The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the November 14, 2016 accident. A hearing was held on June 20, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the November 14, 2016 accident.

Decision

The worker is not entitled to further benefits in relation to the November 14, 2016 accident.

Background

The worker was injured in two incidents at work on November 14, 2016. As reported to the WCB on November 17, 2016, the worker described a co-worker catching her when she did "the splits" after slipping on a wet floor. The worker noted that she continued working. Later on in her shift that day, she had to restrain a resident and she reported feeling "sciatic symptoms" while bending down. She reported that her buttocks, left leg, left knee and lower back were injured.

At her initial appointment with her family physician on November 15, 2016, the worker reported left buttock pain radiating to her left knee and ankle and was diagnosed with a muscle strain. The physician noted full range of motion in both the worker's spine and her extremities with tenderness with palpation of her sacroiliac joint and a negative straight leg raise test. The worker was referred for massage and physiotherapy.

On November 16, 2016, the worker attended an initial physiotherapy assessment and was diagnosed with bilateral gluteal and left knee strain. On November 21, 2016, the worker's treating physiotherapist advised the WCB that the worker could return to work with restrictions of light duties with no restraining of residents. The WCB advised the employer of these restrictions on November 21, 2016, and the employer advised WCB the next day that they could not accommodate the worker with those restrictions.

In a discussion with her WCB case manager on December 28, 2016, the worker advised that her back and buttock area are "…getting much better" and that the "…sciatic pain has almost gone" but noted that her knee was still painful.

At a follow-up appointment with her physiotherapist on December 29, 2016, the worker reported new pain in her left hip and continuing left knee pain. On the same day, the worker's treating family physician referred her for an MRI study on her left knee. The MRI study was conducted on February 3, 2017 and resulted in a referral to an orthopedic surgeon with respect to the knee injury.

The worker attended for a call-in examination with a WCB medical advisor on April 3, 2017. The medical advisor's opinion was that the worker's initial diagnoses were soft tissue injuries or strains of the low back, left hip girdle and left knee with the natural history for improvement in pain and function to be approximately four to six weeks. The WCB medical advisor concluded that the probable current diagnoses included nonspecific low back pain, nonspecific left hip girdle pain and symptomatic left knee arthritis. He stated that physical impairment of the worker's left hip and lower back was not demonstrated by the clinical findings.

On April 7, 2017, the WCB advised the worker that based on a review of her claim, including the April 3, 2017 opinion of the WCB medical advisor, WCB determined she had recovered from the effects of her November 14, 2016 workplace accident and that the entitlement to WCB wage loss and medical aid treatments would end on April 13, 2017.

The results of an MRI study of the worker's lumbar spine conducted June 1, 2017 were subsequently provided to the WCB indicating "[n]ew moderate sized L5-S1 right paracentral disc protrusion possibly compromising right S1 root; and 2. Postsurgical changes related to L4-5 left hemilaminectomy."

A follow-up Doctor's Progress Report dated June 6, 2017 noted right buttock and lower back pain but no weakness, numbness or radicular pain, and that the worker was referred to an orthopedic spine specialist.

The worker's file, including the June 1, 2017 MRI was reviewed by a WCB medical advisor on July 3, 2017 who stated that the current diagnosis based on reported symptoms and clinical findings is nonspecific, nonradicular back pain. The WCB medical advisor concluded that there were no current clinical findings or medical evidence to suggest the ongoing low back issues were medically related to the workplace injury.

On July 6, 2017, the WCB advised the worker that the April 7, 2017 decision that she was not entitled to further benefits after April 13, 2017 was unchanged.

On September 28, 2017, the worker's representative submitted further medical information from the worker's treating physiotherapist and a sports medicine specialist, and asked the WCB to reconsider their decisions of April 7, 2017 and July 6, 2017.

