Decision #56/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond November 2, 2017. A hearing was held on March 26, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after November 2, 2017.
That the worker is not entitled to benefits after November 2, 2017.
The worker reported to the WCB that he injured his lower back and right hip on September 27, 2017 in an incident which he described as follows:
I started to clean my working area which is outside. There is a lot of sand around my area. I was shoveling the sand and went to throw the sand away from the area when I felt a sharp pain going from my right hip to my lower back. My lower back felt hot.
The worker attended a local emergency department on September 27, 2017. He reported sudden onset of right hip pain while at work. He advised that the pain started in his lumbar spine, referred to his right groin and he was unable to walk. The treating physician indicated that the worker had muscle pain in his hip and recommended one week off work and a gradual increase in physical activities.
An x-ray was taken on September 27, 2017 which showed:
Pelvis and right hip:
There is degenerative narrowing present within the right hip. The patient has had a previous extensive repair of the acetabular region on the right side. The surgical fixation hardware is intact. No other significant bone or joint abnormality identified.
A very gentle scoliosis, convex left is centered within the mid lumbar spine. No other significant bony, joint or alignment abnormality identified.
The worker was seen by his family physician on October 4, 2017. The worker reported that he fell on gravel at work and landed on his right knee. He felt severe pain at his right knee and hip, and was unable to weight bear. The family physician diagnosed the worker with right hip myalgia and recommended he be off work for eight weeks.
On October 10, 2017, a WCB medical advisor reviewed the medical reports on file and opined that the worker's initial symptoms and mechanism of injury were "consistent with a diagnosis of an acute lower back strain." The WCB medical advisor stated that the natural history of a low back strain is for restoration of usual function over the course of days to a few weeks. The WCB medical advisor opined that "… in relation to sedentary duties, restrictions would not be anticipated beyond 1 week. For activities involving light to medium work, involving lifting of up to 20 to 50 pounds respectively, restrictions may be applicable from between 1 to 6 weeks."
The worker's claim was accepted and benefits were approved.
On October 12, 2017, the worker was seen by an orthopedic surgeon who had performed acetabular fracture fixation surgery on the worker's right hip in July 2015. The orthopedic surgeon opined that the worker was:
…doing relatively well, but over time has begun displaying what are likely symptoms of posttraumatic arthritis. He has a bit of narrowing in his joint as well. He had an incident at work, which is laborious whereby he overdid it. As a result, he has had a great deal of pain in his right groin area ever since. He has had difficulty relieving the pain altogether.
Essentially, the diagnosis I feel is posttraumatic arthritis.
On October 20, 2017, the WCB advised the employer that the worker was fit for work with temporary restrictions of no pulling or lifting greater than 20 pounds. The employer advised the WCB that they could accommodate the worker within his restrictions and the worker returned to work on Monday, October 23, 2017, but missed certain workdays after that.
On November 2, 2017, the worker had a bone scan which showed:
1. Subtle hyperemia in the region of the right hip.
2. Mild increased radiotracer uptake at the right hip is felt to relate to arthritis and postoperative changes.
On November 20, 2017, the employer advised the WCB that the worker's employment was going to be terminated for issues which were not related to his compensable injury. The worker's employment was terminated on November 22, 2017.
On November 22, 2017, Compensation Services advised the worker that with the exception of November 2, 2017, when the worker attended for diagnostic testing, they were unable to pay wage loss benefits for days missed beyond October 20, 2017, as his employer was able to accommodate him with modified duties within his restrictions.
On November 23, 2017, the WCB medical advisor reviewed the worker's claim and identified a change in diagnosis. The WCB medical advisor opined that based on the mechanism of injury and reported symptoms, the compensable diagnosis relating to the September 27, 2017 injury was "Right hip strain in the environmental context of right hip osteoarthritis." The medical advisor noted that the worker's treating healthcare providers had reported predominantly right hip pain since October 10, 2017. The September 27, 2017 x-ray showed right hip joint space narrowing, and the November 2, 2017 bone scan revealed findings which were "felt to be related to arthritis and post-operative changes." The WCB medical advisor opined that the imaging findings were indicative of a degenerative process that pre-dated the September 27, 2017 workplace accident. The medical advisor further opined that the worker had a pre-existing condition of right hip osteoarthritis/right hip surgery/fixation, and based on the information on file, including the November 2, 2017 bone scan, there was no evidence that the September 27, 2017 workplace injury materially affected the internal structures of the right hip.
