Decision #66/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after July 3, 2017. A hearing was held on October 17, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after July 3, 2017.
That the worker is not entitled to wage loss or medical aid benefits after July 3, 2017.
The worker reported injuring his right lower back on September 23, 2016 in an incident he described as:
I was ripping up a roof, I was in a tight area, I was using a shovel in a lower twisting motion, twisting to my left side. As I was doing this I felt a pulling pain in my right lower back. I went home, I did not finish my shift.
At an initial appointment with his chiropractor on September 26, 2016, the worker was diagnosed with a lumbosacral facet sprain/strain, right sacroiliac joint sprain, right gluteal strain and right leg paresthesia.
On October 1, 2016, the worker was seen by a sports medicine physician, who diagnosed an acute disc or lysis aggravation and referred the worker for physiotherapy and an MRI. The physician also recommended that the worker remain off work until October 14, 2016.
On October 7, 2016, the worker attended for an initial assessment with a physiotherapist. The worker reported feeling like his right leg was going to "give out." He reported constant left-sided low back pain, with intermittent pain radiating into his right buttock and thigh. The physiotherapist diagnosed the worker with an L5 disc herniation. At a further appointment with another sports medicine physician on October 12, 2016, the physician recommended the worker remain off work until October 26, 2016.
An MRI of the lumbar spine was performed on October 24, 2016, and revealed, in part:
There is loss of normal disc hydration at L4-5 with mild loss of disc height. There is mild anterolisthesis at this level measuring approximately 3mm. Bilateral pars interarticularis defects are suspected however suboptimally assessed given the motion. On a CT scan of the abdomen and pelvis 10/18/2011, there was a right-sided pars interarticularis defect at this level. No edema is suspected surrounding the defects. There is a vestigial disc at the L5-S1 level...
On the obtained images, no significant spinal canal or neural foraminal narrowing is suspected throughout the lumbar spine.
1. Transitional anatomy.
2. Suspected bilateral pars interarticularis defects at L4 with minimal anterolisthesis of L4 on L5 and early degenerative disc disease. The right pars interarticularis defect is longstanding, the left one has likely occurred since October, 2011. There is no edema surrounding it to confirm that it is recent.
At an appointment with the second sports medicine physician on October 26, 2016, the worker reported that he was still sore on his back and right leg. He further reported attending physiotherapy, which aggravated his injury, and that sitting, bending and twisting was sore. The sports medicine physician recommended that the worker not return to work at that time unless there was sedentary work, to be reassessed in two weeks.
On October 28, 2016, the employer advised the WCB that they did not have modified duties available for the worker. At a further follow-up appointment on November 18, 2016, the treating sports medicine physician recommended modified duties of no lifting greater than ten pounds and no stooping or bending activity for the next four weeks. On November 22, 2016, the employer advised that they could not accommodate those restrictions.
On December 6, 2016, the worker attended a call-in examination with a WCB physiotherapy consultant. Following the examination, the consultant opined that the worker's current diagnosis was "discogenic back pain in the environment of a pre-existing lumbar spondylolysis." The consultant further opined that while the spondylolysis was not a result of the workplace injury, it might prolong the worker's recovery. He noted that the worker would be capable of light to sedentary duties with the ability to change positions as needed, and that this could be reviewed in four weeks. The physiotherapy consultant further noted that the worker's pain had not been managed effectively since his injury. It was recommended that he review this with his physician at his next appointment, as better pain management would allow for more effective strengthening and the introduction of lifting, pushing and pulling activities at physiotherapy.
On December 21, 2016, the worker attended a further follow-up appointment with his treating sports medicine physician. At that time, the physician referred the worker to a spinal assessment clinic and recommended blood work be done to rule out an inflammatory process. The physician further recommended that the worker's earlier restrictions continue for another four weeks.
