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 December 5, 2017. A hearing was held on May 30, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 5, 2017.

Decision

That the worker is entitled to benefits after December 5, 2017.

Background

The worker reported on January 10, 2017 that he injured his back, legs and arms in an incident at work on January 5, 2017, which he described as follows:

Was moving dead unit from back of truck, walked between unit & truck, slipped on ice in the back of truck & got wedged between unit & truck wall, falling on to fork.

In a second Worker Incident Report filed later that same day, the worker described the incident as:

I was moving a dead electric pallet jack off the back of a truck. There was ice on the truck floor and I fell, wedging myself between the pallet jack and the truck wall.

As I was falling backwards I tried to catch myself with my left arm. My right butt hit the fork of the pallet jack and jarred my hip.

The worker reported that he finished his shift on January 5 and worked the following day, but was unable to finish his next shift on January 9 due to pain. On January 9, 2017, he attended a chiropractor, who noted the worker's complaints of extreme lower back pain radiating into his legs and upper back/shoulder pain. The worker was diagnosed with an L2 disc irritation and a thoracic and lumbar spine strain/sprain.

The worker sought treatment from his family physician on January 10, 2017. The physician noted that the worker's range of motion in his lower back was poor and he was "stiff and slightly tender in the thoracic and cervical muscles." The physician further noted that the worker's range of motion of his left shoulder was reduced, and diagnosed the worker with back and left shoulder pain.

Due to increasing symptoms, the worker attended at a walk-in clinic on January 13, 2017. He reported pain in his right hip, with no swelling or bruising being noted, and pain to his right leg with some numbness. The worker also reported pain to his left shoulder and knee, but noted that the pain to his right hip was worse. The worker was diagnosed with a right hip soft tissue injury and left shoulder rotator cuff contusion.

The WCB accepted the worker's claim and payment of various benefits commenced.

On February 27, 2017, the worker attended for an initial physiotherapy treatment. He reported pain to the front of his right hip with some tightness and grabbing pain to his right gluteal area, and numbness to his right leg and foot "that comes and goes." The physiotherapist diagnosed the worker with a sacroiliac sprain on his right side with low back trauma and a right hip flexor strain.

An MRI of the worker's right hip performed May 22, 2017 provided an impression of:

Possible tear of the anterosuperior labrum of the right hip. If surgical management is being considered, this could be confirmed with MR arthrography.

At a follow-up appointment on May 29, 2017, the worker's family physician reviewed the MRI with the worker and made a referral to an orthopedic specialist. A referral for an MR arthrography was made on June 13, 2017.

On July 17, 2017, the worker attended a call-in examination with a WCB sports medicine consultant, who opined in response to questions from the worker's WCB case manager, that:

The initial diagnosis of January 5, 2017, was likely right non-specific low back pain with no ominous or neurogenic features. There was also likely a sacroiliac joint irritation initially that caused these symptoms. At the initial examinations, there was no evidence of right side hip pain from the family physician, from the treating chiropractor, or from the treating physiotherapist.

The current diagnosis is a non-specific low back pain with no ominous or neurogenic features. There is likely a sacroiliac joint irritation at this point…

…The mechanism of injury was direct trauma to the right sided buttock area. There was no noted hip abduction or significant force translated to the joint area as described by [the worker] and by the employer.

At this time, given the temporal relationship, today's examination, and given the consistent objective findings, the noted non-specific low back pain and sacroiliac joint irritation would be related to the workplace injury. At this point, the opined possible labral tear is not able to be objectively confirmed nor related to the compensable injury…

At this point, there would be no medical contraindication to begin an aggressive lifting program focusing on squats, employing weights, and continue with proprioception training. Today's clinical examination did not offer any medical contraindication to beginning this program…

Restrictions at this time would be:

• No heavy lifting greater than 50 pounds from floor to waist 

• Positional changes every 30 minutes.

On August 17, 2017, the worker began working some modified duties.

On October 26, 2017, the worker underwent an MRI arthrogram of his right hip. The stated impression from the MRI arthrogram was "Small nondisplaced tear at the anterosuperior labrum."

