The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

The worker is not entitled to further wage loss and medical aid benefits in relation to the January 19, 2009 accident; and that The worker is not entitled to further wage loss and medical aid benefits in relation to the August 13, 2009 accident.

A hearing was held on September 26, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits in relation to the January 19, 2009 accident;

Whether or not the worker is entitled to further wage loss and medical aid benefits in relation to the August 13, 2009 accident.

Decision

The worker is not entitled to further wage loss and medical aid benefits in relation to the January 19, 2009 accident.

The worker is not entitled to further wage loss and medical aid benefits in relation to the August 13, 2009 accident.

Background

Accident of January 19, 2009 

The worker filed a Worker Incident Report with the WCB on May 6, 2009 reporting that he injured his lower back in an incident at work on January 19, 2009. The worker described going over railroad tracks "…kind of bounced up as much as my seat belt would let me and the seat bottomed out and I bounced up again." He further described "I felt a sharp pain in my lower back." The worker reported he was on lay off but had been called in to work the day of the incident.

On January 28, 2009, the worker sought medical treatment from his family physician, reporting development of sudden back and neck pain while crossing a railway track. The family physician diagnosed acute lower back pain left sciatica and suspected lumbar disc protrusion and made a referral to an orthopedic surgeon.

The worker met with the orthopedic surgeon on March 5, 2009 and again on May 6, 2009. The surgeon's report of June 9, 2009 notes the worker's concerns about low back pain with left sided sciatic nerve issues and that the worker's "…symptoms date back a few years, but have exacerbated since his accident on 19th January, 2009." The surgeon reviewed the results of the April 21, 2009 MRI of the worker's lumbosacral spine and diagnosed an L5-S1 disc protrusion with compression of the left S1 nerve root. The orthopedic surgeon referred the worker to a neurosurgeon.

In a discussion with the WCB on May 8, 2009, the worker confirmed his mechanism of injury. He advised that he was on call from November 2008 to April 2009 and had been called for a few shifts during that time but declined due to his back being sore. He advised that the employer requested he undergo an assessment by a physiotherapist before returning to work and this was to occur on May 15, 2009.

On June 1, 2009, the WCB advised the worker his claim was not accepted, as it could not establish an accident occurred due to delay in reporting, delay in seeking medical treatment, and the reported mechanism of injury. 

The physiotherapist provided the employer and the WCB with a report on July 16, 2009 noting restrictions for the worker of reduced hours of Monday, Wednesday and Friday, 12 hours each day, for two weeks at which time the worker would be re-evaluated. On August 11, 2009, the physiotherapist updated the worker's restrictions to be three days of driving to a weekly maximum of 42 hours, with at least 24 hours in between driving shifts and two days of batching, no hour maximum, to be re-evaluated in six weeks.

Four of the worker's coworkers provided the WCB with signed statements on August 4, 2009 indicating that the truck the worker was driving on January 19, 2009 was a "…very rough riding truck and that the seat in it can and has bottomed out on rough roads." The WCB contacted three of the four coworkers and confirmed their statements. On September 24, 2009, the WCB advised the worker that his claim was accepted.

Accident of August 13, 2009 

The worker reported to the WCB on August 17, 2009 that he injured his right elbow, left hip and back in an incident on August 13, 2009 he described as follows:

I was leaving the batch plant, walking across the yard and my left foot didn't work properly due to my last injury, and my toes didn't lift enough and my foot shuffled onto the gravel and didn't take my weight and I fell to the ground.

The worker attended a pre-arranged physiotherapy appointment on August 13, 2009 for his January 19, 2009 accident claim. The physiotherapist advised the WCB on September 14, 2009 that the worker had reported falling in the yard on the afternoon of August 13, 2009 and that the worker reported a scraped right elbow as well as increased low back pain.

On August 19, 2009, the worker saw his family physician. He reported falling down and injuring his right elbow and twisting his back and leg. The physician noted a nearly healed skin abrasion on the worker's right elbow and tenderness on the left side of the worker's back and in a muscle in the worker's left leg. The physician noted the worker's previous back pain and that he had been referred to a neurosurgeon. The worker was diagnosed with a lower back and left leg strain, and abrasion of the right elbow. Restrictions of no lifting and light duties were recommended. The worker's claim was accepted by the WCB on September 22, 2009.

