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 February 22, 2019 in relation to the March 8, 2018 accident. A teleconference hearing was held on September 10, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 22, 2019 in relation to the March 8, 2018 accident.

Decision

That the worker is entitled to benefits after February 22, 2019 in relation to the March 8, 2018 accident.

Background

On March 13, 2018, the worker filed a Worker Incident Report with the WCB, indicating she injured her lower back in an incident at work on March 8, 2018. In a discussion with a WCB adjudicator on March 19, 2018, the worker advised that her regular job duties required her to be on her feet all day, but involved no heavy lifting and only some twisting. Her regular duties were not available on March 8 and 9, 2018, so she was assigned to another area, where she was lifting materials off a machine on her right and twisting to her left to put them on a pallet. The worker estimated that the weight of the materials varied between 30 and 60 pounds and she offloaded approximately 400 to 500 items on those days.

The worker stated that she woke up in the middle of the night after the second day, with pain on the left side of her low back, and above her hip. She returned to work on March 12, 2018, performing her regular job duties, and told her supervisor that the duties she performed on March 8 and 9 hurt her back. On March 13, 2018, the worker was on her way to work, but ended up going to a hospital emergency department due to back pain. She noted that she could not climb up on the examination table when the emergency department doctor asked her to do so, and that no x-rays were taken. The March 13, 2018 report from the hospital indicated the worker was provided with an injection for pain and diagnosed with acute discogenic low back pain.

On March 14, 2018, the worker attended an initial physiotherapy assessment. The worker reported pain to her low back, increased pain with forward bending, going from sitting to standing and twisting her trunk, and pain to the front of her left hip when raising her left leg. The physiotherapist noted the worker had a slow, antalgic gait, some swelling to her left low back area, was very tender to her left lumbar paraspinals and left hip flexors, and had pain to her left gluteal area. The physiotherapist diagnosed the worker with an acute lumbar strain and queried a left hip flexor strain, and recommended she remain off work for two weeks then be reassessed.

The worker also saw her family physician on March 14, 2018. She told her physician that she was repetitively taking heavy sheets of material from a machine, turning to the left and walking to place them on a pallet, and injured her left lower back. The family physician noted the worker had very tender left lumbar musculature, minimal flexion and extension and difficulty walking. He diagnosed the worker with a left lumbar back sprain and recommended she continue with physiotherapy, take pain medication as needed, and remain off work.

On March 20, 2018, the WCB's Compensation Services accepted the worker's claim for a low back sprain/strain and payment of benefits commenced. At a follow-up appointment on April 10, 2018, the worker's family physician noted the worker had decreased pain in general and when walking, and recommended that she was capable of alternate or modified work, with restrictions of no lifting or bending, and being allowed to sit/stand as needed, starting April 13, 2018. The restrictions were communicated to the employer, and the worker returned to work with modified duties on April 13, 2018. On May 30, 2018, the employer was advised that the worker's temporary restrictions had been updated to no lifting greater than 10 pounds, occasional bending, and allowance for breaks as necessary.

On June 15, 2018, the worker attended a call-in examination with a WCB sports medicine consultant. The consultant opined that the worker's current diagnosis was a left L5 radiculopathy, confirmed by her initial reporting of low back pain that radiated into her left leg in the setting of clinical findings of weakness of her left toe extensor and a positive straight leg raise test. The consultant further opined that this diagnosis was reasonably accounted for in relation to the reported mechanism of injury of repetitive twisting while carrying materials. The consultant recommended restrictions of avoiding resisted repetitive flexion, twisting and bending, and avoiding heavy lifting from floor to waist greater than 25 pounds. A strengthening program under the guidance of a physiotherapist was also recommended, to improve the worker's overall symptoms and functioning. The worker began the strengthening/reconditioning program on July 16, 2018, and completed it on August 15, 2018.

On September 11, 2018, the worker advised her WCB case manager that she was having issues with pain into her left shoulder, neck and head. On September 14, 2018, the worker provided the WCB with a copy of a Notice of Temporary Layoff from the employer due to shortage of work, effective immediately, with a recall date of November 12, 2018.

On September 28, 2018, the worker attended a further call-in examination with the WCB sports medicine consultant. The consultant opined that the worker's current diagnosis was centralizing lumbar radiculopathy and her current presentation was related to the workplace accident. The consultant recommended a return to modified duties for the worker to improve her function, and restrictions of no repetitive resisted carrying from floor to waist greater than 30 pounds and positional changes every 15 minutes.

On October 5, 2018, the worker was seen by a sports medicine physician. The physician noted tenderness in her left lumbar paraspinals and a positive straight leg raise test on her left. The physician diagnosed the worker with discogenic lower back pain and left leg L5/S1 radiculopathy symptoms, and recommended an MRI of the worker's lumbosacral spine.