At a follow-up appointment on October 31, 2017, the worker's family physician reviewed the MRI arthrogram with the worker. The physician reported that since the recent MRI, the worker "…has been experiencing more pain in the right hip…" and stated he suspected that the "injection and sustained position during the MRI caused a flare-up."

On November 20, 2017, the worker's file was again reviewed by the WCB sports medicine consultant. In response to questions from the worker's case manager, the sports medicine consultant opined that the worker's diagnosis continued to be a "nonspecific low back pain with no ominous/neurogenic features and a right sacroiliac irritation" and noted that the worker reported "an increase in right hip pain as a result of the MR arthrogram." The consultant further opined:

The medical findings reported by the family physician is subjective reports of pain, the family physician did not find any limitations in range of motion or loss of strength. There was no reported instability.

The recent right hip pain would be related to the MR arthrogram and not the compensable injury. As noted previously, there is no clinical evidence the nondisplaced small labral tear is clinically relevant to the original injury. Incidental labral tears are common in the asymptomatic population and would require clinical correlation.

The natural history of the right hip irritation secondary to a MR arthrogram is recovery in 1 day to 1 week.

As noted in the previous call-in examination, the writer did not relate the possible labral tear to the January 5, 2017 injury. The writer did not relate the necessity of the MR arthrogram to [the worker's] presentation. The writer is unable to relate the consequences of the MR arthrogram to the…compensable injury.

On November 28, 2017, Compensation Services advised the worker that they had determined he had recovered from his workplace injury of January 5, 2017 and his current difficulties were not related to his injury. Compensation Services advised the worker that his benefits would therefore end on December 5, 2017.

The WCB subsequently received a discharge report from the worker's treating physiotherapist dated December 4, 2017 and a report from the family physician dated December 7, 2017. Compensation Services reviewed these additional reports and advised the worker on December 12, 2017, that there was no change to their decision.

On May 17, 2018, the worker's representative submitted an April 16, 2018 report from the worker's treating orthopedic surgeon and requested that Compensation Services reconsider their decision to end entitlement to further benefits. The worker's representative noted that the orthopedic surgeon had opined, in part: "I feel [the worker] has a significant labral tear related to a combined type FAI [femoral acetabular impingement] and only became clinically relevant at the time of his injury, slip-and-fall, at work…" The representative submitted that the orthopedic surgeon's report also provided objective examination findings which supported that the worker was continuing to suffer the effects of his workplace injury beyond December 5, 2017. On May 25, 2018, Compensation Services advised the worker that the new medical information had been reviewed, but did not provide further support that his current difficulties were related to his compensable injury and the decision to end benefits remained unchanged.

On June 21, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decision. The representative submitted the evidence supported there was an ongoing anterior right hip injury beyond December 4, 2017 as a consequence of the workplace accident.

On July 5, 2018, a WCB orthopedic consultant provided an opinion in response to a request from Review Office. The WCB orthopedic consultant noted that the worker first mentioned right hip pain on January 13, 2017 and did not report longstanding low back or hip symptoms prior to the workplace accident. The consultant stated that a mechanism of injury which is known to cause an acute hip labral tear is "a forceful hip motion beyond the customary limits of range of motion. Contusion of the buttock would be an unusual cause of a superior labral tear. Immediate pain and restriction of hip motion would be expected. Such clinical findings were not reported in the first examination after this injury."

The WCB orthopedic consultant opined that it was more likely the diagnosed labral tear was pre-existing. The consultant also opined that the clinical and radiology findings supported that the right FAI was there when the worker was examined by his treating orthopedic surgeon. He further opined that the possible aggravation of the FAI by the workplace accident could not be supported by objective medical evidence alone and the medical history of early post-injury complaints should be considered in addressing whether the January 5, 2017 compensable injury aggravated a pre-existing condition. The opinion was forwarded to the worker's representative, who provided a written response on July 6, 2018.

On July 18, 2018, Review Office determined that there was no entitlement to benefits beyond December 5, 2017. Review Office accepted the opinions from the WCB sports medicine and orthopedic consultants. Review Office found that the initial reports from the worker's treating healthcare providers closest to the date of the workplace accident did not demonstrate right hip complaints, and stated they were unable to relate the worker's hip complaints/hip labral tear to the January 5, 2017 workplace accident. Review Office noted that Compensation Services initially accepted the worker's injuries as strains to the back and left shoulder, then later determined he suffered non-specific low back pain and sacroiliac joint irritation. Review Office determined that the worker would have recovered from those injuries within a short duration, and as such, the worker was not entitled to further benefits beyond December 5, 2017.

