Decision #80/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits after July 18, 2019. A teleconference hearing was held on June 11, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits after July 18, 2019.
The worker is not entitled to further benefits after July 18, 2019.
On September 13, 2017, the worker reported to the WCB that she injured her right lower back in an incident at work on September 12, 2017. The worker stated that:
I went to move on a chair and while doing this it got caught on the cord. When it caught on the cord I felt a snap in my right lower back, I had shooting pain down my right hip/leg. I tried to keep working but left to see a doctor about an hour and a half later.
The WCB contacted the worker on September 14, 2017 to discuss her claim. The worker confirmed the mechanism of injury, and advised that approximately 20 minutes after the workplace incident she was "…feeling pain going down into her right leg and into her foot…" and she attended the hospital emergency department for treatment. The emergency department physician noted the worker had chronic back pain, and recommended she remain off work for one week. The worker advised the WCB that she had prior difficulties with her back starting in 2015 and had attended the emergency department previously for treatment and been referred for an MRI at that time. The worker's claim was accepted by the WCB on September 15, 2017.
On September 18, 2017, the worker attended an initial physiotherapy assessment, and on October 5, 2017, the treating physiotherapist recommended the worker could begin a graduated return to work at 4 hours per day, increasing by 2 hours per day each week, with restrictions of no lifting greater than 20 pounds and frequent breaks as allowed, and the worker being cleared for full duties as of November 6, 2017. The worker began her graduated return to work on October 11, 2017, but discontinued working due to ongoing symptoms. On October 24, 2017, the WCB received the results of the worker's October 5, 2017 MRI of her lumbar spine, where mild degenerative changes at L4-L5 and L5-S1 were noted.
On December 19, 2017, the worker attended a call-in examination with a WCB medical advisor. Following the examination, the WCB medical advisor opined that the worker's diagnosis as a result of the September 12, 2017 workplace accident was likely a right S1 radiculopathy. The medical advisor further opined that the current diagnosis remained right S1 radiculopathy which would be medically accounted for in relation to the workplace accident in the setting of the worker's pre-existing degenerative disc condition. It was further noted that the worker continued to report "considerable symptoms and associated functional limitations" which would likely limit her abilities to carry out even light duties at that time.
On January 16, 2018, the WCB discussed the worker's treatment with her current treating physiotherapist who agreed that an active-based program which focused on increasing the worker's tolerance would be beneficial to the worker, and the worker attended for a reconditioning assessment on February 5, 2018.
After reporting ongoing and increasing symptoms, the worker was seen by a sports medicine physician on May 17, 2018. The sports medicine physician diagnosed the worker with lumbar radiculopathy, recommended she continue with the active-based physiotherapy sessions and referred her to a spine surgeon. A further MRI was performed on June 4, 2018, where it was noted that there was "No significant interval change. At L5-S1 the disc contacts the traversing S1 nerve roots without displacement. Nerve root irritation cannot be completely excluded." On July 5, 2018, the worker was seen by the spine surgeon who stated that he did not advise surgical intervention at that point in time, but recommended the worker remain active and attend physiotherapy, and referred her to the pain clinic for an injection.
The worker continued to seek treatment from her treating healthcare providers due to ongoing and increasing symptoms and a decrease in her functioning. On March 28, 2019, the worker underwent another MRI of her lumbar spine which indicated "A moderately large new disc protrusion is present right laterally with focal extrusion and compression on the right S1 nerve root."
On June 26, 2019, the worker attended a call-in examination with a WCB orthopedic consultant. On July 4, 2019, the consultant discussed the worker's file with her WCB case manager and opined that the worker's initial diagnosis after the workplace incident was "…irritation of the right S1 nerve root in the environment of multi-level lumbar degenerative disc disease" which, it was noted, was evident in the series of MRIs. The orthopedic consultant opined that the worker's current diagnosis was lumbar degenerative disc disease with radiation of pain to the lower limbs, right more than left, and that this represented the natural progression of degenerative disc disease, with "…extrusion of L5-S1 disc material." The WCB orthopedic consultant further stated that there was no clinical evidence that the workplace injury affected the degree of degenerative disc disease. The consultant opined that the worker's current symptoms were related to the natural history of the worker's degenerative disc disease and were not related to the September 12, 2017 compensable injury. It was further noted that the worker's pre-existing degenerative disc disease had "significantly prolonged" the worker's recovery from the effects of the workplace incident.
On July 10, 2019, the WCB's Compensation Services advised the worker that they had determined her current difficulties were not related to the workplace accident but to her pre-existing condition, and she was considered to have recovered from the workplace accident. The worker was advised that wage loss benefits would therefore be paid to July 18, 2019 inclusive and final.
On July 17, 2019, the worker submitted a letter from her family physician expressing disagreement with Compensation Services' decision to end the worker's benefits, and on July 18, 2019, Compensation Services advised the worker the additional information from her physician had been reviewed but did not support a change to the earlier decision.
