Decision #119/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss and medical aid benefits after May 7, 2018. A hearing was held on April 2, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after May 7, 2018.
That the worker is not entitled to wage loss or medical aid benefits after May 7, 2018.
The worker filed a Worker Incident Report with the WCB on January 5, 2018 reporting that she injured her lower back, right neck and left hand in a motor vehicle accident while at work on January 3, 2018. The worker was taken to a local emergency department where she was diagnosed with low back pain.
On January 4, 2018, the worker sought treatment from her family physician. The family physician noted the worker's complaints of "…pain in her right neck, lower back and also left wrist." The physician stated that no external bruising was noted, neck rotation to the left side was reduced, and the worker had tenderness over her paracervical muscle and a "fair amount" of tenderness over the sacroiliac joint, mainly on the right side. The physician further noted that the worker was "…known to have significant degenerative disc disease." The worker was provided with medication and advised to remain off work.
On January 11, 2018, the employer advised the WCB that the worker could be accommodated with modified sedentary duties. At an initial appointment with a physiotherapist on January 12, 2018, the worker was diagnosed with a lumbosacral sprain/strain and disc irritation, and it was recommended she remain off work for two weeks, then be reassessed.
The WCB accepted the worker's claim and payment of various benefits commenced. The worker continued to seek treatment from her physiotherapist and family physician. On February 16, 2018, due to ongoing complaints, her family physician recommended an MRI and referred the worker to an orthopedic surgeon.
The MRI was performed on March 5, 2018. The results of that MRI, as compared to a previous MRI performed July 22, 2015, indicated "Degenerative changes of the lower lumbar spine, anterolisthesis and degenerative changes at L4-5 have progressed in the interval, now resulting in moderate spinal canal narrowing." On March 7, 2018, the physiotherapist recommended that the worker remain off work until she was seen by the orthopedic surgeon, and on March 8, 2018, the worker's family physician referred the worker for a nerve conduction study.
On March 27, 2018, the worker's file was reviewed by a WCB sports medicine consultant, who opined that the worker's initial diagnosis was "…a lumbar strain occurring within a pre-existing degenerative environment" and that such an injury would typically resolve by eight weeks or less. The sports medicine consultant further opined that the current clinical findings did not support that the worker was totally disabled from work, and recommended restrictions of the worker being able to change positions from sitting to standing as needed, limit repetitive/prolonged trunk forward flexion/loaded trunk twisting, and floor to waist lifting up to five pounds with proper lifting technique. The restrictions were provided to the employer, and on April 3, 2018, the worker returned to work part-time, with restrictions.
Due to her ongoing symptoms, the worker was not able to proceed with her return to work plan. On April 6, 2018, the employer advised the WCB that the worker was not participating in her return to work program that day and had reported she was at a local emergency department. On April 9, 2018, the worker advised her WCB case manager that she had increased symptoms of pain in her lower back and legs on the morning of April 6, so she attended at emergency. She was given medication and advised to remain off work for one to two weeks.
The worker was seen by the orthopedic surgeon on April 6, 2018. The worker reported back pain as well as left more than right radicular symptoms. The orthopedic surgeon noted that the worker had a "…long history of back pain secondary to degenerative changes of her lumbar spine." The surgeon opined that the "…longstanding degenerative changes of her lumbar spine and the accident has probably triggered or tipped her over the edge, causing her the symptoms that she is having right now." The surgeon recommended that the worker remain off work for at least one to two weeks and continue with physiotherapy, and referred her to a pain clinic for a trial spinal injection.
On April 18, 2018, the WCB sports medicine consultant reviewed the worker's file again, following receipt of the report from the orthopedic surgeon. The sports medicine consultant opined that the worker's current diagnosis was an ongoing lumbar strain within a degenerative environment, and that the worker's recovery from the lumbar strain had been prolonged, "…likely due to the pre-existing degenerative changes." The consultant stated that the restrictions set out in her March 27, 2018 opinion remained appropriate.
On April 20, 2018, based on her assessment of the worker that day, the treating physiotherapist recommended a graduated return to work program, with restrictions. On April 20, 2018, the worker's family physician advised the WCB that he did not feel the worker could return to work at all for the time being.
