Decision #122/20 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the proposed back surgery and he is not entitled to wage loss and medical aid benefits after November 20, 2018. A teleconference hearing was held on July 16, 2020 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the proposed back surgery; and

Whether or not the worker is entitled to wage loss and medical aid benefits after November 20, 2018.

Decision

Responsibility should be accepted for the proposed back surgery; and

The worker is entitled to wage loss and medical aid benefits after November 20, 2018.

Background

On October 9, 2018, the worker reported to the WCB that he sustained an injury to his lower back on September 19, 2018 after working at a jobsite for approximately a week performing job duties that involved repetitive bending, kneeling and lifting of materials. He noted he was being treated for a previous injury to his back.

The worker sought initial medical treatment at a local walk-in clinic on September 25, 2018. The treating physician noted the worker’s report of left sided hip pain for 6 days and indicated the worker had tenderness in his left hip with limited range of motion but no muscular deficits. No diagnosis was provided.

The worker attended for a follow-up appointment with his treating physician on October 4, 2018, reporting he injured his lower back after performing concrete work and was experiencing lower back pain with tenderness and radiculopathy. The treating physician noted findings of decreased range of motion in the worker’s back, referred the worker for an x-ray and recommended anti-inflammatory medication and that the worker remain off work. No diagnosis was provided.

The x-ray of the worker’s spine taken on October 4, 2018 was compared to previous imaging from 2016 and the report noted “Compared to 2016 again there is hardware from L4 to S1. The right-sided pedicle screw at L4 again is seen to be fractured. Otherwise the hardware is unchanged. The disc prosthesis at L4-L5 is positioned posteriorly at the disc space with no change since the previous exam. Lumbar alignment is normal.”

In discussion with the WCB on October 16, 2018, the worker confirmed that he felt onset of his symptoms in his back on September 19, 2018, which included muscle spasms and numbness down his left leg. The worker also confirmed his previous back injury and noted his family physician had referred him to an orthopedic surgeon who had treated him previously. A follow-up progress report from the family physician on October 24, 2018 confirmed the referral to the surgeon.

On October 28, 2018, a WCB medical advisor reviewed the worker’s file to confirm the worker’s diagnosis. The WCB medical advisor opined the worker’s diagnosis to be consistent with a back strain or soft tissue injury, with normal recovery expected within 4 to 6 weeks. The medical advisor noted that a back strain would not cause total disability but would lend to a person having difficulty with “…prolonged static positions, bending, and lifting” and that the worker’s significant pre-existing condition could prolong recovery from a back strain. The worker’s claim for a back strain was accepted by the WCB on October 30, 2018 and payment of wage loss and medical aid benefits began.

The WCB advised the worker on November 14, 2018 that his entitlement to wage loss and medical aid benefits would end on November 20, 2018. Based on the opinion of the WCB medical advisor, the WCB determined that, at 8 weeks post injury, the worker had recovered from his workplace accident. The WCB advised the worker that chart notes had been requested from his treating healthcare providers for the 6-month period before the workplace injury to determine if the worker was entitled to further benefits.

On November 27, 2018, the worker attended for an appointment with the orthopedic surgeon who had treated him previously. The surgeon reported the neurological examination confirmed “…intact knee reflexes but sensory changes in the thigh on the left side with some weakness of hip flexion” with a positive straight leg test at 45 degrees. An MRI study conducted on November 9, 2018 was reviewed and the orthopedic surgeon noted a “…sequestered disc herniation of L3-4 towards the left side and slightly below this in the midline.” The surgeon was of the view this herniation was not related to a previous surgery the worker had in 2009 but was a result of the workplace accident. The surgeon recommended an L3-4 discectomy for the worker and requested approval from the WCB.

On December 20, 2018, a WCB orthopedic consultant reviewed the treating orthopedic surgeon’s report and confirmed the diagnosis of a strain/sprain of the low back based on the reported mechanism of injury, the treating healthcare providers’ clinical findings, which were noted did not include “…any neurological deficit of L3 or L4” and the findings on the diagnostic imaging. The WCB orthopedic consultant identified the worker’s pre-existing degenerative disc disease, treatment of which included surgery in 2009, and noted that the surgery requested by the worker’s orthopedic surgeon included removal of a fusion fixation and excising of a disc sequestration at L3-4, both of which were not related to the diagnosed injury of a low back strain/sprain.

