Decision #153/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for low back difficulties should not be accepted as a cumulative injury related to the nature of her job duties. A hearing was held on September 24, 2018 to consider the worker's appeal.
Whether or not the worker's claim for low back difficulties should be accepted as a cumulative injury related to the nature of her job duties.
The worker's claim for low back difficulties should not be accepted as a cumulative injury related to the nature of her job duties
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 109/17, dated July 21, 2017. The background will therefore not be repeated in its entirety.
The worker filed a claim with the WCB on January 20, 2016 regarding an injury to her low back and right hip that occurred on December 22, 2015, during her employment. The worker reported that she also worked part-time with a different employer three times per week.
On February 16, 2016, Compensation Services advised the worker that her claim was accepted for a contusion to the buttocks and that she was entitled to limited medical aid benefits. As the worker continued to work with both the accident employer and her second employer for four weeks following the injury of December 22, 2015, any loss of wages beyond January 15, 2016 was not related to her compensable injury.
On March 21, 2016, the worker advised the WCB that she had felt excruciating pain the day before and that an MRI assessment was recommended by her treating physician.
An MRI report dated March 29, 2016 stated "There is quite a large right paracentral inferiorly directed L4-L5 disc herniation, with extension into the right lateral recess of L5."
On March 29, 2016, the treating physician reported that the worker required an emergent laminectomy and discectomy at L4-5.
Based on the mechanism of injury and the chronology of symptoms, a WCB medical advisor stated on March 30, 2016 that there was no probable relationship between the December 22, 2015 workplace injury and the recently demonstrated L4-L5 herniation or the proposed L4-L5 discectomy and laminectomy.
In a report dated March 31, 2016, the treating physician opined that the worker's herniated lumbar discs were the direct result of the December 22, 2015 workplace injury.
On March 31, 2016, Compensation Services advised the worker that based on all the file information and the recent WCB medical opinion, there was no relationship between her current difficulties and the December 22, 2015 workplace injury and that no responsibility would be accepted for any wage loss or medical aid benefits.
On June 30, 2016, the Worker Advisor Office requested reconsideration of the adjudicative decision. On July 7, 2016, Compensation Services determined that the new information dated June 20, 2016 did not change the decision of March 31, 2016. On July 13, 2016, the Worker Advisor Office appealed the decision to Review Office. On September 21, 2016, Review Office determined that there was no entitlement to benefits beyond March 30, 2016. On November 23, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. In Decision 109/17, the Appeal Commission determined that the worker was not entitled to benefits after March 30, 2016. As part of Decision 109/17 dated July 21, 2017, the Appeal Commission indicated:
At the hearing, the worker referred to other possible causes or contributing factors for her injury, specifically many years of demanding work and significant driving while recovering. However, the panel is not able to address them as the issues have not been adjudicated by WCB.
After the Appeal Commission hearing, the worker requested that the WCB adjudicate her L4-L5 herniated disc condition in addition to her bulged L5-S1. The WCB gathered information from the worker, the employer and the worker's healthcare practitioners as well as requesting a medical opinion from a WCB medical advisor on November 13, 2017. The WCB medical advisor opined, in part:
There is not a probable relationship between the December 22/15 workplace injury and the disc herniation identified in the March 29/16 MRI. There is not a probable relationship between the workplace December 22/15 workplace injury and the disc protrusions identified in the April 12/17 lumbar spine CT scan. These medical opinions are based upon a combination of the following factors that were noted on file review:
• The mechanism of injury that was cited many times by [the worker] and by her care providers, involved being struck on the buttocks with tongs. This mechanism of injury is not likely to be associated with the development of disc herniation.
• The clinical manifestation of lumbar disc herniation is lumbar radiculopathy. Clinical signs consistent with lumbar radiculopathy include pain radiating into the affected leg, a positive straight leg test, a dermatomal pattern of sensory disruption and myotomal weakness. Considerable time passed after the December 22/15 workplace injury, during which time significant clinical improvements were being reported by [the worker's] care providers. A clinical description of radiculopathy was not provided until March 23/16. This time course does not establish a probable relationship between the December 22/15 workplace injury and the later development of lumbar radiculopathy.
• It should be noted that lumbar disc herniation most often occurs idiopathically, in relation to degenerative changes. These degenerative changes are actually noted in a sizable fraction of the general population. If physical actions are implicated in the development of these lumbar disc changes, these involve the combination of loading of the lumbar spine (i.e. lifting) and lumbar spine flexion or rotation. If these physical actions are implicated in the causation of this conditions, symptoms arise acutely with close temporal proximity to these physical actions. In the absence of temporal proximity to an injurious mechanism, it is speculative rather than probable to attribute this condition to physical actions performed throughout an individual's past.