Both Claims 

The worker saw a neurosurgeon on October 29, 2009. The worker reported experiencing a "severe jolt" after driving over railroad tracks on January 19, 2009 and suffering severe lumbosacral pain that progressed over a few hours. He also reported delayed onset of pain in his left leg and foot, and that due to the pain in his left leg, he tripped and fell forward, causing the August 13, 2009 accident. The neurosurgeon diagnosed the worker with mechanical low back pain and an S1 radiculopathy and recommended a further MRI study of the worker's cervical spine.

On October 22, 2009, a WCB medical advisor reviewed the worker's file and provided an opinion that the reported mechanism of injury 

"…could cause significant loading of the intervertebral discs, leading to the disc herniation subsequently identified on [the] MRI. The reported increase in acute [sic] on chronic low back/left leg symptoms noted in [the orthopedic surgeon's] June 9 09 report would appear to be consistent with the effects of the January 09 [compensable injury]."

On November 9, 2009, the worker attended for a call-in examination with the WCB sports medicine advisor. The WCB sports medicine advisor assessed the worker and diagnosed left-sided lumbar radiculopathy at the S1 level. The WCB sports medicine advisor recommended a physiotherapy program that focused on restoring the worker's functional capacity, and proposed restrictions of no repetitive resisted flexion/extension or rotation of the lumbar spine; no lifting greater than 20 pounds from floor to waist; and postural changes with no prolonged standing or sitting.

The WCB subsequently notified the employer and the worker's treating family physician of the restrictions and that the worker would begin modified duties at six hours per week. Then on November 19, 2009, the worker's treating physician recommended reducing the worker's hours to four hours per day due to ongoing symptoms, and the WCB medical advisor accepted this recommendation.

On November 24, 2009, the WCB referred the worker for a work hardening/reconditioning program. Due to increasing symptoms, the worker left the program on December 18, 2009.

A further MRI study was conducted on December 30, 2009. The worker reviewed the findings with the neurosurgeon on February 4, 2010. The neurosurgeon was of the view that the worker's cervical discomfort had completely subsided but that the worker was still experiencing significant lumbosacral discomfort. The neurosurgeon advised the worker that the lumbosacral discomfort he was experiencing was musculoskeletal and recommended the worker continue with his current treatment emphasizing physiotherapy to recondition the lumbosacral region. The neurosurgeon also advised the worker avoid more strenuous physical activities that involved repeated bending or heavy lifting.

On March 1, 2010, the worker began a second reconditioning program with his treating physiotherapist. The WCB advised the worker that after two weeks of reconditioning, he would begin a graduated return to work plan with modified duties on March 15, 2010. The modified duties were to begin at three hours per week and increase by one hour a week until he was working eight hours per day on modified duties. The worker's graduated return to work plan was revised on March 30, 2010, based on recommendations from the treating professionals to 3 hours per day on Mondays, Wednesdays and Fridays, with the worker attending physiotherapy on Tuesdays and Thursdays.

At the request of his employer, the worker underwent an examination by a third party physician for a Functional Capacity Evaluation (FCE) on July 12, 2010. The FCE results and the worker's file were reviewed by a WCB medical advisor on July 21, 2010 who concluded that the worker's ongoing symptoms were related to his pre-existing degenerative disc disease and were not related to his August 13, 2009 workplace accident. Further, based on the observations during the FCE, the aggravation of the worker's pre-existing degenerative disc disease was considered resolved. The WCB medical advisor stated that restrictions were no longer required for the worker as his job duties were not considered to be more of a risk than the activities of daily living.

On July 22, 2010, the WCB advised the worker and the employer that the worker was able to return to his pre-accident job duties and no longer required restrictions; however, due to the length of time the worker had been away from work, a graduated return to work schedule was recommended, ending on August 15, 2010, with no further responsibility for benefits accepted after that date.

The worker's family physician, in a report provided to the WCB on August 4, 2010, noted that the worker reported increasing pain after increasing his hours at work. The physician recommended a more gradual return to work, so that the worker should only work eight hours per day, three days per week, and increase his hours by two hours a day every two weeks until he was up to twelve hours a day. On August 10, 2010, the worker was advised by the WCB that the August 4, 2010 report from his physician had been reviewed but there was no change to their earlier decision.

