Decision #44/20 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after September 14, 2016. A hearing was held on May 28, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after September 14, 2016.

Decision

The worker is entitled to wage loss and medical aid benefits after September 14, 2016.

Background

The worker reported on August 4, 2016 that he injured his lower back in an incident at work on July 20, 2016. The worker reported that he "…jumped to grab [a piece of equipment] so it wouldn't fall off and when I grabbed it I kind of jarred my back and instantly I felt pain in my lower back. It felt like a pulled muscle at first." He further noted "For the rest of the day I felt okay and was still able to do work. On the way home it started to get stiff. July 21, 2016 I was having a hard time walking. July 22, 2016 I called in to work."

The employer contacted the WCB on August 5, 2016 to advise that they were not aware the worker had injured himself and noted their concern with the worker's claim. The employer advised that the worker had a pre-existing back condition and that when his back was sore, the worker took time off to rest and was paid vacation time.

In a discussion with the WCB on August 8, 2016, the worker confirmed the mechanism of injury and advised that he had sought medical treatment on July 28, 2016 and again on August 2, 2016 but neither were for his lower back as he thought he had aggravated an injury he sustained in an accident in 2009. Further, the worker advised that he contacted his supervisor on July 25, 2016 to advise he would not be in to work because he hurt his back. Also on August 8, 2016, the WCB spoke to a co-worker who the worker advised was working with him on the date of the workplace accident and witnessed the incident. The co-worker confirmed to the WCB that he was working with the worker on that date, witnessed the incident and noted how the incident hurt the worker's back.

On August 29, 2016, the WCB advised the worker that his claim was not acceptable as, due to his delay in reporting his injury to his employer, an accident could not be established. The worker's representative submitted further medical information to Review Office and requested reconsideration of the decision. On April 18, 2018, Review Office determined the worker's claim was acceptable and returned the file to WCB's Compensation Services to determine the worker's entitlement to benefits.

The worker's file was reviewed by a WCB medical advisor on April 25, 2018 to establish a diagnosis related to the workplace accident. The WCB medical advisor opined that based on the mechanism of injury, the worker's initial complaints of increasing symptoms over a few days and the reported findings of his family physician, the worker's diagnosis related to the workplace accident was a sprain/strain injury. Further, it was opined that normal recovery for this type of injury would be one to six weeks however, given the worker's pre-existing back condition, an expected recovery would have been eight weeks.

The WCB advised the worker on May 14, 2018 based on the WCB medical advisor's opinion of an expected recovery of eight weeks, he was entitled to wage loss and medical aid benefits to September 14, 2016. The worker's representative requested reconsideration of the WCB's decision to Review Office on May 23, 2018. The worker's representative noted disagreement with the diagnosis opined by the WCB medical advisor and submitted that the opinion and medical information from the worker's treating orthopedic surgeon should have more weight.

On August 2, 2018, Review Office determined that the worker was not entitled to wage loss and medical aid benefits after September 14, 2016. Review Office found the worker's delay in reporting and seeking medical treatment for his low back difficulties and the reporting that he had similar low back difficulties prior to the workplace accident did not support a causal relationship between those difficulties and the worker's treating orthopedic surgeon's findings of L4-L5 disc herniation on an MRI study. Accordingly, Review Office found that the worker was not entitled to further benefits after September 14, 2016.

The worker's representative filed an appeal with the Appeal Commission on August 8, 2018. 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 March 25, 2020, the appeal panel met further to discuss the case and render its final decision on the issues 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 to the worker. Subsection 4(2) provides that 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 loss of earning capacity during any period after the date on which the accident happens.

Section 37 of the Act reads:

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.

Subsection 39(2) provides, in part, that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends.

WCB Policy 44.10.20.10, 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 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.

Worker's Position

On behalf of the worker, the worker advisor submitted that the worker's entitlement to WCB benefits should continue beyond the September 14, 2016 as the evidence supported that the workplace accident caused the L4-5 disc herniation that was required to be surgically repaired in May 2017.

