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 further benefits in relation to the July 18, 2011 accident. A hearing was held on January 28, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the July 18, 2011 accident.

Decision

The worker is not entitled to further benefits in relation to the July 18, 2011 accident.

Background

The employer filed an Employer's Incident Report with the WCB on July 20, 2011 reporting that the worker injured his back in an incident at work on July 18, 2011. The worker filed a Worker Incident Report with the WCB on August 19, 2011 indicating that he injured his lower back after carrying a heavy object while twisting on July 18, 2011. In a discussion with the WCB on August 19, 2011, the worker advised that he did not wish to pursue a claim with the WCB and he was provided with a letter to that effect by the WCB on August 22, 2011.

Various medical reports were received by the WCB, including an x-ray report dated July 27, 2011 of the worker's right hip and lumbosacral spine with normal findings, reported results of a September 23, 2011 CT scan of the worker's lumbosacral spine indicating mild congenital spinal stenosis at the L5 level and no evidence of significant compression of the lumbar nerve roots, and an x-ray report of the worker's pelvis and right hip dated September 28, 2011 also reporting normal findings.

On September 18, 2012, the worker contacted the WCB to advise that he wished to pursue the WCB claim for his lower back injury. Further medical information was gathered including a June 27, 2012 MRI of the worker's lumbosacral spine which indicated "Mild diffuse disc bulge at L5-S1 coming in close proximity to the S1 nerve root in the lateral recess…" A WCB medical advisor reviewed the worker's file on November 7, 2012 who opined that the worker's current symptoms were caused by "…a combination of degenerative lumbar disc disease (DDD) and most likely the annular tear and disc bulging at L5-S1 level as demonstrated on MRI." The WCB medical advisor related the worker's current symptoms to the workplace accident on July 18, 2011 of a twist of the lower back but noted that the "…bulging discs at both L4-5 and L5-S1 levels…" would not have happened at the same time and were "…probably degenerative before the workplace injury." It was further noted that the worker's recovery from the workplace accident would be delayed due to his pre-existing degenerative disc disease. The worker's claim was accepted by the WCB and payment of wage loss and other benefits commenced.

The worker was seen by an orthopedic surgeon on February 20, 2013. The orthopedic surgeon opined that the worker was not a candidate for surgery. However, a course of physiotherapy and possibly a work hardening course was recommended. The initial physiotherapy assessment noted the worker's complaint of right buttock pain, travelling down the posterior of the worker's leg, with intermittent numbness in the worker's right foot and leg and occasional muscle spasms. The physiotherapist diagnosed the worker with right piriformis syndrome and right sacroiliac joint irritation. A physiotherapy discharge report on May 21, 2013 noted the worker continued to improve with home exercises and that he was ready to return to work as his condition had "much improved". A restriction of not carrying greater than 30 pounds was recommended for the worker, to be reviewed after one month. A further report from the orthopedic surgeon was received on June 3, 2013, who saw the worker on May 28, 2013. The orthopedic surgeon opined "The patient has shown a lot of improvement. It is my impression that the patient, when he completes his physio on the 4th of June, does not require any further active treatment." The treating surgeon further provided that the worker should attempt to return to work but on a graduated basis, given that he "…has not been doing that much activity…"

There was no further activity on the worker's claim until he contacted the WCB on May 8, 2019 to advise he was continuing to suffer symptoms as a result of the workplace accident. He advised the WCB that his pain "…wasn't too bad at the end of claim" but when he started working again, he was experiencing pain on a daily basis to the point where the pain was so bad, he couldn't continue working. He further advised that he had sought medical treatment and was currently waiting for a referral to the pain clinic.

The WCB requested and received further medical information from the worker's treating family physician on May 10, 2019. An October 24, 2018 MRI study of the worker's lumbosacral spine noted degenerative changes within the lumbar spine with a "…possible contact/impingement of the bilateral descending L5 nerve roots and the exiting L5 nerve and traversing left S1 nerve root…" and "Bilateral S1 nerve root enlargement, stable from prior examination and of uncertain etiology." An October 30, 2018 report from the Spine Assessment Clinic noted the worker's symptoms "consistent with a mechanical low back pain" and a referral for physiotherapy, with a focus on a home program was made.

The worker's file was reviewed by a WCB medical advisor on May 22, 2019. The WCB medical advisor opined that the worker's diagnosis resulting from the July 18, 2011 workplace accident was a strain/sprain of the low back with increased bulging of the pre-existing disc protrusion at the L5-S1 level and a natural history of resolution within six months. The WCB medical advisor further opined that the worker's current diagnosis was "multi-level degenerative lumbar disc disease (DDD)" which was not related to the workplace accident but to the expected natural history of DDD. On May 23, 2019, the worker was advised by the WCB that his current low back difficulties were not related to the July 18, 2011 workplace accident and he was not entitled to further benefits.

