The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits after January 25, 2018. A hearing was held on February 13, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after January 25, 2018.

Decision

That the worker is not entitled to benefits after January 25, 2018.

Background

The worker filed a Worker Incident Report with the WCB on February 22, 2017, stating that she injured her lower back and left leg in an incident at work on February 17, 2017 when she and a co-worker were lifting a client onto a bed. The worker reported that "…as I turned to leave the room I realized my leg was numb…it is still numb. Am able to walk but the whole leg feels heavier so I am limping. I push on my heel and just feel pins and needles."

On February 23, 2017, the worker saw a chiropractor for an initial assessment. The worker reported numbness in the lateral aspect of her left leg/arch of foot, that her left leg felt weak and she had radiating pain in the centre of her lower back with flexion. The chiropractor noted decreased range of motion with lateral flexion and rotation on the worker's left side and left side sacroiliac joint fixated, and that the worker reported her L4-S1 area felt numb. The chiropractor noted that the worker had a "history of disc herniation/bulge" and that she had undergone a CT scan prior to the workplace incident. The worker was diagnosed with low back pain/sciatica with left leg radiculopathy, and restrictions including no pushing, pulling or bending, and ability to sit/rest periodically throughout a shift were recommended.

On March 21, 2017, the worker was seen by a physician, who noted she had severe lower back tenderness, limited flexion, limping gait, inability to bear weight on left side and a positive straight leg raise test bilaterally, and diagnosed the worker with low back pain. The attending physician noted that the worker "…is known case of lumbosacral spondylsis (sic)," and referred her for an MRI.

Chart notes from the worker's attending physician, including chart notes from visits on December 15, 2016 and January 11, 2017 and the CT scan of the worker's lumbar spine from January 5, 2017, were received by the WCB. On April 27, 2017, the worker's file was reviewed by a WCB orthopedic consultant. The WCB orthopedic consultant opined that the initial diagnosis was of a lumbar spine sprain, and that with conservative management, reasonable recovery would be in four to six weeks. The orthopedic consultant opined that the current diagnosis was of left lower limb radiculopathy, as identified through the worker's treating healthcare providers' reports. The orthopedic consultant noted that the current diagnosis was not specifically medically accounted for in relation to the workplace incident, as there was evidence of a similar pre-existing clinical presentation. The consultant further noted that the restrictions provided by the worker's chiropractor on February 23, 2017 remained appropriate and referral for an MRI was appropriate.

Further reports from a physician at a minor injury clinic, the worker's attending physician and the worker's family physician were received by the WCB, along with the report of an MRI performed July 17, 2017. The physician from the minor injury clinic provided a diagnosis of an S1 radiculopathy. The worker's family physician provided a diagnosis of left sciatica and advised the worker to remain off work until an appointment with an orthopedic surgeon which had previously been arranged for October 2017. On July 19, 2017, the worker saw a physiatrist, who opined that the clinical presentation was most consistent with "left S1 radiculopathy with dural tension consistent with the disc herniation documented on the MRI scan."

On August 15, 2017, the worker's file was again reviewed by the WCB orthopedic consultant, who opined that the clinical information provided by the worker's treating healthcare providers appeared to confirm symptoms and signs of left lower limb radiculopathy. The orthopedic consultant further opined that the medical evidence did not support the worker was totally disabled, and restrictions to avoid occasional resisted bend, stoop, and twist activities of the lumbar spine, to avoid repetitive lifts floor to waist over 20 pounds, and to take short rest breaks as needed were recommended. The orthopedic consultant noted that there was information on file of some loss of function of the lumbar spine which appeared to require investigation by CT scan six weeks before the workplace incident. The consultant went on to note that there was evidence of a degree of degenerative disc disease, at least at the L4-5 and L5-S1 levels, which might affect recovery from a soft tissue lumbar spine strain, and that the recommendation that the worker remain off work until her appointment with the orthopedic surgeon five months later had "no clinical credibility."

On October 3, 2017, the worker was seen by the orthopedic surgeon, who opined that the worker had "an acute disc herniation of L5-S1" and recommended surgery, the options for which included discectomy of L5-S1 only, discectomy and fusion which would have to include L4-5, possible anterior discectomy and arthroplasty at L5-S1.

On November 7, 2017, the worker attended a call-in examination with the WCB orthopedic consultant. Following that examination, the WCB orthopedic consultant opined that the worker was not totally disabled and the restrictions detailed in his August 15, 2017 opinion remained appropriate for an additional two months. Surgery was not approved.

