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 wage loss and medical aid benefits after October 29, 2018. A teleconference hearing was held on May 28, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits after October 29, 2018.

Decision

The worker is not entitled to further wage loss and medical aid benefits after October 29, 2018.

Background

The employer filed an Employer’s Accident Report with the WCB on July 5, 2018 indicating that the worker injured his back at work on June 29, 2018 and reported the incident to them on July 4, 2018. The worker submitted his Worker Incident Report to the WCB on July 9, 2018. He described the incident as follows:

I was putting my things into the truck and my wife was handing me a bag and I reached down to take the bag from her and I was twisting to put it on the seat and I heard a crunch in my back just below my shoulder blades. I could hardly get off the side of the truck.

The WCB received a copy of the Doctor’s First Report from the worker’s initial appointment at a walk-in clinic on June 30, 2018. The worker reported to the physician that he injured his mid-back while climbing down from a truck. He heard a “crunch” and twisted his mid back. The physician noted tenderness in the worker’s right paravertebral area in the mid-back with decreased range of motion in his lower back and negative straight leg raise tests bilaterally. The physician diagnosed mid-back musculoskeletal strain.

When the worker was seen in follow-up by his family physician on July 6, 2018, the diagnosis was muscle sprain of the back, with a recommendation he remain off work until July 29, 2018.

On July 13, 2018, the worker discussed his claim with the WCB. At that time, he confirmed the mechanism of injury and noted that he felt “Burning hot pain to the right of his spine…” that radiated down his leg. The WCB accepted the claim.

A WCB physiotherapy consultant reviewed the worker’s file on July 19, 2018 and recommended restrictions of sedentary duties with position changes as needed. The restrictions were provided to the worker’s family physician and the employer on July 20, 2018. On July 24, 2018, the employer advised the WCB they could not accommodate the worker.

At a follow-up appointment with his family physician on August 3, 2018, the worker’s range of motion was limited in all directions by severe pain and some testing could not be completed due to pain. The physician referred the worker for x-rays and a consultation with an orthopedic specialist. An x-ray of the worker’s thoracolumbar spine taken on August 8, 2018 indicated “…minimal wedge deformity of T5, T6 and T7. Vertebral height and alignment are otherwise normal. Minor degenerative endplate spurring is present in the mid dorsal spine. Lower lumbar face OA (osteoarthritis) is present. The L4-L5 disc is minimally narrowed. No other bone, joint or disc abnormality is seen.”

At the request of the WCB, the worker attended a call-in examination with a WCB orthopedic consultant on August 15, 2018. Based on that assessment, the orthopedic consultant concluded the worker’s probable diagnosis resulting from the workplace accident was “…a strain/sprain to the mid-back at approximately the T7 level.” The consultant was unable to provide a current diagnosis and recommended an MRI study and x-rays. The examination did not support a finding of total disability and restrictions were recommended as follows: no prolonged sitting or standing postures more than 20 minutes without opportunity to move around; no prolonged walking more than 20 minutes; no ladders or stairs; and no lifting and carrying more than 20 pounds. The restrictions were provided to the worker and the employer on August 22, 2018.

An MRI study of the worker’s thoracic and lumbar sacral spine was conducted on September 30, 2018 and indicated “Relatively mild degenerative changes in the lumbar sacral spine…Mild central canal stenosis…Review of a remote lumbar CT examination of November 28, 2002 demonstrates little interval change.”

A WCB medical advisor reviewed the worker’s file, including the recent diagnostic imaging, on October 11, 2018. The WCB medical advisor noted no change to the previous diagnosis of a mid back strain/sprain, which was expected to resolve within two months’ time. The WCB medical advisor was of the view that the medical evidence did not support physical restrictions for the worker and that he was considered recovered from the June 29, 2018 workplace accident.

On October 22, 2018, the WCB advised the worker it determined he was recovered from the workplace accident and he would not be entitled to further benefits after October 29, 2018.

On April 10, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. In his submission, the worker noted his belief that the injury he sustained from the workplace accident was more than the strain/sprain injury accepted by the WCB. He stated that the pain clinic specialist treating him prescribed injections to stop his back pain and as such, he believes he should be entitled to benefits, as he had not recovered from the workplace injury.

On April 18, 2019, Review Office requested the WCB medical advisor review the January 14, 2019 report from the pain clinic specialist with respect to the pain injections. The WCB medical advisor noted that the specialist’s report did not specify which part of the worker’s spine was a pain site and that the MRI findings were relatively benign; therefore, the new medical information did not change his October 11, 2018 opinion.

On May 10, 2019, the employer’s representative provided a written submission in support of the WCB’s decision a copy of which was provided to the worker. The worker and the employer’s representative each provided a further response on May 27, 2019 and June 3, 2019 respectively.

