Decision #47/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after June 29, 2016. An oral hearing was held on November 27, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after June 29, 2016.
The worker is not entitled to wage loss benefits after June 29, 2016.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 23/18, dated February 15, 2018. The background will therefore not be repeated in its entirety.
The worker injured her lower back at work on August 23, 2015 when she bent over to put two pots away. The injury was reported to her employer the same day and she sought treatment from a chiropractor and her doctor the following day. She was diagnosed with a "lumbo pelvic subluxation" by the chiropractor and a "back strain" by the doctor.
The worker returned to work, with restrictions, beginning in September, 2015. Due to ongoing complaints of pain at work, the WCB arranged a call in examination of the worker by a WCB chiropractic consultant on October 7, 2015.
The WCB chiropractic consultant stated, in part:
In my opinion, examination presentation has been influenced by behavioural and possibly volitional factors. The claimant's unguarded movements while leaving the building suggests that her functional capacity is greater than that demonstrated during examination. I am unable to account for this difference in function or her presentation during physical examination based on the mechanism of injury or compensable diagnosis. I am not aware of a physical diagnosis that would account for the claimant's presentation.
Based on the examination and observations following examination, a diagnosis was not determined that would pose a risk with increased function, including return to work. The claimant's functional capacity cannot be medically estimated based on examination.
On October 13, 2015, the worker was advised that she was able to return to work, with restrictions, and her employer was advised of the restrictions on October 14, 2015. A further discussion between the WCB, the worker and her employer occurred on December 10, 2015 to discuss accommodating the worker's modified duties. However, as the worker was being referred to a neurosurgeon, the WCB deferred discussions regarding the worker returning to work until after the worker had seen the neurosurgeon.
The neurosurgeon's January 7, 2016 examination of the worker indicated "The lumbrosacral and gluteal discomfort that the patient is experiencing is probably mechanical/musculoskeletal. The same applies to the component extending to the thigh whereas the latter may be radiculopathy. The etiology of the numbness of the left leg given its extension does not have an obvious monoradicular character and therefore I do not think that the disc protrusion at L5-S1 is an adequate radiological correlate. I would not recommend a surgical intervention at this point in time."
A WCB medical advisor's report dated February 3, 2016 opined:
In relation to the low back/thigh pain, the described mechanism of injury of a twisting motion of the low back would apply forces to the low back that results in a diagnosis of low back strain/non specific low back pain. The low back symptoms on a temporal basis have been reported from the day of the workplace accident.
In relation to the entire left leg numbness, a clear pathological lesion was not identified on advanced imaging (October 31, 2015 lumbosacral spine CT scan and December 3, 2015 lumbosacral spine MRI) that clinical correlated with the January 7, 2016 treating spine surgeon examination.
The worker was seen by a second neurologist on March 29, 2016 who advised that he was referring the worker to an orthopedic surgeon for "potential surgery." A call in examination was conducted by a WCB orthopedic specialist on June 14, 2016. The WCB orthopedic specialist concluded:
This assessment has failed to identify any evidence of a left lower limb radiculopathy. The absence of the left ankle reflex is long standing and of no current significance.
Extreme over-reaction to examination testing and grossly abnormal posture and gait requiring use of a cane.
This assessment has not identified that the claimant is unable to perform the proposed modified duties, and also that there is no objective evidence of continuing loss of function arising out of this compensable injury.
The current restrictions are rescinded.
The WCB advised the worker on June 22, 2016 that wage loss benefits would be paid to June 29, 2016, inclusive and final as there was no change found in the worker's two MRIs conducted in December 2015 and March 2016 suggesting that the worker's disc herniation was chronic and occurred prior to the workplace injury on August 23, 2015. It was felt that the worker had sustained a strain at the time of the injury and it was the WCB's opinion that she had recovered from the injury.
On July 13, 2016, the worker's representative requested reconsideration of the WCB's June 22, 2016 decision to the Review Office advising that, on a balance of probabilities, the worker continues to suffer a loss of earning capacity related to her compensable injury.
A further report from the WCB orthopedic specialist, dated August 18, 2016, noted that after reviewing the May 20, 2016 report from the Spine Assessment Clinic, their opinion remained that "…the worker's current difficulties no longer relate to the compensable injury of August 23, 2015." Additional medical reports were submitted by the worker's representative on July 18, 2016 and July 22, 2016. The worker was advised by the WCB on August 22, 2016 that after review of these new reports, their opinion remained that she has recovered from her workplace injury and there would be no change to their decision of June 22, 2016.
