The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the February 19, 2007 accident and that she is not entitled to a permanent partial impairment award. A hearing was held on April 18, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the February 19, 2007 accident; and

Decision

That the worker is not entitled to further benefits in relation to the February 19, 2007 accident; and

That the worker is not entitled to a permanent partial impairment award.

Background

The worker, a nurse, reported injuring her lower back at work on February 19, 2007. On the Worker Incident Report filed with the WCB on February 22, 2007, the worker described the incident as:

I had turned a patient. When I was finished, I was just leaning over her bed to straighten out the blankets, causing me to injure my lower back. I felt immediate pain to my lower back. It was like a tight spasm radiating down into both of my hips.

The worker was seen by her family physician on February 22, 2007. The family physician noted the worker's subjective complaints of difficulty with extension and flexion and pain in her lower back with movement. The physician diagnosed the worker with acute low back pain and noted that the worker had been off work in 2005 for acute pain.

The worker's family physician provided the WCB with a letter on June 14, 2007 noting that she was seen at their office on June 4, 2007 with "…another episode of severe pain in the lower back and SI [sacroiliac] joints. This was maximum on the right side and radiated into the right buttock and down the right side into the ankle, but not affecting the foot." The physician noted that a CT scan of the worker's back done in 2005 from a previous WCB claim was reviewed and a new CT scan had been requested.

The CT scan, which was performed on June 26, 2007, noted:

Changes at L4-5 and L5-S1 indicating compressing of the exiting right L5 and S1 nerve roots respectively. Based on the report of the CT lumbar spine from [location] dated December 6, 2005, there would appear to have been progression particularly the osteophyte formation and compression of the exiting nerve roots as described.

The results of the CT scan were reviewed with the worker at a follow-up appointment with her family physician on July 10, 2007. The family physician noted that the worker was continuing to work but also recommended that the worker be referred for physiotherapy. At a further follow-up appointment with her family physician on July 24, 2007, the worker was referred for an MRI study. The physician noted that the worker would be referred to a specialist after the MRI.

On August 2, 2007, the worker attended for an initial assessment with a physiotherapist. The physiotherapist diagnosed the worker with "pain resulting from disc protrusion and mechanical stress on low back - L4-L5, L5-S1" and noted that the worker was scheduled to return to work on August 9, 2007 but recommended that she not return until the MRI results were reviewed.

The MRI of the worker's lumbar spine, performed August 5, 2007, revealed:

IMPRESSION:

There is potential for a right sided nerve root compression at several levels. The overall appearance is quite similar to the prior CT scan of 2005.

On September 10, 2007, the worker was seen by a second family physician who noted ongoing pain symptoms in the worker's back and referred the worker to an orthopedic surgeon for possible surgical treatment. The worker was seen by the orthopedic surgeon on September 25, 2007. The orthopedic surgeon, after examining the worker, opined:

Seems to be more mechanical lumbar back pain than nerve root entrapment pain. Initially I believe that disc herniation was causing neurogenic pain, now she predominately has mechanical lower lumbar back pain secondary to disc herniation and resolving entrapment…I don't see any indication for surgical decompression at times (sic). Needs to continue with therapy to work on core abdominal and back musculature strength. Should explore gradual return to work schedule.

At the request of the WCB, the worker attended for a call-in examination with a WCB sports medicine advisor on December 17, 2007. The sports medicine advisor opined:

The likely diagnosis appears to be a lumbar radiculopathy on the right side which may be at L5 vs S1 level. This is in light of a mildly positive right straight leg raise, 4/5 heel raise with exhaustion, the MRI on file, the report from the orthopaedic surgeon, and the mechanism of injury.

The worker appears to be recovering from her radiculopathy as the complaints appear to be more subjective and the objective evidence medically appears to be resolving as compared to early reports by the treating practitioners. 