On August 31, 2018, the worker's representative submitted further medical information and requested the WCB review their decisions on both of the worker's claims, on the basis that the medical information indicated the worker continued to suffer symptoms of his compensable left-sided L5-S1 disc protrusion and radiculopathy after termination of his benefits. In respect of the worker's January 19, 2009 claim, the worker's representative also requested that the WCB's decision that the worker was not entitled to partial wage loss benefits be reconsidered.

The new medical information submitted by the worker's representative together with the worker's claim files were reviewed by a WCB medical advisor. In a report dated September 20, 2018, the medical advisor outlined that the probable diagnosis for the workplace accident of January 19, 2009 was an "…exacerbation of symptoms of mechanical low back pain and left sciatica." The WCB medical advisor also stated that that the worker's multi-level degenerative lumbar disc disease including the L5-S1 left postero-lateral disc protrusion was present before the workplace accident of January 19, 2009. Further, the WCB medical advisor was of the view that the workplace accident of January 19, 2009 would not have caused the pathology indicated on the MRI study of April 21, 2009. He was of the view that a jolt to the back when seated could have aggravated symptoms of mechanical low back pain and left sciatica, but would not have caused a permanent change or deterioration in the lumbar pathology.

With respect to the workplace accident of August 13, 2009, the WCB medical advisor noted that the FCE conducted on July 12, 2010 was a valid test that supported his opinion of July 21, 2010 that the worker could return to a level of functioning that he was at prior to the August 13, 2009 accident and that no further restrictions, time off work or active treatment were required.

On October 3, 2018, the WCB determined that the worker was entitled to partial wage loss benefits for May 2, 2009 to May 9, 2009. With respect to the January 19, 2009 and August 13, 2009 workplace accidents, the WCB determined that the worker had functionally recovered from both accidents and was not entitled to further benefits.

On October 18, 2018, the worker's representative requested reconsideration of the WCB's decision to Review Office. Review Office determined on December 19, 2018 that the worker was entitled to further wage loss benefits in relation to his January 19, 2009 workplace accident but he was not entitled to further medical aid benefits in relation to that claim. Review Office also determined the worker was not entitled to further medical aid and wage loss benefits in relation to his August 13, 2009 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on January 21, 2019. 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 the policies approved by 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. That compensation includes wage loss benefits and medical aid, as set out in s 37 of the Act.

Wage loss benefits are addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out 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.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as "…necessary to cure and provide relief from an injury resulting from an accident."

The WCB has established Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") to address the issue of pre-existing conditions. The Policy states that the 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 an 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 arise out of and in the course of employment. The Policy goes on to state 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.

Worker's Position

The worker was represented in the hearing by a worker advisor who provided the panel with a written submission and made oral submissions in the course of the hearing. The worker answered questions put to him by the worker advisor as well as by members of the panel.

The worker's position set out by the worker advisor is that the injury sustained as a result of the January 19, 2009 accident was a herniation of the L5-S1 disc, that the worker never fully recovered from that injury and that the injury continues to cause the worker's lower back and left leg difficulties. In respect of the allegation that the worker's disc injury was pre-existing the accident, the worker advisor suggested the history set out in the June 9, 2009 report from the orthopedic surgeon as being inaccurate. The worker advised that he did not experience the noted symptoms until after the accident of January 19, 2009.

Alternatively, the worker advisor stated that if the panel does find that the evidence supports that the worker had a pre-existing disc condition, the accident of January 19, 2009 resulted in an enhancement of the L5-S1 disc herniation and that the worker continues to deal with the effects of that enhancement.

Further, the worker advisor set out that the August 13, 2009 accident aggravated the compensable disc herniation and associated left-sided radiculopathy.

The panel was urged to rely upon the conclusion set out in the October 22, 2009 opinion of the WCB medical advisor who reviewed the file and stated that the mechanism of injury on January 19, 2009 could cause significant vertebral loading, leading to the disc herniation identified on the April 21, 2009 MRI study.

The worker advisor stated the July 22, 2010 decision to terminate benefits was based solely upon the results of the July 12, 2010 Functional Capacity Evaluation ("FCE"), which did not include any medical assessment of the worker's status at that time. The worker advisor suggested that this decision was premature and based on insufficient evidence.

