Decision #139/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after November 4, 2015. A hearing was held on July 31, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after November 4, 2015.
That the worker is not entitled to benefits after November 4, 2015.
This claim has been the subject of a previous appeal and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision No. 110/16 dated July 21, 2016.
On May 12, 2015, the worker filed a claim with the WCB for injury to his right low back and right hip area with the accident date of May 30, 2014. The worker described the incident as follows:
I was working underneath a building, hooking up water mains. I was twisting and turning and hunched over, carrying equipment. I started to have tingling in my left toes then I noticed numbness in my groin area and it shot up and then the left side went numb. I had pain in the right side in my hip. The right side was getting worse and then the left side started getting numb. We were under the building doing this work for a few days. I was in so much pain so I came home early. June 5 or 6, 2014. I went on EI disability claim and then welfare meeting and then WCB. I had a sore back ongoing from a prior injury. (I was told this is a different injury because it was sciatic.)
On July 10, 2015, the employer was advised that the worker's claim for compensation had been accepted and that wage loss benefits were approved effective June 6, 2014. On July 27, 2015, the employer appealed the WCB decision to accept the claim. In a decision dated August 28, 2015, Review Office accepted the employer's appeal and found that the worker's claim was not acceptable.
On January 27, 2016, the worker appealed the Review Office decision to the Appeal Commission. On July 12, 2016, the Appeal Commission allowed the worker's appeal and accepted his claim for a left-sided low back injury.
On October 15, 2016, a WCB medical advisor reviewed new medical information on file and opined, in part, that the information supported that there was evidence of the left lumbar radiculopathy at least to November 4, 2015, which could be medically accounted for in relation to the compensable injury.
On October 17, 2016, Compensation Services advised the worker that he was entitled to full wage loss benefits to November 4, 2015, inclusive and final.
On September 8, 2017, the worker requested that Review Office reconsider Compensation Services' decision that he was only entitled to benefits to November 4, 2015. On September 12, 2017, Review Office returned the worker's file to Compensation Services for further investigation.
Further medical reports were requested and received from the worker's healthcare providers, including an August 28, 2017 report from the treating physiatrist who noted that he had seen the worker with respect to an aggravation of his left-sided lower back pain and the worker had told him that he bent forward in late July to pick something up and "immediately felt severe pain in the left lower back, radiating into the left lower extremity with numbness down to the dorsum of the left foot."
On November 15, 2017, a WCB orthopedic advisor reviewed the medical information on file and opined that the worker recovered from his 2014 workplace injury in 2016. The orthopedic advisor further opined that the current presentation was not related to the 2014 workplace injury. Rather, the current presentation was related to the natural history of pre-existing degenerative disc disease.
On November 15, 2017, Compensation Services advised the worker that they were unable to establish a relationship between his current difficulties and the 2014 workplace injury. Based on the information on file and the medical opinion of the WCB orthopedic advisor, Compensation Services concluded that there was no evidence to support a continuity of symptoms beyond November 5, 2015. Compensation Services further concluded that the July 24, 2017 incident was considered a new injury and was not related to the 2014 workplace accident.
On December 6, 2017, the worker requested that Review Office reconsider Compensation Services' decision. The worker advised that he was still suffering the symptoms from the 2014 workplace accident, that he had not returned to his pre-accident condition and that he had not been able to return to his pre-accident career.
On January 16, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office found that the worker's loss of earning capacity and need for medical aid beyond November 4, 2015 was not related to the 2014 workplace accident. In arriving at that conclusion Review Office noted that "evidence of disability" was not supported by information on file.
With respect to the worker's complaints in July 2017, Review Office accepted the November 15, 2017 opinion of the WCB orthopedic advisor that the current presentation was not related to the 2014 accident and a new action occurred (bending) which produced symptoms.
On January 29, 2018, the worker appealed the Review Office decision to the Appeal Commission and 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.
The worker has an accepted claim for a left-sided low back injury arising from a May 30, 2014 accident. He is seeking benefits after November 4, 2015.
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.
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 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:
The Workers Compensation Board (WCB) 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 WCB 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.
The Policy further provides 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 WCB will accept responsibility for the full injurious result of the compensable injury.
WCB Policy 44.40.10, Evidence of Disability, provides that compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition.
The worker was self-represented and provided two written submissions in advance of the hearing. The worker was accompanied at the hearing by his father. The worker made a presentation and responded to questions from the panel.
The worker's position was that he has not recovered from his May 30, 2014 workplace injury and is entitled to further benefits.
The worker submitted that he has been struggling with the effects of his 2014 workplace injury since it occurred over 3½ years ago. He has not returned to his pre-injury condition and has not been able to return to his career as a plumber. After he won his appeal in 2016 and his claim was accepted, he continued to seek treatment and to do all the right things. He saw a lot of doctors and did everything he could to help himself, including stretches, yoga, swimming, gym and massages. He tried all the medications.
The worker said that he kept trying to get better, but in July 2017 he had another episode which put him back to square one. Due to a long wait time for an MRI, he travelled outside the country to get an MRI, and was basically told by the doctors there that his disc injury was not healing, but getting worse. The doctors gave him a treatment plan, and since then he has been seeking treatment through an athletic therapist. He has been doing decompression therapy, dry needling, acupuncture, deep tissue massage, athletic work and shock-wave therapy. He also started chiropractic treatment in March.
The worker disagreed with the WCB's conclusion that his injury has resolved. He noted that the MRI which he provided in advance of the hearing shows that his disc injury has not healed. He acknowledged that he had back pain prior to his 2014 incident, but stated that it never kept him from work. He said he has never been the same since his injury, and is still disabled and unable to do his job.