A WCB sports medicine advisor reviewed the worker's file on October 23, 2017 and expressed the opinion that there was no objective support on file for a new diagnosis and, further, that the "…current presentation involving her back/buttocks and left knee does not medically relate to the workplace injury.…" On November 16, 2017, a WCB orthopedic advisor provided a second opinion, stating his agreement with the October 23, 2017 opinion and noting that he agreed with the opinion of the WCB sports medicine advisor that the current back issues did not medically relate to the compensable workplace injury.

On November 20, 2017, the WCB again advised the worker that the decisions of April 7, 2017 and July 6, 2017 were unchanged.

On February 9, 2018, the worker requested reconsideration of the WCB's April 7, 2017, July 6, 2017 and November 20, 2017 decisions to Review Office, noting that prior to the incident on November 14, 2016, she did not have a medical history of lower back pain and that she continues to suffer with sciatic pain. Review Office determined on April 17, 2018 that the worker was not entitled to benefits after April 13, 2017.

The worker's representative submitted further medical information, including a report from a treating orthopedic surgeon to Review Office on October 5, 2018 and requested Review Office reconsider their April 17, 2018 decision. The medical information was reviewed by a WCB medical advisor on November 23, 2018.

The WCB medical advisor opined that the worker's current difficulties were related to "…the anticipated age-related changes of progressive degenerative lumbar disc disease, and do not arise out of a diagnosis of lumbar spine strain/sprain of the workplace injuries of this claim."

The WCB provided the WCB medical advisor's opinion to the worker's representative, who submitted a response on November 30, 2018. On December 5, 2018, Review Office advised the worker that the further medical information and submissions had been reviewed but there was no change to the April 17, 2018 decision that she was not entitled to further benefits after April 13, 2017.

The worker's representative filed an appeal with the Appeal Commission on December 20, 2018. 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.

Section 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. Under s 4(2), a worker 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.

Section 27(1) of the Act provides that the WCB may provide a worker with such medical aid as is considered necessary to cure and provide relief from an injury resulting from an accident, and s 39(2) sets out that the WCB will pay wage loss benefits 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 (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

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.

Worker's Position

The worker appeared in person and was represented in the hearing by a worker advisor who made submissions on behalf of the worker. The worker gave evidence in response to questions from the worker advisor and members of the panel.

The worker's position, as stated by the worker advisor, is that the worker is entitled to further benefits for the lower back injury caused by the November 14, 2016 workplace accidents and that the WCB is responsible for the worker's ongoing disability. The worker, through her advisor, confirmed that she is not appealing the Review Office decision with respect to the findings relating to her left knee concerns.

The worker advisor submitted that the accepted diagnosis of a low back strain was in fact more complex, in that the symptoms and medical evidence support both ongoing muscular injuries as well as a new disc injury, and that this corresponds to the symptoms reported by the worker as a result of the accident. The worker advisor stated that the medical evidence confirms that the worker has not returned to baseline as she was prior to the date of the workplace accident.

The worker advisor relied upon the findings of the June 1, 2017 MRI which noted at the L5-S1 level "…a new and moderate central and right paracentral disc protrusion…[that]contacts both S1 roots but the right more pronounced."

The worker advisor stated that this position is also supported by the clinical findings of the physiotherapist who assessed the worker on August 28, 2017. Those findings included a positive bilateral slump test, which the worker advisor stated confirms disc and nerve involvement. Further, the physiotherapist's report noted ongoing muscle pain in the right side lower back and both buttocks. The worker's position, stated by the worker advisor, is that these findings support that the worker had not fully recovered from the accepted compensable muscular injury and confirm the L5-S1 disc involvement.

The worker advisor advanced the position set out in the September 18, 2018 opinion of the second orthopedic surgeon consulted by the worker, that the L5-S1 disc injury is "…a direct result of the injury that [the worker] described to me in November of 2016 when she had to wrestle a delinquent youth to the ground twice on the same day."

