Decision #136/20 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there is no entitlement to benefits beyond December 22, 2017. A teleconference hearing was held on November 4, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 22, 2017.

Decision

That the worker is entitled to benefits after December 22, 2017.

Background

The worker filed a Worker Incident Report with the WCB on September 12, 2017. The worker reported that he injured his lower back at work on August 28, 2017 when he was pulling on a cable and he "…felt something in my back and dropped everything." The employer filed an Employer's Accident Report on September 13, 2017, noting the same mechanism of injury as the worker.

On September 28, 2017, the WCB received a medical report and clinical notes from the worker's family physician for an appointment on September 5, 2017. The physician noted he had seen the worker on August 29, 2017 for a lumbar sprain and had prescribed anti-inflammatories and muscle relaxants. On September 5, 2017, the worker had reported feeling worse, with the pain radiating all the way to his foot. The physician noted pain on palpation to the worker's L4-L5-S1 area and straight leg raise testing on the worker's left leg was slightly restricted secondary to pain. The physician diagnosed the worker with a left lower back sprain and queried a mild disc herniation.

At an initial physiotherapy assessment also on September 5, 2017, the worker reported sharp, throbbing pain, which increased with prolonged standing or sitting and radiated down to his foot. The physiotherapist diagnosed the worker with "herniated discs low back," outlined restrictions of no prolonged sitting and no lifting, pushing or pulling, and noted the worker was not capable of alternate or modified duties at that time. The worker's claim was approved and benefits were authorized.

An MRI of the worker's lumbar spine, performed October 3, 2017, indicated a moderate left lateral disc protrusion compressing the left L5 nerve root at L4-L5, and mild to moderate disc space narrowing, with mild facet osteoarthritis and "…an endplate osteophyte and broad based disc protrusion approaching both S1 nerve roots greater on the left but without compression" at L5-S1.

On October 6, 2017, the worker was seen by a WCB sports medicine consultant, who confirmed the MRI findings of a left-sided disc protrusion compressing the left L5 nerve root and recommended a functional strengthening program for the worker. The consultant outlined restrictions to include no repetitive resisted flexion, extension and rotation of the lumbar spine; no heavy lifting greater than 25 pounds from floor to waist; and positional changes every 15 minutes, to be reviewed in one month.

On November 7, 2017, the worker's treating physiotherapist recommended similar restrictions of no repetitive lumbar spine flexion, extension or rotation and no lifting greater than 25 pounds, and that the worker was not capable of alternate or modified work. Discussions subsequently ensued with the worker and the employer regarding the worker returning to work with modified duties. At a follow-up appointment on November 14, 2017, the worker's family physician noted that the worker's pain was slowly improving, "wcb and work want him doing light duties - agreed" and "expecting light duties x3 more months."

The worker returned to work on modified duties starting November 15, 2017. On November 28, 2017, the worker advised the WCB that the return to work program was going well. On December 12, 2017, the worker attended a follow-up appointment with his family physician who noted ongoing symptoms and numbness in the worker's left foot to his fifth toe and decreased range of motion in his lumbar spine, specifically with anterior flexion. The physician recommended the worker remain on light duties until the end of February 2018.

On December 13, 2017, the worker advised his WCB case manager that the employer was having its annual shutdown from December 22, 2017 to January 12, 2018, with a return to work on January 15, 2018. On December 20, 2017, the employer confirmed that the annual shutdown of their operations was from December 23, 2017 to January 14, 2018, that the worker would not be working during the shutdown, and that employees would be returning January 15, 2018.

On December 20, 2017, the WCB's Compensation Services advised the worker that they had determined he had recovered from his compensable low back injury and would not be entitled to benefits after December 22, 2017.

On June 28, 2019, the worker requested that Review Office reconsider Compensation Services' decision, noting that he had not yet recovered from his injury. On July 16, 2019, the employer's representative provided a submission in support of Compensation Services' decision.

On August 22, 2019, Review Office determined that there was no entitlement to benefits beyond December 22, 2017. Review Office found that the MRI findings indicated issues in the worker's lower back which were likely pre-existing and the medical evidence on file did not support the worker's ongoing difficulties were related to the workplace accident. Review Office did not find the evidence to support that the workplace accident caused any further structural changes to the worker's pre-existing condition.

The worker submitted additional medical information, and on January 23, 2020, Review Office advised that following their review of that information, there was no change to their August 22, 2019 decision.

On April 16, 2020, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

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.

Section 37 of the Act sets out the types of compensation that are payable, as follows:

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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated purpose of the Policy 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.