On July 18, 2019, the worker requested that Review Office reconsider Compensation Services' decision, and on September 5, 2019, the employer provided a submission in support of Compensation Services' decision. On September 18, 2019, the worker contacted the WCB to request that her appeal be placed on hold pending receipt of additional medical information.
New medical information from the worker's treating sports medicine physician was received on September 24, 2019, and was reviewed by the WCB orthopedic consultant on October 3, 2019. On October 7, 2019, Compensation Services advised the worker that there was no change to the earlier decisions that she had recovered from the effects of her compensable injury and her ongoing difficulties were related to her pre-existing DDD condition.
On October 9, 2019, the worker's request for reconsideration of Compensation Services' decisions was re-listed with Review Office. On September 11, 2019, the worker provided a submission to Review Office setting out a chronology of her previous back injury and her current difficulties, and indicating that her ongoing symptoms and difficulties made her unable to work, and as such, she remained entitled to further benefits.
On November 25, 2019, Review Office determined that the worker was not entitled to benefits beyond July 18, 2019. Review Office found the evidence indicated the worker initially showed signs of progressive recovery from her injury, but her condition began to deteriorate on a slow but consistent basis while she was off work. Review Office further found that typical recovery from a nerve root irritation injury involves gradual improvement then recovery. Review Office acknowledged the worker continued to have ongoing back difficulties which had progressed since she stopped working, but found that the slow gradual increase in the worker's symptoms was consistent with her pre-existing degenerative disc disease and they could not establish a relationship between the deterioration in her back and ongoing difficulties and the workplace accident.
On November 25, 2019, the worker appealed the Review Office decision to the Appeal Commission, and a teleconference hearing was arranged for June 11, 2020.
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 states 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 126.96.36.199, 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 ad 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.
The worker was self-represented. The worker made an oral presentation at the hearing, and responded to questions from the panel.
The worker's position was that the decision to end her benefits was wrong and unjust, as she continues to suffer the effects of her injury and remains unable to work as a result of her September 12, 2017 workplace incident.
The worker submitted that in the course of her claim the compensable injury was changed from S1 radiculopathy and mechanical back pain as a result of the injury, to a diagnosis of degenerative disc disease with ongoing pain and limitation which was unrelated to her 2017 injury. The worker submitted that this change in diagnosis is not reflected in the reports from any healthcare professional she has seen.
The worker submitted that the workplace incident resulted in annular tears which caused weakness and allowed disc material to move outward, as shown on the 2017 MRI. The continual moving of the disc material caused S1 nerve root irritation from the beginning of the claim and was the catalyst for the current state of her back.
The worker submitted that the June 26, 2019 and July 3, 2019 reports from the WCB orthopedic consultant were conflicting and that it was at this point in time that the diagnosis changed fully to degenerative disc disease. The worker acknowledged that diagnoses change, but noted that this would generally happen as a result of something else changing, which did not happen here. Nothing had changed.
The worker submitted that while there can be a natural progression of disc bulging, there can also be a natural progression of degenerative disc disease causing a radiculopathy, which was what occurred in her case. She asked that the panel review and place weight on the reports from her family physician and treating sports medicine physician, dated July 17, 2019 and September 24, 2019, respectively.
The worker submitted that her September 2017 injury resulted in an enhancement of her pre-existing degenerative disc disease. She noted that she has undergone assessments by numerous physicians and numerous treatments since her injury and is currently awaiting a surgical consult. She described the effect her injury has had on her and on every aspect of her life from the beginning. She said she has not recovered. She remains injured and in constant pain and is unable to generate an income.
In conclusion, the worker asked that the panel consider her claim holistically, taking all medical information into account and not just the opinion of one physician, which changed over a short period of time.
The employer was represented by an advocate and by its WCB Coordinator. The employer's advocate made an oral submission at the hearing and responded to questions from the panel.
The employer's position was that the WCB's decision to end benefits was appropriate, given the medical evidence of advancing degenerative disc disease, unrelated to the September 12, 2017 workplace injury.
The employer's advocate noted that this was a complex claim and asked that the panel accept the expert opinion of the WCB orthopedic consultant, who not only reviewed the file on a number of occasions but also examined the worker.
The employer's advocate submitted that there is no question that the worker had chronic pre-existing degeneration, as she had bouts of severe back pain in 2015 brought on by no event or from sneezing and coughing. Information on file further indicated that she had severe back pain with no inciting incident a month before the September 12, 2017 incident, and had sought medical attention at the end of August 2017 with such severe pain that the attending physician had ordered an expedited MRI, which took place on October 5, 2017
The employer's advocate submitted that the WCB orthopedic consultant did not change the diagnosis. She noted that the orthopedic consultant said the probable diagnosis was irritation of the right S1 nerve root in the environment of multi-level lumbar degenerative disc disease, and the current diagnosis was lumbar degenerative disc disease, with radiating pain to both lower limbs. The consultant further stated that the degree of degenerative disc disease had increased since September 12, 2017, which represented the expected natural history of degenerative disc disease over the years.