The worker advisor also submitted that conversely, if the panel determines that the disc herniation existed before the workplace accident, then the workplace accident aggravated and/or enhanced the herniation to the point that the 2017 surgery was required.

The worker advisor reviewed the medical opinions provided by the worker's treating physician and explained to the panel how that information was consistent with the worker's assertion regarding the effect of this workplace accident on his L4-5 disc problems.

The worker advisor identified his concerns with the opinion provided by the WCB medical consultant and took exception with what he described as an "arbitrary" benefit end date as the WCB medical consultant did not identify any specific information or evidence on file as to how the accepted strain/sprain injury had fully resolved by September 14, 2016.

In summary, the worker advisor submitted to the panel that the worker's back injury had not resolved when his benefits were discontinued as of September 14, 2016, and further that the worker's May 2017 surgery was related to his July 20, 2016 workplace injury and therefore the worker was entitled to ongoing benefits as a result of that surgery.

Employer's Position

The worker's employer was not represented at the hearing.

Analysis

The worker's claim was accepted by the WCB on the basis that the worker had an accident within the meaning of the Act and he sustained personal injury. Compensation Services determined the worker was not entitled to wage loss and medical aid benefits beyond September 14, 2016 on the basis that the worker had recovered from the workplace injury. In this appeal, the worker submits that, as a consequence of the accident and resulting workplace injury, he has a loss of earning capacity and requires medical aid beyond September 14, 2016.

The worker had a pre-existing back condition. The question before the panel was whether the worker's on-going back problems arise from the workplace injury.

A medical opinion given by the WCB medical advisor on April 25, 2018, stated that pain from a strain/sprain injury would be expected to worsen over the first couple of days, followed by gradual improvement, with recovery expected in 1-6 weeks. However, given that the worker had pre-existing back pain which would result in an overlap of symptoms, the WCB medical advisor opined that recovery could be prolonged, thus a recovery time of 8 weeks would be expected.

The WCB appears to have relied on the WCB medical advisor's opinion in determining that compensation would be payable only until September 14, 2016.

The worker saw his family physician on August 10, 2016 and she reported that the worker's back pain was getting worse and he had tingling and numbness in the right leg and pain increased with walking or sitting for longer periods. A referral letter to an orthopedic surgeon, dated August 10, 2016, requested an expedited appointment and noted the worker's inability to continue working, along with difficulties walking, sitting and sleeping at night.

The worker saw the orthopedic surgeon in September and he noted the worker was in a lot of pain.

The worker was unable to attend physiotherapy sessions in and after August 2016, having been advised that the drive might aggravate his back. The worker reported to the physiotherapist on a call held on September 12, 2016, that he was not doing well, and specifically:

Phone conversation with client today, who reports he is still not doing well. Overall, feeling better than before but not back to normal. Reports he has "shooting, sharp and burning" pain down his right leg and into his foot. This has been going on since an injury when he was at work. Client reports he is unable to stand up straight, gets a "burning feeling" down his leg, feels like his leg and foot are going "numb or cold".

Client has longstanding history of back pain. Injured his back at work around the end of July and has not been able to attend a follow up session since due to reported increased pain, limited range of motion and inability to sit for longer than 30 minutes."

The panel accepts that the worker's reported ongoing symptoms support the worker had not recovered from his workplace injury at that time.

The orthopedic surgeon stated in a letter dated October 25, 2018, that the worker "had an acute exacerbation of the L4-5 disc herniation and it is unreasonable to expect this to be healed in a certain number of weeks".

The panel accepts that the worker's symptoms were consistent with the method of injury and that his condition was worse post-accident. The injury had not resolved by September 14, 2016. Accordingly, the worker is entitled to benefits beyond September 14, 2016. The panel takes no position as to the duration of entitlement and refers the claim back to the WCB for determination.

Panel Members

K. Gilson, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of April, 2020

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