At the request of the WCB, on December 20, 2018 a neuroradiology consultant reviewed the diagnostic imaging on the worker’s file and provided an opinion regarding the November 9, 2018 MRI scan. The consultant opined “…the most significant finding is at the L3-4 level where there is a broad shallow central, left posterolateral and left lateral disc protrusion without sequestration. There is severe central spinal stenosis with some focal compression on the left L4 nerve root and some possible compression of the right L4 nerve root.”

On December 20, 2018, the WCB advised the worker there would be no change to the earlier decision he was not entitled to benefits after November 20, 2018. The WCB also advised the worker’s treating surgeon by a letter of the same date that funding for the requested surgery was not approved.

The worker requested reconsideration of the WCB’s decisions to Review Office on February 8, 2019. The worker acknowledged in his request that he had previous difficulties with his back; however, the workplace accident caused a new injury and based on the opinion of his treating orthopedic surgeon, he required surgery to repair and as such, he believed he was entitled to further benefits.

Review Office determined on March 28, 2019 that the worker was entitled to wage loss and medical aid benefits to December 27, 2018 but that no responsibility would be accepted for the proposed back surgery. Review Office accepted and relied on the December 20, 2018 opinion of the WCB orthopedic consultant that the worker’s diagnosis was a strain/sprain of his low back and that the surgery proposed by the worker’s treating orthopedic surgeon was not related to that injury. Review Office agreed with the WCB Compensation Services’ decision to end the worker’s entitlement to wage loss and medical aid benefits but found that while the worker’s claim was still being investigated, he was still entitled to benefits. Accordingly, Review Office determined the worker was entitled to benefits to December 20, 2018, the date of receipt of the consultant’s opinion, plus a seven-day notice period. Further, Review Office determined responsibility should not be accepted for the proposed back surgery as a causal connection between the need for the surgery and the worker’s diagnosis of a low back strain/sprain as a result of the workplace accident could not be established.

The worker’s representative filed an appeal with the Appeal Commission on February 19, 2020. A teleconference hearing was arranged for July 16, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 9, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to compensation under s 4(1) of the Act. 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."

The WCB Policy 44.10.20.10, Pre-existing Conditions (the “Policy”) was established to address eligibility for compensation benefits under the Act in circumstances where a worker has a pre-existing condition. The Policy sets out that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. When it is determined that a worker’s inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB is responsible so long as the loss of earning capacity continues.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and posed questions to the worker. The worker provided oral testimony through answers to the questions posed by the worker advisor and members of the panel.

The worker’s position, as outlined by the worker advisor, is that as a result of the compensable workplace accident of September 19, 2018, the worker sustained a herniation injury to L3-L4 disc that caused a loss of earning capacity and created a requirement for medical aid, including surgical repair of the herniation that continued after the termination of the worker’s WCB benefits on December 27, 2018. The worker should therefore be entitled to further benefits beyond that date and the WCB should accept responsibility for the proposed back surgery.

The worker advisor confirmed to the panel that the worker’s entitlement to benefits terminated as of December 27, 2018, and outlined to the panel the medical findings and opinions that support the worker’s position that he is entitled to further wage loss and medical aid benefits beyond that date.

The worker testified as to the heavy physical nature of the work he was doing in the period leading up to the injury on September 19, 2018. At the time of the injury he was working on a construction of pole framed sheds, and the work entailed carrying heavy loads of rebar, hand digging a hard surface and tying the rebar. He called feeling a pop in his lower back and afterwards, he was unable to continue with his work due to the pain he was experiencing. He was staying near the worksite and got a ride back there after the injury. When symptoms did not improve within a few days, he sought medical attention.

The worker described to the panel that he had no complications arising out of his 2009 back surgery. Although he still experienced back pain, he was able to manage it with conservative treatment and occasional cortisone injections. He did not rely on pain relief medication. The worker stated that prior to the workplace injury, he did not have any complaints of numbness or pain into his left leg. He described being able to do physical work and compete in body building. This changed with the injury of September 19, 2018.

The worker described his current symptoms of pain as being “through the roof”, “relentless” and like electricity or being stabbed. He experiences numbness and cramping in his leg. This pain, he said, is not manageable, even with the use of narcotics. The worker told the panel that while he tries to stay active, at times the pain is such that he can only lay on the floor. He cannot work and has trouble sleeping.