Review Office determined on June 4, 2019 the worker was not entitled to benefits after October 29, 2018, relying upon the opinion of the WCB medical advisor that the injury as a result of the workplace accident was a mid back strain/sprain, which typically resolved within two months. Age-related degenerative findings noted on the diagnostic imaging were determined to be the cause of the worker’s ongoing difficulties. Review Office found that the worker had recovered from his June 29, 2018 workplace accident and was not entitled to further benefits after October 29, 2018.

The worker’s representative filed an appeal with the Appeal Commission on November 5, 2019. An oral hearing was held by teleconference on May 28, 2020.

Reasons

Applicable Legislation

Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:

Compensation payable 

37 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.

Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an 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 is "…necessary to cure and provide relief from an injury resulting from an accident."

Worker’s Position

The worker participated in the hearing with a worker advisor.

The worker advisor made a submission on behalf of the worker. The worker provided evidence to the panel through questioning by the worker advisor as well as by members of the panel.

The worker advisor confirmed to the panel, on behalf of the worker, that the worker seeks continuation of wage loss and medical aid benefits on the basis that he had not recovered from the June 29, 2018 injury to his mid-back by October 29, 2018. Specifically, the compensable diagnosis of mid-back muscle strain and accompanying aggravation of the worker’s pre-existing L5 disc injury were not resolved by that date.

The worker’s position is that as a result of the injury that occurred on June 29, 2018, he suffered a mid-back strain and aggravated a pre-existing back condition, resulting in continuing symptoms of severe mid-back pain radiating down into his leg.

In support of this position, the worker advisor pointed to the results of the August 15, 2018 WCB call-in examination that found the worker had no range of motion in his right hip and bilateral negative ankle reflexes, resulting in a recommendation that further investigations be undertaken. The subsequent MRI revealed the disc at L5 approaching the nerve root, as well as moderate epidural lipomatosis in the area of the L5 vertebra. These findings, the worker advisor suggested, indicate that the worker’s pre-existing back condition was a factor in delaying the worker’s recovery.

Further, at the time that the WCB determined the worker should have been recovered, in October 2018, the treating physician continued to report symptoms of lower back pain and numbness in the worker’s right leg.

The worker testified that he continues to experience lower back pain, although it is a little better now than in the past. He has to be careful on bending over, as he cannot stand up again on his own, but is able to move about more now than at first. He still cannot kneel or bend and avoids stairs. He is able to walk short distances, but needs to rest often, and experiences hot burning pain in his back soon after he starts walking. The worker noted he still walks with a limp as taking a full stride with his right leg causes him pain.

The worker advised the panel that he treats the pain with medication, but has not received any of the pain injections proposed by the pain clinic specialist in the January 14, 2019 report. He described ongoing pain in his mid-back, right leg and during the night in his upper-mid back.

With respect to the offer of modified duties made by the employer, the worker advised that when he attended as required in August 2018, he was told to wait, and after about 20 minutes of waiting, he left due to an upset stomach associated with the pain medication he had taken. The worker did not return to work or work any modified duties, and stated his objection to the specific duties offered to him. The worker confirmed to the panel that he would still be unable to undertake his pre-accident job duties but would now be able to work light duties.

The worker’s position, in sum, is that the compensable injury sustained on June 29, 2018 continues to contribute to his ongoing symptoms. Further, while his pre-existing condition allowed him to work at his job before the accident of June 29, 2018, he has not been able to continue with that work since that time, suggesting that the pre-existing condition was aggravated by his injury and continues to impact his recovery. Therefore, the worker’s position is that he should be entitled to medical aid and wage loss benefits beyond October 29, 2018, as he had not fully recovered from the effects of the compensable workplace injury at that time.

Employer’s Position

The employer was represented in the hearing by an advocate, and by its director of human resources. The advocate made oral submissions and answered questions from panel members on behalf of the employer.

The employer’s position is that the objective evidence supports a finding that the worker’s continuing back issues relate to his pre-existing degenerative condition rather than to the effects of the accident of June 29, 2018, noting there is no evidence of any structural alteration in the worker’s pre-existing degenerative condition.

A normal recovery from a mid-back strain should occur in 4-6 weeks and in this case, the WCB provided coverage for the worker’s injury for 4 months.

The advocate noted that the employer could accommodate the worker, except for a brief period prior to August 2018, but that the worker was not willing to work the modified duties offered. The employer routinely offers clerical duties and could have accommodated the worker in such a position, but he maintained he was unable to do the work offered within his restrictions.

The employer’s advocate reviewed the worker’s medical findings, including the 2002 imaging that revealed degenerative disc issues. The advocate noted the lack of neurological findings at the first assessment on June 30, 2018 and that this finding was confirmed when the case manager spoke with the treating physician on July 19, 2018. Further, diagnostic testing did not reveal any evidence of acute injury and one physician described the results as “relatively benign”. The advocate pointed out that the WCB call-in examination revealed inconsistent physical findings and also confirmed an absence of neurological involvement.