On November 20, 2017, the WCB advised the worker that responsibility for wage loss, medical treatment and the worker's surgeries of March 31, 2017 and October 6, 2017 would not be accepted. The worker was further advised that it remained the position of the WCB that she was not entitled to benefits after March 30, 2016.
The worker's representative requested reconsideration of the WCB's decision to Review Office on December 19, 2017. The worker's representative noted the worker's position that her L4-L5 paracentral disc herniation was associated with her cumulative job duties including excessive standing, sitting, bending, twisting, crouching and lifting. The worker's representative also argued that the worker sustained a further injury as it was noted that the worker's symptoms changed while she was undergoing physiotherapy which the worker's representative attributed to increased weights at physiotherapy, causing the worker lumbar stress, and long hours of driving required by her employer while the worker was under restrictions of no prolonged sitting.
Review Office determined, on April 3, 2018, that there was no entitlement to benefits beyond March 30, 2016. Review Office found that on several occasions, the worker attributed her low back difficulties to the workplace accident on December 22, 2015. It was noted that she did not attribute her difficulties to her various job duties and had performed her job duties for several years without any known issues. Review Office noted that if the worker's back difficulties of an L4-L5 herniated disc and bulged L5-S1 disc that were noted on the MRI findings were related to the worker's job duties, the evidence on the file would have indicated acute symptoms closer in time to those activities. As such, Review Office determined that the worker's lower back difficulties were not causally connected to her job duties, travel or treatment and there was no entitlement to benefits beyond March 30, 2016.
The worker filed an appeal with the Appeal Commission on April 4, 2018. An oral hearing was arranged.
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:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Accident is defined in subsection 1(1) of the Act, which provides as follows:
"accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker;
(i) event arising out of, and in the course of employment, or
(ii) thing that is done and doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured;
WCB Policy 126.96.36.199 Pre-existing Condition (the "Pre-existing Conditions Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
WCB Policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury (the "Further Injury Policy") applies to 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 worker was self-represented. She confirmed that her claim is for a cumulative injury related to the nature of her job duties over the years. She acknowledged that the Appeal Commission had declined an earlier appeal based on the assertion that her condition was due to a single event.
The worker provided an account of the incidents, her symptoms and the treatments that she has received for her back in support of her claim for a cumulative injury. She stated:
• she started having some back difficulties, which she ignored in August of 2015. She saw a chiropractor for an alignment, complained of pain to her lower back and right hip.
• the chiropractor's adjustment helped and she continued to work
• she saw the chiropractor again November 2015, complaining of the same pains, lower back into her right hip. She had an adjustment and "seemed to do all right."
• she went to work on December 22, 2015, worked a peak intensity day and had another slight injury that day. She thought this might be bothering her back.
• she reported the injury to her employer on December 23, 2015, stating that she was really stiff. She had big bruises on her buttocks from the duties of that day. She reported that by December 24, 2015, she could hardly sit upright.
• she saw the doctor on January 4, 2016 and complained of pain in her low back on her right side. The doctor thought she had appendicitis and sent her to Brandon Hospital for a CT scan which was negative for an appendix problem.
• on January 11, 2016 she saw the chiropractor and had an adjustment to her back . She felt good afterwards, the pain immediately lessened.
• on January 15, 2016 she had to drive to a larger center, during the drive she felt pain in her hip radiating down her leg. She described the pain as "excruciating, it was ridiculous."
• the employer flew her to another province where she was examined by a physician. She had expected that she would undergo an MRI, but this did not occur. The employer advised her that the physician determined she did not require an MRI and that she was fit for modified duties.
• she started modified duties as of February 7, 2016.
• she worked at a location that was a two hour drive away. She drove an older compact vehicle and believes that the rough ride aggravated her injury.
• she worked at modified duties three days a week, at a desk doing computer work and in the remaining two days she went to a different town for physiotherapy.
• she continued this until March 14, 2016 when she was advised that her modified duties were suspended as she was fit to lift 40 pounds.
• on March 16, 2016, she again attended at a local emergency department in a nearby town. A physician diagnosed her with sciatica and prescribed medication. The physician also requested an MRI and the worker was given an appointment for April 26, 2016
• on March 28, 2016, she was in significant pain and went to the larger center, she had previously attended, where she ultimately received an MRI
• she stated that "I got my MRI the morning of March 29th, and it showed I had a herniated disc, my L4/L5, and that it was pinching off my right nerve root and I needed emergency spinal surgery.
• on March 31, 2016, she had a laminectomy and discectomy of her L4/L5, which was followed by six weeks of lying in a recliner chair at home by herself.
• the worker then had physiotherapy but was later cut off physiotherapy and other benefits by her disability insurer. This was reversed later.
• she was subsequently back in emergency department in the larger center and on October 6, 2017, had further surgery.