In a December 6, 2017 report, the treating orthopedic surgeon opined that the worker had two issues: "…chronic disc disease at L4-5 which is well controlled prior to her new injury of L5-S1 with acute disc herniation and S1 radiculopathy." The orthopedic surgeon stated there was "no doubt in my mind" this was related to her workplace incident. The orthopedic surgeon recommended conservative treatment while the worker underwent repeated injections, which were not approved by the WCB.

On December 27, 2017, the WCB orthopedic consultant reviewed the additional medical information provided by the worker's treating healthcare providers and advised that his November 7, 2017 opinion remained unchanged and workplace restrictions were no longer required. On January 19, 2018, the WCB's Compensation Services advised the worker that they had determined she had recovered from the low back strain/sprain injury she suffered at work on February 17, 2017 and that she was not entitled to benefits after January 25, 2018.

Further medical information was received on the worker's file including an operative report from the worker's orthopedic surgeon which showed the worker underwent an L5-S1 laminectomy and discectomy on April 2, 2018. A July 26, 2018 report was also received from a neuroradiology consultant, who stated that he had reviewed and compared CDs of the July 17, 2017 lumbar MRI images and the January 5, 2017 lumbar spine CT, and opined that overall, there had been "…no definite significant interval change between the two imaging studies." On July 31, 2018, the WCB orthopedic consultant reviewed the additional information and opined that the medical information did not support that the February 17, 2017 workplace incident resulted in the need for the L5-S1 discectomy of April 2, 2018. On August 20, 2018, Compensation Services advised the worker that the additional medical information had been reviewed, and there would be no change to the January 19, 2018 decision.

The WCB was subsequently provided with a November 19, 2018 report from the worker's treating orthopedic surgeon, who noted that after the April 2, 2018 surgery, the worker "…presented again three months later with a recurrent disc herniation of L5-S1" and was still experiencing significant discomfort and pain. It was further noted that the worker could not sit or stand for any length of time, had to stop every 45 minutes or so when driving, and her walking distance was approximately 50 metres. The orthopedic surgeon opined that the worker's symptoms, which were initially treated conservatively then later with surgery, were as a result of an acute injury the worker suffered from the workplace incident on February 17, 2017. This new medical report was reviewed by the WCB orthopedic consultant, and on January 14, 2019 Compensation Services advised the worker that they had determined her ongoing low back symptoms were not related to her workplace incident and there would be no change to the August 20, 2018 decision.

On February 10, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the opinion from her treating orthopedic surgeon should be given more weight than that of the WCB orthopedic consultant, and the WCB should reverse their decision that her ongoing symptoms were not related to the workplace incident. On April 12, 2019, the employer's representative provided a submission in support of Compensation Services' decision, and on May 2, 2019, the worker responded to that submission.

On May 3, 2019, Review Office determined the worker was not entitled to benefits after January 25, 2018. Review Office accepted the opinion of the WCB orthopedic consultant that the worker's compensable diagnosis was a lumbar spine sprain. Review Office noted that recovery from this type of injury normally occurs within weeks to months, but due to the worker's significant pre-existing degenerative conditions, her recovery was prolonged. Review Office placed weight on the opinion of the neuroradiology consultant that there was "…no definite significant interval change…" between the CT scan taken before the workplace incident and the MRI scan taken in July 2017. Accordingly, Review Office found that the amount of time the worker had to recover from the injury, in the environment of her pre-existing condition, had been adequate and appropriate, and they were unable to support additional entitlement beyond January 25, 2018.

On June 25, 2019, the worker's representative requested that Review Office reconsider their May 3, 2019 decision as they believed significant medical evidence had not been taken into account which supported an entitlement to benefits beyond January 25, 2018. On July 31, 2019, Review Office advised that there was no new or additional information which would support a change in their May 3, 2019 decision.

On August 19, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and 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 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.

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 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 the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), the stated purpose of which is identified, in part, as follows:

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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor, who made an oral presentation at the hearing, a written copy of which was also provided to the panel. The worker was accompanied at the hearing by a friend, and responded to questions from the panel.

The worker's position was that the medical evidence supported that she had not recovered from the effects of her February 17, 2017 workplace injury as at January 25, 2018 and beyond, and was therefore entitled to further benefits.