Worker's Position

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

The worker's position was that the totality of the evidence supported that he had not recovered from his compensable injury by December 22, 2017, and is entitled to benefits beyond that date.

The worker's representative submitted that the workplace accident caused a disc protrusion resulting in a left-sided lumbar radiculopathy of the L5 nerve root, and noted that this was the consensus opinion of the involved healthcare providers. The representative noted that reports from the worker's initial appointments with his family physician and physiotherapist, as well as his advice in his initial contact with the WCB that he had no prior lower back difficulties, pointed to the workplace accident being the only logical cause for the sudden onset of low back and lower extremity signs and symptoms.

The worker's representative submitted that Compensation Services concurred with his position by its actions, in approving physiotherapy treatment recommended for a disc herniation and accepting restrictions identified by the WCB sports medicine consultant in relation to a diagnostically and clinically confirmed lumbar radiculopathy. The representative submitted that if the consultant believed this diagnosis was not compensable, he would have said so and would not have made the treatment recommendations he made. The representative further noted that on November 8, 2017, Compensation Services accepted updated restrictions and forwarded them to the worker and the employer, and submitted that Compensation Services would not have repeatedly accepted restrictions relating to an L5 radiculopathy if that was not the compensable diagnosis.

The worker's representative submitted that in reviewing the file, he and the worker could not see the justification or basis for the Compensation Services and Review Office decisions that the worker had recovered from his workplace injury and was no longer entitled to benefits. The representative noted that neither decision identified what the accepted compensable workplace injury was. He submitted that Compensation Services and Review Office misinterpreted or disregarded the WCB sports medicine consultant's October 2017 assessment, as well as the reports of the worker's family physician and treating physiotherapist, and arrived at their own medical determination rather than involving the WCB's Healthcare Department.

The worker's representative submitted that reports from the treating physiotherapist and physician for the month of December 2017 continued to identify disc herniation and associated lumbar radiculopathy, with recommendations for continued work restrictions or light duties for at least a few more months.

The worker's representative submitted that the additional information they had provided supported that the worker experienced a very prolonged compensable injury with associated limitations. The representative submitted that chart notes for appointments with the worker's family physician from 2018 to February 2020, in combination with a November 2019 MRI, demonstrated a continuation of the compensable injury. The representative noted that based on additional documented evidence and the worker's testimony at the hearing, the worker appeared to have experienced a loss of earning capacity and out of pocket expenses as a result of his compensable injury, and that further benefit entitlements may be owed beyond the current end date. It was submitted that the additional evidence they had provided should help with the investigation of additional benefits.

In conclusion, the worker's representative submitted that while the decision was that the worker was fully recovered, the medical evidence was clear that the worker had simply not recovered from his compensable back injury by December 22, 2017. The worker relied on the medical opinions of the treating physiotherapist, the worker's family physician and even the WCB sports medicine consultant, which pointed to a disc herniation that was causing a radiculopathy and the presence of similar signs and symptoms of that same injury leading up to and beyond the benefits end date.

The worker's representative therefore requested that the worker's appeal be granted and Compensation Services be allowed to investigate the nature and duration of the worker's potential additional benefits entitlement beyond that date.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing.

The employer's position was that they agreed with the decision that the worker had recovered from his workplace accident by the time he was laid-off on December 22, 2017, and his appeal should be dismissed.

The employer's representative submitted that the mechanism of injury in this case was not particularly severe, and there was no evidence to indicate the workplace accident caused anything more severe than a sprain/strain or soft tissue type of injury. It was noted that a sprain/strain injury would typically resolve within a few weeks, and the WCB had covered the worker for approximately four months. The representative submitted that there was no evidence to support that the worker had not made a full recovery from his workplace injury at that time.

The employer's representative further submitted that the October 3, 2017 MRI demonstrated pre-existing conditions, as well as a disc protrusion which was certainly caused by the pre-existing conditions and was the logical cause of the worker's continuing disability. The representative submitted that the majority of the worker's back problems, and certainly his continuing back problems after December 22, 2017, were wholly related to these documented pre-existing conditions. The representative submitted that the pre-existing conditions which were noted on the MRI would be expected to cause intermittent periods of symptoms and disability, and that what the worker was experiencing was very much in line with those conditions.

The representative further submitted that there was no evidence to support that the workplace accident resulted in an enhancement of the worker's pre-existing conditions or significant aggravation of his disc protrusion beyond a very temporary period of time.

