The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the August 8, 2017 accident. A teleconference hearing was held on October 6, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 8, 2017 accident.

Decision

The worker is not entitled to further benefits in relation to the August 8, 2017 accident.

Background

The worker and the employer filed reports with the WCB on August 14, 2017 indicating the worker injured his neck and back in an incident at work on August 8, 2017 after he lifted a side rail on a truck. The worker sought medical treatment at a local walk-in clinic on August 9, 2017. The clinic physician noted “…definite paraspinal tenderness noted from cervical spine to his thoracic spine and lumbar spine although no spinous process tenderness noted.” A diagnosis of an acute strain of the muscles around the paraspinal area was made and it was recommended the worker avoid heavy lifting, pushing and pulling things above his shoulders for a couple of weeks.

At an August 22, 2017 initial physiotherapy assessment, the worker report that after lifting heavy items at work, he felt a gradual onset of back pain then after a few days off, returned to work and aggravated the injury again. He reported pain in his central low back area and the base of his neck, with limited bending and twisting ability, trouble sleeping, pain with prolonged sitting and standing but no leg symptoms. The physiotherapist diagnosed the worker with a neck and back strain, recommended a gradual returned to work with restrictions of maximum lifting of 30 pounds with occasional bending and twisting. At a follow-up appointment with his family physician also on August 22, 2017, the worker was diagnosed with mechanical back pain and it was recommended he remain off work until September 6, 2017. Other non-compensable health issues were also noted on the doctor’s report. The worker’s claim was accepted by the WCB on August 29, 2017.

The worker returned to work on modified duties with graduated hours on September 18, 2017. On October 5, 2017, the employer was advised of the worker’s temporary restrictions of occasional lift greater than 25 pounds, bend/twist without any weight and a graduated schedule of: Week of October 10 – 6 hour shifts; Week of October 16 – 8 hour shifts; Week of October 23 – full hours/duties. On October 23, 2017, the worker contacted the WCB to advise he had been laid off from his employment for a seasonal lay-off on October 20, 2017.

A doctor’s report for November 7, 2017 indicated “seeing some improvement in pain and function” and a November 9, 2017 Discharge Assessment from the worker’s physiotherapist noted the worker’s reporting of mild low back stiffness and discomfort after activity. Further noted was the worker would have been able to participate in a gradual return to work program, with restrictions of lift 40 pounds, occasional bending and twisting, sitting for 1 hour without short breaks, had he not been laid off from his employment.

The worker’s file was reviewed by a WCB medical advisor on December 13, 2017. The advisor opined the worker’s accepted diagnosis was a strain injury with a natural history of recovery being within 6 to 8 weeks. It was noted it was now 4 months post injury for the worker and returning to regular activity was part of the treatment for a strain injury. As such, given the treating physiotherapist’s advice that had the worker not been laid off, he could have participated in a graduated return to work on November 9, 2017 and the natural recovery time for a strain injury, the WCB medical advisor opined the worker would have been fit for full duties. On December 14, 2017, the worker was advised by the WCB that it had been determined he was recovered from his compensable injuries and he was not entitled to further benefits.

On June 4, 2018, the worker contacted the WCB to advise that he was continuing to experience difficulties with his back, especially after bending. He noted that he was still feeling pain when his claim ended and he continued to seek treatment for his back pain with his family physician. The WCB advised the worker on June 5, 2018 it had been determined on December 14, 2017 that he had recovered from the August 8, 2017 workplace accident and as such, he was not entitled to further benefits. The worker contacted the WCB again on December 5, 2019 to discuss a recurrence of his back pain. The WCB case manager explained that the December 14, 2017 decision remained unchanged; the WCB could not relate his current difficulties to the August 8, 2017 accident.

The worker requested reconsideration of the WCB’s decisions to Review Office on January 6, 2020. The worker noted on his request that he was referred to an orthopedic specialist and received pain injections, which indicated he was still experiencing difficulties with back pain.

Review Office determined on February 6, 2020 the worker was not entitled to further benefits in relation to the August 8, 2017 accident. Review Office found that while the worker advised he had been recently diagnosed with a herniated disc and required surgery, there was no evidence on file to indicate a more significant injury than the accepted strain injury occurred. Further, Review Office noted the length of time between when the worker reported worsening symptoms and his status in December 2017 of a resolved strain. Also noted was the worker’s reporting of periods of time being “symptom free” in June 2018, which supported that his compensable injury had resolved. Review Office could not account for the worker’s current difficulties in relation to the August 8, 2017 workplace accident.