The worker advisor relied as well upon the February 26, 2019 report from the worker's attending physician which sets out the opinion that the worker is not able to work as a result of her injury and requires further medical work up and potentially, surgery, to provide relief from her symptoms.

Finally, the worker advisor confirmed with the worker that the employer does not have modified duties available, resulting in ongoing loss of earning capacity directly related to the injury sustained from the workplace accident.

The worker advisor concluded that the worker continues to experience a loss of earning capacity, directly related to the ongoing lower back injury and that the worker continues to suffer from the effects of the workplace accidents of November 14, 2016. As a result, further benefits are payable.

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 in relation to the accident of November 14, 2016. The worker received benefits until April 13, 2017 at which time the WCB determined she was no longer entitled to WCB benefits in relation to the accident of November 14, 2016.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to experience a loss of earning capacity after April 13, 2017 arising out of injury resulting from her November 14, 2016 workplace accident, and/or that she required medical aid after April 13, 2017 in order to cure and provide relief from the injury resulting from the November 14, 2016 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The worker, through the worker advisor, confirmed that she is not appealing the Review Office decision with respect to her left knee. The panel therefore has not addressed that issue in determining the question under consideration.

The panel acknowledges that the worker's evidence that she continues to experience significant pain and related symptoms in her lower back and into her legs and that this evidence is supported by the medical reports on file and relied upon by the worker advisor in her submission. At issue is whether or not these concerns arise out of injury resulting from her November 14, 2016 workplace accidents.

In considering this question, the panel carefully reviewed the various medical and diagnostic findings on file, beginning with the Doctor First Report of November 15, 2016. Reviewing the totality of the medical reports and clinical findings noted in those reports, the panel notes that there is considerable variation in the clinical findings and a lack of clinical correlation for the worker's position that the current lower back symptoms are related to the compensable injury.

In the initial post-injury examination on November 15, 2016 the worker's physician noted findings of left buttock pain radiating to the left knee and ankle, consistent with the worker's description of her symptoms provided to the panel. Clinical findings included full range of motion of the worker's spine, no tenderness on palpation of spine, tenderness on palpation of SI joint and negative straight leg raise test.

The next day, the worker attended for physiotherapy. Clinical findings on that day indicated a positive left straight leg raise, positive left Slump test, and limited lumbar spine range of motion in terms of flexion, extension and bilateral rotation. At that time, the worker reported "[b]ilateral gluteal pain, inconsistent pain radiating to [the] lateral left knee and tingling to dorsum of [the] left foot."

On November 21, 2016, the worker saw her physician again. The Doctor Progress Report noted the worker reported "Sciatica-like pain gone over the weekend but recurred on and off since yesterday." The worker's physician reported clinical findings including full range of motion of the spine and negative straight leg raise tests.

On December 5, 2016, the Physiotherapy Progress Assessment indicated improvements in lumbar spine range of motion, with improved flexion, as well as negative straight leg raise and Slump tests.

On December 28, 2016, as set out in file notes of conversation with the WCB case manager regarding her ongoing recovery from the workplace injury, the worker noted that her "back/buttock getting much better - sciatic pain has almost gone".

Subsequent reports suggest continuing progress toward recovery from the compensable injury. The Doctor Progress Report of December 29, 2016 noted normal range of motion and pain with flexion. The physician indicates that recovery is appropriate in respect of the worker's left leg and lower back. Findings noted from the worker's January 18, 2017 assessment by her physiotherapist included full lumbar spine range of motion. At that time, the worker noted only intermittent low back pain. A Physiotherapy Progress report based on an examination on February 8, 2017 again noted a complaint of intermittent low back pain and also noted that left knee pain is likely contributing to the hip and back pain. Similar findings are also noted in the Physiotherapy Progress report based on an examination of February 14, 2017.