In conclusion, the employer's representative noted that they sympathized with the worker, who clearly has back problems and has had some degree of partial disability since December 22, 2017. In their view, however, such ongoing problems were not related to the workplace accident and should not be the WCB's responsibility.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after December 22, 2017. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker had not recovered from his August 28, 2017 workplace accident and compensable injury as at December 22, 2017. The panel is able to make that finding, for the reasons that follow.

The panel notes that the medical information close in time to the workplace accident reports findings of low back pain, with pain radiating or shooting down the worker's leg.

The October 3, 2017 MRI of the worker's lumbar spine indicated at L4-L5 that "A moderate left lateral disc protrusion is present compressing the left L5 nerve root." The panel recognizes that the MRI shows findings of disc space narrowing, osteophytes and mild facet osteoarthritis at the L5-S1 level, which the panel understands would be considered pre-existing conditions. The panel notes, however, that there is no such reference to pre-existing findings of this nature at the L4-L5 level.

The panel places weight on the October 10, 2017 letter from the WCB sports medicine consultant to the worker's family physician following his review of the worker's file and his October 6, 2017 examination of the worker, and in particular on the consultant's report that:

The clinical presentation was most consistent with a left sided lumbar radiculopathy at likely the L5 area. There are no documented myotomal changes at this examination. There is noted dural tension during this examination by a positive straight leg raise in supine, standing, and seated positions.

The noted MRI demonstrates a left sided disc protrusion compressing the left L5 nerve root. By today's clinical examination, this has been clinically correlated.

The panel notes that the sports medicine consultant focused in his report on the L4-L5 level, not the L5-S1 level, and confirmed that his clinical findings correlated with the MRI findings. The consultant did not refer to the disc protrusion as being a pre-existing condition, and suggested a trial of neurogenic medication, as well as restrictions, to be reviewed in approximately one month.

The panel reviewed the mechanism of injury in detail with the worker at the hearing. The worker described how he was working with a one and three-eighths inch steel cable, and:

…when I lift that piece of metal where the cable goes one way through and come back the other way, that's where I felt something on my back and I fell on my knees…And then there were two guys there, and the one…grabbed my hand and helped me out of the way. 

… 

We pull the cable off the drum, about approximately it will be 100 or 150 feet off the drum…Then you have to -- disconnect that piece of metal, that's where it's so heavy. That's where it's getting heavy. That piece of metal, you have to grab it and hit it so that the wedge comes back out. Like, earlier I was explaining how you put the cable in, but when the incident happened and then that's where we had to take the cable out…

I was bending over to grab this piece of metal, and we had cut off the big cable already. I was trying to pick up this piece of metal, what I have done already lots of times but…somehow I guess I didn't do it proper on the ground, and I was trying to pick that up and throw it against…the bucket so that the wedge would let go, and it didn't, the steel, it stayed on the ground and I, I was on the ground too.

The panel is satisfied that the mechanism of injury as described on file and at the hearing, is consistent with the findings of a disc protrusion or herniated disc at L4-L5 as identified on the MRI and correlated through clinical examination.

The panel further finds that there is an absence of clinical or other evidence that the worker had recovered from the effects of his compensable injury as at December 22, 2017, when his benefits were discontinued. Rather, the evidence indicates that the worker returned to work on light duties on November 15, 2017, and continued to have workplace restrictions as at December 22, 2017. In this regard, the panel notes that:

• On November 14, 2017, the worker's family physician indicated that the worker's pain was slowly improving, that he was returning to work on light duties and was to be on light duties for three more months; 

• On December 12, 2017, the worker's family physician noted ongoing symptoms and numbness in the worker's left foot to his fifth toe and decreased range of motion in his lumbar spine, specifically with anterior flexion, and again recommended that the worker remain on light duties to the end of February 2018; 

• In a Discharge Assessment report dated February 15, 2018, the treating physiotherapist noted that the worker was progressing in his recovery but continued to experience some pain and dysfunction, and recommended restrictions of no repetitive bending/twisting and no lifting greater than 30 pounds for a duration of three weeks.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had not recovered from his August 28, 2017 workplace accident and compensable injury as at December 22, 2017, and is therefore entitled to benefits beyond that date. In arriving at that determination, the panel notes that although considerable evidence was presented at the hearing with respect to the worker's ongoing status and difficulties, as well as potential benefits to which the worker might be entitled, the panel makes no findings in this regard.

The panel therefore finds that the worker is entitled to further benefits, the nature and duration of which are to be determined by the WCB.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of December, 2020

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