The worker advisor stated that the medical findings subsequent to the termination of benefits in August 2010 confirm that recurrence or continuation of the radiculopathy associated with the disc herniation, and that the April 2016 MRI report confirms that the herniation of the L5-S1 disc first identified in April 2009 did not resolve.

The worker's position, in sum, is that the evidence supports a finding of a cause and effect relationship between the 2009 workplace accidents and the worker's longer term low back and left leg difficulties. The claim for additional benefits arising out of one or both of those accidents should therefore be allowed.

Employer's Position

The employer did not participate in the hearing but was represented by a disability management consultant who provided the panel with a written submission in advance of the hearing.

The employer's position, as outlined in the written submission, is that the worker is not entitled to further benefits with respect to either the January 9, 2009 accident or the August 13, 2009 accident.

The employer's advocate noted that the worker did not report the January 19, 2009 incident until May 6, 2009 suggesting that this signified that the injury was not significant. The advocate noted that while the worker suggested he did not have any prior back injuries, in fact there were six previous WCB claims related to back injuries, predating this employment.

The employer's advocate stated that the medical evidence supports that the worker had pre-existing degenerative disc disease that could not have been the result of either accident and certainly pre-dated the accident of January 9, 2009. The employer relied upon the opinion of the WCB orthopedic consultant who stated on July 21, 2010 that the worker's ongoing symptoms were entirely related to pre-existing degenerative disc disease and that any aggravation of the pre-existing condition had resolved by that time.

The employer's advocate further stated that the worker's L5-S1 disc protrusion was not caused by either accident but was also a pre-existing condition that may have been aggravated as a result of these incidents.

Based upon the medical reports on file, the employer's position is that the worker recovered from the temporary aggravations of his pre-existing back conditions and was able to return to work without restrictions thereafter. The employer's advocate stated that any further symptoms of back pain claimed by the worker over the subsequent years relate specifically to the pre-existing condition of the worker's back, and represent no more than temporary exacerbations of his pre-existing condition.

In sum, the employer's position is that the appeal should be dismissed as the evidence does not demonstrate a relationship between the January 19, 2009 and August 13, 2009 accidents and the worker's ongoing back difficulties.

Analysis

There are two issues for determination by the panel: 

1. Whether the worker is entitled to further wage loss and medical aid benefits in relation to the January 19, 2009 accident; and 

2. Whether the worker is entitled to further wage loss and medical aid benefits in relation to the August 13, 2009 accident.

In order to find that the worker is entitled to further benefits beyond those already provided by the WCB, the panel must find that as a result of the injury sustained in either accident, the worker experienced a further loss of earning capacity and/or required further medical aid to cure and provide relief from the injury sustained in either accident. The panel was not able to make such findings.

In making its analysis, the panel considered the written and oral submissions provided on behalf of the worker as well as the written submission provided on behalf of the employer, in addition to the reports and documents in the worker's WCB files.

The worker was injured on January 19, 2009 while on a one-day callback from the employer's annual layoff. The evidence does not support that the worker considered the injury significant at first, as he did not seek medical care until January 28, 2009. A WCB claim was not filed until May 2009 and was ultimately accepted.

The worker returned to work over the course of the summer 2009, with modified duties and graduated build-up of hours to full-time by early August 2009.

On August 13, 2009, the worker was again injured while at work. This injury initially reported by the worker to his treating physiotherapist as a re-injury arising out of the January 19, 2009 accident. Ultimately, a new claim file was opened and a claim accepted for back strain arising out of this accident.

Following this injury, the worker resumed working on light duties with modified hours before the end of August 2009. With exceptions, the worker continued to work with restrictions and modified hours, through to August 2010 when WCB terminated his benefits. During this period, a number of graduated return to work programs were attempted, and the worker also participated in multiple physiotherapy-based programs to increase his functional abilities.

After the initial injury in January 2009, the worker was referred to an orthopedic surgeon, who first assessed him on March 5, 2009. In a report dated June 9, 2009, the orthopedic surgeon noted that when he assessed the worker on March 5, 2009, the worker reported long-standing back pain and symptoms dating back a few years that were exacerbated by the January 2009 accident, and that his condition was generally deteriorating. The orthopedic surgeon also notes that x-ray examination of the lumbar spine revealed L5-S1 disc space narrowing, and suggested that the worker was suffering from disc protrusion. An MRI was ordered at that time.

