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 February 15, 2018 in relation to his low back difficulties. A hearing was held on February 25, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 15, 2018 in relation to his low back difficulties.

Decision

That the worker is not entitled to benefits after February 15, 2018 in relation to his low back difficulties.

Background

On October 23, 2017, the worker reported that he injured his right groin at work on September 25, 2017 when he was operating heavy equipment at chest height in an awkward position to break up a concrete wall.

On September 27, 2017, the worker was seen at a clinic by a nurse practitioner and reported increasing pain to his right suprapubic region with pain radiating to right testicle and back. The nurse practitioner examined the worker and noted a "palpable femoral hernia. + tenderness with palpation of site…unable to reduce in clinic…" A right femoral hernia was queried and the worker was sent to a hospital emergency department for further assessment.

On September 28, 2017, the worker attended at the emergency department where it was noted that he had a previous right inguinal hernia repair. The treating emergency physician noted that there was no longer a "bulge", that it had been reduced, and the worker was pain free except when moving or sitting up. The physician reported that the site of the worker's previous inguinal hernia repair was clean, with no bulge present.

On September 28, 2017, the worker was seen again by the nurse practitioner, who noted that the "palpable mass right inguinal region" was improved in size from the day before. The nurse practitioner recommended that the worker be placed on restricted duties until follow-up with his family physician and surgeon on returning home.

In a Doctor First Report dated November 16, 2017, the worker's family physician reported that he saw the worker on October 3, 2017. The physician noted that the worker had reported he had a "sudden onset of pain" while straining using equipment at work and had a hernia reduction. The physician reported findings of "No detectable hernia" when seen on October 3, 2017, and that the surgeon who subsequently examined the worker saw no hernia and wondered about a lumbar disc herniation. The family physician diagnosed a right groin strain and referred the worker for a CT scan of the lumbar spine and ultrasound.

The CT scan performed December 12, 2017 showed "Multilevel degenerative changes…most prominent at L4-L5 where there is moderate canal narrowing and narrowing of the neuroforamina." On January 5, 2018, after reviewing the results of the CT scan, the worker's family physician diagnosed him with lumbar degenerative disc disease. The family physician noted that the CT scan showed multi-level degenerative disc disease with both spinal canal and neuroforaminal stenosis "…though none specific to pain sites." The physician referred the worker for physiotherapy and an MRI.

At his initial assessment with a physiotherapist on January 17, 2018, the worker was diagnosed with an acute lumbar strain/mechanical low back pain with pre-existing lumbar spine degenerative disc disease. The physiotherapist noted that the worker reported constant lower back pain with intermittent right groin and left thigh pain and being unable to sit or stand for long periods of time.

An ultrasound of the worker's right inguinal region performed January 18, 2018 indicated that no evidence of a hernia was identified. On February 5, 2018, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor opined that the worker's initial claim was for right groin pain only and there were no initial reported symptoms or examination findings of a significant back injury or condition. The medical advisor noted that it was only when a suspected inguinal hernia was ruled out that the presence of a back condition was proposed, and there was no evidence on the worker's file that a back injury occurred in relation to the performance of work duties in September 2017.

On February 9, 2018, Compensation Services advised the worker that they had determined that his compensable right groin strain had resolved and were unable to relate his back difficulties to the workplace incident. As such, they were unable to accept any further responsibility beyond February 15, 2018.

On March 14, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that he sought treatment after the workplace accident for what he believed to be a hernia, but his surgeon diagnosed a "pinched nerve" in his back after reviewing imaging results. The worker submitted that he was entitled to WCB benefits for his ongoing low back difficulties.

On April 11, 2018, Review Office determined that the worker was not entitled to benefits beyond February 15, 2018. Review Office noted that the worker's initial complaints were focused on the area of a previous hernia repair and that the medical treatment provided dealt with a lump in his right groin area. Review Office further noted that imaging done on December 12, 2017 found no acute disc herniation but found that there were multilevel degenerative changes.

Review Office accepted and relied on the opinion of the WCB medical advisor who opined that there was no evidence a back injury occurred in relation to work duties in September 2017. Review Office found that although the worker mentioned back pain, this was with respect to pain radiating from his groin to his low back, not the other way around, and that within three days of the injury, the only complaint of discomfort included localized right groin pain. As such, Review Office found that the worker's low back condition was not related to his compensable incident and there was no entitlement to benefits beyond February 15, 2018.

On August 21, 2018, the worker's legal counsel 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 June 17, 2019, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 administering benefits. The stated purpose of the Policy is identified, in part, as follows:

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.

