The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for his low back difficulties as being a consequence of the October 23, 2013 accident. A hearing was held on December 5, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's low back difficulties as being a consequence of the October 23, 2013 accident.

Decision

That responsibility should not be accepted for the worker's low back difficulties as being a consequence of the October 23, 2013 accident.

Background

The employer reported that on October 23, 2013, the worker "…was tightening a bolt on 10510 bolter when the wrench broke and he fell backwards to the ground, causing pain to his left leg."

The worker was transported to hospital and was diagnosed with fractures of the left tibia and fibula. On October 26, 2013, he underwent an "intramedullary nailing, left tibia" and it was recommended that he be off work and non-weight bearing for six weeks, and would require physiotherapy and reassessment before returning to work.

On November 25, 2013, the worker advised the WCB that he slipped at home coming out of the bathroom while using his crutches and jarred his back. The worker also advised that he had herniated his back in the past but noted that not being able to weight bear on his injured leg was aggravating his back.

At a follow-up appointment on January 16, 2014, the treating orthopedic surgeon noted:

Some external rotation of L (left) foot. Correct [with] gait to level of comfort only. #'s [fractures] still not healed. May continue [with] ROM [range of motion] & strengthening. Will order U/S bone stimulator. Should stay off work until union achieved.

On February 13, 2014, the worker advised the WCB that he was having some other issues regarding his leg. He stated that he had pain when sitting down from his buttock into his thigh and behind his left knee. He indicated that this was a "pulling pain" and he would discuss it with his orthopedic surgeon at his next appointment.

On February 25, 2014, the worker attended a follow-up appointment with the treating orthopedic surgeon in Winnipeg. The orthopedic surgeon reported with respect to the fractured left tibia/fibula that there was delayed union. He also diagnosed a "likely L5-S1 disc herniation likely related to gait" and recommended an MRI of the worker's spine.

On February 27, 2014, the worker advised the WCB that his back pain was worse and he had attended the hospital.

On March 19, 2014, a WCB medical advisor reviewed the worker's file and provided the following opinion regarding the worker's current difficulties:

1. Low back pain radiating to the left foot with paresthesia is explained by the diagnosis of lumbar disc protrusion at L5-S1 level. 

2. This diagnosis was present in 2012, as evidence by the CT report dated 15-June-2012. 

3. The lumbar disc protrusion was a condition pre-existing the workplace injury of 23-Oct-2013. 

a) Crutch walking may aggravate symptoms of a pre-existing lumbar disc protrusion. However, the lumbar symptoms became troublesome only in February, 2014. 

b) On 3-Dec-2013, the progress of healing of the tibia fracture was sufficient to progress to weight bearing as tolerated (WBAT) as recommended by the surgeon. 

c) There is no objective medical evidence that the pre-existing condition was aggravated or enhanced by the workplace injury. 

4. The proposed MRI is not related to the workplace injury.

On May 13, 2014, Compensation Services advised the worker that they were unable to accept his back difficulties as related to his compensable injury. Compensation Services noted that a CT scan conducted in March 2006 indicated that the worker had a lumbar disc protrusion at the L5-S1 level, which was also present in his June 2012 CT scan and again in his CT scan dated February 27, 2014. The worker's file had been reviewed in consultation with a WCB medical advisor and it was determined that there was no objective medical evidence to support that the worker's pre-existing L5-S1 lumbar disc protrusion was aggravated by his workplace accident or subsequent use of crutches or a cane.

On May 14, 2015, the worker's union representative requested reconsideration of the May 13, 2014 decision by Review Office. On June 29, 2015, Review Office determined that responsibility was not accepted for the worker's back difficulties. Review Office determined that the worker's reported back difficulties were pre-existing and were not aggravated or enhanced as a result of the workplace accident, or attributable to his compensable injury.

On December 2, 2016, a worker advisor acting on the worker's behalf provided further medical information and requested reconsideration of the Review Office decision. It was submitted that the medical reports supported that the worker's altered gait from the surgical repair of his left leg break, the incident of the worker slipping in November 2013, and the worker being jarred during a turbulent airplane landing in February 2014 all contributed to an aggravation of his pre-existing back condition.