… 

The treating physician had recommended a return to work on January 3, 2008. There appears to be no medical contraindication to begin a gradual return to work. This would likely consist of restrictions including no heavy lifting from floor to waist (greater than 25 lbs); no repetitive, resisted flexion/extension/rotation of the lumbar spine (this does not preclude the occasional flexion, extension, rotation, and postural changes). It would be recommended in order to incorporate the gradual return to work as a rehabilitation tool, to begin at two hours a day for two weeks, increasing by two hours a day every two weeks up to full hours. The restrictions should be evaluated after approximately two months.

By letter dated January 2, 2008, the WCB confirmed the worker's temporary restrictions with the worker and the employer, together with a gradual return to work schedule of:

Weeks of January 6/08 to January 19/08 2 hours/day 

Weeks of January 20/08 to February 2/08 4 hours/day 

Weeks of February 3/08 to February 16/08 6 hours/day 

Weeks of February 17/08 to March 1/08 8 hours/day 

Weeks of March 2/08 to March 15/08 10 hours/day 

Effective the week of March 16/08 Regular Hours

The worker returned to work on the gradual schedule on January 7, 2008 but experienced occasional flare-ups in her back, requiring treatment and time loss from work.

On July 16, 2008, the worker attended at the WCB for a Functional Capacity Evaluation (FCE). On July 21, 2008, Compensation Services advised the employer and the worker that, based on the current medical information and the FCE results, the worker was fit for work with the following permanent restrictions:

• no heavy lifting from floor to waist (greater than 25 lbs) 

• no repetitive, resisted flexion/extension/rotation of the lumbar spine (this does not preclude the occasional flexion, extension, rotation, and postural changes).

On August 20, 2008, the employer advised the WCB that they were able to accommodate the worker with a permanent position within her restrictions.

On October 20, 2008, the worker attended for an examination with a WCB physiotherapy consultant to determine if she was eligible for a permanent partial impairment ("PPI") award as a result of her February 19, 2007 workplace accident. The consultant recommended that the worker was entitled to a PPI award considering range of motion deficits in her back (lumbar thoracic region), which would be reduced by 50% due to a major pre-existing condition. On October 24, 2008, the worker was advised that she was entitled to a PPI rating of 1.00% which resulted in an award in the amount of $1,060.00.

The worker had a subsequent back injury claim in 2009 and 2010 with no time loss. In mid-2011 she had a further injury involving her back which was accepted as a "recurrence" of the claim. Benefits were reinstated. The worker was paid wage loss benefits for approximately one month and returned to work with the same restrictions. There was no further contact between the worker and the WCB between late 2011 and 2016.

On April 25, 2016, the worker contacted the WCB to request a review of her claim. She advised that she had been working in another province and sustained a workplace injury in November 2015, however she felt that the symptoms she was suffering were an aggravation of her February 19, 2007 workplace accident. The worker also submitted a copy of an MRI study performed April 3, 2016, which noted:

IMPRESSION: Right paracentral disc bulge at L5-S1 is present which causes some impingement of the descending right S1 nerve root and touches the exited right L5 nerve root bilaterally. The remainder of the spine shows no significant impingement.

On May 25, 2016, after reviewing the information submitted and the worker's file, Compensation Services advised the worker there was no indication the worker's current disability was directly related to her 2007 claim and she was not entitled to further benefits. On July 5, 2016, the worker requested that Review Office reconsider Compensation Services' decision. The worker advised that she continued to have ongoing symptoms from her workplace accident in 2007 that have not resolved, and should be entitled to further benefits. On July 11, 2016, Review Office returned the worker's claim file to Compensation Services for further investigation.

The WCB gathered further information including a copy of the worker's claim file from another province where she was injured at work, and information from the worker and from the original accident employer which confirmed that the worker voluntarily left her employment with the accident employer in late 2012 or early 2013. On February 7, 2017, Compensation Services advised the worker that after their review of her file, they were unable to accept further responsibility for further wage loss benefits on her claim. Compensation Services noted that the worker's original accident employer had provided her with a permanent position within her permanent medical restrictions, which she chose to leave in 2012-2013 to seek employment elsewhere, and she was therefore not entitled to further wage loss benefits.