The MRI, performed January 8, 2019, indicated a "Massive intra-abdominal cystic mass" and mild degenerative disc disease and facet joint osteoarthritis in the worker's lower lumbar spine. On February 12, 2019, the worker attended a follow-up appointment with the treating sports medicine physician, who noted the worker had been referred for further diagnostics regarding the cystic mass, with surgery likely being required. The physician noted that the MRI results were discussed with the worker and showed "no evidence radiculopathy."

On February 14, 2019, Compensation Services advised the worker that they were unable to establish that her current difficulties were related to the workplace accident and had determined she had recovered from the March 8, 2018 workplace accident. The worker was advised that her entitlement to benefits would therefore be terminated effective February 22, 2019.

On February 26, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that she had not recovered from the workplace accident and her injuries had become worse.

On April 30, 2019, the worker underwent surgery to remove the intra-abdominal cystic mass. On May 31, 2019, the worker provided further medical information to the WCB, including a copy of the surgery report. On June 5, 2019, Compensation Services advised the worker that the additional medical information had been reviewed, but their February 14, 2019 decision remained unchanged.

On June 18, 2019, Review Office determined that the worker was not entitled to benefits after February 22, 2019. Review Office placed weight on the February 12, 2019 report of the treating sports medicine physician, who noted a change in the worker's diagnosis to a large intra-abdominal mass lesion, and that the MRI indicated no signs of nerve root impingement or evidence of radiculopathy. Review Office found that based on the weight of evidence, they could not account for the worker's difficulties in relation to the March 8, 2018 workplace accident.

On December 10, 2019, the worker's representative submitted a report from a physician with an interest in occupational health medicine ("occupational health physician"), dated November 25, 2019, and asked that Review Office reconsider their June 18, 2019 decision. In his report, the occupational health physician opined that the worker's injury after the March 8, 2018 workplace accident was a pelvic girdle muscle strain on the left side, and noted that the worker's "…painful limitations in walking throughout her post-injury course and left-sided sitting pressure are more prominent than lumbar movement restrictions…"

On February 14, 2020, the worker's file, including the additional medical information, was reviewed by a WCB physical medicine consultant. The consultant opined that the diagnosis which the occupational health physician had provided was not medically accounted for in relation to the workplace accident, as a minor soft tissue sprain like the pelvic girdle muscle strain as opined by the physician in his November 25, 2019 report would be "…minimally symptomatic and…easily resolve in at most a few weeks…" A copy of the opinion was forwarded to the worker's representative, who provided a response on February 20, 2020.

On February 21, 2020, Review Office advised the worker that they agreed with the opinion of the WCB physical medicine consultant, and there was no change to the previous decision.

On February 26, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission, and 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 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.

Section 37 outlines the compensation which is payable to workers as follows:

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.

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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker also provided a submission in advance of the hearing, and the worker and her representative responded to questions from the panel.

The worker's position was that she is entitled to wage loss and medical aid benefits beyond February 22, 2019, as the evidence supports she has not recovered from the effects of her workplace accident, and her loss of earning capacity after February 22, 2019 and ongoing symptoms and disability are related to her March 8, 2018 workplace accident.

The worker's representative submitted that the compensable injury has always been a left-sided injury, which included left SI joint involvement. It was submitted that the initial and ongoing medical evidence, by examination, confirmed and continued to identify ligamentous/muscular injuries to the SI joint area, with initial radiating pain to the upper thigh. The representative submitted that the left sided symptoms were evident at the time of the accident, when benefits were deemed by the WCB to be payable, and the same symptoms continued to be a major disabling and contributing factor after the worker's benefits were discontinued.

The worker's representative submitted that the WCB misdiagnosed the worker's injury as an L5 radiculopathy. While the WCB accepted an L5 radiculopathy as the compensable injury, the evidence did not support that diagnosis and the January 8, 2019 MRI confirmed that there was no herniated disc and no compression of the L5 nerve root.

It was submitted that the WCB discontinued all benefits based on the MRI having confirmed there were no signs of nerve root impingement or evidence of radiculopathy. The representative noted that the confirmed specific pain complaints continued with SI joint pain and associated injuries in this area and in the left buttock and hip areas. The representative submitted that although the medical examinations identified an SI area joint injury as a result of the workplace accident, the WCB either chose to ignore this as an area of injury or missed it. As of February 22, 2019, the WCB therefore failed to support the worker's ongoing difficulties and failed to focus on the actual cause of those difficulties.

The worker's representative noted that numerous medical articles on the internet regarding SI joint area injuries and pain indicate that they can mimic other conditions, such as a herniated disc or hip problem, and submitted that this is what happened in this instance. The worker's representative referred to internet information they had submitted in advance of the hearing as supporting their position that the symptoms the worker had exhibited throughout her claim were consistent with left sacroiliac joint dysfunction and the mechanism of injury as described fit with the diagnosis of SI joint pain and dysfunction. The representative further submitted that the worker exhibited the symptoms associated with an SI joint area injury, as shown from the early medical information on file.