On February 16, 2017, Review Office advised that there was no change to their previous decision. Review Office determined that they were not able to relate the worker's current back difficulties to the November 25, 2013 slipping incident. They also found that they were unable to establish a relationship between the worker's back difficulties and his flight on February 26, 2014, as the worker's symptoms occurred prior to the date of the flight.

Review Office further determined that the worker's pre-existing condition of a lumbar disc protrusion at the level of L5-S1 was not aggravated or enhanced, as the evidence did not support that his compensable injury, his altered gait and/or the use of crutches or a cane structurally altered that condition.

On June 30, 2017, the worker advisor appealed the Review Office's June 29, 2015 and February 16, 2017 decisions to the Appeal Commission, and an oral hearing was held on December 5, 2017.

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 19, 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy") addresses the issue of pre-existing conditions when administering benefits. The Pre-existing Conditions 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 Pre-existing Conditions 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable: 

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was assisted by a worker advisor who provided a written submission 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 the medical information supports that the worker experienced an aggravation of his pre-existing back condition in relation to his compensable left leg injury, and the WCB should accept responsibility for his lower back difficulties.

The worker's evidence at the hearing was that he had some back pains on and off over the years, but never nerve pain. He said that prior to his October 23, 2013 injury, he had no pain in his back since April 2009. He passed the physical requirements to work for the employer. The worker said that he did not have any back symptoms immediately following his October 23, 2013 injury. The worker described how he slipped on November 25, 2013, and jarred his back as he tried to catch himself. He said that it was very painful at first. It never went away entirely, but became tolerable. He said that he did not seek medical attention as it felt more like a muscle pain.

The worker returned to work for a short period of time in December 2013. He said that his back pain was getting worse, to the point where he had to call his case manager on February 20, 2014. On his flight home on February 26, 2014 from his follow-up appointment with his orthopedic surgeon, they encountered a lot of wind and turbulence on landing, which resulted in their being bounced around in their seat, maybe an inch of so. The worker said that he felt more sharp pain in his lower back at the time, and when he got off the plane, it was very painful putting weight on his leg. The worker said his pain was fairly constant that evening, but he couldn't get out of bed the next morning. He stayed in bed all day, and went to the hospital emergency department that night.

The worker advisor submitted that while the worker had a history of a previous low back condition, he had passed a physical work assessment that did not identify any issues and was performing his duties as a mechanic with no difficulties prior to his October 23, 2013 workplace accident. The worker did not suffer any back injury at the time of his October 23, 2013 accident. His back condition was fine until he slipped at home on November 25, 2013 while using his crutches. This was significant enough for him to contact his case manager and advise her of the situation.

The worker’s evidence was that his condition continued and progressed somewhat, but was tolerable. He suffered a severe exacerbation of his back difficulties on his flight home from his February 25, 2014 follow-up appointment with the treating orthopedic surgeon and attended in hospital on February 27, 2014.

The worker advisor identified that the incident where the worker slipped as he was coming out of the bathroom while on crutches on November 25, 2013 was the onset of the worker’s low back difficulties, which progressed from there. The incident on February 25, 2014 exacerbated his condition, and medical information showed that he had significant problems with his back after that. The worker advisor noted that while there were no further specific incidents, medical reports had alluded to the fact that the worker’s altered gait was a result of his injury, and his use of crutches and a cane may also have had an impact on his back condition. The worker advisor noted that while they were not specifically arguing the effect of the worker’s altered gait, this was nevertheless also part of how his condition progressed.

Employer's Position

The employer was represented by its WCB representative and its Safety Manager. The employer’s representative provided a written submission in advance of the hearing and made a presentation to the panel.

The employer’s position was that the decision to deny entitlement for the worker’s lower back difficulties was correct, and the worker’s appeal should be dismissed.

It was submitted that the evidence does not support the aggravation of a pre-existing condition or a further injury subsequent to a compensable injury under the WCB policies.

The employer’s representative submitted that while the letters of support from the worker’s general practitioner, physiotherapist and chiropractor suggested that the worker’s back issues stemmed from his compensable injury, there was no clinical evidence connecting the worker’s compensable injury with his ongoing back issues.

