existing condition which was aggravated and made symptomatic by the workplace fall.

On May 27, 2014, Compensation Services advised the worker that responsibility was accepted for wage loss benefits from June 1, 2012 to August 25, 2013, the worker having returned to her pre-accident duties on a full-time basis effective August 26, 2013.

In its later decision dated May 27, 2015, the Appeal Commission indicated that responsibility would not be accepted for a May 13, 2014 surgical procedure (panniculectomy) and associated benefits. (Decision No. 65/15) Information on file indicates that the worker missed time from work in May and June 2014 due to the non-compensable surgery.

In December 2015, the worker filed a separate claim for a new lower back injury which occurred at work on November 26, 2015. The worker's 2015 claim was accepted based on the diagnosis of a lumbar strain/tailbone injury and benefits were paid.

In a decision dated May 12, 2017, the Appeal Commission determined the worker was not entitled to wage loss benefits after June 28, 2016 in relation to her 2015 workplace injury and claim. (Decision No. 57/17)

On June 2, 2017, the worker contacted Compensation Services to inquire as to whether there was entitlement to further wage loss benefits for her 2011 claim.

On July 29, 2017, a WCB medical advisor reviewed the file and opined, in part, as follows:

The natural history of "SI joint irritation" in the absence of significant structural abnormality of the hip/SI joint on x-ray and MRI reporting, is one of improvement over time…

The most recent clinical examinations on this file are from January 23 and February 21/17. Active spinal mobility is noted to be associated with pain exacerbated in all planes with very minimal motion (a finding that would not be medically accounted for by the spinal imaging on file), negative straight leg raising, normal reflexes, and right lower limb numbness (for which imaging and electrodiagnostic correlates are not demonstrated) are also documented. February 23/17 reporting from the pain clinic MD indicates that [the worker] is now receiving bilateral SI joint injections, however given the degree of ongoing reported pain and functional impairment, it does not appear that these are associated with a material degree of benefit. On balance, the current presentation is consistent with nonspecific pain (which means that the source of pain is not clearly defined) which appears to be out of proportion to a probable soft tissue injury (i.e. strain/sprain) from 2011. The initial and current diagnoses and natural history of same along with the objective medical examination findings and imaging findings on file do not appear to support an ongoing medical relationship between the current presentation and the 2011 workplace injury.

On August 3, 2017, Compensation Services advised the worker that they had determined she had recovered from her back injury, and that any ongoing difficulties were not related to her June 10, 2011 workplace injury. The worker was therefore not entitled to any further ongoing medical treatment and her claim would be closed.

On August 4, 2017, the worker requested reconsideration of Compensation Services' decision by Review Office. On August 25, 2017, Review Office determined that there was no entitlement to further wage loss benefits. Based on the weight of evidence, Review Office found that they were unable to establish a causal relationship between the worker's current symptoms and her June 10, 2011 workplace accident.

On September 6, 2017, the worker appealed Review Office's decision to the Appeal Commission, and an oral hearing was held on February 15, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 15, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 is considered 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 self-represented and provided a written submission in advance of the hearing. The worker made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that she is entitled to further benefits as a result of the injuries she sustained when she fell at work on June 10, 2011. She stated that she has been in constant pain since then. Contrary to what the WCB has said, she did not have any pre-existing condition as she never had any aches or pains in her back prior to her June 2011 accident. The WCB accepted her claim, and should be held responsible for the ongoing problems which resulted from her fall.

The worker attributed her injuries to both of her workplace accidents. She submitted that all of her injuries stemmed from her original accident in June 2011, but her November 2015 accident also injured her further. She stated that an MRI taken after her 2015 accident showed that her back is falling apart and is getting worse due to the original fall. She is unable to return to work; if she were to return to work, the deterioration in her back would only get worse given the physical demands of her job.

The worker said that she was able to return to work for a while starting in 2012, but only with the aid of the SI joint injections and even then she was always in pain. The injections were on her right side only until just after her 2015 accident. After that accident, she had to get injections on her right side and her left side. These injections worked the first time; they worked the second time, but the effect only lasted a month and a half; and the third time they only lasted two days. The anesthesiologist could no longer give her the injections after that as they would not work, so they decided to try a different injection into the spine. The anesthesiologist was unable, however, to insert the needle into the spinal canal. He commented at that time that her condition was even worse than they all thought and that nothing was showing on the scans. The treating anesthesiologist has since indicated there is nothing more he can do for her and is referring her to an orthopedic surgeon.

The worker submitted that MRIs, CT scans and bone scans in her case were fallible. She knows there is damage there which is not seen on the scans. As time goes by, more and more things are coming out. The worker said that she just wants fairness. Her injuries are real. They were caused by her accident, and she is entitled to further compensation.

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 in relation to her accident of June 10, 2011. For the worker's appeal to be successful, the panel must find that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of her June 10, 2011 workplace injury. The panel is unable to make that finding.