The employer was represented by its Human Resources Manager, who was accompanied at the hearing by the employer's Safety Officer. The employer's position was that the worker's current difficulties are not related to the May 30, 2014 workplace incident and there is no entitlement to benefits after November 4, 2015.
It was submitted that the worker's ongoing problems are the result of degenerative disease. The worker was given a clean bill of health as of 2016 by his doctor, who said that there was no clinical evidence of radiculopathy. The WCB's orthopedic advisor further stated that the worker's current presentation was no longer considered to be related to the workplace injury, but was the natural history of pre-existing degenerative disease. Recent imaging reports which had been submitted by the worker in advance of the hearing also talked of degenerative disease.
With respect to the July 2017 incident where the worker bent down to pick something up and hurt his back, it was submitted that the resulting injury would not stem from the original incident, and the medical evidence did not support that it did. The worker's left radiculopathy had healed by that time. This was a new incident and a new injury which was not related to the May 30, 2014 workplace injury.
The issue before the panel is whether or not the worker is entitled to benefits after November 4, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid after November 4, 2015 as a result of his May 30, 2014 workplace incident. The panel is unable to make that finding.
Based on our review of all of the information on file, and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker's compensable injury had materially resolved by November 4, 2015.
In arriving at our decision, the panel places significant weight on the July 13, 2015 opinion of the WCB medical advisor who had previously reviewed the file and opined that the worker likely had an acute left lumbar radiculopathy in relation to his work duties, in the environment of a long history of low back pain, mainly to the right side. Based on her review of additional medical information now on file, the WCB medical advisor went on to opine:
Since then, he has had an MRI and NCS. The MRI did not show a correlate for any left sided nerve impingement. The NCS did not show any evidence of left sided nerve changes.
He has seen a physiatrist who indicated that there was still some numbness to the left foot when walking. His pain was mainly going to the right inguinal region. On exam, neuro was normal other than mild weakness of left great toe extension. Dural tension signs were negative. Pain was mainly provoked with movement of the right hip. MRI of the right hip was recommended.
That presentation supports that the left radiculopathy has largely resolved. The mild weakness of the EHL and the foot numbness may be lingering effects from the left radiculopathy, but they don't require any further investigations, treatment, or accommodations. His ongoing presentation is more likely to be related to whatever is going on in the right hip area (pre-dating this claim). So the current presentation is similar to his pre-existing baseline presentation and can no longer be medically accounted for in relation to any effects from the C/I [compensable injury].
The panel notes that in a later opinion dated October 15, 2016, the WCB medical advisor reviewed further medical reports which had come to the worker's file, and opined:
The new information supports that there was evidence of the left lumbar radiculopathy at least to November 4, 2015, which can be medically accounted for in relation to the C/I. There are no more recent reports to determine if current is still related, so Healthcare can again review if new information comes to file.
The panel notes that in her October 15, 2016 opinion, the WCB medical advisor referred in part to a report from a second physiatrist dated September 30, 2016 on file which indicated that at an assessment on November 4, 2015, the worker continued to have symptoms and findings of a left L5 radiculopathy. The panel notes that the September 30 report indicated that the worker was initially seen by the physiatrist in March 20, 2015 and his clinical impression was that the worker had "subtle" findings of left L5 radiculopathy. Information on file and at the hearing confirmed that November 4, 2015 was the last time that the worker saw this physiatrist. Reports on file further indicate that the physiatrist's focus while he was treating the worker was, however, on his right side and on providing injections for his right side problems. These conditions are not related to the worker's 2014 workplace injury.
Further medical information which was obtained subsequent to October 15, 2016 included physiotherapy reports from September 2015 to April 2016. The panel notes, on a review of those reports, the treatment which was being provided to the worker at that time was primarily aimed at his lower back and hip, and was also unrelated to his compensable injury.
Monthly clinical reports or chart notes from the worker's treating physicians between November 2015 and October 2017 which were also obtained describe a number of general health issues and complaints which the worker was reporting and the treating physicians were focusing on and addressing at that time. The panel notes that to the extent there were references to back or disc problems or pain issues, the clinical reports or notes indicate that the worker was talking about his right side in particular, as opposed to his left. In the panel's view, the notes reflect that the physicians' preoccupations at that time were in line with what the physiotherapist was treating and were not related to the worker's compensable injury.
The panel also places weight on the December 13, 2016 report of the original treating physiatrist who noted that he had last seen the worker in September 2014, and that the worker mentioned on December 13, 2016 that he noticed significant improvement in his symptoms. With respect to his impression and recommendations, the physiatrist stated, in part:
Based on today's history and physical exam the following diagnoses were discussed:
• There was no clinical evidence of lumbosacral radiculopathy. He did not have any evidence of sensory or motor neurological deficits in the lower extremities. (emphasis in original)
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable left-sided injury had materially resolved as at November 4, 2015, and that any ongoing need for medical aid or loss of earning capacity beyond that date is not related to the worker's compensable injury.
The panel further finds that the worker suffered a new injury, and not a recurrence of his 2014 injury, as a result of a new incident in July 2017 when he was bending over to pick something up and hurt his back. Given our finding that the worker's compensable injury had resolved as at November 4, 2015, the panel is unable to relate the 2017 incident to the worker's 2014 injury and is satisfied that the worker's difficulties were not a recurrence of that injury.
In the result, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid after November 4, 2015 as a result of his May 30, 2014 workplace incident. The worker is therefore not entitled to benefits after that date.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of September, 2018