The worker's representative stated that there is no doubt the worker suffered an L5-S1 lower back injury as a result of her February 17, 2017 workplace incident. The representative submitted that while the WCB discontinued benefits on the basis that the worker had recovered from her lower back strain injury, the medical evidence supported that the worker's lower back injury was greater than a strain injury. The representative submitted that the evidence supported that the worker suffered an L5-S1 nerve root compression injury, which had not resolved and was responsible for the increase in her disability and the catalyst to her ongoing difficulties.

The worker's representative stated that while the worker had previously experienced some lower back pain, the workplace incident caused a new set of symptoms, including greater low back pain, and in particular, numbness down her left leg to her foot and an inability to weight bear on her left leg. It was submitted that these symptoms confirmed the involvement of L5-S1 nerve root compression and fit with an L5-S1 nerve root injury.

The worker's representative submitted that the July 17, 2017 MRI confirmed there was a moderate-sized disc protrusion at L5-S1 which contacted both S1 nerve roots. This was supported by her treating healthcare providers, including the treating physiatrist who confirmed in his reports that the clinical presentation was most consistent with a left S1 radiculopathy. This was also supported by the December 6, 2017 report of the treating orthopedic surgeon, who confirmed the worker had a persistent L5-S1 disc herniation, which affected the S1 nerve root and was clearly noticeable on clinical examination, and opined that there was "no doubt" in his mind that this was related to the workplace incident. The worker's representative submitted that the MRI confirmed a clear-cut compression of the left S1 nerve root, which corresponded with the worker’s onset of specific symptoms directly related to her workplace incident.

The worker's representative noted that a March 19, 2018 report from the treating orthopedic surgeon indicated that the worker was seen again for significant sciatic pain worse on the left side, and the surgeon subsequently proceeded with emergency surgery specifically to the compensable L5-S1 area of injury. The representative noted that the surgical findings confirmed a very large sequestered disc herniation at L5-S1 pressing on the S1 nerve root and submitted that findings from a surgical procedure are the "gold standard" of medical evidence. The representative further submitted that the surgical procedure confirmed the clear-cut displacement and compression was a more significant injury, being that of a sequestered disc.

The worker's representative submitted that while the WCB focused on the July 26, 2018 opinion from the neuroradiology consultant, comparing the worker's January 2017 CT and July 2017 MRI scans, the consultant’s expertise did not take into account pre and post-incident symptoms or subjective and clinical examination findings which confirmed a difference in the worker's symptoms and disability caused by the workplace incident. The representative further noted that although the consultant may have opined there were no significant changes, there were reported differences.

The worker's representative also referred to a December 16, 2019 opinion from a second independent orthopedic surgeon, which she said further confirmed that the worker's symptoms were consistent with a left S1 radiculopathy and supported that her ongoing symptoms were caused by the workplace incident and continued to contribute to her current disability.

In conclusion, the worker's representative submitted that the medical evidence overwhelmingly supported that the February 17, 2017 workplace injury caused an enhancement of the worker's pre-existing condition, which the WCB is responsible for under the Policy.

Employer's Position

The employer was represented by an advocate, who participated in the hearing by teleconference.

The employer's position was that they agreed with the Review Office decisions that the worker was no longer suffering the effects of the accepted workplace incident and injury and was not entitled to benefits after January 25, 2018.

The employer's advocate submitted, in particular, that the evidence does not support that the worker's need for back surgery was caused by the 2017 workplace incident or injury. Rather, the evidence indicated the surgery was required as a result of a degenerative condition in the worker’s back.

The employer's advocate noted that in the WCB orthopedic consultant’s July 31, 2018 opinion, which the employer felt was the most definitive opinion on file, the consultant concluded that the findings of his clinical assessment of the worker at the November 2017 call-in examination and the July 26, 2018 review by the neuroradiologist of the imaging studies did not support the reported workplace incident resulted in the need for the L5-S1 discectomy surgery of April 2, 2018.

The employer's advocate submitted that there was no indication the initial workplace incident resulted in a serious injury, and certainly not in an injury which was serious enough to require surgical intervention. He submitted that the worker had a serious and well-documented pre-existing degenerative condition, the natural progression of which would likely eventually result in surgical intervention, whether or not there was an intervening workplace incident.

It was submitted that there was no evidence the work injury resulted in an enhancement of the worker’s pre-existing condition. At most, the workplace incident and injury would have resulted in a temporary aggravation of the worker’s pre-existing condition, which would have ended by the date of surgery at the latest.

