Decision #158/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her back difficulties occurring February 2, 2016 are not related to the September 26, 2014 accident. A hearing was held on September 20, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's back difficulties occurring February 2, 2016 are related to the September 26, 2014 accident.

Decision

The worker's back difficulties occurring February 2, 2016 are not related to the September 26, 2014 accident

Background

The worker has an accepted claim with the WCB for a lower back strain injury that occurred at work on September 26, 2014. The worker underwent treatment for discogenic lower back pain and began a graduated return to work program on October 15, 2014. She returned to full duties, with restrictions, on December 22, 2014.

In a discussion with the WCB on February 9, 2016, the worker advised that on February 2, 2016 while at home, she was bending down to place an item in a lower cupboard and her back went into spasms. The worker sought medical attention that day with her family doctor who referred the worker for an MRI.

An MRI was conducted on the worker's lumbrosacral spine on March 1, 2016. The MRI indicated "Right and left-sided foraminal annular tears at L4-L5" and "Small diffuse bulging disc and a probable central annular tear at L5-S1."

The worker attended for a call-in examination at the WCB on June 10, 2016. The WCB medical advisor opined, in part:

[The worker] has multiple levels of disc changes on the MRI without any nerve root impingement. These findings would typically be seen on the basis of degeneration. The workplace accidents did not cause those disc changes.

On September 14, 2017, the WCB chiropractic advisor provided:

Findings on a 2014 lumbar CT and on a Lumbar MRI are ubiquitous and commonly occurring in the general population. There are no findings on advanced imaging that discern an injury to the low back or identify pathology that would reasonably extend the natural history of a low back strain/sprain.

The WCB advised the worker on September 22, 2017 that the symptoms she experienced on February 2, 2016 were noted related to her September 26, 2014 workplace injury. The WCB advised that based on the accepted diagnosis of a low back strain and the typical recovery time of up to six weeks, the worker's pre-existing degenerative changes to her low back, the MRI results and the medical opinions of the WCB healthcare consultants, it was determined that the symptoms the worker experienced at home on February 2, 2016 were not medically accounted for in relation to the workplace injury on September 26, 2014.

On October 5, 2017, the worker requested reconsideration of the WCB's decision to Review Office.

Review Office determined on December 13, 2017 that the worker's back difficulties on February 2, 2016 were not related to the compensable injury of September 26, 2014. Review Office considered the discharge report from the worker's treating physiotherapist dated February 20, 2015 that stated the worker had 85 to 90% resolution and noted that was almost a year before the worker's exacerbation on February 2, 2016. It was also noted that the February 2, 2016 back difficulties occurred at home and would not be causally connected to the worker's employment or workplace injury of September 26, 2014.

The worker's representative filed an appeal with the Appeal Commission on December 29, 2017. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Under the GECA industrial disease "means any disease in respect of which compensation is payable under the law of the province where the employee is usually employed…"

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act ("the Act").

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury states:

A further injury 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 exercised direct specific control; or

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

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Worker’s Position

The worker was assisted by an advocate at the hearing. It was submitted on behalf of the worker that a causal relationship between the February 2016 recurrence of injury and the compensable injury should be found.

The worker provided an overview of the original compensable accident and subsequent recurrences. She stated that she was injured on the job September 15, 2014 and again on September 26, 2014. She then experienced another workplace accident on August 12, 2015 that resulted in a low back injury. The worker also experienced a recurrence of her low back injury in February 2016 and again in May 2016. Both recurrences occurred at home. She provided a description of each recurrence. Although the recurrence in May 2016 was covered by the WCB, the February 2016 recurrence was not. It was submitted that there was no reason for the WCB to cover the May 2016 recurrence but not the February 2016 recurrence.

Employer’s Position

The employer was represented by a National WCB Officer at the hearing.

Although the employer did not dispute that the worker experienced intermittent back pain, it was the employer’s position that for the back pain to be compensable, the symptoms must have been the result of an accident arising out of and in the course of the worker’s employment. In other words, the accident must be causally connected to the employment and must have occurred during the time of employment, at a location of employment and while performing duties or activities incidental to employment.

In this case, the worker experienced a recurrence while performing daily living activities at home while on vacation. It was the employer’s position that there was no causal connection between the worker’s activities at home and the compensable injury which had occurred some sixteen months prior. Compensation benefits are payable only where there is a medical or similar evidence of a disability arising from a compensable incident or condition. As such, the employer submitted that the claim should be denied.

Analysis:

The issue before the panel is whether the worker’s back difficulties which occurred in February 2016 are related to the earlier compensable accident. In order for the worker’s appeal to be successful, the panel must find that the back difficulties were related to the injuries sustained in the workplace on September 26, 2014. The panel was unable to make that finding.

The panel does not dispute that the worker has suffered back pain symptoms following the February 2016 incident. The panel also finds the worker to be both credible and forthright. The issue for the panel, however, is whether a causal relationship can be established between the February 2016 recurrence and the original workplace accident.

In assessing this situation, the panel relies on the analytical approach used by the WCB medical advisor who opined that for the episodes of back pain to be compensable in cases involving a pre-existing degenerative condition, the circumstance surrounding the emergence of the episode must be considered. Where the recurrence occurs in close association with work, it may be work-related. Where is occurs without trauma or at home, it is unlikely to be compensable. The WCB medical advisor stated

Multi-level disc changes of this nature are typically seen on the basis of age related changes, not from an acute injury or specific activity. These changes can cause episodes of radiculopathic back pain. If such an episode occurs after a work related incident that produces force through the back, then the episode would be considered an aggravation of pre-x.

Aggravation is by definition temporary and since there would be no material change to the pre-x full recovery is expected.

Further episodes of radiculopathy may occur, but each would have to be considered on its own merits. If there is clinical evidence of the radiculopathy in close association to another work incident, then it may be compensable. If it occurs either without trauma or after a home accident, then it would not be related to a compensable injury.

In this case, diagnostic imaging reveals that the worker had multiple levels of disc changes which were found to be degenerative. In other words, the worker had an ‘at risk back.’ The fact that the worker had an ‘at risk back’ was a result of age-related degenerative changes and was not caused by a workplace accident. An accident may cause a non-symptomatic ‘at risk back’ to become symptomatic. The accident, however, is only compensable if it occurs at work; if it occurs at home, it is not.

The worker was injured while at work on September 26, 2014 and her claim was accepted. The worker returned to work in December 2014 on modified duties. Reports from the worker’s treatment providers indicated that her symptoms had largely resolved by February 20, 2015. On March 25, 2015, she resumed regular work duties, being mindful of heavy lifting. The following year, on February 2, 2016, the worker experienced a severe flare up of symptoms while reaching into a bottom cupboard in her home while on vacation. In other words, the recurrence occurred while at home on vacation.

The panel finds, on a balance of probabilities, that the emergence of symptoms in this case was therefore more likely related to the activities of daily living at the time than to the compensable accident which had taken place some sixteen months prior.

Accordingly, the panel does not find that there was a causal relationship between the February 2016 incident and the original compensable injury and, as such, the worker is not entitled to wage loss or medical aid benefits in relation to the September 26, 2014 injury.

The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of November, 2018

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