On April 18, 2018, the worker requested that Review Office reconsider Compensation Services' November 22, 2017 decision. The worker submitted that he returned to work without having been properly diagnosed and before he was physically ready. The worker included the report of a March 15, 2018 CT scan of his lumbar spine with his request for review. On April 19, 2018, Review Office returned the worker's claim to Compensation Services for further management and consideration of any additional entitlement to benefits.
On June 14, 2018, the WCB medical advisor opined that an initial diagnosis beyond a "right hip strain in the environmental context of right hip osteoarthritis" was not apparent. The medical advisor noted that the October and November 2017 family physician's reports indicated right groin/hip pain and there were no clinical findings suggesting a lumbar radiculopathy. The WCB medical advisor reviewed the report of the March 15, 2018 CT scan and opined that the reported findings of facet arthropathy, ligamentum flavum thickening and posterior disc bulging represented multiple levels of degenerative findings that are not uncommon in patients over 50 years of age, and there was no radiological evidence of nerve root/spinal cord compression.
The WCB medical advisor further opined that the initial diagnosis of right hip strain in the environmental context of underlying right hip osteoarthritis was medically accounted for in relation to the September 27, 2017 workplace accident. The medical advisor stated that, based on the reported findings on the November 2, 2017 bone scan report, there was no evidence the underlying hip osteoarthritis was materially affected by the September 27, 2017 workplace injury. The medical advisor opined that recovery from the diagnosis of a right hip strain would typically take one to eight weeks, but could be prolonged in the setting of underlying right hip osteoarthritis.
On June 20, 2018, Compensation Services advised the worker that they had determined there was no new evidence to support a relationship between his ongoing difficulties and his workplace injury. Compensation Services noted that a diagnosis materially affected by the September 27, 2017 workplace injury beyond the initial strain was not apparent and there was no change in entitlements regarding the worker's claim.
On July 11, 2018, the worker again requested that Review Office reconsider Compensation Services June 20, 2018 decision. The worker submitted that the March 15, 2018 CT scan which he had submitted showed he had problems with his back which related to his September 27, 2017 workplace injury. An August 2, 2018 letter from the worker to WCB file access relating to the worker's appeal was also placed on file.
On September 6, 2018, Review Office determined that the worker was not entitled to benefits beyond November 2, 2017. Review Office noted that the worker was attending his modified work duties up until November 22, 2017, when his employment was terminated. Review Office found that the reasons for termination of the worker's employment were acceptable and unrelated to his compensable injuries. As the worker's employment was terminated for non-claim related reasons, he was no longer suffering a loss of earning capacity in relation to the workplace accident and was not entitled to wage loss benefits as of November 22, 2017.
With respect to whether the worker was entitled to medical aid (treatment) beyond November 2, 2017, Review Office noted that the need for medical aid must remain related to the compensable injury. Review Office placed weight on the WCB medical advisor's opinions regarding the relationship of the worker's injuries. Review Office noted that the medical advisor's opinion of October 10, 2017 initially established the diagnosis of an "acute lower back strain." In the November 23, 2017 opinion, the medical advisor opined that the second diagnosis of a "right hip strain in the environmental context of right hip osteoarthritis" related to the mechanism of injury and that this established a causal relationship between the worker's pre-existing right hip issues and the workplace accident. Review Office therefore determined that the worker sustained an aggravation of his pre-existing right hip issues at the time of the injury. Review Office went on to determine, based on the medical advisor's November 23, 2017 opinion, that the aggravation to the worker's right hip had resolved as of November 2, 2017, and as such, there was no entitlement to medical aid or wage loss benefits beyond that date.
On September 9, 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.
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 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.
WCB Policy 220.127.116.11, 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.
With respect to wage loss eligibility, the Policy states, in part that:
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.