On February 10, 2017, the worker attended a call-in examination with a WCB medical advisor. With respect to the worker's current diagnosis, the WCB medical advisor opined:
A diagnosis beyond nonspecific low back pain is not apparent at present. The significance of the MRI findings in relation to the current presentation is uncertain and the assessment of the spinal surgeons is awaited. It is clear that at least a degree of the MRI findings pre date the compensable injury of Sept 2016. The possibility of aggravation of the pre-existing condition has been proposed but this remains speculative at present. The presence on examination today of psoriasis and enthesitis at the Achilles tendon raises the possibility of other non-injury related causes of back pain (ie spondyloarthropathy: psoriatic arthritis).
The WCB medical advisor further opined that ongoing in-clinic physiotherapy treatment was not likely to provide further benefits for the worker. He noted that the worker had expressed interest in returning to chiropractic treatment, which the WCB medical advisor considered reasonable. The worker returned to see his chiropractor for treatment on February 21, 2017.
On May 11, 2017, the worker was assessed at the spine assessment clinic. The physiotherapist who undertook the assessment opined that the worker did not require surgery at this time as the MRI segmental changes "appear mild in nature, without impacting the neurological structures." It was noted that the worker reported better management of symptoms with chiropractic care, but that he would need to explore further reconditioning before attempting a return to work. The physiotherapist provided the worker with home exercises. The physiotherapist also offered to refer the worker back to physiotherapy for reconditioning, but the worker did not agree with this suggestion due to his recent course of physiotherapy, which he had found aggravating, and indicated he preferred to remain with the chiropractic care he was receiving.
On June 26, 2017, the WCB medical advisor reviewed the medical information on the file and provided an opinion. The WCB medical advisor opined the worker's current diagnosis was "non-specific back pain in the environment of pre-existing L4-5 spondylolisthesis and psoriasis." The medical advisor noted that the worker's diagnosis in relation to the compensable injury was likely a lumbar strain, and given the amount of time that had passed, the current presentation could not be accounted for in relation to a strain injury, even allowing for "a possible degree of delay in recovery related to the pre-existing condition." The WCB medical advisor further opined that there was no apparent need for workplace restrictions or further treatment in relation to the compensable injury.
On June 26, 2017, the WCB advised the worker that they were unable to medically account for his current symptoms in relationship to his workplace injury and unable to accept further responsibility for his claim.
The WCB was subsequently provided with a further x-ray report dated July 12, 2017, which showed "Alignment is normal. Intervertebral disc spaces normal in height. No joint abnormality or compression fracture is seen." A report from the treating sports medicine physician on July 21, 2017 noted a diagnosis of "mechanical pain, spondylolysis" and that the worker was "worse without treatment."
The worker's file was once again reviewed by the WCB medical advisor with respect to the new medical information provided, and on August 1, 2017, the WCB medical advisor opined that there was no change to his earlier opinion. On August 2, 2017, the worker was advised by the WCB that at the request of his representative, a review of the new medical information had been undertaken but there would be no change to the earlier decision.
On February 5, 2018, the worker requested that Review Office reconsider the WCB's decision. The worker noted that his injury was getting progressively worse. He stated that he was still receiving treatment through his long term disability insurance, and submitted that he should still be receiving benefits from the WCB.
On February 22, 2018, Review Office advised the worker that he was entitled to benefits to July 3, 2017. Review Office determined, on a balance of probabilities, that the worker had recovered from the effects of his compensable injury. Review Office noted, however, that the worker had been advised that his entitlement to benefits was ending on June 26, 2017. Review Office further noted that WCB policy provided that the advance notice required when the WCB makes a discretionary decision that impacts the payment of benefits would normally be seven calendar days, but would be extended for any statutory holidays that falls within that period. Review Office found that the advance notice should therefore be extended to July 3, 2017, inclusive.
On March 7, 2018, the worker appealed the Review Office decision to the Appeal Commission and 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 April 24, 2019, the appeal panel met further to discuss the case and render its final decision on the issues 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.
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 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.