On November 15, 2018, the worker's representative asked that Review Office reconsider their July 18, 2018 decision and submitted medical reports from the worker's treating orthopedic surgeon dated June 4 and August 29, 2018. The representative noted that the August 29, 2018 report indicated that pain injections the worker had received in his right hip provided the worker with pain relief for five to six days, and the orthopedic surgeon had commented that this indicated they had "the right spot." The orthopedic surgeon had further opined that the worker had a "symptomatic mild combined type FAI of the right hip of the labral tear."

Review Office requested that the WCB orthopedic consultant review the additional medical information provided, and on November 22, 2018 the orthopedic consultant responded that there was no change to his previous opinion. The WCB orthopedic consultant's November 22, 2018 opinion was provided to the worker and his representative, and on November 28, 2018, the worker's representative provided a written response.

On December 3, 2018, Review Office again determined there was no entitlement to benefits beyond December 5, 2017. Review Office acknowledged that the worker had hip difficulties, but stated they were unable to relate the worker's hip complaints/hip labral tear/FAI to the January 5, 2017 workplace accident. Review Office found that the hip labral tear was a pre-existing condition which was not caused or structurally altered by the workplace accident.

On December 17, 2018, the worker's representative 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.

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 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation, and states, in part, 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.

The Policy provides 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 WCB 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 was represented by a worker advisor, who provided written submissions in advance of the hearing, and made an oral presentation, a copy of which was also provided to the panel. The worker responded to questions from his representative and from the panel.

The worker's position was that his right hip complaints and injury arose as a consequence of the January 5, 2017 workplace accident and continued to be symptomatic beyond December 5, 2017, and the WCB is therefore responsible for benefits after that date.

The worker's representative reviewed the early history of the claim in detail, and submitted that the WCB accepted the worker's right hip difficulties from the beginning of the claim to December 5, 2017 based on subjective and examination findings that supported his right hip injury. The representative submitted that the medical evidence beyond December 5, 2017 confirmed ongoing right hip difficulties, including audible clicking and snapping in the anterior aspect of the right hip, which were caused by the workplace accident.

The worker's representative noted that the WCB orthopedic consultant stated in his July 5, 2018 opinion that the medical history of early post-injury complaints of low back pain and buttock pain rather than typical hip pain should be considered in addressing the issue of the WCB's further responsibility. The representative submitted that all the medical evidence and the worker's reporting should be taken into consideration, including his right hip difficulties at the time of the accident. It was noted that the worker had no issues with his hip prior to January 5, 2017, and other than the significant workplace fall that day, there was no intervening incident or accident to cause the worker's right hip difficulties and injury.

The worker's representative submitted that website information confirmed that the symptoms of a hip labral tear include pain in the buttock area, and a clicking or locking sound in the hip area. It was submitted that these were symptoms the worker had at the beginning of the claim, for which the WCB accepted full responsibility.

In the alternative, the worker's representative submitted that if the panel were to find that the labral tear or structures within the right hip were pre-existing conditions, the reported jarring of the worker's compensable right hip at the time of the accident caused the onset of right hip pain and difficulties, for which the WCB would have continued responsibility under the Policy. It was submitted that the worker's right hip soft tissue injury is responsible for the worker's continued difficulties and resulted in the need for surgery, which was therefore an enhancement.

The worker's representative submitted that the discharge report from the treating physiotherapist, dated the day before the worker's benefits ended, supports that the worker had not recovered from the workplace accident. The worker's representative noted that the report provided an assessment that the pain had been consistent since the accident; the mechanism of injury with a fall could create an anterior translation of the right hip, causing the tear to the anterior labrum; and the worker's subjective and objective findings were consistent with articular hip pain.

