The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits. A hearing was held on August 9, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits to December 20, 2017.

Background

On November 6, 2015, the worker injured his back in the course of his employment as a seasonal worker. The worker attended at a walk-in clinic that same day, where he was diagnosed with musculoskeletal low back pain.

The worker's claim was accepted by the WCB, and wage loss and other benefits were paid. The worker was laid off from his position effective November 28, 2015 as part of a seasonal lay-off.

On December 27, 2015, the worker had an MRI which showed "Mild degenerative changes…" On January 7, 2016, the worker's claim was reviewed by a WCB medical advisor, who stated that the MRI indicated pre-existing degenerative changes in the worker's lumbar spine, the etiology of which was likely "normal wear and tear arthritis." The medical advisor opined that the pre-existing degenerative changes were likely resulting in a delay in recovery from the reported facet strain injury. Restrictions were identified and it was recommended that the worker complete the recommended course of physiotherapy and gradually resume his regular activities.

The worker was called back to work on April 11, 2016, but the employer advised that they were unable to accommodate his restrictions.

On July 14, 2016, the worker attended a call-in examination with a WCB orthopedic consultant. Following the examination, the WCB orthopedic consultant opined that the worker's current diagnoses were degenerative lumbar disc disease and osteoarthritis of the hips, which were not related to the workplace injury but were pre-existing/co-existing. The orthopedic consultant stated that the diagnosis of the workplace injury was non-specific lumbar sprain/strain, and opined that there was no evidence of aggravation or enhancement of the pre-existing diagnoses.

The WCB orthopedic consultant further opined that while the effects of a non-specific sprain/strain would normally be expected to have settled within a couple of months of the injury, more prolonged symptoms were often seen in the presence of pre-existing degenerative diagnoses. He recommended workplace restrictions as related to the workplace injury. He also stated that unchanged pain scores suggested that a plateau of function might have been reached, that it was unlikely that physiotherapy would be effective in improving the situation and that progress to a gym program for conditioning would be advantageous.

On July 21, 2016, Compensation Services advised the worker that they would not be approving any more physiotherapy but would approve a gym membership if the employer could not accommodate his restrictions. As the employer was unable to accommodate the worker's restrictions, coverage for a gym membership was subsequently approved.

On November 9, 2016, the WCB orthopedic consultant reviewed the worker's claim, and opined, in part, that "…the current symptoms are caused by the natural history of the pre-existing degenerative condition of the spine. At one year after the non-specific strain/sprain of the low back, it is considered that the effects of the workplace injury have resolved." The orthopedic consultant stated that no physical restrictions were recommended in relation to the workplace injury and that maintenance of fitness at the gym was medically recommended but was no longer the financial responsibility of the WCB.

On November 10, 2016, Compensation Services advised the worker that they had determined that he had recovered from the compensable injury and did not require workplace restrictions or an ongoing gym membership. Compensation Services further advised that wage loss benefits would be paid to November 21, 2016, inclusive and final, and the gym membership would be paid to November 30, 2016.

On November 24, 2016, the worker requested that Review Office reconsider Compensation Services' decision. On January 24, 2017, the employer provided a submission in response to the worker's request for reconsideration.

By decision dated February 2, 2017, Review Office advised the worker that he was not entitled to further benefits. Review Office concurred with the January 27, 2015 opinion of the WCB medical advisor, as supported by the July 14, 2016 opinion of the WCB orthopedic consultant, that the worker's pre-existing degenerative changes likely resulted in a delay in recovery from his facet strain injury.

Review Office further accepted the WCB orthopedic consultant's November 9, 2016 opinion that the worker's current symptoms were caused by the natural history of his pre-existing degenerative condition of the spine, and that at one year after the non-specific strain/sprain of the low back, the effects of the workplace injury had resolved. Review Office found that the evidence supported that the worker's ongoing loss of earning capacity and need for medical aid beyond the approved dates were no longer related to the November 6, 2015 workplace accident.

On January 27, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

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.

The worker has an accepted claim for a back muscle sprain, and is seeking further benefits in relation to his compensable injury.

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 subject to subsection (3), wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Subsection 39(3) provides that "Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident." WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Policy states:

(a) 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.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker was self-represented and was accompanied by his wife at the hearing. The worker made a presentation and responded to questions from the panel. The worker's position was that he was unjustly disqualified from benefits when he had not yet recovered from his injury, and that he should have been entitled to benefits through the duration of his recovery.

The worker disagreed with the WCB's conclusion that he had a pre-existing condition which delayed his recovery. The worker stated that if he had a pre-existing condition, it had never bothered him previously. In the 20 years he had worked for the employer, he had never missed work because of his back or sought medical attention for his back. The worker submitted that his recovery time was probably longer due to his age, as healing and recovery are always slower as one gets older.

The worker stated that he continued to see his physiotherapist, a massage therapist and his doctor regularly. His attending physician and his physiotherapist have now given him a clean bill of health. He is fully recovered and pain-free. His back is 100% and is back to where it was before he was injured at work. He attributed this to the fact that he persisted and kept up with his physiotherapy and massage treatments, and with gym exercises which were recommended by his physiotherapist and his physician, at his own expense.

Employer's Position

The employer was represented by its Workers Compensation Specialist. The employer's position was that the worker has been fairly compensated, with both wage loss and medical aid benefits, and the medical and other evidence does not support that he is entitled to any additional benefits.