When the worker was seen by the WCB Sport Medicine consultant on April 3, 2017, clinical findings supported a diagnosis of soft tissue injuries of the low back, left hip girdle and left knee. The findings included negative bilateral seated and supine straight leg raising, bilateral patellar reflexes, full spinal mobility and absence of a neurological deficit. The WCB consultant concluded that the current clinical findings did not demonstrate "…a physical impairment of [the worker]'s left hip and lower back…."

On the basis of this assessment, the WCB determined that the worker had recovered from the effects of her November 14, 2016 workplace accidents and that the entitlement to WCB wage loss and medical aid treatments would end on April 13, 2017.

The worker advisor submitted that the clinical findings support the position that the worker had not in fact recovered from the effects of the workplace accidents by April 13, 2017 and that the findings suggest a more complex diagnosis related to the L5-S1 disc herniation later identified.

In support of this, the worker advisor relied upon the results of the MRI study of June 1, 2017 that identified a "moderate sized L5-S1 right paracentral disc protrusion possibly compromising right S1 root." The panel noted that while this finding is described in the report as new, it references disc herniation at the same point as first identified in the 2014 MRI report. In response to questioning by the panel on this point, the worker advisor submitted that the 2017 MRI indicated an enhancement or exacerbation of the pre-existing condition resulting from the accidents of November 14, 2016.

While the results of the June 2017 MRI study show a central L5-S1 disc herniation, the panel is unable to link this finding to the injury arising out of the accidents of November 14, 2016. On this point, the panel gives weight to the opinion of the WCB medical advisor who, on November 20, 2018, stated, with respect to the apparent progression of the L5-S1 disc herniation from the time of the 2014 MRI study to the 2017 MRI study, that the changes reflect "…anticipated age-related changes of progressive degenerative lumbar disc disease, and do not arise out of a diagnosis of lumbar spine strain/sprain of the workplace injuries of this claim."

Further, the reported clinical findings also do not consistently point to such a diagnosis as arising out of the accidents of November 14, 2016. There is, for example, variability in the findings with respect to straight leg raise tests as outlined below:

• The worker's physician on November 21, 2016 and the treating physiotherapist on December 5, 2016 reported negative straight leg raise tests.

• The Physiotherapy Progress report of the December 29, 2016 indicated negative left active straight leg raise and positive right passive straight leg raise.

• An August 24, 2017 physiotherapy examination showed negative bilateral straight leg raise and positive bilateral Slump test results.

• On January 10, 2018, the orthopedic spine specialist reported negative straight leg raise.

• On September 18, 2018, a second orthopedic consultant found positive straight leg raise at about 40 degrees on the left and 60 degrees on the right.

The WCB medical advisor, in the November 20, 2018 report states that positive straight leg raising and Lasegue testing is essential to establish lower limb radiculopathy. The panel accepts that this is correct and notes the lack of consistent clinical correlation to support the worker's position.

In addition to the results of the straight leg raise test, the June 6, 2017 Doctor Progress Report from the worker's physician noted the worker reported no radicular pain, weakness or numbness, and that objective findings included positive bilateral patellar reflexes.

This report, together with the June 1, 2017 MRI study, was reviewed by the WCB medical advisor on July 3, 2017, who concluded that, based upon the reported symptoms and clinical findings, the appropriate diagnosis at that time was of "nonspecific nonradicular back pain." Again, the medical advisor noted that clinical findings did not support "…ongoing physical impairment of [the worker]'s low back in relation to the workplace injury…."

On October 23, 2017, the WCB medical advisor again reviewed the worker's medical file. At this time, the differences in the "myriad of reported findings" by the treating physiotherapist was noted. The WCB medical advisor noted that the June 6, 2017 report from the worker's treating physician is consistent with the April 3, 2017 findings of the WCB medical advisor, The WCB medical advisor concluded that the worker's presentation at that time did not medically relate to the workplace injury and requested a second opinion.