Worker's Position

The worker was represented by legal counsel. The worker and his counsel participated in the hearing by teleconference.

The worker's position was that he suffered a back injury at work on September 25, 2017, from which he has not recovered, and is entitled to benefits after February 15, 2018 in relation to his low back difficulties.

Legal counsel submitted that there was no dispute the worker suffered an injury at work. He presented to his healthcare providers, believing that his injury could be connected to a previous hernia because it was in the same general area. The evidence that flowed, however, showed there was no issue with his hernia, that it was a back strain. Objective evidence, in the form of a CT scan, confirmed that the worker had back problems.

In response to questions from his legal counsel, the worker described the work he was doing and what happened on the day of the incident. He said that the first thing he felt was a pinch in his groin and lower back. The pain started in his groin, just above the belt line, in the same spot as where the incision was from his previous hernia surgery, and went across his lower back. The pain was sharp, like having a nail driven into him. He said the pain started on his right side and across the lower back, then went down his left leg when he started walking.

The worker said that when he saw the nurse practitioner, he told her the pain was in his groin and across his lower back. He said he also told the doctor at the hospital that the pain was in his lower abdomen and across his back, and the doctor basically said there was nothing they could do for him and gave him painkillers. After that, he was not allowed on the jobsite and was sent home.

The worker said that he saw his family doctor when he got home, and told him that the pain was in his groin and across his back. His family doctor did not check him out but just referred him to the surgeon who had done his previous hernia surgery. When he saw the surgeon a few weeks later, the surgeon said this was not a hernia, but he had pinched nerves in his back. He was sent back to his doctor who set up a CT scan, following which he was told he had a back problem. The worker said that he has not been back to work since the workplace incident, as his back would not allow him to work. When asked why he thinks he injured his back in the accident, the worker stated it was because that is where he has the pain all the time.

Legal counsel submitted that the mechanism of injury as described by the worker was consistent with what he reported in his Worker Injury Report. He noted that the information provided in that report predates the worker's discussion with his surgeon, and the worker was assuming at that time that his injury had to be connected to his hernia operation. However, there is no evidence that the previous hernia, which was in another location, was affected at all.

Counsel submitted that the WCB medical advisor did not see the worker and based his opinion on reports only. While the WCB accepted that the worker had a right groin strain, the pain included the worker's lower back. Counsel acknowledged that groin sprains typically resolve over a few days, but argued that this was not a groin strain.

It was submitted that contrary to what the WCB medical advisor stated, there was compelling evidence of a low back injury, based on the worker's testimony, and confirmation in the nurse practitioner's report that he told her of this. The worker's testimony also confirmed that the worker had never had a back issue, and was doing very heavy manual labour just prior to the accident.

Counsel agreed with the WCB medical advisor's identification of the worker's current diagnosis as nonspecific low back pain related to pre-existing lumbar disc degeneration. Counsel submitted that contrary to comments made by the WCB medical advisor, the findings from the CT scan were compelling, as objective evidence. Counsel acknowledged that those findings show a longstanding and slowly progressive degeneration condition, and submitted that the incident at work was the triggering event which caused that condition to become symptomatic.

Employer's Position

The employer was represented by its WCB case manager. The employer's position was that the evidence does not support that the worker's back pain was related to the workplace injury, and the decision denying responsibility for the workplace injury beyond February 15, 2018 should be upheld.

The employer's representative presented a timeline of events from the date of injury to the January 18, 2018 ultrasound. He submitted that the worker never reported any incident or injury to the employer, but only indicated that he had a pre-existing hernia. After multiple assessments, including an ultrasound, and given the lack of physical evidence or indication of any recurrent hernia, the final diagnosis that was provided was a groin strain.

The employer's representative noted that there was a six-week gap between the date of incident and the date on which the worker first mentioned back pain to the adjudicator, being November 9, 2017, during which time the worker was off work. The worker later underwent a CT scan and physical assessment by a physiotherapist with respect to this later mentioned back pain, but there was no evidence, medical or otherwise, to support that it was in any way related to the initial workplace injury.

In conclusion, the employer's representative submitted that the worker received 4½ months' compensation for a groin strain injury, which has an average recovery time of a few days to a few weeks. It was submitted that the worker has been more than fairly compensated for his workplace injury, and no further responsibility should be accepted for the workplace injury beyond February 15, 2018.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 15, 2018 in relation to his low back difficulties. 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 February 15, 2018 as a result of work-related low back difficulties. The panel is not able to make that finding.