The employer's representative submitted that the medical information on file suggests that the injury the worker sustained in November 2015 was nothing more than a sprain/strain injury to his lower back, which would typically respond fairly well to treatment in a relatively short period of time. Medical information on file showed that the worker had an underlying degenerative condition. The WCB recognized that this delayed the progression of his treatment for a period of time.

The employer's representative submitted that there was no real medical explanation by the worker's healthcare providers as to why the worker's recovery was taking so long, or how this was directly related to the original injury. With reference to a number of different medical reports and opinions on file, the representative noted that a WCB physiotherapy advisor, the WCB medical advisor who initially looked at the claim, and most importantly, the WCB orthopedic consultant, who not only examined the worker at a call-in examination but also reviewed subsequent information on file, concluded that the worker's symptoms and problems were not or were no longer related to the compensable injury. All of them stated that the worker's ongoing symptoms were due to his pre-existing condition. The employer's representative submitted that on that basis, and based on the Policy, the WCB was not able to consider further benefits, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of his November 6, 2015 workplace incident. The panel is able to make that finding.

Based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel finds that the worker continued to suffer from the effects of his November 2015 compensable injury up until December 20, 2017 and is entitled to further benefits to that date.

The worker's evidence at the hearing was that he continued to attend for physiotherapy and massage treatment at his own expense once his benefits ended. He said that he paid for everything himself, because he just wanted to get his back back in shape. The worker said that the physiotherapist would do acupuncture almost every time he saw her, after which he would go to the gym and do his exercises, then return to see her. The physiotherapist would also give him exercises which he would do at home. He said that the physiotherapist monitored all of his exercises and had him doing "all kinds of stuff," that there were so many things that she tried.

The worker said he continued seeing the physiotherapist and the massage therapist because he knew it was working and he was getting better. In response to a question from the panel as to what changed in the last year, after his benefits ended, the worker stated:

Just slowly I was getting better…for a while I couldn't even touch the floor with, going down and touching the floor. And then it was starting, I was getting it, she was measuring all my movements, and I was going lower every time. She says, we're going to keep on doing what we're doing, because it's getting better…Until the last day, I went to see her, and then I could touch the floor, I could do bends, do anything, and there was no pain at all. The pain was gone.

The worker said that his last physiotherapy treatment was December 20, 2017, when he could touch the ground and was no longer feeling any pain. The worker described himself as being back to 100% and fully functional as at that date. He said he has not seen anyone for his back in the nine months since then. When asked if he was still 100% at the time of the hearing, the worker indicated that whereas he could not stand the pain before and used to take pills for his back, "Now…I don't take no pills, I feel great. I do my exercise at home, and my back is 100%, so it is good."

The worker's evidence was supported by a letter from his treating physiotherapist dated March 12, 2018 which was submitted in advance of the appeal and stated, in part, that the worker "…required more time in physiotherapy care to settle symptoms. Exercise program was provided as able…[The worker] has made a full recovery from his back injury. His final physiotherapy appointment was December 20, 2017."

The panel accepts that particular treatments which were being provided to the worker by his physiotherapist helped him to fully recover from his workplace injury. The panel finds that the worker's treatments and home program resulted in a full resolution of symptoms.

The panel notes that in November 2016, the WCB orthopedic consultant had opined that the worker's symptoms at that time were a natural history of a pre-existing degenerative condition.

In light of the evidence and the panel's finding of complete recovery, the panel finds that the degenerative condition noted on the MRI did not impact the worker's injury. In making this finding, the panel places considerable weight on the fact that the worker's condition eventually resolved, which is not the natural history of a degenerative osteoarthritic condition.

The panel notes that information on file shows that the worker was unable to return to work in 2016 as the employer could not accommodate his restrictions. The worker was off work for five months after November 2016 due to the regular seasonal lay-off, but did not go back to work in April 2017. The worker said that he was contacted when the recall occurred in April 2017 and went to see the employer at that time. The worker said that the employer wanted a clean bill of health and would not take him back without one, which he could not provide at that time. The panel notes that the worker was only cleared for full duties by his physiotherapist on December 20, 2017.

In response to questions from the panel, the employer's representative stated that it appeared from the file that the worker's specific work area was not able to accommodate the worker in 2016, and that it looked like everything died off in 2017 because the decision was made to end the worker's benefits. The employer's representative indicated that he could not say for certain what happened with respect to accommodation, but thought that what the worker was saying was pretty accurate.

Based on the evidence, the panel is satisfied that the accident employer was not able to accommodate the worker in modified duties during the 2017 season, and that the worker's loss of earning capacity during the 2017 season was related to his compensable injury.

The panel notes that the worker did not return to work in April 2018 as a result of a decision which was not related to any medical issue from the compensable injury. The worker's evidence at the hearing was that he was afraid of hurting his back again and did not want to have to go through everything he had gone through again. He did not want to retire, but felt that he had to do so. The panel notes that the worker is not seeking benefits, nor is the panel granting the worker benefits, beyond 2017.

Based on the foregoing, and with the benefit of hindsight, the panel finds, on a balance of probabilities, that the worker suffered a further loss of earning capacity and required further medical aid as a result of his November 6, 2015 workplace incident. The panel therefore finds that the worker is entitled to wage loss and medical aid benefits to December 20, 2017, when the treating physiotherapist cleared him for full duties.

  The worker's appeal is allowed.

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 5th day of October, 2018