Review Office was asked by the worker's representative to reconsider the WCB's June 22, 2016 decision. On February 1, 2017, Review Office upheld WCB's decision as it was determined, on a balance of probabilities, that the worker's lower back injury was a back strain in the presence of a pre-existing degenerative disc disease that was not caused or structurally altered by her workplace injury. Review Office could not establish a causal relationship between the worker's workplace injury and her current lower back complaints.
On May 8, 2017, the worker's representative submitted additional medical information to Review Office for further consideration. The worker's representative's submission included a report dated May 3, 2017 by a physician with an interest in occupational medicine which stated:
Regarding your questions.
1. What, in your medical opinion is the diagnosis to account for [the worker's] current low back difficulties? Please identify the medical evidence in support of your diagnosis?
Based on my assessment and review, the principal diagnosis is L5-S1 disc protrusion with radiculopathy, that involves sensory loss in the left S1 dermatome, and significant left leg weakness. There is profound neuropathic weakness of the left great toe; assessing muscle weakness more proximally is limited by irritation of musculoskeletal pain from multiple sites in the lower lumbar, left hip girdle and thigh regions. The full picture is complicated by de-conditioning, and chronic dysfunctional substitution patterns of movement, standing and sitting, which contribute to paresthesias and altered sensation in a non-dermatomal distribution. The clinical picture is compounded by significant anxiety and distress, which has not been adequately documented, much of which was precipitated by the August 2015 work injury, worsening pain and dysfunction with failed attempted to RTW, unsuccessful treatment by multiple providers, and loss of support and income with closure of the WCB claim.
2. In your medical opinion, and on the balance of probabilities, is this diagnosis causally related to [the worker's] August 23, 2015 workplace accident? Please provide a rationale for your opinion and identify supporting medical evidence.
Yes, in my medical opinion, the biomechanics of the August 23, 2015 workplace accident directly resulted in significant new or enhanced L4-L5 and L5-S1 disc protrusion in painful onset of left lower extremity radiculopathy.
Prior to the August 2015 accident she had functional back movements without pain impairment, and without left leg symptomatology on or off the job. [Chiropractor] who initiated treatment August 24, 2015 noted "L4-L5 disc signs" and "radiations to the left knee" and "numbness on the left thigh".
In the acute post-injury phase [the worker's] condition progressively worsened with chiropractic treatments apparently directed at S-I joint dysfunction (lumbo-pelvic subluxation), and from the effects of the ill-advised return to work exertions in the first month post-injury.
On May 11, 2017, WCB orthopedic specialist #1 provided an extensive review of the worker's 2014 and 2015 WCB claims, as well as the May 3, 2017 physician with an interest in occupational medicine's letter. He concluded that there was no evidence of radiculopathy on the worker's file and that the worker's current presentation was not related to the workplace injury.
On May 26, 2017, Review Office determined that, after reviewing the new medical information submitted on behalf of the worker as well as obtaining the further opinion from a medical consultant noted above, the worker's compensable injury was a low back strain in the presence of pre-existing degenerative disc disease and that the pre-existing condition was not caused by or structurally altered by the workplace accident. Review Office was, on a balance of probabilities, not able to establish a relationship between the worker's current lower back issues and the workplace accident and as such, determined the worker was not entitled to wage loss benefits beyond June 29, 2016.
On May 23, 2018, the worker's representative appealed Review Office's decision to the Appeal Commission. An oral hearing was arranged.
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 7, 2019, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes 3
(a) a wilful 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 the doing of which arises out of, and in the course of, employment, and …
Subsection 39(2) of the Act states:
Subject to subsection (3), wage loss benefits are payable until (a) The loss of earning capacity ends, as determined by the board; or (b) The worker attains the age of 65 years.
WCB Policy 44.05.20 Arising Out of and in the Course of Employment states, in part:
To have occurred “in the course of employment” an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
WCB Policy 184.108.40.206 Pre-existing Conditions ("the policy") states, in part:
The 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 a “personal injury by accident arising out of and in the course of the employment.” The Worker’s 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.
The policy includes the following definitions:
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.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker is appealing the decision that there is no entitlement to wage loss benefits after June 29, 2016. The worker was represented by her union representative who made a submission on the worker’s behalf. The worker responded to questions from the panel and the representative.
The worker advised that the injury occurred on August 23, 2015 in the course of her employment. The worker reported her injury to the employer that same day and sought treatment the following day from medical providers.
The worker's position was that she had never had this sort of pain before and that her injury was more than a sprain/strain. Her pre-existing condition related to an L5-S1 herniation that was worsened by the August 23, 2015 workplace injury. It was also suggested that the worker's injury was related to her 2014 claim for a lower back injury, as an aggravation.