The worker advisor noted that while the worker has long-standing issues with his back, he was able to manage his pain and work in a physical labour position until September 19, 2018. After that date, he could not. While it cannot be determined if the herniation at L3-L4 developed prior to that date, it is evident that if it had, the condition was asymptomatic until September 19, 2018. The worker advisor suggested to the panel that the worker’s job duties could have caused or worsened a herniation, resulting in the worker’s ongoing symptoms.

The worker advisor pointed to the medical reporting as providing evidence of nerve root contact resulting from the herniated disc at L3-L4 and noted that the treating orthopedic surgeon supports the conclusion that the worker’s activities caused or worsened the herniation.

In sum, the worker’s position is that as a result of the worker’s job duties and in the context of the worker’s pre-existing degenerative back condition, the evidence supports a finding that the accident either caused or worsened the disc herniation resulting in nerve root compression. The evidence supports that this condition had not resolved by December 27, 2018 and continues to require treatment, including the surgery recommended by the worker’s treating orthopedic specialist. For this reason, the worker should be entitled to further benefits beyond December 27, 2018 and the WCB should accept responsibility for the proposed back surgery.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before us arose as a result of the WCB’s decision to terminate the worker’s entitlement to benefits payable as of December 27, 2018 and to refuse to authorize the request of the worker’s treating orthopedic surgeon for a surgical repair of the worker’s disc herniation. In order for the worker's appeal to succeed, the panel must find that as a result of the compensable injury, the worker experienced a loss of earning capacity and required medical aid to cure and provide relief from that injury beyond December 27, 2018, and further, that the surgery requested is required to cure and provide relief from that injury. On the basis of the evidence before us and for the reasons that follow, the panel was able to make such findings.

The WCB determined the accepted diagnosis arising out of the compensable accident to be a back strain or soft tissue injury, with normal recovery expected within 4 to 6 weeks. The panel noted that this initial diagnosis was provided prior to the November 2018 MRI study and prior to the worker’s consultation with the orthopedic surgeon.

After the MRI results were reviewed by the WCB orthopedic consultant on December 20, 2018 in conjunction with the report of the orthopedic surgeon, the WCB’s attention pivoted to a focus on whether or not the MRI revealed a herniated disc or a sequestered disc. The orthopedic consultant confirmed the diagnosis of a strain/sprain of the low back based on the reported mechanism of injury, clinical findings that did not include any neurological deficits relating to the L3 or L4 vertebrae, and the MRI findings. The WCB orthopedic consultant noted the evidence of the worker’s pre-existing degenerative disc disease and surgical treatment in 2009. The orthopedic consultant concluded that the surgical request, which included removal of a fusion fixation and excising of a disc sequestration at L3-4, was not related to the diagnosed injury of a low back strain/sprain.

At the request of the WCB, on December 20, 2018 a neuroradiology consultant reviewed the diagnostic imaging on the worker’s file and provided an opinion regarding the November 9, 2018 MRI scan. The consultant opined “…the most significant finding is at the L3-4 level where there is a broad shallow central, left posterolateral and left lateral disc protrusion without sequestration. There is severe central spinal stenosis with some focal compression on the left L4 nerve root and some possible compression of the right L4 nerve root.”

Without the benefit of diagnostic evidence of the condition of the worker’s spine at the L2 – L4 levels from immediately prior to the accident, the panel must look to the other surrounding evidence to determine whether the worker’s workplace injury caused the herniation identified by the November 9, 2018 MRI or exacerbated a pre-existing herniation.

The evidence before us is clear in that the worker’s back was vulnerable prior to the injury, but the panel notes he was nonetheless able to undertake heavy physical work until he was injured on September 19, 2018.

Further, the panel noted the July 17, 2018 report from the treating orthopedic surgeon references the worker’s consultation for pain in his neck and right arm relating to a non-compensable injury that occurred early in 2017. The surgeon reviewed cervical spine imaging results and references the prior lumbar spine fusion surgery, noting the worker was working in the construction business, is taking just one medication and “...is otherwise very healthy.” Notably, there is no other reference to any issues with the worker’s lumbar spine.