The employer's advocate stated that at the call-in examination on June 26, 2019, the consultant noted that a significant development was the new disc protrusions at L5-S1, which represented further movement of the disc material, now with progression of the nerve root. The advocate submitted that it could not be argued that this new disc protrusion with confirmed compression was caused by the workplace injury. The consultant concluded that the workplace injury caused irritation of the right S1 nerve root, but did not comment at the time as to whether the worker's ongoing difficulties were due to the workplace injury.
The employer's advocate noted that the consultant did not actually address the issue of an ongoing compensation relationship until after the call-in examination, when the case manager posed a series of questions. The advocate submitted that the consultant confirmed the diagnosis on July 3, 2019, clarifying that the current symptoms represented the natural history of the progression of the pre-existing condition, with the added extrusion of the L5-S1 disc. The consultant stated that there was no objective evidence the workplace injury affected the degree of degenerative disc disease, and that current symptoms and tolerance were due to the pre-existing condition and not related to the workplace injury.
The issue before the panel is whether or not the worker is entitled to further benefits after July 18, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further benefits beyond July 18, 2019 as a result of her September 12, 2017 workplace incident. The panel is unable to make that finding.
Based on our review and consideration of all of the information on file, and as presented at the hearing, the panel is unable to find that the worker suffered a further loss of earning capacity or required further benefits beyond July 18, 2019 as a result of her September 12, 2017 workplace incident or injury.
Information on file and on a previous 2015 WCB claim file shows, and the worker acknowledged, that she had experienced back pain and sought medical attention for back difficulties dating back to 2015. The worker described several incidents since 2015, including an incident where she attended at the hospital emergency department less than one month prior to her September 12, 2017 injury due to back pain and the attending physician ordered an MRI of her lumbar spine.
The worker described the September 12, 2017 mechanism of injury in her presentation at the hearing and in response to questions from the panel. The worker described how she was rushing to pull a large armchair into place, which was on wheels, when the chair got stuck on a cord and she felt something in her back snap. While the worker argued at the hearing that the multi-level annular tears which were identified on the October 5, 2017 and subsequent MRIs were caused by the September 12, 2017 incident, the panel is not satisfied that the mechanism of injury, as described on file and at the hearing, would have resulted in such tears.
The panel finds that the medical evidence as a whole supports that the worker suffered an irritation of the right S1 nerve root in the environment of multi-level degenerative disc disease as a result of the workplace injury.
The panel is further satisfied that the evidence on file supports that there has been ongoing deterioration in the worker's lumbar spine and progressing disc degeneration over time, with periods of flare-ups. The panel is unable to find, however, that such ongoing symptomatology as of July 18, 2019 is causally related to the worker's September 12, 2017 workplace incident or compensable injury.
The panel notes that the findings on the most recent MRI on file, dated March 28, 2019, document, at L5-S1: "A moderately new disc protrusion is present right laterally with focal extrusion and compression on the right S1 nerve root." The panel notes that this new finding is consistent with our understanding of the natural progression of degenerative disc disease, and is satisfied that such a protrusion is not related to the compensable injury.
While the worker has argued that her pre-existing degenerative disc disease was enhanced as a result of her workplace incident, the panel is unable to accept that argument. In this regard, the panel is satisfied that there is an absence of medical evidence to support that the workplace injury affected the degree of degenerative disc disease either temporarily or permanently, as an aggravation or enhancement of that condition.
The worker described her September 12, 2017 workplace injury as a "catalyst" to the problems she subsequently experienced. In response to questions from the panel, the worker explained what she meant by this, as follows:
The reason I said that it's a catalyst…is because in 2015 when I injured my back, I did what I needed to do to get healthy again, healthy and strong. I didn't have a lot of issues. I had the odd issue that would set me back a little, but when I took this job…I was healthy…
This injury, the reason I say that it is a catalyst is because I was okay, mostly, because of the fact that when I pulled this and felt that snap, that pain hasn't changed. It's gotten worse, but it hasn't changed in it's, like where it begins in my back and then down my right leg. That is the…main issue. And since then, I've had complete instability. I've had complete pain. And I believe it started in – it was the start of the end, in a way.
The panel recognizes that the worker has ongoing pain and lower back difficulties. The panel is unable to find, however, that her ongoing difficulties are causally related to her September 12, 2017 workplace incident.
In summary, based on the foregoing and on our consideration of the totality of the evidence which is before us, the panel finds, on a balance of probabilities, that the worker's ongoing symptoms and difficulties as at July 18, 2019 were not related to her compensable injury, but to her pre-existing degenerative condition.
The panel therefore finds that the worker did not suffer a further loss of earning capacity or require further benefits beyond that date as a result of her September 12, 2017 workplace incident and is not entitled to further benefits after July 18, 2019.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of August, 2020