The following definitions are set out in the Policy:
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 was self-represented and was provided with the services of an interpreter at the hearing. The worker made an oral presentation to the panel, which included a detailed review of the medical and other information on file. He also referred to photographs of the area he worked in when performing modified duties. The worker responded to questions from the panel.
The worker's position was that his ongoing symptoms and difficulties are related to his September 27, 2017 workplace injury and he is entitled to benefits after November 2, 2017.
The worker submitted that the main issue arising out of his workplace accident was a lower back injury, and stressed that his claim was accepted as an acute low back strain. The worker submitted his back changed as a result of his accident, although he could not say how. He submitted that the March 15, 2018 CT scan shows that he has ongoing problems with his back which are related to the workplace accident.
In response to questions from the panel, the worker said that it was in his back that he experienced the most pain following the September 27, 2017 incident. He said that his back was "1000 times better" before the incident. The worker stated that while the focus on the file later shifted to his hip, his problem was and is mainly with his back.
With respect to his hip, the worker acknowledged that his hip was already bad due to a previous motor vehicle accident, but submitted that the September 27, 2017 incident provoked additional pains in his hip as well as his back. The worker submitted that the postoperative changes referred to in the November 2, 2017 bone scan could certainly be from the September 27, 2017 accident, and in his view, no one could prove they were not related to that accident. The worker noted that this was a significant incident where he woke up in hospital.
In conclusion, the worker stated that he feels "really broken" as a result of his accident. He said that he cannot work and cannot do anything as a result of his injuries, and his appeal should be granted.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after November 2, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after November 2, 2017 as a result of his September 27, 2017 workplace incident. The panel is not able to make that finding.
While the claim was initially accepted for an acute lower back strain, the panel is not satisfied that such a diagnosis is supported by the evidence. The panel finds that the early clinical evidence does not indicate that the worker suffered a back injury as a result of the workplace accident.
The panel notes that in response to questions at the hearing, the worker described the pain in his back as being "like hot in all my back and like thousand nails been in my back, everywhere." The worker indicated that the pain was in his low back and went up to his shoulders and his neck, like he has "thousands of needles…on my back." The panel finds that this description of his pain as being all over his back is not consistent with the mechanism of injury or an initial diagnosis of a low back strain arising out of the workplace injury.
While the March 15, 2018 CT scan of the lumbar spine describes posterior disc protrusion, it goes on to state that "There is no radiological evidence of nerve root/spinal cord compression," and the panel notes that there is no indication of any clinical correlation to support a relationship between those findings and the workplace incident.
When asked if he could explain how a back strain would bother him 18 months later, the worker's response was that "It will bother me until I’m dead," and that his first family doctor had told him, back in 2012, that this was what was going to happen with the issues that he had with his back. The worker further said that he is not a doctor and could not explain why his back was still bothering him today, it just was.
Based on our review of the medical information on file, the panel finds that the worker suffered an acute injury to his right hip as a result of the September 27, 2017 accident, diagnosed as a "right hip strain in the environmental context of right hip osteoarthritis." In arriving at this conclusion, the panel notes that early clinical evidence indicates difficulties with the worker's right hip, which in our view would be consistent with the mechanism of injury.
The evidence shows that the worker had a previous injury and surgery to that hip following a motor vehicle accident. On October 12, 2017, the worker saw the orthopedic surgeon who had done the previous surgery. The surgeon reported that the worker was doing relatively well, but over time had begun displaying what were likely symptoms of posttraumatic arthritis and provided a diagnosis of posttraumatic arthritis. The November 2, 2017 bone scan also identified "arthritic and postoperative changes." While the worker suggested that these symptoms or changes could have been the result of the workplace accident, the panel does not accept that they would have developed within such a short period of time after the September 27, 2017 incident. The panel accepts, however, that the worker suffered an aggravation of these pre-existing right hip issues as a result of the worker's compensable right hip strain injury.
The panel is further satisfied that as of November 2, 2017, there is an absence of clinical evidence to support a relationship between the worker's ongoing difficulties and the September 27, 2017 workplace incident. The panel therefore finds, on a balance of probabilities, that the right hip strain and aggravation of the worker's pre-existing condition had resolved by November 2, 2017.
In the result, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid after November 2, 2017 as a result of his September 27, 2017 workplace incident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of May, 2019