In an earlier letter from the orthopedic surgeon to the worker's family physician dated May 14, 2009, he indicates that the worker saw the surgeon a second time on May 6, 2009 and sets out that the worker's symptoms date back a few years and that the worker stated his back and leg condition was aggravated since the accident of January 19, 2009.

The MRI study of April 21, 2009 provided evidence of fairly severe degenerative narrowing and desiccation of the intervertebral disc at L5-S1 as well as a large left posterolateral disc herniation at that same level with fairly marked compression on the left S1 nerve root.

Another x-ray image taken in October 2009 noted relatively severe disc degeneration and narrowing at L5-S1 as well as mild multi-level disc degeneration in the thoracic spine.

A further MRI study in December 2009 showed similar findings to the April study.

A WCB medical advisor who reviewed the file documents on October 22, 2009 opined that the disc herniation could be accounted for as a result of the mechanism of injury on January 19, 2009. The worker's position is that the panel should rely upon this opinion to find that the disc herniation was caused by the January 19, 2009 accident.

The WCB orthopedic consultant noted on February 17, 2010 that the degenerative disc changes noted in the October 2009 x-ray that would require a long time to develop and concludes that it is more likely than not that some aggravation of the pre-existing degenerative condition occurred as a result of the compensable injury, based upon the clinical findings and MRI reports reviewed.

The same WCB orthopedic consultant assessed the worker in person on April 22, 2010 and at that time, confirmed this view noting: 

1. The worker's current symptoms are caused by degenerative lumbar disc disease together with the lumbar disc protrusion at L5-S1. 

2. There is no clinical evidence of continued pressure or irritation of the lumbar nerve roots in an active manner. 

3. The worker is very optimistic about his early return to modified duties based on the recommendations of the attending physiotherapist…

The worker was also assessed by a neurosurgeon. In a report dated October 27, 2009 the neurosurgeon reported mild restriction in the worker's cervical spine and greater restriction of the lumbar spine, noting the MRI shows evidence of a left medial lateral disc herniation at L5-S1 with impingement upon the left sided S1 root. The diagnosis offered was of mechanical low back pain and an S1 radiculopathy that accounted for the pain in the worker's left leg.

A WCB sport medicine advisor wrote to the worker's family physician on November 12, 2009 outlining findings from the November 10, 2009 call-in examination of the worker. The natural prognosis for the worker's lumbar radiculopathy was stated to be good and a return to functional activity was expected. The WCB sport medicine advisor recommended a physiotherapy program focused on the restoration of the worker's function.

A further report from the neurosurgeon was provided on February 4, 2010 in follow up to the December MRI study and noted cervical discomfort has decreased but that the worker continued to experience significant lumbosacral discomfort as a result of the work reconditioning program undertaken in December 2009. The report noted the recent MRI showed already known herniation at L5-S1 with impingement on the S1 root and confirmed that the lumbosacral pain is musculoskeletal, while the pain into the worker's left leg is likely the result of a transient flare-up of the S1 nerve impingement.

By spring 2010, the worker's treating physiotherapist was indicating that the worker was improving sufficient to consider light duties that involved some movement, rather than static positioning.

At an April 22, 2010 WCB call-in examination, the WCB orthopedic consultant reviewed the imaging study results and assessed the worker, concluding that the worker's current symptoms were caused by degenerative lumbar disc disease together with the lumbar disc protrusion at L5-S1 and that there was no clinical evidence of continued pressure or irritation of the lumbar nerve roots in an active manner.

On July 6, 2010, the treating physiotherapist noted that the worker's symptoms increased on June 11, 2010 and recommended that the worker needed to return to driving duties with restrictions, rather than continuing sedentary work. The physiotherapist also indicated that by June 30, 2010 the worker was again improving with increased capacity to carry a heavy load and required more light activity, including some form of driving.

The employer required a third-party assessment of the worker's functional capacity and that was undertaken on July 12, 2010, determining that the worker was able to demonstrate functional capacity within a medium strength demand level. The worker indicated he felt able to return to work. The testing results were considered valid.

In a July 21, 2010 memorandum, the WCB orthopedic consultant, after reviewing the findings of the FCE, indicated that the ongoing symptoms at that time are more likely than not entirely related to the pre-existing degenerative disc disease and are not related to the injury of August 13, 2009 and further, that the aggravation of the pre-existing degenerative disc disease is considered to be resolved based upon the observations at the FCE.