On April 24, 2018, the worker attended a call-in examination with the WCB sports medicine consultant. The sports medicine consultant opined that the worker's current diagnosis was "non-specific low back pain occurring within a degenerative environment." The consultant went on to opine that the worker's injury that occurred as a result of the January 3, 2018 workplace accident was a lumbar strain in the environment of degenerative spinal changes, and a lumbar strain would be expected to gradually improve. The consultant noted that the findings of the call-in examination were pain-limited and there was little reported progress in recovery, which was not consistent with the natural history of recovery for a strain injury. The consultant opined that "…there is no further evidence to support an ongoing relationship between the workplace injury and the current presentation." On May 1, 2018, Compensation Services advised the worker that they had concluded she had recovered from the effects of the January 3, 2018 workplace injury and she was not entitled to wage loss and medical aid benefits beyond May 7, 2018.
On June 1, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The worker's representative submitted that the evidence on the worker's file supported that the degenerative changes in her lumbar spine were either aggravated or enhanced as a result of her accident. On July 17, 2018, the employer provided a submission in support of Compensation Services' decision, and on July 20, 2018, the worker's representative provided a responding submission.
On July 26, 2018, Review Office determined that the worker was not entitled to wage loss and medical aid benefits beyond May 7, 2018. Review Office concurred with the opinion of the WCB sports medicine consultant that the worker's current back difficulties could not be related to her January 3, 2018 workplace accident. Review Office found that given the treatment provided to the worker, how long she had been absent from work and the length of time since the workplace accident, the worker's statement to the WCB sports medicine consultant on April 24, 2018, that she was "only 10% improved since the date of injury" was not characteristic of a lumbar strain injury. Review Office also found there was no evidence to support that the worker's pre-existing degenerative condition was enhanced by the workplace injury.
On October 26, 2018, the worker's union representative appealed Compensation Services' decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to rendering a decision on the issue under appeal. The requested information was later received and was forwarded to the interested parties for comment. On September 4, 2019, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 188.8.131.52, Pre-Existing Conditions (the "Policy"), addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, as follows:
(a) 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.
(b) 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 worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her representative and from the panel relating to her work history, the January 3, 2018 accident, her symptoms in the days that followed that accident, the medical attention and treatments she had received, and her current status.
The worker's position was that the evidence supports she continued to suffer ongoing symptoms and restrictions after May 7, 2018 which were directly attributable to her January 3, 2018 workplace-related motor vehicle accident, and is therefore entitled to wage loss and medical aid benefits beyond that date.
The worker's representative submitted that while the initial medical assessments did not reveal a neurological problem, the worker experienced and reported symptoms consistent with radiculopathy from the date of her accident. The representative noted that the treating physiotherapist found signs indicative of a disc injury at the initial assessment, and in spite of ongoing conservative care, the worker reported right leg symptoms, as well as left leg symptoms within a few weeks of her accident.
It was submitted that episodes of acute symptoms further prompted a referral for an MRI and an orthopedic assessment. The representative noted that while the 2018 MRI showed only a slight progression in the degenerative changes in the worker's low back since 2015, the orthopedic surgeon opined that the accident had caused these underlying changes to become symptomatic. Similarly, a physician with an interest in occupational medicine provided his opinion that the worker's accident caused an enhancement of her pre-existing lumbar spine degenerative changes, which had caused persistent and disabling symptoms.
The worker's representative submitted that the worker's lack of recovery is in fact evidence that she sustained more than just a strain as a result of her accident. The representative suggested that although no structural change was evident in the MRI results, a significant change did occur, being the worker's experience of her condition. He noted that the worker had struggled with low back and radicular symptoms in the past, but had effectively managed those difficulties and was working two physical jobs along with regular extended travel at the time of her accident. Following the accident, however, she had ongoing low back pain, with radiation and numbness down her legs, which left her struggling to manage even basic activities, let alone her pre-accident jobs. It was submitted that these symptoms are indicative of an ongoing injury, likely a lumbar radiculopathy, which was caused by her January 3, 2018 accident. The representative submitted that the disc herniation may be pre-existing, but the radiculopathy was not something the worker was experiencing prior to the accident.
In conclusion, the worker's representative submitted that the worker is entitled to further benefits because her persistent symptoms, which still require treatment, and her ongoing restriction, which still precludes her return to work, are the direct result of her compensable injury.
The employer was represented by an advocate and by the employer's Manager, Occupational Safety & Health and Regional Educator.
The employer's position was that the worker's ongoing difficulties are due solely to advancing degeneration, not to her January 3, 2018 workplace injury, and the worker is not entitled to wage loss and medical aid benefits after May 7, 2018.