On July 29, 2019, the worker requested reconsideration of the WCB's decision to Review Office. The worker noted in his submission that the pain he was currently experiencing was the same as he had after the July 18, 2011 accident.

Review Office determined on September 19, 2019 that the worker was not entitled to further benefits in relation to the July 18, 2011 accident. Review Office relied and placed weight on the WCB medical advisor's opinion that the workplace injury related to the July 18, 2011 accident was a sprain/strain of the worker's low back with increased bulging of the pre-existing disc protrusion at the L5-S1 level and the worker's current diagnosis of multi-level degenerative lumbar disc disease was not related to the workplace accident that took place eight years previously.

The worker filed an appeal with the Appeal Commission on November 12, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of the Directors.

Definitions

1(1) In this Act,

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured;

Provision of medical aid

27(1) The board 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.

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until 

(a) the loss of earning capacity ends, as determined by the board; or 

(b) the worker attains the age of 65 years

Worker's Position

The worker participated in the appeal via telephone conference call. He made a presentation regarding his claim and answered questions posed by the panel.

The worker stated that after he initially injured himself in July, 2011 it took approximately 18 months for him to recover enough that he was able to be mobile again. He said he was advised at that time by his family physician that some people never heal from his type of injury. The worker stated that prior to the compensable injury he was healthy and active. He stated that he always worked and that he never had problems. He stated that he had always been relatively healthy and that he had been very active all his life, and then when he hurt himself, he could no longer work.

The worker stated that, although he received WCB benefits for approximately two years, he believed that the WCB only covers these types of injuries for six months.

The worker stated that since the WCB medical consultant's opinion was that his ongoing problems were 'probably' not related to his injury, the opinion is not a definitive answer one way or another.

With respect to the diagnosis of degenerative spinal issues, he stated:

So this degeneration in my bones, they’re saying, trying to say that it’s because of this. If I have a degeneration in my bones, which I apparently do, then what happens is my whole body should feel the same amount of pain and aches everywhere because it’s my whole body degeneration of my bones.

When asked by the panel what the worker did between the time that his benefits concluded on June 4, 2013 and when he next contacted the WCB in May 2019, the worker stated the following:

And now I didn’t try to go back to work for the longest time because I had too many problems. And then finally when I did get a job and go to work, I could only work for four months and I had nothing but problems, problems, problems.

And it got to a point where I can’t even do this anymore because all I am is in pain. I’m hurting myself, there’s no point to me trying to do this. I’m not getting ahead, that’s just more problems than I need, so I got out of that job.

I went to some more physio and stuff, and then I tried to go back to work again and there was only a few months and I had nothing but problems, problems, problems, I couldn’t do it. I had to tell them I can’t do the job, I can’t, it’s too painful.

The worker clarified to the panel that, after his WCB benefits concluded in June 2013 he did not return to work with the accident employer as the construction project he was working on concluded.

However in approximately 2016, the worker stated he commenced working at another construction project which continued for approximately four months. He stated the work was too difficult due to his ongoing back problems, so he had to discontinue his employment. He also advised the panel that in approximately 2018 he commenced working for another employer as a custodian, which lasted for a short period of time. He stated that he also had to discontinue this work due to his ongoing back issues.

The worker also advised the panel that he had recently been receiving injections to his back region that have resulted in some improvement to his ongoing discomfort. However, his back issues are ongoing.

In summary, the worker stated that his doctor believes that his back problems are related to his injury and that he believes that he is entitled to further workers compensation benefits.

Employer's Position

The employer did not participate in the appeal hearing.

Analysis

In order for the worker's appeal to succeed, the panel must find that, on a balance of probabilities, the worker continued to be injured as a result of his July 18, 2011 accident after his benefits discontinued on June 4, 2013. For the reasons that follow, the panel is not able to make that finding.

The panel notes that a May 18, 2012 Chiropractic report stated, in part, the following:

Clinical Impression: Post traumatic myo-mechanical low back pain (mechanical pain mediated by the sacro-iliac joints; myofascial pain generated by the gluteus medius trigger points). There is no evidence of discal injury, radicular referral or neural deficit. 

… 

In summary, this patient presented with a simple myo-mechanical low back pain syndrome without any evidence of disco-radicular contributions. Post-treatment reports suggested a good response to treatment, however, the patient failed to follow-up and I have no knowledge of his current status.

An orthopedic surgeon who examined the worker provided a report dated May 22, 2012 which stated, in part, the following:

This gentleman did have a CT scan and the report from September 23, 2011 indicated that the patient has mild spinal stenosis at the L5 level. I do note that the patient had some foreshortening of the pedicles at the L5 level. He does have a mild congenital spinal stenosis. The patient has no evidence of significant compression of the lumbar nerve roots.