The employer urged the panel to accept the October 11, 2018 opinion of the WCB orthopedic consultant who concluded there was no new diagnosis on the basis of the recent MRI, which revealed common degenerative changes, and confirmed a compensable diagnosis of a soft tissue mid-back strain.

The employer’s position, in sum, is that the worker had recovered from the compensable diagnosis of mid-back strain by October 29, 2018 and therefore no longer experienced a loss of earning capacity or required medical aid as a result of the compensable injury.

Analysis

In order for the worker's appeal to succeed, the panel must find that the worker continued to experience a loss of earning capacity as a result of the compensable injury, or that he required medical aid to cure and provide relief from the compensable injury beyond October 29, 2018. On the basis of the evidence before us, the panel was not able to make such a finding.

In considering the relationship between the worker’s presentation after October 29, 2018 and the compensable workplace injury, the panel gave careful consideration to the medical findings and clinical evidence for the period leading up to and beyond that date.

At the August 15, 2018 call-in examination with the WCB orthopedic consultant, the worker described symptoms consistent with those described to the panel in the hearing. The orthopedic consultant reported the worker’s March 5, 2003 MRI noted “Disc degeneration without disc protrusion causing nerve root compression L4-5 and L5-S1.” The orthopedic consultant's assessment noted inconsistent physical findings, pain focus and anxiety. The only evidence of a potential neurological involvement was the bilateral absence of ankle reflexes. Further investigation was therefore recommended including an MRI and x-ray so as to provide some objective evidence.

An x-ray of the worker’s thoracolumbar spine taken August 18, 2018 revealed some minor degenerative changes in the mid dorsal spine and osteoarthritis in the lower lumbar facet, with minimal narrowing at the L4-L5 level. The September 30, 2018 MRI study of the worker’s thoracic and lumbar sacral spine revealed what are described as “[r]elatively mild degenerative changes” in the lumbar sacral spine and mild central canal stenosis, with little change from a November 28, 2002 CT examination reviewed.

The panel noted the consistency of the worker’s reporting to his treating family physician, as outlined in the July 20, 2018, August 3, 2018 and October 4, 2018 Doctor Progress Reports provided to the WCB. The October 4, 2018 Doctor Progress Report noted the worker’s report of ongoing pain in his lower back and right leg, with numbness. Testing was limited by pain, but the physician noted the worker walked with a limp and had limited range of motion in all directions due to pain, but normal reflexes.

On October 11, 2018, the WCB orthopedic consultant reviewed the file and the MRI study report. He explained that because the findings from the call-in examination of August 15, 2018 were inconsistent, weight had been given to the worker’s “subjective tolerances pending imaging investigation” but that the degenerative changes seen in the recent MRI of the worker’s lumbar spine are “commonly seen and are age-related.” The orthopedic consultant noted that a mid-back strain would be expected to resolve in two months and the testing has not demonstrated any pathological cause for the worker’s reported ongoing symptoms; therefore, the worker was considered recovered from the effects of the workplace injury.

A January 14, 2019 report from a pain clinic specialist sets out that the worker presents with “…clinical signs of L5 radiculopathy with a relatively benign MRI” and recommends an attempt at injection of the L5 nerve root to assess the worker’s response.

The WCB orthopedic consultant reviewed the January 14, 2019 pain clinic specialist’s report and noted it did not change the opinion provided on October 11, 2018.

The panel finds that there is a lack of medical findings to support the worker’s position that there was an aggravation of the 2002 injury to the worker’s lumbar spine at L4-L5. In fact, comparison of the 2018 MRI findings with the 2002 CT findings indicated little change over that period. Further, there is a lack of medical findings to support that the mid-back strain/sprain injury of June 29, 2018 was anything more than a soft tissue injury. A consulting pain specialist described the MRI findings as “benign”, and the WCB orthopedic consultant agreed with this description, noting as well the inconsistent findings on physical examination that do not support any other diagnosis.

The medical findings do reveal age-related deterioration in the worker’s spine, which may provide an explanation for the worker’s continuing pain complaints. These degenerative changes are described by the WCB orthopedic consultant as common but cannot be related to the worker’s compensable injury of June 29, 2018.

With respect to the cause of the worker’s loss of earning capacity, the panel noted that there were no medical restrictions relating to the compensable injury beyond October 29, 2018. Further, while the restrictions remained in place, the employer had modified duties available to the worker within his restrictions as of August 2018, and it made more than one offer to the worker in respect of those duties, but that the worker did not attempt a return to work. The worker’s explanation to the panel was that he objected to the specific duties offered, as he was not interested in doing that kind of work.

The panel finds that the evidence here does not support, on a balance of probabilities that the cause of the worker’s loss of earning capacity or need for medical aid beyond October 29, 2018, was the result of the June 29, 2018 compensable injury. Therefore, the worker is not entitled to further wage loss and medical aid benefits after October 29, 2018.

The appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of July, 2020