The worker filed an appeal with the Appeal Commission on June 18, 2020. A teleconference hearing was arranged for October 6, 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 17, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 is injured in an accident, the worker 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 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” 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.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

The Workers Compensation Board 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 Workers Compensation Board 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.

The Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) 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 Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) 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 and 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.

Worker’s Position

The worker represented himself at the hearing, with the assistance of his wife.

The worker’s position was that he had sustained a compensable injury to his back in August 2017 that continued to cause him difficulties. The worker says that, at the time that he sustained the injury, he felt immediate pain in his back. He required others to assist him with his shift that day. He subsequently attended a physician who referred him to physiotherapy.

Although the physiotherapy assisted him to a degree, the worker said he again was having issues in the spring of 2018, when he started new employment for a moving company packing customer’s belongings. He says that he subsequently underwent an MRI in February 2019 which confirmed that he had a herniated disc.

The worker attributes the herniated disc to the original injury of August 2017 and seeks ongoing benefits. The worker said that up until 2016, his back had always been in excellent condition and he had never had any issues. Although he has had good days and bad days since the workplace injury, he says his symptoms persist to this day. He added that he does not believe he should burden another company with the risk for injury posed by his back. In his view, his ongoing pain complaints and herniated disc is the result of the original injury and he ought to be entitled to further benefits.

Employer’s Position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel is whether the worker is entitled to further benefits in relation to the August 8, 2017 workplace accident. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker experienced a further loss of earning capacity and/or need for medical treatment as a result of the accident. For the reasons that follow, we are unable to make that finding.

The panel has carefully reviewed the medical information on file and has obtained further medical information subsequent to the hearing. The medical information shows that when the worker first attended his physician, he is noted as complaining of neck and back pain as a result of lifting a side rail on his truck. He was diagnosed with an acute strain of the paraspinal muscles. He was prescribed medication for the pain and referred to physiotherapy. X-rays taken at the time showed mild lumbar spondylosis.

The initial physiotherapy report similarly diagnosed the worker with neck and back strain. By mid-September, the physiotherapist noted improvement in the worker’s symptoms and condition and recommended a gradual return to work with restrictions. The worker then began a gradual return to work, but was seasonally laid off in October 2017.

The worker continued to attend physiotherapy and on-going improvement was noted. By November, the physiotherapist report noted mild symptoms and indicated that if the worker were not laid off, he would be capable of working with restrictions.

Benefits were discontinued in December 2017 when it was determined that the worker had recovered from his workplace accident.

The file was reviewed by a medical consultant retained by the WCB. After reviewing the medical evidence on file, the WCB consultant noted that the claim was accepted for a back strain which was consistent with the initial mechanism of injury and initial presentation. According to the WCB medical consultant, the natural history for recovery from a strain is typically 6-8 weeks after which a gradual return to normal activity is usually initiated. The medical reports and physiotherapy reports of improvement beginning in September and continuing through to the report in November indicating that the worker was capable of returning to work with restrictions were consistent with the expected course of recovery for this type of injury.

The worker underwent an MRI in February 2019 which showed a ‘very shallow disc herniation at L4-L5’. The impression was ‘mild multilevel degenerative changes present’.

The worker was also referred to an orthopedic surgeon who reviewed the MRI scan from February as well as a follow up MRI scan. The orthopedic surgeon concluded that:

Review of the imaging includes an MRI scan from February last year showing mild facet arthrosis only. Please note that the disc spaces are well maintained and there is no disc herniation. The flexion and extension views which I took today show no instability and again well maintained disc height…This patient is not a surgical candidate in any way or form.

The orthopedic surgeon recommended weight loss and core strength exercises.

Based on a review of all of the medical evidence, the panel is unable to find that the worker’s ongoing pain complaints are causally related to the August 8, 2017 workplace injury. Although the medical evidence supports that the worker suffered a strain injury in August 2017 as a result of a workplace injury, a careful review of the medical evidence also suggests that the worker recovered from the effects of the strain injury by mid-to-late fall 2017 when the worker was cleared to return to modified duties. The panel further accepts the medical evidence that the worker has chronic back pain and degenerative issues which are not caused by the workplace accident. Consequently, while the panel accepts that the worker has continued to suffer from chronic back pain, the panel is unable to find that any ongoing difficulties are causally related to the workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is not entitled to further benefits in relation to the August 8, 2017 workplace incident.

The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of January, 2021