The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to further benefits in relation to the August 23, 2017 accident. A teleconference hearing was held on October 22, 2020 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 23, 2017 accident.

Decision

The worker is entitled to further benefits in relation to the August 23, 2017 accident.

Background

On August 29, 2017, the worker reported injury to her left lower back in an incident at work on August 23, 2017 when she lifted a heavy roll of wrapping material into a machine and felt a “pull” in her back.

The worker sought medical treatment on August 24, 2017 and reported to the treating physician that she felt a sharp pain in her lower back following the August 23, 2017 incident, with ongoing difficulty with walking and sitting for long periods of time, and pain radiating down her left leg. Upon examination, the physician noted “non-tender along spinous processes. Normal flexion. Limited extension. Impaired lateral flexion…positive straight leg raise on the left side.” The physician diagnosed with a lower back strain. On August 28, 2017, the worker had an initial physiotherapy assessment and was diagnosed with a low back strain with left sciatic nerve irritation.

The WCB accepted the worker’s claim on September 26, 2017.

On October 24, 2017, an MRI study of the worker’s lumbosacral spine and sacroiliac joints indicated “Compression of the left L5 nerve root at L4-L5 by a disc protrusion and facet osteophytes on a background of mild multilevel degenerative discs and facets.”

The worker returned to work on November 6, 2017 with the following restrictions: walking short distances only; standing for no more than 15 at one time; sitting no more than 20 minutes at one time; limited stair climbing; no squatting, no kneeling, minimize trunk rotation, avoid bending through the back; push/pull/lifting or carrying no more than 5 kilograms; working 3-hour shifts, 3 days per week.

On June 19, 2018, the worker attended a call-in examination with a WCB physiotherapy consultant. The consultant noted the worker’s reluctance to proceed with pain injections as recommended by her treating orthopedic surgeon. The worker advised the WCB physiotherapy consultant of her interest in participating in a “…more comprehensive active based [exercise] program.” The consultant recommended funding be approved for the worker to attend a core strengthening program. The worker began the program on July 9, 2018 with a scheduled ending date of August 20, 2018.

The worker contacted the WCB on August 20, 2018 to advise that while performing her home exercises prior to her attending the reconditioning program, she “…felt a rip in her right glute” and was now having trouble bending. She attended at a local walk-in clinic that day and was provided with a diagnosis of a right hamstring strain. The treating physician recommended the worker remain off work until September 17, 2018.

On August 28, 2018, the WCB advised the worker it would not accept responsibility for her current difficulties in relation to her workplace injury and she was not entitled to further benefits. The WCB noted the employer continued to be able to accommodate the worker and as such, she would be paid partial wage loss benefits according to her previous schedule. On September 5, 2018, the WCB established a 5-week graduated return to work schedule beginning with three-hour days in the first week and increasing by one hour each week until the 5th week when the worker would return to full hours.

The worker attended a call-in examination with a WCB sports medicine advisor on October 16, 2018. The WCB sports medicine advisor provided an opinion that the worker’s left-sided lumbar radiculopathy had resolved as “There [were] no longer any objective findings of a lumbar radiculopathy.” Further, the advisor opined there were no findings of a physical impairment in the worker’s low back and as such, no restrictions or further treatment were required. The WCB advised the worker of these findings on October 30, 2018.

The worker requested reconsideration of the WCB’s decision to Review Office on November 9, 2018, noting that she continued to suffer the effects of her workplace injury. The employer provided a submission in support of the WCB’s decision on December 3, 2018 and a copy was shared with the worker.

On January 4, 2019, Review Office determined the worker’s right gluteal difficulties were not accepted in relation to the workplace accident and she was not entitled to further benefits.

On September 12, 2019, the worker’s representative requested Review Office reconsider its January 4, 2019 decision indicating in their submission the worker continued to experience left- sided severe sciatic pain, for which the WCB should accept responsibility. Included with the submission was an August 26, 2019 MRI study of the worker’s lumbar spine indicating, in part:

“At L4-5 and there is circumferential disc bulging with a more focal central disc protrusion. This does not result in significant central stenosis. Disc material contacts the descending right L5 nerve root and compresses the descending left L5 nerve root, similar to previous. There are mild bilateral degenerative facet changes. No significant foraminal narrowing is demonstrated.”

On October 28, 2019, the employer’s representative provided a submission in support of the January 4, 2019 decision and the worker’s representative provided a response on November 1, 2019.