It was submitted that the medical evidence after December 5, 2017 continued to support a right hip injury by examination findings. The August 29, 2018 report from the treating orthopedic surgeon noted that an injection to the worker's right hip on June 4, 2018 took away almost all the pain for five or six days and confirmed that the right hip was the pain generator.

In conclusion, it was submitted that the workplace accident was the catalyst for the worker's right hip pain and ongoing difficulties and the medical evidence supports that the worker had not recovered from the effects of his January 5, 2017 workplace accident as at December 5, 2017. Accordingly, the worker is entitled to benefits beyond December 5, 2017 for his right hip difficulties which were caused by his workplace accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after December 5, 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 December 5, 2017 as a result of his January 5, 2017 workplace injury. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us, the panel is satisfied, on a balance of probabilities, that the worker suffered a right hip labral tear as a result of the January 5, 2017 workplace accident from which he had not recovered as at December 5, 2017, and is entitled to benefits beyond that date.

The panel carefully reviewed the mechanism of injury with the worker at the hearing. Information on file and at the hearing indicates that the worker was in a narrow gap between the side of the pallet jack and the truck wall when he slipped on ice and fell backwards. The worker jarred his right hip and back when he fell, landing with his right hip mostly on the fork of the pallet jack. The fork was raised to its maximum height of six to eight inches, where it was stuck. The worker stated that he "landed on the fork, and then kind of flopped between the machine and the wall, and proceeded to collect my marbles and get up." He said there was no bruising, that he does not bruise easily, but the whole area around his right hip and buttock where he hit the fork hurt. After he got up, he tried to continue with his day, "noting that there was pain happening," that "I could feel it, it was sore and hurting…the right hip, lower back area was hurting."

The panel accepts the worker's description of the mechanism of injury. The panel notes that the worker fell on an uneven surface, where his right hip was abruptly stopped by the fork, while his left side travelled further. The panel finds that the jarring force of the fall and the hit on the worker's right hip, with his body weight behind it, would have translated up into his right hip joint and socket. The panel is satisfied that the right hip joint and socket would have taken the force of the blow in this type of fall.

The panel is satisfied that the worker was talking about issues with his right hip, including pain and clicking in the hip joint area, from the beginning of his claim. Based on our review of the evidence, the panel finds that the worker was consistent in his reporting of his right hip symptoms. The panel places weight on the December 4, 2017 discharge report from the treating physiotherapist, who noted, in part: "Pain consistent since date of accident and R hip pain documented on all reports sent to WCB" and "Client subjective and objective findings are consistent with articular hip pain." The treating physiotherapist further noted that recovery was not satisfactory, stating in part: "…Still not completing regular duties, decreased work satisfaction, unable to comlete (sic) ADL's without pain to the R hip, Consistent hip pain since accident date."

The panel accepts that the worker suffered a labral tear to the right hip as a result of his January 5, 2017 workplace accident, in the presence of pre-existing femoral acetabular impingement. The panel is satisfied that this is consistent with what the treating orthopedic surgeon and physiotherapist were describing. The panel places weight on the April 16, 2018 report from the treating orthopedic surgeon who stated, following his assessment and examination of the worker, that he felt "[the worker] has a significant labral tear related to a combined type FAI that only became clinically relevant at the time of his injury, slip-and-fall, at work" and that he was arranging for a diagnostic injection to possibly confirm the intra-articular nature of the symptoms. The worker underwent the injection of his right hip on June 4, 2018, and on August 29, 2018, the treating orthopedic surgeon noted that the injection "took away almost all his pain for about 5 or 6 days," confirming that they "have the right spot."

An operative report provided in advance of the hearing confirms that the worker underwent a surgical procedure on his right hip on November 19, 2018, which included "labral repair." At the hearing, the worker stated that since the surgery, "I feel much better, I'm able to do a lot more activities, and squatting and bending is with greater ease." The worker further confirmed that "I can actually squat down without having snapping or any kind of impeding pain…" and that theoretically he would be able to go back to his full duties. The panel finds that the injection and surgery further confirmed and repaired the compensable injury of a labral tear, returning the worker to his pre-accident condition.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid after December 5, 2017 as a result of his January 5, 2017 workplace injury. The worker is therefore entitled to benefits after that date.

The worker's appeal is allowed.

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 29th day of July, 2019