Decision #24/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after October 17, 2018. A hearing was held on January 9, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after October 17, 2018.
The worker is not entitled to benefits after October 17, 2018.
The employer filed an Employer's Accident Report with the WCB on July 25, 2018 indicating that the worker injured his lower back in an incident at work on that date. The incident was described by the manager, who the incident was reported by the worker to, as: "He was moving a sheet of melamine onto the saw. During this process he said he felt a sharp pain in his lower back. He had to lay down and not able to move at all. I called an ambulance, and they transported him to [local hospital]."
The report from the hospital noted the worker's report of "…lifting a heavy board at work and felt a twinge in his back and fell back onto a pile of boards." It noted the worker complained of severe pain in his mid lower back, possibly radiating somewhat into his left leg. Further, the worker reported that he had similar severe back pain on his left side approximately two years previously that lasted four or five months and another similar episode in 2017. The treating emergency physician reviewed the diagnostic imaging taken while the worker was admitted to the hospital and noted "X-ray of his L-spine (lumbar spine) shows mild narrowing of disc spaces T12-L1, L1-S2, and L5-S1. CT L-spine shows mild degenerative changes in his L-spine. Mild posterior disc bulge L4-L5 and a disc protrusion L5-S1 with some osteophytes. CT of his C-spine (cervical spine) shows small posterior osteophyte, C6-C7 with mild central canal stenosis. He has some degenerative disc disease there." An MRI study was recommended and the worker was diagnosed with severe lumbar sprain. The MRI study conducted on July 26, 2018 noted "Left posterior later L5-S1 disc protrusion with mild encroachment of the S1 root without significant displacement. Degenerative changes L4-5 without root compromise"
On July 31, 2018, the WCB contacted the worker to discuss his claim. The worker confirmed the mechanism of injury and advised that he was still admitted to the hospital. The worker advised that this was not the first incident of his low back being injured and provided two previous WCB claim numbers. He advised the WCB adjudicator that since November 2017, he had been working his full regular duties and had not sought medical treatment. The WCB accepted his claim and the payment of various benefits commenced.
The worker attended for an initial assessment with a physiotherapist on August 13, 2018. He reported complaints of severe pain in his lower back when walking, sitting and when going from sitting to standing. The physiotherapist noted the worker had limited flexion and extension and pain with all movements. He was diagnosed with discogenic pain and it was not recommended he return to work for three weeks.
On August 30, 2018, the worker's WCB case manager referred to a copy of an MRI study dated September 27, 2016 from the worker's previous WCB claim, noting that findings were similar to those from the July 26, 2018 MRI and that the findings were of a degenerative nature. The WCB case manager met with the worker on September 18, 2018 for an assessment. The worker advised that he was attending physiotherapy three times per week, he was still experiencing symptoms of lower back pain and noted that he was also experiencing neck pain. The WCB case manager noted that the neck pain had not been noted until the worker's initial physiotherapy treatment on August 13, 2018 and could not be related to the July 25, 2018 workplace accident. The worker was advised by his WCB case manager that as there was no material change noted on the diagnostic imaging between 2016 and 2018, the worker's claim was accepted for a strain injury only and that a maximum duration of benefits would be twelve weeks to October 17, 2018.
The worker was advised by the WCB on October 17, 2018 that after a review of his file, it had been determined he had recovered from the effects of his compensable injury.
On October 25, 2018, the worker requested reconsideration of the WCB's decision to Review Office. With his submission, the worker provided a letter from his treating family physician dated October 25, 2018 which noted that the worker continued to have symptoms in his low back and neck area and that the range of motion in his lumbar area was "quite restricted" with a positive straight leg test. Review Office requested a WCB medical advisor review the worker's file to clarify the diagnosis and on November 22, 2018, it was opined that on the date of the workplace accident, the worker's diagnosis was of a non-specific strain/sprain of the low back which would resolve within six to eight weeks. Further, the worker's current diagnosis, supported from clinical findings and diagnostic imaging, was degenerative lumbar disc disease with left S1 nerve root impingement, which was opined to not be related to the July 25, 2018 workplace accident. The WCB medical advisor's opinion was shared with all parties. The worker provided a response on November 26, 2018 noting that he had not recovered from his 2016 injury and that he was not able to perform the physical aspects of his job duties due to the chronic pain in his back.
Review Office determined on November 28, 2018 that the worker was not entitled to benefits after October 17, 2018. Review Office relied on and accepted the opinion of the WCB medical advisor that the worker's diagnosis related to the workplace accident was a non-specific strain/sprain of the low back that would have resolved within a short period of time. Further, Review Office accepted that the medical evidence on the worker's file supported that the worker had a pre-existing condition of degenerative lumbar disc disease that was not caused or structurally changed by the workplace accident.
The worker filed an appeal with the Appeal Commission on November 17, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies established by the Workers Compensation 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. That compensation includes wage loss benefits. Entitlement to wage loss benefits is addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. 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 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 37 of the Act provides for the following criteria when considering a compensation claim.
Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
The WCB established Policy 184.108.40.206, Pre-Existing Conditions (the "Policy") to clarify the impacts of non-compensable pre-existing conditions on compensable injuries. The Policy sets out 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 worker represented himself at the oral hearing and responded to questions from the panel.
Details on the mechanism of his back injury related to the July 25, 2018 incident were provided. The accident occurred when he was moving a melamine sheet to the cutting table when he felt a sharp pain and his legs became numb. Unable to stand, the worker was transported to the hospital by ambulance. In addition, the worker discussed his previous compensation claims related to his back in 2016 and 2017.
The worker states that medical and physiotherapy reports support his position that he is unable to work.
The worker summarizes his situation with following statement made during his presentation. "I didn’t hurt before the 2016 injury. I hurt now."
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after October 17, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's back condition at that time was causally related to the workplace accident. The panel was not able to make that finding.
The panel finds that the medical evidence shows that the initial diagnosis was a non-specific sprain/strain of the low back. As noted by a November 22, 2018 medical opinion, "The natural history of a low back sprain / strain would be resolution within 6 – 8 weeks."
The panel places significant weight on the current diagnosis of degenerative lumbar disc disease noted in MRI reports. The medical opinion and clinical findings of the physiotherapist and attending physician are consistent with longstanding degenerative lumbar disc disease. It is considered that these clinical findings are not related to the strain/sprain injury of July 25, 2018.
On October 1, 2018, the treating physiotherapist expressed concern with the worker's lack of progress. She reported that neurological testing appears to come back within normal ranges, but the worker is limited to what he can go through due to pain behavior. This pain limiting example was similar to the 2017 Claim where the WCB Physiotherapy Consultant remarked that there was a large fear component which limits the worker's ability to progress through his exercises.
The panel acknowledges the worker's treatments of chronic back pain. It is noted that deficiencies on the right side S1 and the left side L5 and L4 are consistent with degenerative disc disease unrelated to the strain/sprain injury of July 25, 2018. The worker's position that he had not recovered from his 2016 injury was noted. The panel is unable to adjudicate the previous claims.
In conclusion, the panel was unable to find that the worker's ongoing back pain in related to his injury of July 25, 2018. The panel accepts that a sprain/strain injury would be resolved in a time range of 6 – 8 weeks.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits beyond October 17, 2018.
The worker's appeal is denied.
B. Hartley, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of February, 2020