The employer's representative submitted that the medical evidence dating back to 2005 is convincing and clear. The employer's representative referred to medical reports on the worker's 2010 WCB claim, which also involved a soft tissue injury. The representative noted that in a September 21, 2011 opinion, a WCB orthopedic consultant had opined that the worker's chronic pre-existing disease would have gone on to cause progressive problems such as those which the worker was experiencing at that time even if the 2010 workplace injury had not occurred, based on the chronicity of symptoms as documented in previous claims. The representative submitted that those comments were prophetic and that this is what transpired in this case.
It was submitted that the worker's argument that the January 3, 2018 workplace incident triggered the onset of distinct symptoms of a radicular nature was not borne out by reports from the medical practitioners after the accident or the report from the WCB sports medicine consultant following the April 24, 2018 call-in examination of the worker. It was submitted that the initial findings and all indications from those reports were that the worker suffered a soft tissue muscular strain.
The employer's representative further submitted that there is no evidence to support enhancement of that pre-existing condition. Rather, the diagnostic testing through the years has revealed progressive degenerative disc disease, which is unchanged by the current claim.
In conclusion, it was submitted that the worker suffered a low back strain on January 3, 2018, for which she has been appropriately compensated. The worker received four months of benefits for a soft tissue injury which, in the employer's view, was certainly reasonable in keeping with a normal recovery period, and the worker's appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after May 7, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required further medical aid after May 7, 2018 in relation to her January 3, 2018 workplace accident. The panel is unable to make that finding, for the reasons that follow.
There is no dispute that the worker has a degenerative back condition. The worker's position is that her degenerative back condition was enhanced by the January 3, 2018 work-related motor vehicle accident and her ongoing difficulties are directly related to that accident. The panel is unable to arrive at that conclusion.
Based on our review of all of the information which is before us, on file and as presented at the hearing and subsequently in response to requests for information, the panel accepts that the worker experienced a sprain/strain injury within the environment of pre-existing degenerative conditions as a result of her January 3, 2018 workplace accident. The panel is unable to accept, however, based on the information which is before us, that the worker experienced an enhancement of her pre-existing degenerative back condition as a result of that accident or injury.
The panel notes that the worker's injury was consistently diagnosed as a sprain/strain injury in initial medical reports. The panel finds that there is an absence of clinical evidence or a diagnosis to support that the motor vehicle accident further resulted in an aggravation or enhancement of the worker's degenerative condition.
The worker's representative placed significant weight on the April 6, 2018 report from the orthopedic surgeon on file, and the report from a physician with an interest in occupational medicine dated October 24, 2018 which was provided in advance of the hearing as part of the worker's written submission. The panel notes that while the orthopedic surgeon reported that he had explained to the worker that she had longstanding degenerative changes of her lumbar spine and the accident had "probably triggered or tipped her over the edge, causing her the symptoms she is having right now," a compelling explanation as to how or why this occurred is not provided.
With respect to the report from the physician with an interest in occupational medicine, the panel notes that the report indicates the physician first saw the worker on August 30, 2018, approximately eight months after the accident, then again on October 11, 2018. The physician suggested that the worker had been more seriously injured in the accident, stating that he was impressed with the degree of pain and functional limitations the worker continued to have since the accident, and opined that it "appears the severity of the MVA has been underestimated." The panel is not satisfied that the evidence supports this suggestion.
In response to a specific question from the worker's union representative as to whether the January 3, 2018 motor vehicle accident aggravated or enhanced the pre-existing degenerative changes in the worker's lumbar spine, the physician with an interest in occupational medicine further opined in his report that by his assessment there were "multiple contributors to her ongoing back pain impairments" and that the injury had resulted in "enhancement of the lumbar spinal degeneration." The physician did not say, however, how the injury had enhanced her degenerative condition or provide clinical evidence to support his assertion.
The panel acknowledges that the worker continues to experience low back difficulties. The panel is unable to find, however, that the worker's ongoing difficulties and symptoms are related to her January 3, 2018 workplace accident, and is satisfied, on a balance of probabilities, that the worker's sprain/strain injury had resolved by May 7, 2018.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing difficulties are not attributable to her January 3, 2018 work-related motor vehicle accident and she is not entitled to wage loss or medical aid benefits after May 7, 2018.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of September, 2019