It is the panel's position that, based on the available medical evidence, the worker suffered a minor low back sprain/strain type of injury within an environment of a degenerative back condition.

The panel's position is also supported by medical report by a WCB orthopedic consultant dated November 7, 2012 that stated:

Current symptoms of low back pain and radiating right lower limb pain are caused by a combination of degenerative lumbar disc disease (DDD) and most likely the annular tear and disc bulging at L5-S1 level as demonstrated on MRI.

The above noted WCB medical (orthopedic) consultant further opines in the same report that:

The mechanism of the workplace injury of 11-July-2012 (sic) was a twist of the low back. It is probable that this caused some further bulging of the degenerative disc lesion at L5-S1. (b) It is not probable that the bulging discs at both L4-5 and L5-S1 levels could have occurred at the same time; both levels were probably degenerative before the workplace injury.

The worker saw the same orthopedic surgeon as previously noted again on February 20, 2013. Based on that examination, the orthopedic surgeon stated "I trust that with physio and later probably work hardening we can get the patient into the workforce." The panel notes that there was no significant medical condition noted in the report.

The worker commenced physiotherapy in March 2013. The discharge assessment dated May 21, 2013 stated, in part "…ready to RTW, condition much improved."

When the worker was examined on May 28, 2013 by the same orthopedic surgeon that has treated him in the past, the resulting report stated, in part "The patient has shown a lot of improvement. It is my impression that the patient, when he completes his physio on the 4th of June, does not require any further active treatment."

As a result of the foregoing information, the panel is satisfied that when the worker's claim was discontinued in June 2013, he had materially recovered from his 2011 workplace injury.

The worker was not in further contact with the WCB from June 2013 until May 2019. More significantly, the panel notes that the file contains no medical information regarding the worker's ongoing medical condition or treatment for this almost six year period. Such a large gap in time without any contact with the WCB or ongoing medical documentation does not assist the worker when determining his entitlement to ongoing benefits under the 2011 claim.

The next medical report available to the panel is from a physiotherapist from a Spine Assessment Clinic dated October 30, 2018, that stated, in part:

This […] male is presenting with symptoms consistent with a mechanical low back pain with a subjective reporting of intermittent acute bouts of low back pain with some radiating leg pain in the posterior thigh and calf. Neurologically, this patient is intact and unremarkable. Biomechanically, he does have some stiffness of his lumbar spine, as well as various tightness within the lumbar spine and gluteal regions.

…

Functionally, the patient does not seem to be managing fairly well as he has limited activity tolerance, but presents with a fear avoidance behavior and possibly is centrally sensitized, as he is not willing to participate in treatment activities due to the fear of causing some back pain. Based on his subjective, objective and imaging findings, my recommendation is that this patient not have a surgical consult at this time.

The worker's claim was again reviewed by a WCB orthopedic consultant on May 22, 2019. The following was provided to questions posed by the WCB case manager:

1. It is probable that the workplace injury of 18-July-2011 was a strain /sprain of the low back together with increased bulging of the pre-existing disc protrusion at L5-S1 level. 

2. The effects of this injury would be expected to resolve within six months. There was no neurological deficit. There was probably pre-existing lumbar degenerative disc disease (DDD) with disc protrusions at L4-5 and L5-S1 levels. The natural history of pre-existing DDD would be of persistence of the disc protrusions, and associated degenerative facet arthrosis over the years. 

3. The current diagnosis is multi-level degenerative lumbar disc disease (DDD). This is supported by the physiotherapy report from [hospital] Spine Assessment Clinic darted (sic) 25-Oct-2018 and the MRI dated 24-Oct-2018 compared to MRI of 27-June-2012. 

4. The current medical presentation is probably not related to the workplace injury of 18-July-2011. Rather, it is related to the expected natural history of the DDD.

…

The panel is satisfied that the opinion of the WCB orthopedic consultant is consistent with the medical information contained in the file and agrees with his findings.

While the panel notes that there is a document on file dated July 24, 2019 that appears to be from the worker's treating healthcare provider which requests that the worker's file be reassessed, it also notes that they do not have any of the claim details from the time of the initial injury. As a result, the panel places little weight on the information contained in this document.

As a result, the panel finds that the worker had materially recovered from his July 18, 2011 workplace injury when his benefits were concluded on June 4, 2013 and that any ongoing medical issues after that time are, on a balance of probabilities, not related to the worker's July 18, 2011 injury.

During the hearing, the worker described two other occasions where he claimed he was unable to continue to work due to ongoing back problems. The panel is unable to determine whether the worker is entitled to WCB benefits for those events as the assertion by the worker is that they occurred while employed with different employers than whom he was employed with when he was injured in 2011. As a result, the panel is unable to deal with them at this time.

For all the foregoing reasons, the worker's appeal is hereby dismissed.

Panel Members

M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of March, 2020