The worker's representative argued that the WCB's misdiagnosis of a worker's injury should not disqualify an injured worker from further benefits when the true diagnosis is supported by ongoing clinical examination test findings. The representative submitted that as is confirmed by the medical evidence on file, the hip flexor and SI joint were identified as areas of injury by the early examinations.

The worker's representative noted that due to her ongoing difficulties, the worker sought medical assistance from the occupational health physician. Based on a full review of the worker's file and his very thorough physical examinations and findings, the occupational health physician provided a medical opinion that the workplace injury involved pelvic girdle muscle strain, on the left side, as opposed to any radiculopathy related to the lumbar spine. The representative submitted that the worker's symptoms and the examination findings and opinion of the occupational health physician continued to support an SI joint dysfunction well after the WCB discontinued her benefits. The representative asked that the panel place significant weight on the occupational health physician's examinations as he provided a diagnosis related to the workplace accident, and provided a rationale, supported by medical documentation on file, which continues to establish a relationship between the worker's true compensable injury and the workplace accident.

In conclusion, the worker's representative submitted that as the WCB accepted the mechanism of injury, it should also accept the consequences of the worker's continued difficulties which have been confirmed and for which specific directed treatment is required. The representative submitted that the requirements of the Act have been met, and continue to be met, and there is further WCB responsibility for wage loss and medical aid benefits.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 22, 2019 in relation to the March 8, 2018 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had not recovered from the effects of her March 8, 2018 workplace accident and injury by February 22, 2019. The panel is able to make that finding, for the reasons that follow.

The panel is satisfied, on a balance of probabilities, that the worker suffered an injury to her lower back area as a result of the March 8, 2018 workplace accident. The evidence indicates that the duties which the worker was performing on March 8 and 9, 2018 were much heavier than her regular duties, and involved repetitive lifting of materials weighing 30 to 60 pounds, twisting and bending. The panel is satisfied that the mechanism of injury is consistent with the duties the worker was performing on those days.

The panel is further satisfied that the injury which the worker suffered as a result of the workplace accident was not minor in nature, nor was it described as such by her healthcare providers. The panel is of the view that had the injury been minor, the worker would likely have recovered from her injury within a relatively short period of eight weeks or so, which did not occur, as is supported by the findings of the WCB sports medicine physician and the treating sports medicine physician who noted ongoing difficulties and clinical findings well beyond such an eight-week period.

The evidence shows that the WCB relied on the January 8, 2019 MRI and the February 12, 2019 report from the worker's treating sports medicine physician in terminating the worker's benefits. The panel is of the view that the MRI alone, without correlation, is not conclusive evidence that the worker had recovered. The February 12, 2019 report shows that the sports medicine physician discussed the MRI report with the worker, indicating there was no evidence of radiculopathy, that a consult and probable surgery to address the mass which had been identified in the MRI was pending, and that the sports medicine physician had nothing further to offer at that point. There is a lack of clinical findings in the report, and the worker's evidence at the hearing was that this was a follow-up appointment related to the MRI, and the physician did very little, if any, examination that day, given the pending probable surgery.

The WCB initially accepted the worker's claim for a low back sprain/strain injury, but the accepted diagnosis was later changed to a left L5 radiculopathy following the call-in examination by the WCB sports medicine consultant on June 15, 2018. While the worker's representative has argued that this was a misdiagnosis, the panel is not satisfied that the evidence supports that the diagnosis was incorrect or that the worker had recovered from that accepted diagnosis of a left L5 radiculopathy as at February 22, 2019.

The panel is of the view that the medical evidence, including the opinions of the WCB sports medicine consultant, indicate that the worker had not recovered from her workplace injury as at February 22, 2019. In this regard, the panel notes that on December 28, 2018, the WCB sports medicine consultant opined that:

1. The natural history of lumbar radiculopathy is 6-18 months.

2. It is more likely than [sic] the current presentation is likely related to the work place injury. The medical findings include restricted forward flexion. There aren't further reports of continuing neurological deficits. This would signify a good prognostic feature.

3. As the treating physicians have suggested an MRI, it would be appropriate. It is not likely to change the prognosis or treatment but may reassure the patient and aid the treating physicians.

4. The current restrictions would be recommended.

Subsequent to the MRI, a note to file of a conversation between the worker's case manager and the WCB medical advisor on January 11, 2019 further indicates that the medical advisor had confirmed that the MRI findings relative to the spine would not require any alterations in the ongoing claim management, and that the case manager would follow-up in 3 months from the previous review of December 28, 2018, "to address recovery."

In conclusion, the panel finds, on a balance of probabilities, that the worker had not recovered from her March 8, 2018 workplace accident by February 22, 2019, and is entitled to benefits after that date.

The panel notes that this is a "point in time" decision. The panel takes no position as to specific benefit entitlement or the duration of entitlement and refers the claim back to the WCB for further determination.

Based on the foregoing, the worker is entitled to benefits after February 22, 2019 in relation to the March 8, 2018 accident.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of November, 2020