A graduated return to work plan was implemented with the initial goal that the worker return to normal duties and hours by August 15, 2010. By August 4, 2010, however, the worker was reporting increased back pain after driving, and on August 5, 2010 he left work early as a result of back pain.

Chart notes from worker's family physician indicate that by September 22, 2010 the worker had returned to work on a full time basis. At that time, the physician also noted chronic back pain and insomnia and prescribed medications to address these concerns.

The panel also considered and reviewed the medical information on file for the period from 2011 through to 2016. The worker's reported condition in this period indicates ongoing low back pain with left-sided sciatic nerve involvement, similar to the earlier medical reports in terms of the worker's symptomology. The worker's evidence to the panel during the hearing was that during this period of time the worker continued in his regular duties, for the most part, with the employer, with some periods on modified duties from time to time leading up to 2015.

The panel noted as well that during the period from 2011 to 2016 the worker made two further accident claims to the WCB in 2013, both relating to back injury, which have each been adjudicated on their merits.

The medical reports confirm that by spring 2010, the worker was progressing toward recovery from the injuries sustained in the accidents of January 19, 2009 and August 13, 2009 as he continued to gain function through physiotherapy and continued to work light duties.

The panel finds that the evidence supports the decision that the worker was able to return to his regular driving duties in summer 2010, albeit with some challenges that arose in the implementation of the graduated return to work plan. By September 22, 2010, the worker had returned to full-time regular duties.

The panel also finds that the medical reports and findings support the conclusion that the accident of January 19, 2009 resulted in an aggravation of the worker's pre-existing degenerative disc disease.

The evidence does not, however, support a finding that the herniation of the worker's L5-S1 disc with resultant nerve impingement was caused by the accident of January 19, 2009, although one of the WCB medical advisors does allow for the possibility. The panel finds that it is more likely than not that this condition also pre-existed the accidents, although it may not have been symptomatic prior to January 2009.

While the aggravation of the worker's pre-existing back condition appeared to be resolving by early August 2009, the injury arising out of the January 19, 2009 accident had not fully resolved when the second accident took place in 2009. As a result, the worker's recovery was significantly delayed by the further injury that occurred on August 13, 2009.

With respect to the injury arising out of the accident of August 13, 2009, the panel finds that the evidence supports a determination that the worker's pre-existing degenerative disc disease and the herniated L5-S1 disc, with S1 nerve root impingement was further aggravated by this fall.

The WCB determined that the worker had functionally recovered from both accidents by August 15, 2010 at which time the wage loss and medical aid benefits terminated. There is however evidence on file that the worker was not able to complete the graduated return to work plan by that date as anticipated, and that he did not return to full-time duties in his regular position until September 22, 2010. Review Office determined that the wage loss benefits should therefore extend to that date and we find no reason to interfere with that decision.

The worker is seeking continuation of both medical aid and wage loss benefits arising out of the accident of January 19, 2009 and the accident of August 13, 2009 beyond the termination dates determined by the WCB and as amended by the Review Office. The evidence does not support that request.

There is no question from a review of the medical reports that the worker's chronic, pre-existing back issues were not resolved in September 2010, nor at any later date based upon the medical reports available to the panel. As outlined in the September 20, 2018 opinion of the WCB orthopedic consultant, "The natural history of multi-level [degenerative disc disease] is of increasing stiffness of the back over the years, with episodes of back pain and referred lower limb pain occurring because of disc shrinkage and facet osteoarthritis." He went on to note the variable natural history of disc protrusion, which may increase or decrease or remain the same over time.

The medical information on file for the period subsequent to August 2010 supports this conclusion. The worker has a chronic degenerative back condition that is likely to be re-aggravated from time to time, with periodic flare-ups of both low back pain and nerve root impingement.

On the basis of the evidence before us, the panel is satisfied, on a balance of probabilities, that any further loss of earning capacity by the worker or any medical aid required by the worker is not the result of the injuries incurred in the accidents of January 19, 2009 and August 13, 2009.

The panel therefore determines that:

1. The worker is not entitled to further wage loss and medical aid benefits in relation to the January 19, 2009 accident; and 

2. The worker is not entitled to further wage loss and medical aid benefits in relation to the August 13, 2009 accident.

The appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of November, 2019