On November 12, 2019, Review Office found the new information submitted did not establish the cause of the worker’s further injury to her right glute “…was predominantly attributable to the compensable injury…” Review Office agreed with the WCB sports medicine consultant’s opinion the worker had recovered from the compensable injury and as such, determined the worker was not entitled to further benefits.

The worker’s representative requested Review Office reconsider its decision on December 3, 2019, submitting a November 18, 2019 report from the worker’s treating orthopedic surgeon and noting the worker’s ongoing symptoms since the workplace accident. The orthopedic surgeon advised a review of the worker’s diagnostic imaging indicated an “…area of potential entrapment of the traversing L5 nerve root at L4-L5” and noted the worker “…continues to have significant limitations in activities of daily living and significant amount of pain…”. The surgeon noted the worker was a candidate for surgical repair and suggested pain injections would be unlikely to provide long term pain relief.

Review Office requested a WCB medical advisor review the medical information submitted by the worker’s representative and on February 13, 2020, the WCB medical advisor opined there was not a new diagnosis for the worker, and that the diagnosis of a lumbar radiculopathy continued with a record of symptoms since the workplace accident. A copy of the opinion was provided to all the parties.

On February 28, 2020, Review Office determined the worker was entitled to further benefits. Review Office relied on the opinion of the WCB medical advisor and found there was a relationship between the worker’s current and ongoing difficulties and the workplace accident.

The employer’s representative filed an appeal with the Appeal Commission on March 5, 2020. A teleconference hearing was arranged for October 22, 2020.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

Section 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. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

The WCB has established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Subsequent Injury Policy”) to address how a separate injury that is not a recurrence of the original compensable injury will be dealt with where there may be a causal relationship between the further injury and the original compensable injury. This policy sets out that:

A further injury occurring subsequent to a compensable injury is compensable: 

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury. 

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The administrative guidelines to the Subsequent Injury Policy clarify that the WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury, and that if the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and addressed questions posed to him by members of the appeal panel.

The advocate, in his submission, provided the panel with a brief outline of the file history, describing the worker’s injury on August 24, 2017 as a minor pull in her lower back.

The employer’s position is that the Review Office erred in its decision of February 28, 2020 in that while determining that the worker was entitled to further benefits arising out of the continuing effects of the compensable injury, it failed to address the impact of the subsequent, non-compensable injury that occurred on August 20, 2018 on the worker’s recovery.

The employer advocate noted the Review Office, in its decision of November 12, 2019, determined that the worker’s August 20, 2018 gluteal injury was not related to the compensable injury and that it was not compensable under the provisions of the WCB’s Subsequent Injury Policy. The advocate pointed out that the February 28, 2020 decision of the Review Office did not address the worker’s subsequent gluteal injury at all in its determination that the worker is entitled to further benefits. Specifically, the employer’s advocate noted the Review Office failed to consider the application of the Subsequent Injury Policy as to whether the non-compensable injury of August 20, 2018 prolonged or aggravated the original compensable injury so that compensation would be paid only for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.

The employer’s advocate conceded that the evidence supports that the worker had ongoing lower back symptoms arising out of the August 24, 2017 injury at the time of her August 20, 2018 injury but noted that the Review Office failed to consider what was the impact, if any, of the second non-compensable injury on the initial compensable injury.

In response to questioning by members of the appeal panel, the employer’s advocate agreed that the medical reporting confirms that the worker suffered two separate and distinct injuries and that there is no evidence of any relationship between the two injuries. The advocate noted, however, that the second injury prevented the worker from continuing on with treatment for the initial injury during the period of recovery from the second injury and in this regard, the employer is seeking to have the panel determine, applying the Subsequent Injury Policy, whether the non-compensable second injury prolonged or aggravated the original compensable injury.

In sum, the employer’s position is that the Review Office decision of February 28, 2020 failed to consider the impact of the worker’s non-compensable August 20, 2018 injury and the application of the WCB’s Subsequent Injury Policy in determining that the worker was entitled to further benefits, and for this reason, the appeal should be allowed.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made a submission on behalf of the worker. The worker provided answers to questions posed to her by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that there is substantial medical evidence to support a relationship exists between the worker’s continuing symptoms and her initial compensable injury, accepted by the WCB as a left L5 radiculopathy. Further, the Review Office correctly determined the worker was entitled to further benefits based on medical findings that support the position that the worker had not recovered from the effects of her workplace accident by October 29, 2018 and beyond. As long as the medical evidence continues to support an ongoing relationship between the accident, the injury and the worker’s ongoing difficulties, there is entitlement to benefits until full recovery is achieved.