On March 22, 2017, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that she was entitled to further benefits as she had not recovered from her 2007 injury and was no longer able to work. The worker advised that she was not looking for wage loss benefits but for long term disability as a result of her injury in Manitoba. Review Office conducted a preliminary review of the file, including consultation with a WCB orthopedic consultant, a copy of whose May 4, 2017 opinion was placed on file. On May 4, 2017, Review Office advised the worker that they had expanded the worker's appeal to include whether there was entitlement to further wage loss benefits; whether there was entitlement to medical aid benefits; and whether there was entitlement to a permanent partial impairment award. On May 16, 2017, the worker provided a further submission in support of her request for reconsideration.

On May 30, 2017, Review Office determined that the worker was not entitled to further benefits or a permanent partial impairment award. Review Office accepted and placed weight on the WCB orthopedic consultant's opinion that "At the conclusion of treatment in 2011, there was no neurological deficit" and found that recovery from the February 19, 2007 workplace accident had occurred. Review Office further accepted the WCB orthopedic consultant's opinion that the worker's continued complaints of "low back pain was related to the lumbar DDD [degenerative disc disease]."

Review Office further found that based on the evidence on file, the permanent restrictions recommended in 2008 were medically required, on a balance of probabilities, due to the natural progression of the DDD in her lumbar spine, and that this was supported by the WCB orthopedic consultant's opinion that: "In retrospect the preventative restrictions were not related to the diagnosis of the workplace injuries, but rather to the pre-existing DDD." Review Office found that the WCB erred in providing the worker with a PPI rating and monetary award, since the medical evidence supported the worker had recovered from her February 19, 2007 workplace injury and there was no entitlement to a permanent partial impairment award.

On October 19, 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.

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.

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 44.10.20.10, Pre-Existing Conditions 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.

Worker's Position

The worker was self-represented, and participated in the hearing by teleconference. The worker made an oral presentation and responded to questions from the panel.

The worker's position was her ongoing symptoms and difficulties are the result of her 2007 workplace injury, and she is entitled to further benefits.

The worker stated that her back injury, which started in 2005 and 2007 and continued after that, was always the same injury, which became worse and worse over time. She continued working at the same job for several years because they had said they would accommodate her, but in reality they could not accommodate her given the nature of her job and location, and she had to do work which was outside her restrictions.

The worker said she stayed and continued working for her accident employer because she loved her job, and no one else was going to hire her with her restrictions. However, in 2011, work was becoming more stressful, and for this and other reasons, she left her employment and went to work in another province. She said her back was still the same, where she would have aches and pain, but she was able to work and take care of it on her days off. She said she continued to do this over the years; her back would settle, then she would go back to work and it would flare up again, but she could tolerate it.

The worker said that she hurt her back at work in 2015 while she was working in the other province, and her claim was accepted for workers compensation in that province. She said that following a course of treatment, her claim was closed, as they decided she was back to her pre-injury condition and she could work, which she disputed.

The worker stated that she had no problems up until she hurt her back at work in 2005 and 2007. She said that all of her back problems stemmed from these original workplace injuries in 2005 and 2007, and that the pain has always been exactly as it was when she was hurt at that time. The injury and pain never healed or went away. She tolerated it and was able to work for several years, but it became worse over the years and she is no longer able to work.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker is entitled to further benefits in relation to the February 19, 2007 accident.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid benefits as a result of her February 19, 2017 workplace accident. The panel is unable to make that finding, for the reasons that follow.

Information on file shows that the worker had back problems even prior to her 2005 workplace injury. While the worker stated at the hearing that she did not experience pain in her low back before 2005, the panel places weight on the December 5, 2006 letter from the treating orthopedic surgeon, who wrote that before the October 19, 2005 workplace incident, the worker "was aware of mild mechanical low back pain for some time."