Based on our review of all of the information before us, on file and as presented at the hearing and provided subsequently in response to requests from the panel, the panel is unable to relate the worker's low back difficulties to his September 2017 workplace incident or injury.

In arriving at our conclusion, the panel notes that there is a lack of early reports at or around the time of the incident of the worker experiencing low back pain. The panel acknowledges that the nurse practitioner's September 27, 2017 report refers to the worker's subjective complaints of "increasin (sic) pain to right suprapubic region with pain radiating…to back…" but notes that the pain is described as radiating "to back" and there is an absence of clinical findings relating specifically to the back. The panel also acknowledges that the worker stated at the hearing that he had told his healthcare providers of his back pain initially, but finds that this is not supported by the medical reports on file. The panel places weight on the early reports of the worker's injury, being those which are closest in time to the date of injury.

At the panel's request, the worker's family physician provided additional medical information following the hearing, which included a November 8, 2017 letter from the worker's treating surgeon. It was noted in that letter that the worker "has pain in the back of his left leg and has some weakness in his right leg," and the surgeon recommended investigation of "his lumbar spine for possible explanation of his symptoms," adding that his "current symptoms are not of recurrent groin hernia." The panel notes that the worker did not see his surgeon until at least six weeks after the workplace incident, and possible back issues are only raised after evidence of a recurrent hernia was found to be lacking.

The panel has considered the January 17, 2018 report from the attending physiotherapist, who diagnosed the worker with acute lumbar strain/mechanical low back pain with pre-existing lumbar spine degenerative disc disease. The panel notes that a significant number of symptoms and difficulties are described in that report, which were not referred to in previous months and which the panel would have expected to see earlier if they were related to the workplace injury. The panel therefore finds that these new symptoms are not related to the workplace injury.

The panel accepts the February 5, 2018 analysis and opinion of the WCB medical advisor, who reviewed the medical information on file and opined, in part:

The initial diagnosis was a right groin strain based on the report of sudden onset groin pain (and bulging), and lack of evidence of recurrence of inguinal hernia. There was no compelling evidence initially of a back injury or condition….

Based on the Jan 5 2018 a/p's [attending physician's] report and Jan 17, 2018 PT report, the current diagnosis is nonspecific low back pain possibly related in part to pre-existing age-related lumbar disc degeneration.

The above diagnosis is based on the result of the CT scan of Dec 12 2017 and reports from the PT and a/p documenting low back pain with no radicular features. The CT demonstrates a degree of foraminal narrowing but not in areas that would correlate with reports of groin or thigh pain…

In summary, the initial claim was in relation only to right groin pain. There were no symptoms or exam findings suggestive of a significant back injury or condition. Only when evidence of the suspected inguinal hernia was found lacking was the presence of a back condition first proposed. To the extent that the current symptoms may relate to a back condition, there is no evidence currently on file that a back injury occurred in relation to performance of work duties in Sept 2017.

The WCB medical advisor further indicated in his report that "the Dec 12 2017 CT does not evaluate levels above L3 where nerve roots affecting the groin area are located ie L1 and L2 nerve roots," and that the then pending MRI should be reviewed for any evidence of right L1 or L2 nerve root compression which could correlate with the reported right groin symptoms.

Following the hearing, the panel requested and was provided with the report of the March 2, 2018 MRI of the worker's lumbar spine. The MRI report stated that the L1-2 and L2-3 levels were "unremarkable." The panel is therefore unable to correlate the reported right groin symptoms to the nerve roots which would affect the groin area.

The panel notes that the MRI showed degenerative changes at all of the other levels of the lumbar spine, with the stated impression being "Degenerative changes particularly at the facets of L5-S1." The panel places weight on the further comment of the WCB medical advisor that:

There is no compelling evidence of aggravation or enhancement of the pre-existing low back condition. To the extent that current low back symptoms may relate to the CT demonstrated multilevel disc degeneration, any relationship of these symptoms to performance of work duties would be entirely speculative and considered unlikely considering the initial report of right groin pain and bulging (and not back pain).

The panel accepts the above comment, as being consistent with our review and understanding of the evidence which is before us.

Based on the foregoing, the panel is unable to find that the worker's low back difficulties were causally related to, or aggravated or enhanced by, his September 2017 workplace injury. The panel acknowledges that the worker has significant back pain, but is unable to link his low back pain and difficulties to the workplace incident or injury.

The panel therefore finds, on a balance of probabilities, that the worker is not entitled to benefits after February 15, 2018 in relation to his low back difficulties.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of August, 2019