A prior Appeal Commission panel found in its May 13, 2014 decision that the worker's SI joint arthritis was a pre-existing condition. The panel accepted that the worker's pre-existing right SI joint arthritis was aggravated by her fall, and her ongoing SI joint irritation was therefore compensable.

Based on our review of the information which is before us, the panel is unable to find that the worker continues to suffer from the effects of her 2011 injury and SI joint irritation. The panel notes that the worker was able to return to work in 2013, with SI joint injections, and generally to continue working up until her second fall in 2015. The Appeal Commission noted in its May 13, 2014 decision that the worker's condition appeared to be improving slowly. This is consistent with the comment by WCB medical advisor in her July 29, 2017 opinion, that "the natural history of SI joint irritation in the absence of significant structural abnormality of the hip/SI joint on x-ray and MRI reporting, is one of improvement over time."

The worker suffered further injuries as a result of her November 26, 2015 workplace accident, and wage loss benefits were paid under the 2015 claim up to June 28, 2016. The worker's evidence was that she did not return to work after that. The worker is now attributing her ongoing difficulties and symptoms and her inability to return to work at this time to her 2011 fall. The panel is unable to arrive at that conclusion.

The panel finds that the worker's ongoing or current symptoms are not consistent with the mechanism of injury and early medical reports with respect to the 2011 workplace accident. While the worker's symptoms were originally to the right side only, they are now bilateral. While right side SI joint injections were effective prior to the worker's 2015 accident, SI joint injections following her 2015 accident, to both her left and right sides, were ineffective in treating her symptoms.

Information on file and at the hearing further indicates that the worker's current problems are not in the same area as was previously identified in respect of the 2011 accident. In its May 13, 2014 decision, the Appeal Commission noted that the right SI joint had been consistently identified in the medical file as a problem area for the worker, and found that the worker suffered injury to her right SI joint when she fell. The worker confirmed at the hearing that more recent treatments were directed towards the L4-5 area of her spine, as opposed to the SI joints. The panel notes that L4-L5 was not identified as a problem area in medical reports closer in time to the accident, or in the Appeal Commission's 2014 decision. The panel is therefore unable to relate the worker's symptoms or problems in the L4-L5 area to her 2011 accident.

The panel notes that the stated impression in the September 19, 2016 MRI is that by comparison with the October 6, 2011 MRI, there had been "degenerative changes of the lumbar spine, progressed in the interval with resulting spinal canal narrowing at L4-5." The panel further notes that in its May 12, 2017 decision on the 2015 claim file, the Appeal Commission found that the results of the worker's September 19, 2016 MRI confirmed ongoing multi-level degenerative changes in the worker's back which were consistent with the worker's pain complaints, and were pre-existing conditions. In light of the foregoing, the panel is unable to relate such bilateral degenerative changes in the L4-5 area to the worker's 2011 fall, some five years earlier.

The worker's evidence was that the treating anesthesiologist was referring her to an orthopedic surgeon. Following the hearing, the panel requested and was provided with a copy of the November 20, 2017 referral letter to the orthopedic surgeon. In that letter, the treating anesthesiologist referred to the spinal stenosis which was identified in the 2016 MRI. The anesthesiologist specifically noted that the worker's symptoms "have been escalating," and requested the orthopedic surgeon's opinion regarding surgical management for that spinal stenosis. The anesthesiologist also indicated that he would be obtaining a further MRI.

Following the hearing, the panel was also provided with the MRI report of the lumbar spine dated January 7, 2018, which revealed, in part:

At L5-S1, there is severe right and moderate left facet arthropathy, progressed. Ligamentum flavum hypertrophy is present. Shallow posterior disc bulging is noted. No significant central canal or foraminal stenosis. Bulging disc material approaches the S1 nerve roots bilaterally within the lateral recesses and mild irritation of these nerve roots cannot be excluded, right greater than left.

IMPRESSION:

Degenerative changes in the lumbar spine as described, relatively similar to the previous MRI aside from some progression in facet arthropathy at L5-S1.

While the 2018 MRI indicates that the condition in the L5-S1 area is now worse than in her 2016 MRI, the panel is unable to find that such degenerative changes and worsening symptoms between 2016 and 2018 were the result of the worker's 2011 accident several years earlier.

The panel is unable to attach any weight to letters from the worker's family physician and her treating anesthesiologist, dated January 12, 2018 and November 20, 2017, respectively, which the worker provided in support of her appeal. The panel notes that in their letters, the physicians referred to the specific medical issues they were treating, but did not say or provide any clinical evidence to indicate or support that those issues or treatments were related to the worker's June 10, 2011 workplace accident.

The panel recognizes that the worker has significant ongoing symptomatology. We are unable to find, however, that the worker's ongoing difficulties and symptomatology are causally related to her June 10, 2011 workplace injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of her June 10, 2011 workplace injury. The panel therefore finds that the worker is not entitled to further benefits in relation to her accident of June 10, 2011.

The worker's appeal is dismissed.

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 11th day of May, 2018