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 benefits after April 12, 2018. A hearing was held on April 12, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after April 12, 2018.

Decision

The worker is entitled to benefits after April 12, 2018.

Background

The worker, a truck driver, reported to his employer on November 28, 2017 that he injured his lower back on November 27, 2017 when he bent down to check on an attachment to his trailer. He reported that when he stood up, he felt "a sharp pain on the back." The worker further reported that he drove for another hour until he felt that he could not continue. He went to bed for the night and reported the incident the following morning.

On December 4, 2017, the worker was seen by his family physician. The worker described his injury as "bent over at work checking truck and when he stood up, he had sudden low back pain". The worker's treating physician noted that he had previous back injuries and diagnosed the worker with an "Acute low back strain". The worker attended for a follow-up appointment on December 11, 2017 and was referred for an x-ray. The x-ray conducted on the same date indicated:

There is shallow lumbar scoliosis convex to the left. Marked spondylosis is present at L2-L3. There is spondylosis of mild-to-moderate severity at L1-L2 and L3-L4. Subtle sclerosis in the bones adjacent to the SI joints may be due to osteitis condensans ilii. There is no overt sacroilitis.

No other bone, joint or disc abnormality is seen….

The WCB accepted the worker's claim on December 13, 2017 and payment of various benefits started.

At a further follow-up appointment with his treating family physician on January 2, 2018, the worker was referred to a sports medicine specialist. A further appointment on January 19, 2018 noted that the worker was to postpone seeking physiotherapy treatment until after his appointment with the sports medicine specialist.

A WCB sports medicine consultant reviewed the worker's claim on February 2, 2018 and opined that the worker's probable diagnosis was a lumbar strain, with most lumbar strains improving in four to six weeks "without a residual/recurrent physical impairment." The WCB sports medicine consultant further provided that the worker's diagnosis could be medically accounted for in terms of his workplace accident and that there were no objective medical findings that supported the worker was totally disabled from working. The WCB sports medicine consultant noted that the recommended treatment for the worker should include "activity modification and mobility/strengthening exercises" and that physiotherapy may be helpful. The typical restrictions for a lumbar strain were noted as the opportunity to change positions from sitting to standing as needed; lifting up to ten pounds occasionally; and limiting activities requiring loaded trunk twisting or repetitive/prolonged trunk flexion for the next three to four weeks.

The worker's appointment with a sports medicine specialist took place on February 13, 2018. The sports medicine specialist had treated the worker previously and noted that he experienced a prolonged recovery period from his previous injury. The sports medicine specialist opined that the worker had "lumbar discogenic pain and possible lumbar disc herniation. He also has SI joint tenderness bilaterally as well as some x-ray findings which may be suggestive of underlying inflammatory processes." The worker was referred for an MRI.

On February 20, 2018, the worker saw a physiotherapist for an initial assessment. The worker reported subjective complaints of pain with prolonged sitting, bending backwards or forwards and twisting and weakness in his right leg. After assessing the worker, the physiotherapist diagnosed the worker with right sacroiliac joint and lumbar spine mechanical dysfunction and noted that he could not be accommodated at work as the worker could not sit for prolonged periods of time.

The worker attended for a call-in examination with the WCB sports medicine consultant on March 20, 2018. The WCB sports medicine consultant opined that the worker's initial diagnosis was a lumbar strain, with the natural history of improvement within two to six weeks. It was further opined that the worker's current diagnosis was of non-specific, non-radicular low back pain and that the worker's current presentation sixteen weeks post-injury "would no longer be medically accounted for in terms of a lumbar strain." The WCB sports medicine consultant further noted that the worker's healthcare providers were investigating inflammation at the worker's sacroiliac joints, that would not be medically accounted for in relation to the workplace accident, which was accepted as a strain. The WCB sports medicine consultant was asked to review the worker's claim with respect to total disability and possible restrictions and opined:

The findings on today's examination are not supportive of total disability.

Determination of restrictions is based on the following factors:

• RISK refers to the probability of further injury/structural damage with resumption of usual physical activities. There is no evidence of any structural damage to the lumbar spine (i.e., vertebral fracture, disc herniation, nerve root compression) in relation to the workplace injury, therefore there is no structure at risk of being damaged further with normalization of physical activities at 16 weeks following a strain injury.

• CAPACITY refers to measurable impairments in mobility, strength, neurological function etc. which would lead to the inability to perform certain physical activities. In this case, functional lumbar mobility, absence of dural tension signs, and absence of a neurological deficit is demonstrated. The objective findings therefore appear to demonstrate capacity of [the worker's] lumbar spine for full activities.

• TOLERANCE for physical activity is based on self-reported symptoms such as pain/fatigue. As these are subjectively based, they cannot be verified or validated scientifically. At this juncture, given the natural history of a strain injury, the current favorable objective findings, and the length of time elapsed since the date of injury, any limitation of tolerance to physical activities would be expected to improve with re-exposure to same.

Based on the above factors, further restriction of usual activities would appear to be counterproductive to the recovery process.