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 represented by his mother at the hearing. Written submissions were provided in advance of the hearing, and the worker and his mother made a joint presentation to the panel.
The worker's position was that he had not recovered from the effects of his September 2016 workplace injury as of July 3, 2017, and is entitled to wage loss and medical aid benefits beyond that date.
The worker noted that the WCB did not agree with the medical opinions from his treating healthcare providers, and based their decision on their own medical advisor's opinion of a pre-existing condition that was never proven.
The worker questioned the validity of the WCB's reliance on a pre-existing condition. He submitted that there was not enough evidence from 2011 of a pre-existing condition. There was no clear or noted diagnosis, and the presence of a pre-existing condition was merely "suggested" and never proven.
It was noted that the worker was physically active, and in top physical shape prior to the September 23, 2016 workplace incident. He had played hockey and was involved in various other sports. He submitted that if the suggested pre-existing spondylolysis was present in 2011, it would have progressed over the intervening eight years, and he would have experienced pain and the effects of that condition and would have sought medical attention for it. He had not known of this pre-existing condition or sought medical attention relating to it.
The worker noted that he had regularly visited his chiropractor from the time he was a small child, for health and overall spine and nervous system care. He had not, however, sought care for the suggested pre-existing condition. The worker said his family physician had confirmed that the worker had no prior history of back pain. He submitted that there was no confirmation of medical attention or treatment for that condition from any medical practitioner until it was noted on the October 24, 2016 MRI.
The worker submitted that for financial reasons, he attempted to return to light duties, but the employer did not have light duties, his union said it would not be in his best interests to attempt a return to work in the circumstances, and his doctor would not "sign off" on his returning to work. The worker said that this created further stress and financial hardship, and when he advised the WCB of this, they decided he had "enough time to heal" from his work injury and cut him off due to a pre-existing condition shown on a 2011 report.
The worker said that he continued to be reviewed by his treating sports medicine physician in 2017/2018, while awaiting a pain management therapy and a consult from the spine assessment clinic. Through his long term disability insurance, he went through different return to work programs, but was physically limited in what he could do. He continued to do his back exercises at home, as tolerated, but was in constant pain.
At the hearing, the worker noted that he received cortisone shots from the pain management clinic during May through July 2018. The worker said that he has successfully managed his back pain with exercises and regained strength in his back. His pain management doctor cleared him to go back to work with full duties on July 26, 2018 and he returned to full duties with the employer, with no restrictions, effective September 10, 2018.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after July 3, 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 July 3, 2017 as a result of his September 23, 2016 workplace injury. The panel is not able to make that finding.
Based on our review of all of the information which is before us, on file and as presented at the hearing or provided subsequently, the panel is satisfied, on a balance of probabilities, that the worker's compensable injury had resolved and the worker did not sustain a loss of earning capacity or require medical aid after July 3, 2017 as a result of his September 23, 2016 workplace injury.
The panel notes that the worker has an accepted claim for a sprain/strain injury to the lumbar spine. The panel is satisfied that such a diagnosis is consistent with the mechanism of injury as described in the information on file and at the hearing.
The panel is further satisfied that this sprain/strain injury had resolved by July 3, 2017, being more than nine months after the workplace incident. The panel notes that it has not been suggested, and the medical evidence does not support, that the worker continued to suffer from his sprain/strain injury after that date.
The panel accepts that the worker also has significant degenerative conditions in his lumbar spine, including spondylolysis/pars defects and facet joint arthropathy. The panel is satisfied, however, that these are pre-existing conditions which are not related to his September 23, 2016 workplace incident.
In arriving at this conclusion, the panel places weight on the report of the October 24, 2016 MRI, which described suspected bilateral pars interarticularis defects at L4-5. The report stated that "The right pars interarticularis defect is longstanding, the left one has likely occurred since October 2011." The report went on to state that "There is no edema surrounding it to confirm that it is recent."