It was also submitted that there was a lack of continuity around the reporting of the worker’s back problems and each of the three triggers advanced on behalf of the worker. With respect to the altered gait, the employer’s representative further noted, with reference to a medical discussion paper submitted prior to the hearing, that the limp would need to be very pronounced to aggravate a back impairment.

The employer's representative noted that the worker had a well-documented long-standing history of problems in the L5-S1 area, with a WCB claim in 2005 citing similar symptoms and prior medical on file confirming spontaneous exacerbations in 2005, 2007, 2009 and 2012 at a minimum, and submitted that it is reasonable to conclude that the worker’s current back difficulties arose in a similar manner.

In conclusion, it was submitted that the evidence clearly demonstrates that the worker’s ongoing difficulties are not related to his October 23, 2013 workplace injury, and there is no evidence that his difficulties arose out of and in the course of his employment.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker’s low back difficulties as being a consequence of the October 23, 2013 accident. For the worker’s appeal to be successful, the panel must find that the worker’s low back difficulties are causally related or predominantly attributable to his October 23, 2013 workplace accident. The panel is unable to make that finding, for the reasons that follow.

Evidence on file shows that the worker has a lengthy history of low back problems dating back to at least 2005.

The worker advised the case manager on November 25, 2013 that he slipped coming out of the bathroom and jarred his back. The worker did not indicate that he suffered any particular injury at that time, nor did he follow up on this particular incident subsequently. The next mention on the file of the worker's back is not until February 13, 2014, almost three months later. There is no medical information to support that the worker suffered a further or any injury to his back as a result of this November 25, 2013 incident.

With respect to the worker's flight on February 26, 2014 and his reported back difficulties arising out of that flight, information on file shows that the worker was experiencing back symptoms prior to leaving, as evidenced by his comments to the WCB on February 13, 2014. Medical evidence shows that the worker also attended the hospital on February 20, 2014 complaining of left side back pain for the past week. The evidence also shows that the worker was already complaining of back symptoms when he saw his orthopedic surgeon on February 25, 2014. The hospital report of February 27, 2014, following his return further indicates that the worker was complaining of back pain in his lower back, and refers to a similar problem for two weeks and that the worker had been seen there two days ago. There is no reference in that report to the worker having experienced difficulties because of a flight or turbulence.

While the February 25, 2014 report of the treating orthopedic surgeon indicates he diagnosed the worker with "likely L5-S1 disc herniation likely related to gait", the worker's evidence at the hearing was that he was not there to see the surgeon for his back, so the surgeon just did a quick examination and basically based his opinion on where the pain was coming from. The panel notes that there is insufficient clinical evidence to support that the worker's back was affected by an altered gait at that time.

The panel relies on and agrees with the March 19, 2014 opinion of the WCB medical advisor who reviewed the file and concluded that the worker's low back pain radiating to the left foot was explained by the diagnosis of lumbar disc protrusion at the L5-S1 level, that this diagnosis was present in 2012 as evidenced by the June 2012 CT scan, and that there was no clinical evidence that the pre-existing condition was aggravated or enhanced by the workplace injury.

At the hearing, the worker indicated that he was being treated on an ongoing basis by a pain management specialist. Following the hearing, a narrative report was provided by the treating anesthesiologist, who reported that he began treating the worker on June 5, 2014. The treating anesthesiologist noted that his assessment on October 24, 2015 was that the worker's radicular pain had largely resolved and his pain was secondary to his left SI joint and L5-S1 facet joint. The anesthesiologist stated that his diagnosis at this point in time is bilateral facet arthropathy, which the panel understands to be a degenerative condition, and that the worker is likely to have chronic low back pain on an ongoing basis.

Based on the foregoing, the panel is satisfied, on a balance of probabilities, that the worker’s low back difficulties were not predominantly attributable to or aggravated by his compensable injury. The panel therefore finds that the worker's low back difficulties are not causally related to his October 23, 2013 workplace accident.

Accordingly, the panel finds that responsibility should not be accepted for the worker’s low back difficulties as being a consequence of the October 23, 2013 accident.

The worker’s appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of May, 2018