Regarding the adjudication of her claim, the worker said that the WCB advised her that:
the reason they're not covering me is because back injuries are event specific, back injuries are not cumulative. And all of the research I've done that I provided on the last hearing I was here, and everything, say that back injuries are in fact cumulative for the most part.
The worker advised that she had a "peak intensity day" in December 2015 and that her symptoms became apparent after this day. She said that she believes a big part of her problem with this injury arose from the delay in getting an MRI and obtaining a diagnosis.
Regarding an absence of complaints of nerve pain in January, the worker stated that:
"…the entire time, ever since January 15th I had pain in my right leg, you know. And I really feel that all that driving that I had to do for modified duties further worsened it, for sure, 100 percent, because by the time I went for my surgery date, well, my first surgery, like I ended up having to have my first surgery, I couldn't flatten out. I couldn't lay flat, I couldn't stand straight.
The worker advised that with respect to diagnosis, she started focusing on degenerative disc disease because her employer and the WCB were saying it had to be a pre-existing condition. In response to the suggestion that she had a pre-existing condition, the worker noted that the Act provides that pre-existing conditions, if they are worsened by the employment, are still considered a compensable injury.
The worker referred to her work as her dream job and said that prior to her injury she was very fit. The injury has had a devastating impact upon her life.
The employer did not attend or participate in the hearing.
The panel notes that the worker has an accepted claim for a contusion injury to the buttock caused by her work duties on December 22, 2015. An appeal on this claim was dealt with by the Appeal Commission in July 2017. The Appeal Commission found that the worker was not entitled to benefits beyond March 30, 2016 in relation to the December 22, 2015 workplace accident.
The current appeal arises from the worker's assertion that her injury was caused by her duties working on the oil rigs over a three and a half year period.
An MRI dated March 29, 2018, indicated that the worker has a large right paracentral disc herniation at L4-L5 and L5-S1 central disc herniation. The issue before the panel is whether or not the worker's claim is acceptable as a cumulative injury related to the nature of her job duties. Did her work on the oil rigs over three and a half years cause her current back difficulties?
In order for the worker's appeal to succeed, the panel must find that the worker's back condition was causally related to performance of her employment duties, in other words, that her job duties caused or aggravated/enhanced her back condition, which was diagnosed in the MRI. For the reasons that follow, the panel finds, on a balance of probabilities, that the worker's condition as diagnosed in the MRI was not related to her employment.
As already noted, the worker was adamant that her work in this particular industry caused her current back problems and the need for surgery in 2016. She submitted that the injury was due to cumulative effect of working at her job on an oil rig and other related duties.
The panel considered the historical evidence provided by the worker and gathered by the WCB. This included information dating back to 2014. The panel considered all the information. It attached significant weight to the physiotherapy reports provided after December 22, 2015. The physiotherapist treated the worker on 10 occasions from February 1 to March 10, 2016. No reference was made to radicular problems in the physiotherapy or other reports. The panel finds that this information does not support a finding that the worker sustained an earlier serious radicular back injury arising from her employment between 2014 and March 10, 2016.
The panel also considered the modified duties performed by the worker after the December 22, 2015 injury. The panel does not find that these duties were sufficient to cause or aggravate or enhance the worker's back difficulties which were first noted in late March 2016. The panel finds that this information does not support a finding that the cumulative work performed over this period caused the diagnoses noted in the 2016 MRI.
The panel attaches weight to the opinion of the WCB medical advisor who opined on March 30, 2016 that there was no relationship between the December 22, 2015 incident and the worker's L4-L5 disc herniation. The panel agrees that the chronology of symptoms reported by the worker is not consistent with the later identified radiculopathy.
In addition to performing the duties on the oil rig and the modified duties after December 22, 2015, the worker submitted that her condition worsened when she had to travel long distances by car to perform her modified duties. She said that driving her vehicle four hours a day aggravated her condition. Given the evidence that she drove on paved roads in a car that was in good running condition and with a seat that was functioning properly, the panel finds there was no work hazard in that period of time to cause or worsen the development of a work related injury.
The panel finds that neither the Pre-existing Conditions Policy nor the Further Injury Policy are applicable to this appeal. With respect to the Pre-existing Condition Policy, the panel is not able to find that the worker's workplace duties are causative of or have aggravated or enhanced the worker's back condition. In addition, the panel is not able to find that the worker's job duties have resulted in a further injury. In this regard, the panel refers to its' July 21, 2017 decision which found that the worker's symptoms after March 30, 2016 are not related to the December 2015 compensable injury. The panel finds, on a balance of probabilities, that the worker's claim for low back difficulties should not be accepted as a cumulative injury related the nature of her job duties. Specifically her condition, as diagnosed in the March 2016 MRI and subsequent medical reports, is not related to her employment.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of October, 2018