An extensive list of visits to medical providers was included with the representative's submission that outlines medical opinions that illustrate a consistency of the worker’s low back and left leg symptoms. Particular emphasis was placed on 2017 reports by a physician with an interest in occupational medicine that proposed an L5-S1 disc protrusion with radiculopathy that was directly caused by her accident. The physician also suggested there was inadequate medical evidence to confirm any previous low back dysfunction, and that the December 2015 MRI findings were significantly enhanced by the worker's 2015 injury.
The representative acknowledged that the claim has been affected by the worker's psychological issues but relies on the physician with an interest in occupational medicine's comments that they were mostly precipitated by the August 2015 work injury.
The employer did not participate.
For the worker’s appeal to be upheld, the panel must find, on a balance of probabilities, that the worker’s workplace injury of August 23, 2015 caused continuing and unresolved symptoms beyond June 29, 2016 that would entitle her to further wage loss benefits. The panel was not able to make this finding.
In coming to this conclusion, the panel has considered the evidence in this claim as well as a prior 2014 low back claim. After the hearing, the panel also obtained medical chart/notes from the worker's family physician prior to the 2015 injury date.
After a review of all this information, the panel finds that a different clinical picture has emerged over the years that leads us to conclude, on a balance of probabilities, that the worker's medical issues after June 29, 2016 are not causally related to her August 2015 workplace injury.
The panel places particular weight on the following evidence:
• The attending physician's chart notes regarding the 2014 injury all relate to right back/right leg issues. By April and May, the reports indicate normal neurological examinations, with subsequent notes all remaining silent as to any back complaints. As such, the panel finds that 2014 compensable injury is unrelated to the current claim which is dealing with left sided issues.
• On August 27 and October 22, 2014, the chart notes include complaints of back pain on the left side radiating to her left calf. These complaints continue to be noted on December 2, 2014. Charts notes as of February 3, 2015 noted reduced range of motion and reduced ankle reflexes. March 3, 2015 notes refer to complaints of a sore back down left leg to foot. May 11, 2015 notes refer to lumbar spine issues, positive leg raises and symptoms to both legs. July 13, 2015 notes left leg issues and decreased sensation, one month before the August 23, 2015 work injury.
Based on the prior medical information, the panel finds that the worker was consistently reporting left low back and leg issues that waxed and waned in a manner consistent with the degenerative conditions identified in the December 3, 2015 MRI.
Against this backdrop, the panel finds that the worker suffered a back strain and lumbo-pelvic subluxation, as originally diagnosed by her chiropractor. This diagnosis is consistent with the mechanism of injury of bending over to put away two pots. The panel does not find an aggravation or enhancement of an L5-S1 disc bulge, as proposed by the worker. In this regard, the panel notes that medical management of this file has been confounded by subjective complaints of radicular issues to the left leg and by pain amplification and non-anatomic findings which could not be explained by a WCB orthopedic consultant (June 14, 2016) and a neurologist (January 7, 2016). After review of the extensive medical investigations, the panel finds that the worker's subjective complaints are not supported by clinical or diagnostic findings of a neurological injury, and agrees with the WCB orthopedic consultant's June 19, 2016 assessments and conclusions.
The panel also notes that later medical treatment similarly failed to identify a neurological or radicular injury. A post-surgery report on December 13, 2018 by a neurosurgeon indicated a left-sided laminectomy and micro discectomy of L5/S1 provided improved sensation in the lower left leg and increased ability to move her toes and ankle. The worker advised, however, that there was no improvement to low back or leg pain. This remains consistent with previous tests and comments associated with the L5/S1 by the neurosurgeon on February 21, 2018 where he expressed doubt that this was in fact the pain generator.
As to the assertion that the worker's psychological issues were attributable to the 2015 injury, the panel notes that the 2014 and 2015 chart notes consistently describe the presence of these issues prior to the August 2015 compensable injury. The panel finds that these issues are not related to this claim.
Based on the review of all of the evidence before the panel, on a balance of probabilities, the panel finds that the worker recovered from her strain injury by June 29, 2016. The panel acknowledges that the worker has ongoing medical problems but finds that they are consistent with the medical issues that she had been experiencing prior to the August 23, 2015 workplace accident. In the panel's view, the worker's ongoing issues are not related to the compensable injury, and the worker is therefore not entitled to wage loss benefits after June 29, 2016.
The worker’s appeal is denied.
B. Hartley, Presiding Officer
M. Kernaghan, Commissioner
A. Finkel, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of April, 2019