The advocate noted there are findings from the October 16, 2018 call-in examination that support the worker’s position that there was a continuity of symptoms from the date of the initial injury to that time, although the WCB sport medicine advisor ultimately concluded otherwise, resulting in the WCB’s October 29, 2018 decision to discontinue further benefits.

Subsequent medical evidence confirmed the worker continued to experience ongoing left lower back symptoms related to the compensable injury including an MRI study dated August 28, 2019 that demonstrated findings to account for a left lumbar radiculopathy which was unchanged from the prior imaging on October 24, 2017. The November 18, 2019 report from the orthopedic surgeon confirmed ongoing symptoms of lumbar radiculopathy and that the most recent MRI findings are consistent with the previous MRI, with both showing a nerve entrapment of the L5 nerve.

The February 13, 2020 WCB medical advisor opinion confirms that the medical findings support an ongoing diagnosis of lumbar radiculopathy, with evidence of continuity of symptoms since onset in August 2017. Further, the medical advisor’s report noted that the worker reported, in the October 2018 call-in examination, ongoing issues with low back pain radiating down her left leg and reduced sensation in her left lower limb.

Most recently, the June 30, 2020 report from the treating physiotherapist also supports that the worker continues to exhibit residual signs of left sided L5 radiculopathy.

The worker testified that she is currently working full-time hours without any restrictions but remains in the position in which the employer placed her when she required accommodation of her restrictions. She noted her belief that she was not ready for the strengthening program in 2018. She stated that she recovered from the August 20, 2018 gluteal injury in two months.

In sum, the medical evidence supports a determination that the worker’s ongoing symptoms are related to the compensable left L-5 radiculopathy arising out of the accident of August 24, 2017. The evidence is clear that the worker had not recovered from the compensable injury by October 29, 2018 and is therefore entitled to further benefits.

Analysis

The issue for the panel to determine is whether the worker is entitled to further benefits. In order for the employer’s appeal to succeed, the panel would have to determine that the worker has recovered from the compensable injury sustained on August 24, 2017. For the reasons that follow that panel was not able to make such a determination.

The employer argued that the WCB’s Subsequent Injury Policy applies to the facts of this claim and noted that the Review Office failed to consider or apply the policy in its February 28, 2020 decision. In particular, the employer urged the panel to make a finding that the August 20, 2018 injury prolonged or aggravated the worker’s recovery from the compensable injury.

The Subsequent Injury Policy provides that a further injury occurring subsequent to a compensable injury is compensable in certain circumstances. When the cause of the further injury is predominantly attributable to the compensable injury, or the further injury arises out of a situation over which the WCB exercises direct specific control, or the further injury arises out of the delivery of treatment for the original compensable injury, the further injury is compensable.

The panel noted that the Review Office, in its November 12, 2019 decision determined that the August 20, 2018 gluteal injury did not meet the criteria outlined in the Subsequent Injury Policy and therefore that injury was not compensable. The employer does not dispute this finding but stated that the second injury nonetheless may have prolonged or aggravated the worker’s original compensable injury.

The panel finds that there is insufficient evidence to support this position. The medical findings outline that the worker injured her right gluteal area on August 20, 2018 and that by October 16, 2018 there was no longer any clinical evidence of this injury. The panel notes the worker’s testimony in this regard is consistent with the clinical findings. Further, there is no evidence on file that this second injury had any material effect on the worker’s continuing left sided L5 radiculopathy.

The medical reporting supports the worker’s position that her ongoing symptoms continue to relate to the left L-5 radiculopathy that arose from the compensable injury of August 24, 2017. The panel reviewed the October 16, 2019 report of the WCB sport medicine advisor and finds that the conclusions reached are not consistent with other evidence in the file including the MRI diagnostic findings of August 28, 2019, the orthopedic surgeon’s report of November 18, 2019, and the February 13, 2020 report of another WCB medical advisor. We therefore place less weight on this report.

The panel gave particular weight to the February 13, 2020 opinion of the WCB medical advisor who reviewed all of the medical reporting on file to that date and concluded there was not a new diagnosis for the worker, and that the diagnosis of a left sided lumbar radiculopathy continued with evidence of ongoing symptoms since the workplace accident occurred in 2017. In other words, as of the date of that report, the worker had not recovered from the effects of the compensable injury.

Therefore, the panel finds, on a balance of probabilities, that the worker is entitled to further benefits. The employer’s appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of November, 2020