On April 5, 2018, the worker was advised by the WCB that it was their determination he had recovered from his lower back strain and he would not be entitled to benefits after April 12, 2018.

The worker submitted further medical information to the WCB on May 31, 2018 including an MRI conducted on May 8, 2018, an April 25, 2018 report from his treating physiotherapist, a May 29, 2018 report from his treating sports medicine specialist and a medical article titled "Annular Tear or Fissure". The submitted medical information was reviewed by a WCB orthopedic consultant on June 12, 2018 who opined that the worker's initial diagnosis was a strain/sprain of the low back, expected to resolve without specific treatment over several weeks. The consultant further provided that based on the May 8, 2018 MRI findings, the worker's current diagnosis was of "multi-level degenerative disc disease," which had occurred over a period of time and was not related to the workplace accident. On June 15, 2018, the worker was advised that his claim had been reviewed but it was still the WCB's decision that he was not entitled to benefits after April 12, 2018.

The worker requested reconsideration of the WCB's decision to Review Office on June 25, 2018. The worker provided that while he did have a history of back problems, he was capable of performing his duties until the workplace accident on November 27, 2017. He noted that the May 8, 2018 MRI indicated an annular tear, which could have resulted from the workplace accident. He further noted that he had not recovered from the workplace accident due to a combination of the annular tear, his degenerative back issues and the delay in diagnosis of the annular tear.

On August 8, 2018, Review Office determined that the worker was not entitled to benefits after April 12, 2018. Review Office noted that the worker had a pre-existing degenerative condition within his lower back and placed weight on the opinion of the WCB sports medicine consultant's assessment of the worker during the call-examination that supported a diagnosis of non-specific, non-radicular low back pain. This opinion was also supported by the WCB orthopedic consultant who noted that the worker's degenerative disease in his low back had occurred over a long time and was "probably not related to the workplace injury." Review Office found that the worker's ongoing difficulties were not related to the November 27, 2017 workplace accident and he was not entitled to benefits after April 12, 2018.

The worker filed an appeal with the Appeal Commission on August 30, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation

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.

Board Policy 44.10.20.10, Pre-Existing Conditions

In addition, WCB Policy 44.10.20.10 provides that:

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 “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 also includes the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Pre-existing Condition: A condition that existed prior to the compensable injury.

Worker’s Position

It is the worker's position that he was able to perform his regular work duties prior to the November 27, 2017 workplace accident. On November 27, 2017 the worker was cranking the dolly legs on his trailer in preparation for a trip. He was bent over, with his back and knees bent cranking the dolly legs. This is when he felt what he described as an odd pull like sensation in his back. Once the legs were cranked, he crouched over and moved under the trailer in order to inspect the fifth wheel pin. When he tried to stand straight up, he felt an immediate sharp excruciating pain in his back. The worker attempted to continue to his driving route. He drove for about an hour and then rested for the night. He attempted to deal with the pain with over the counter medication. By the morning the pain had not improved, so he returned home to seek medical treatment for his injury.

After the incident, he was injured and unable to return to his regular work duties. He was not fully recovered from his injury when the benefits were terminated by WCB. It is also the worker’s position that the medical evidence supports that the worker suffered an annular tear as a result of the incident.

Although the worker’s accepted diagnosis was one of muscle pain/strain, the worker stated that he did not recover within normal time frames. Specifically, the worker had lower back pain that was radiating down his leg to the top of his knee area. His attending physician referred him to a specialist in sports medicine for further evaluation. An MRI was obtained and it showed an annular tear at the L3-4 after the accident. This tear was not seen in previous MRIs. The specialist in sports medicine reviewed the MRI and attributed the symptoms that the worker has been feeling to the annular tear.

The worker's WCB claim was accepted for the diagnosis of a lower back sprain/strain. The worker was paid benefits until April 12, 2018 at which point the WCB determined the worker had recovered from the effects of the November 27, 2017 workplace accident. The worker's position was that he had not recovered from his compensable injury at that time.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits after April 12, 2018.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a compensable medical condition that was still in play as of that date that resulted in a loss of earning capacity and/or medical aid after April 12, 2018.

First, the panel notes that it does not agree with the worker’s claim that the annular tear is compensable and in, that regard, does not find that it is the pain generator at issue.

The panel takes particular note of the clinical findings by the worker's sports medicine physician that the worker had tenderness over his SI joints and physiotherapy was recommended. These findings, in the panel’s view, are consistent with what the worker had reported just prior to his benefits being discontinued. In particular, the panel is satisfied that this diagnosis is, on a balance of probabilities, causally related to the mechanism of injury that forms the basis of the worker’s claim.

The panel notes, that it is clear that the worker had not recovered from his workplace incident when his entitlements were discontinued. In particular, the panel notes that on March 6, 2018 and April 5, 2018, the sports medicine physician opined that the worker needed to be off work until MRI findings had been obtained. At that time, he was not capable of alternate or modified work.

While the panel is not making a determination or finding with respect to the duration of the worker’s entitlements, the panel finds that the worker had not achieved recovery as of April 12, 2018 and is therefore entitled to ongoing benefits. The worker’s appeal is allowed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2019