The worker reported at the time of injury that the pain caused by this injury was different than his pain symptoms since the time of the 2009 surgery, noting he had chronic left lower back and hip pain since that time, but that after the accident, he had pain radiating down his left leg with numbness. He told the panel that his previous, post-surgery pain was manageable with periods of rest and very occasional cortisone injections, but that after the accident he could no longer manage his pain, even with opioid medication. He described the pain as relentless, like electricity or being stabbed, along with numbness in his leg and cramping or spasms of pain. He indicated he was not able to remain active as a result of the pain.

The treating orthopedic surgeon in his November 7, 2019 report noted that the worker had no complications arising from the 2009 surgery. That surgery addressed issues in the worker’s lower lumbar spine, adjacent to but not the same area that the surgeon is now proposing to repair, although the surgeon has also proposed to undertake some further repair to the current hardware in the worker’s back at the same, presumably so as to avoid a further surgical intervention for that purpose alone. While the WCB orthopedic consultant correctly noted this aspect of the surgery is not related to the worker’s September 19, 2018 injury, the panel does not find that the surgeon’s plan to address these concerns at the same time invalidates the entire request for surgical approval.

The panel cannot make a definitive determination whether or not the worker’s lumbar spine herniation at L3-L4 was present prior to the workplace accident, but the evidence does support that if it was pre-existing, it was asymptomatic and did not impact the worker’s ability to do his job. The evidence also supports a finding that after the injury occurred on September 19, 2018 the worker was no longer able to continue with his pre-accident physically demanding employment.

The panel notes that a comparison of the two MRI scans, from November 2018 and March 2019 revealed only “mild interval changes” at the L2-L3 level and at the L3-L4 level. The panel relies upon the opinion of the WCB neuroradiology consultant of October 14, 2020 that in the environment of the worker’s degenerative back condition, “...it is possible that an episode of acute trauma could result in an acute disc protrusion usually in the setting of underlying degenerative disc disease and therefore, I cannot exclude the possibility that an acute traumatic event contributed to, or resulted in, the disc protrusions at the L2-3 and L3-4 levels.”

The evidence from the worker and his treatment providers for the period before, leading up to and beyond December 27, 2018, supports the worker’s position that he did not recover from this injury within the time period anticipated by the WCB medical advisor. The worker’s continuing symptomology well beyond the time when a typical lower back sprain/strain injury would be expected to resolve suggests to the panel that the initial accepted diagnosis was not the correct diagnosis arising out of the compensable injury.

Rather, the evidence points to a finding that the accident of September 19, 2018 either caused a new disc herniation at the L3-L4 level or enhanced a previously asymptomatic disc issue at this level, in the context of medical reporting that confirms the worker’s degenerative issues through much of his lumbar spine at multiple levels, including issues in the worker’s lumbar spine led to his February 2009 surgery fusing and fixating the spine from L4 to S1.

The panel considered the worker’s treating orthopedic surgeon’s request to the WCB for authorization to proceed with an L3-L4 discectomy and stabilization, first outlined in a letter dated November 27, 2018. The surgeon stated:

“...this is a new injury and has nothing to do with the underlying cervical spine problems for which he is still awaiting surgery, as well as nothing to do with the previous L4 to S1 fusion in 2009. There is a very clear cut incident which was compensable and treated as a “back sprain” before the MRI scan became available....”

The orthopedic surgeon continued to treat the worker and has repeatedly stated that surgery is required to address the worker’s L3-L4 disc herniation.

The WCB medical advisors determined that the surgery should not be authorized on the basis that the compensable workplace injury was a strain/sprain of the low back. Having determined that the initially accepted compensable diagnosis was not correct and that there is a causal relationship between the compensable accident and the worker’s L3-L4 disc herniation, on the question of whether responsibility should be accepted for the proposed back surgery, the panel prefers to rely upon the opinion of the orthopedic surgeon who has continued to assess and treat the worker.

The panel therefore determines, on a balance of probabilities that the compensable injury of September 19, 2018 had not resolved by December 27, 2018 such that the worker continued to experience a loss of earning capacity and required medical aid to cure and provide relief from that injury beyond that date. Further, the panel determines, on a balance of probabilities, that as a result of the compensable injury sustained on September 19, 2018, the worker requires surgical repair at the L3-L4 disc.

Therefore, the worker is entitled to wage loss and medical aid benefits after December 27, 2018 and the WCB should accept responsibility for the proposed back surgery. The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 4th day of December, 2020

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