In conclusion, the employer's advocate acknowledged that the worker has serious back problems which have caused her "all sorts of pain and symptoms and disability," but submitted that the evidence indicates the April 2, 2018 surgical procedure and the worker's ongoing condition and difficulties were wholly due to her pre-existing condition, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after January 25, 2018. For the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond January 25, 2018 as a result of her February 17, 2017 workplace incident. The panel is unable to make that finding.

The worker has an accepted claim for a low back injury she suffered as she and a co-worker were repositioning a client who was falling out of bed. The worker described the incident in more detail at the hearing. Based on our review of the information on file and as presented at the hearing, the panel is satisfied that the mechanism of injury was consistent with a low back strain injury.

The worker's position at the hearing was that the injury she suffered as a result of her February 17, 2017 workplace incident was greater than a strain, and consisted of an L5-S1 nerve root compression injury or sequestered disc. The panel is not satisfied that the evidence supports that conclusion.

While the worker has relied on the July 17, 2017 lumbar spine MRI as confirming a clear-cut compression of the L5-S1 nerve root resulting from the workplace incident, the panel is unable to accept that position.

The panel notes that there is no dispute the worker had a pre-existing low back degenerative condition. Chart notes on file from prior to the date of injury show that the worker saw the attending physician with complaints of left-sided low back pain on December 15, 2016 and January 11, 2017, and was diagnosed with low back pain, sciatica and lumbar spondylosis at that time. A CT scan was ordered of the worker's lumbar spine, and following review of that scan on January 11, 2017, a referral was made for the worker to see an orthopedic surgeon.

The panel accepts and places significant weight on the July 26, 2018 opinion of the independent neuroradiology consultant, who reviewed and compared CDs of the January 5, 2017 lumbar spine CT scan and the July 17, 2017 lumbar spine MRI images, and concluded:

Overall, I do not believe there has been any significant interval change between the CT scan from January 20, 2017 (sic) and the MRI scan from July 17, 2017. I believe that the MRI scan more clearly demonstrates a central and left paracentral disc protrusion at the L5-S1 level which definitely compresses the left S1 nerve root. Overall, I believe there has been no definite significant interval change between the two imaging studies.

The worker has also relied on the findings of the April 2, 2018 surgical procedure as confirming a very large sequestered disc herniation at L5-S1 pressing on the S1 nerve root, and as confirming that the worker suffered a more significant injury. The panel accepts the worker's representative's reference to surgery as the "gold standard" of medical evidence in terms of appropriate treatment for a particular condition, but does not accept that this is proof that such a condition is related to the workplace injury.

The panel places weight on the July 31, 2018 report of the WCB orthopedic consultant who reviewed the file on several occasions over the course of the claim and saw the worker for a call-in examination on November 7, 2017, and who opined that:

…the findings of the clinical assessment of the call (sic) examination of November 7, 2017, and the additional information of the July 26, 2018 review by the neuroradiologist of the imaging studies, does not support that the reported workplace incident of February 17, 2017 resulted in the need for the L5-S1 discectomy surgery of April 2, 2018.

The panel also notes that the evidence indicates that there was no change in the worker's condition as a result of that surgery. In his November 19, 2018 report to the worker's family physician, the treating orthopedic surgeon thus noted that the worker presented three months after the surgery "with a recurrent disc herniation of L5-S1" and that she "was still complaining of significant discomfort and pain." The worker also confirmed at the hearing that she was not any better now than she was prior to the surgery and that further surgery was being considered.

The panel understands that the natural history of a low back strain injury is for reasonable recovery within a few weeks or months. The panel accepts that the workplace incident aggravated the worker's pre-existing degenerative condition and would have significantly prolonged her recovery from the February 17, 2017 workplace incident and injury. The panel does not accept that this incident resulted in an enhancement of the worker's pre-existing condition. The panel is satisfied, based on the evidence which is before us and on a balance of probabilities, that the worker had recovered from her February 17, 2017 workplace incident as of January 25, 2018, and that any ongoing difficulties beyond that date were not related to her workplace incident or injury.

In conclusion, the panel acknowledges that the worker has ongoing low back issues or difficulties, but is unable to relate those issues or difficulties to her February 17, 2017 workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid beyond January 25, 2018 as a result of her February 17, 2017 workplace incident. The worker is therefore not entitled to benefits after that date.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of April, 2020