The file was then reviewed by a WCB orthopedic consultant on November 15, 2017 with respect to both the lumbar spine and left knee joint. The orthopedic consultant, referencing the June 1, 2017 MRI study noted that this study "…identified anticipated age-related degenerative changes at the L5-S1 level, with no clinical correlation at the time of the extensive musculoskeletal and neurological assessment at the…call-in examination two months earlier." The orthopedic consultant agreed with the opinion of the WCB medical advisor regarding the lumbar spine status and the diagnosis of non-specific low back pain, noting that this diagnosis "…does not relate to either of the compensable injuries."

The worker consulted an orthopedic spine specialist on January 10, 2018, who reported:

Physical examination reveals a lady in mild distress. She is able to walk upon level ground as well as upon her heels and toes and can forward flex to the level of the patella. Her motor examination reveals grade 5 strength in myotomes L2 through S1. There are no upper motor neuron signs as well. There is negative straight leg raise. There is pain and tenderness throughout her lumbar spine.

The orthopedic spine specialist concluded that the worker suffered from "mechanical low back pain."

The worker sought a further opinion from a second orthopedic specialist. In a report dated September 18, 2018, this orthopedic specialist outlines the clinical findings from that date and the worker's description of the events of November 14, 2016, and then concluded that the L5-S1 central disc herniation is "most likely the result of the injury as dcreibed [sic] to me."

All of these reports were considered by the WCB medical advisor on November 20, 2018. The medical advisor opined that the evidence of a change between the 2014 and 2017 MRI studies is indicative of "…anticipated age-related changes of progressive degenerative lumbar disc disease, and do not arise out of a diagnosis of lumbar spine strain/sprain of the workplace injuries of this claim."

Further, the WCB medical advisor noted a significant difference of opinion between the two orthopedic surgeons consulted in 2018, as well as the inconsistent clinical findings in respect of straight leg raise. He also expressed the view that the conclusion of causation drawn by the second orthopedic surgeon in the September 18, 2018 report is speculative and not supported by the clinical findings.

The worker's physician submitted a further report dated February 26, 2019 in which she noted the fluctuation of the worker's symptoms since her initial injury and that as recently as January 2019, the worker attended for emergency treatment dues to "acute flares." The physician noted that physiotherapy provided relief to the worker from the acute flares of pain.

The early diagnosis of low back sprain/strain would account for the clear evidence of improvement seen in the first several months following the injury arising out of the workplace accidents of November 14, 2016. By the time of the worker's call-in examination on April 3, 2017, the reported clinical findings support the conclusion that there was no evidence of a physical impairment of the worker's low back and left hip and that the worker had recovered from the effects of the November 2016 compensable injury and was not entitled to benefits after April 13, 2017.

Both the WCB medical advisor and the WCB sport medicine consultant agreed in 2017 that the diagnosis at that time was non-specific low back pain and that the lumbar spine issues identified by the 2017 MRI did not relate to the compensable injury.

The January 10, 2018 opinion of the orthopedic spine specialist supports the conclusion that the worker was suffering from mechanical low back pain. While the second orthopedic specialist does proffer an opinion on causation, we note that his description of the mechanism of injury did not align with the worker's detailed description provided to the panel in the hearing. As noted by the WCB medical advisor, the conclusion reached is speculative and not supported by the clinical findings.

Taking into account the evidence of improvement in symptoms leading up to the April 7, 2017 decision of the WCB, as well as the variability in clinical findings and the lack of correlative evidence to support the worker's position that the current subjective complaints are the result of the workplace accidents of November 14, 2016, the panel is persuaded by the November 15, 2017 conclusion of the WCB orthopedic consultant that the diagnosis of non-specific low back pain does not relate to the compensable injuries.

Based on the foregoing, the panel is unable to relate the worker's symptoms after April 13, 2017 to her workplace accidents, and finds, on a balance of probabilities, the her compensable injury had resolved by that date, such that the worker is not entitled to further benefits after April 13, 2017.

The worker's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of July, 2019