The panel also places weight on the May 4, 2017 opinion of the WCB orthopedic consultant, who stated:

There is a condition which pre-existed the workplace injury of 19-Oct-2005 - Multi-level lumbar degenerative disc disease (DDD). This is supported by:

a) CT…5-Dec-2005 demonstrating L3-4 disc bulge, facet OA, L4-5 disc space narrowing, central disc protrusion + mild central stenosis, L5-S1 disc bulging, mild facet OA. 

b) Such changes would have taken many months or years to develop.

Based on our review of the information on file and as presented at the hearing, the panel finds that the February 19, 2007 workplace injury was a relatively minor lifting injury, which had resolved by the time her treatment ended.

The panel is satisfied, on a balance of probabilities, that the worker's current medical issues were not causally related to her 2007 compensable injury, but were related to her pre-existing DDD. The panel notes that the worker acknowledged at the hearing that no one had told her that her degenerative problems were caused by the workplace incidents.

While the WCB identified permanent restrictions in July 2008, the panel is satisfied that those restrictions were preventative in nature and based on her DDD, as opposed to being required on a permanent basis due to her workplace injury.

In this regard, the panel places weight on the May 4, 2017 opinion of the WCB orthopedic consultant, who stated as follows:

There is no objective evidence that the degree of structural pathology in the lumbar spine changed as a result of the workplace injury of 19-Feb-2007.

Following an assessment by a physician in [location], [name of physician], on 13-March-2006 a diagnosis was offered of non-specific low back pain with no nerve root dysfunction. An FCE was completed. On July 18, 2008 a WCB Medical Advisor recommended permanent restrictions of no repetitive bending and twisting and no lifting from floor to waist more than 25 lbs. 

a) Similar preventative restrictions would be recommended by most physicians because of the history of acute LBP attacks with relatively minor bending events, and the degree of progressive DDD. 

b) The preventative restrictions advised in 2008 were medically indicated because of the natural progression of the DDD pathology of the lumbar spine. The natural history of this pre-existing condition would be of episodes of low back pain with or without radiating nerve pain, the episodes increasing in severity and frequency over the years. There may be long periods when no attacks of pain occur. 

c) In retrospect, the preventative restrictions were not related to the diagnoses of the workplace injuries, but rather to the pre-existing DDD.

As a result, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid as a result of her February 19, 2007 workplace incident.

The panel notes that information on file, as confirmed by the worker at the hearing, further indicated that the worker continued working for the accident employer in an accommodated position until 2013, when she chose to leave her employment for personal reasons and to relocate to another province.

With respect to the worker's most recent injury in 2015, information on file shows that the worker was seen by an orthopedic surgeon in that other province in January and May, 2016. The panel places weight on the May 16, 2016 opinion of the orthopedic surgeon, who stated:

There are no red flags to suggest any concern. She has typical degenerative changes that are appropriate for her age and body status….

[The worker's] symptoms are not consistent with a radiculopathy or claudication. She has back dominant pain due to multifactorial reasons…

At this point there is really nothing for me to offer [the worker]. I emphasized the difference between hurt and harm and that her spine is structurally sound. She needs to continue with self management skills to keep her pain under control. She can certainly do any type of activities that she feels comfortable doing. There are no restrictions from my standpoint, it is really based on how much pain she has…

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity and/or require further medical aid benefits as a result of her February 19, 2017 workplace accident.

The panel recognizes that the worker has significant issues with her back, but is unable to connect those issues to her February 19, 2007 workplace accident.

The panel therefore finds that the worker is not entitled to further benefits in relation to the February 19, 2007 accident.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the worker is entitled to a permanent partial impairment award.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a permanent impairment as a result of the February 19, 2007 workplace accident. The panel is unable to make that finding.

Given the panel's finding, as stated above, that the worker's compensable injury had resolved and her ongoing symptoms were not causally related to her February 19, 2007 workplace injury but were due to a degenerative back, the panel finds that the worker did not suffer a permanent impairment as a result of the February 19, 2007 workplace accident and is not entitled a permanent partial impairment award.

The worker's appeal on this issue is dismissed.

Panel Members

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 17th day of June, 2019