It is the panel's understanding that the presence of edema associated with a pars defect would suggest an acute fracture or stress reaction, while the lack of edema would suggest chronicity. The report indicates that the right pars defect is longstanding, dating back to at least 2011. Given the absence of evidence of edema on the MRI, which was performed close in time to the workplace accident, the panel finds, on a balance of probabilities, that the left pars defect also predated the workplace incident and was a pre-existing condition.
Information provided at the hearing, and in response to the panel's request following the hearing, shows that the pain management clinic was able to identify and treat the pain generator which was responsible for the worker's ongoing complaints with injections.
By letter dated February 26, 2019 responding to the panel's request for information, the attending chronic pain physician advised as follows:
The nature of the condition being treated is facet joint arthritis in [the worker's] lumbar spine. This condition is directly related to his MRI findings or pars interarticularis defects of L4. This defect which is traumatic in nature has resulted in anterolisthesis (forward slippage) of [the worker's] spine resulting in increased friction along the joint lines leading to early development of arthropathy.
Unfortunately there is no cure for arthropathy in the facet joints of the spine…The prognosis for this type of arthritis would be a slow progressive worsening over his lifetime. The procedures performed in clinic are temporizing in nature and will require to be repeated on a recurring basis.
As well, assessment forms obtained from the pain management clinic indicate that the worker had experienced "overall significant improvement in quality of life" with the injections, and was "back at work full-time, playing hockey, managing well."
In response to questions from the panel at the hearing, the worker stated that after he received the first injection, he felt great and his doctor signed off on his going back to work. He had to wait one month before going to work because his employer did not have anything for him at the time. He said that he had a second shot about two weeks ago, and the injections last about 3 to 3½ months. He said he definitely feels it when they start to wear off, at which point he makes another appointment with the doctor for further injections.
The panel finds that the facet joint injections confirm the diagnosis of degenerative conditions as causes of the worker's ongoing complaints. Documentation from the pain clinic shows that injections done into the facet joints were successful in reducing his pain. The pain clinic physician was also specific in indicating that there was no cure for facet joint arthropathy, the prognosis for this type of arthritis would be a slow progressive worsening of his condition and what they were doing was treating and managing the worker's pain. The panel finds, on a balance of probabilities, that the injections were related to the worker's pre-existing degenerative conditions as first identified in the 2011 CT scan.
The evidence also indicates and the panel finds that this treatment which restored the worker's function was not aimed at a sprain/strain injury, and supports our finding that the accepted compensable sprain/strain injury had resolved.
The panel is further satisfied that there is an absence of evidence that the workplace incident or compensable injury aggravated or enhanced the worker's pre-existing conditions, or contributed in a material degree to a loss of earnings capacity as of July 3, 2017. The panel places weight on the June 26, 2017 opinion of the WCB medical advisor, who opined, in part, as follows:
1) There remains no compelling evidence of a diagnosis beyond non-specific back pain in the environment of pre-existing L4-5 spondylolisthesis and psoriasis.
2) …There is no evidence of a significant change or aggravation in the pre-existing L4-5 spondylolistheses. The diagnosis in relation to the ci [compensable injury] was likely a lumbar strain as initially reported. Now at nine months post strain injury, the current presentation is no longer accounted for in relation to a strain injury, even allowing for a possible degree of delay in recovery related to the pre-existing condition…
The panel notes that in a memorandum to file dated August 1, 2017, the WCB medical advisor stated that he subsequently discussed his opinion with the treating sports medicine physician. The medical advisor noted that: "I advised that I was currently unable to account for the current presentation in continued relation to effects of the ci and [the treating sports medicine physician] did not disagree."
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing pain is not related to his compensable sprain/strain injury.
The panel acknowledges that the worker has significant issues with his back, but is unable to find that those issues are related to his September 23, 2016 workplace incident or compensable injury.
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 July 3, 2017 as a result of his September 23, 2016 workplace incident. The worker is therefore not entitled to wage loss or medical aid benefits after that date.
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 14th day of June, 2019