The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. She is not entitled to further benefits in relation to the right hip; and 

2. Responsibility should not be accepted for the proposed right hip surgery.

A teleconference hearing was held on December 17, 2020 to consider the worker's appeals.

Issue

1. Whether or not the worker is entitled to further benefits in relation to the right hip; and 

2. Whether or not responsibility for the proposed right hip surgery should be accepted.

Decision

1. The worker is entitled to further benefits in relation to the right hip; and 

2. Responsibility for the proposed right hip surgery should be accepted.

Background

On February 21, 2019, the worker reported to the WCB that she injured her right knee, shoulder, hip and her back when she slipped on an icy surface while walking towards her car on February 20, 2019. The worker sought treatment that same day with a sports medicine physician who examined the worker and diagnosed contusions to her knee, hip, buttock, lumbar spine and rib, as well as shoulder strain. The physician recommended physiotherapy and that the worker remain off work for 7 -10 days.

The WCB contacted the worker to discuss her claim on February 22, 2019. At that time, the worker confirmed the mechanism of injury and advised she was treating her injury with ice and rest. The worker attended for an initial physiotherapy assessment on February 25, 2019 and reported constant severe pain in her right hip/low back area and difficulty with activities of daily living. The physiotherapist noted the worker’s altered gait but recorded that a full assessment was not possible due to the worker’s pain. The worker was diagnosed with a right hip contusion. At a follow-up appointment with the worker’s treating sports medicine physician, the worker’s diagnosis was changed to right hip bursitis. On March 5, 2019, the WCB accepted the worker’s claim.

An MRI study of the worker’s right hip, conducted April 11, 2019, indicated tendinosis and partial thickness tearing of the gluteus minimus tendon at the greater trochanter as well as degenerative changes at the worker’s right hip joint.

A WCB medical advisor reviewed the worker’s file and the MRI study on April 24, 2019 and provided an opinion that “An injury (contusion/strain) involving the gluteus minimus muscle at its attachment to the hip could be accounted for by effects of the [compensable injury] involving a fall onto the right hip.”

The worker saw an orthopedic specialist regarding her right hip on May 30, 2019. At a follow-up appointment on July 16, 2019, the specialist noted the worker was “significantly disabled from this right hip pain” and that her pain “…may in fact be coming from the hip joint itself, in keep[ing] with hip arthritis secondary to cam impingement.” The specialist recommended an ultrasound guided pain injection, and this took place on August 30, 2019.

On September 10, 2019, the worker saw an orthopedic surgeon for follow-up. The surgeon noted the worker reported a small amount of pain relief from the injection but was still experiencing significant pain in her right hip. The surgeon was of the view the diagnostic imaging indicated mild degenerative changes in the right hip joint along with a partial thickness abductor tendon bulk tear and “significant peritrochanteric bursitis” and recommended a right hip open abductor tendon repair, fractional lengthening of the IT band, and debridement of the trochanteric bursa. On December 4, 2019, a WCB medical advisor reviewed the orthopedic surgeon’s report and concluded the diagnosis related to the workplace accident was a contusion of the right hip with the diagnostic imaging indicating degenerative changes, not related to the injury caused by the workplace accident. As such, the WCB medical advisor provided the proposed surgery was directed at the worker’s pre-existing degenerative condition and not “…any pathology caused by the workplace injury.” In a WCB file note of December 4, 2019 the WCB medical advisor further provides that the worker’s accepted diagnosis of a right hip contusion was considered to be resolved and her current right hip difficulties were related to her pre-existing degenerative condition.

On December 4, 2019, the WCB wrote to the orthopedic surgeon denying funding for the proposed surgery, and on December 5, 2019, the WCB advised the worker that it had determined she was recovered from the right hip contusion caused by February 20, 2019 workplace accident and she was not entitled to further benefits. As well, the WCB confirmed to the worker that it would not accept responsibility for the proposed surgery.

On January 7, 2020, the worker requested reconsideration of the WCB’s decision to Review Office. The worker provided a lengthy submission outlining her concerns with the management of her claim and providing copies of photographs, a witness statement and incident report from the date of the accident. She noted in her submission that her treating healthcare providers agreed she did not have issues with her right hip prior to the workplace accident, providing letters of support from her providers. On January 24, 2020, the worker also provided a letter from her treating rheumatologist indicating the worker did not have issues with her right hip prior to the workplace accident.

At the request of Review Office, the worker’s file was reviewed by a WCB medical advisor on February 20, 2020. The advisor opined that the worker’s ongoing difficulties in the right hip region are the result of

“...the natural history of degenerative conditions and are not the result of the contusion of the right hip which occurred because of the workplace injury of 20-Feb-2019. The diagnosis of that workplace injury is considered to be a lateral contusion of the right hip. There is no objective medical evidence that the workplace injury altered the degenerative pathology at the right hip region.”

The WCB provided a copy of the medical advisor’s opinion to the worker on February 20, 2020. A response was provided to Review Office by the worker’s treating physiotherapist on March 4, 2020.

Review Office found the worker was not entitled to further benefits related to the right hip and responsibility should not be accepted for the proposed right hip surgery on March 24, 2020. Review Office relied upon the opinion of the WCB medical advisor that the diagnosis related to the workplace accident was a right hip contusion that did not structurally alter the worker’s pre-existing degenerative right hip condition. Further, Review Office found the worker’s current right hip difficulties were not related to the workplace accident as it had been determined the worker had recovered from the compensable right hip contusion.

The worker’s representative filed an appeal with the Appeal Commission on April 30, 2020. A teleconference hearing was arranged and held on December 17, 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.

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."

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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker provided evidence to the panel in response to questions posed by the worker advisor. The worker advisor made an oral submission to the panel and relied upon a written submission provided to the panel in advance of the hearing.

The worker’s position, as set out by the worker advisor, is that as a result of the compensable workplace accident of February 20, 2019, the worker sustained multiple right-sided upper and lower body injuries. Since that time, there is evidence of consistent reporting of right hip pain, reduced hip mobility, poor tolerance of walking and difficulties with activities of daily living. There is no evidence of recovery or improvement of the worker’s right hip injury by December 5, 2019 when the WCB determined she had recovered from the accepted compensable hip injury of a right hip contusion.

The worker advisor outlined the worker’s position that the workplace incident caused not only a right hip contusion but also acute tearing of the worker’s gluteal minimus tendon. Alternatively, if the panel finds that there is evidence of pre-existing tearing of the gluteal minimus tendon, the worker’s position is that the accident resulted in aggravation or enhancement of the injury.

With respect to the proposed surgery, the worker’s position is that the accident made necessary the proposed abductor tendon repair. No position is taken by the worker on the further proposed procedures of fractional lengthening of the IT band and debridement of the trochanteric bursa.

The worker advisor noted that medical opinions on the worker’s claim file, from the treating physiotherapist and treating orthopedic surgeon, support the compensability of at least the gluteus minimus tendon tear. Further, the worker’s long-term treating physician has confirmed that the worker was not previously seen for any right hip complaints.

The worker provided testimony describing the treatment she received for her hip injury, including massage therapy and physiotherapy as well as self-treatment including use of a TENS machine, heating pad, ice and exercise. She described declining mobility through 2020 as the pandemic restricted her access to therapeutic treatments.

The worker noted that she continues to receive support from the WCB with respect to the right shoulder injury arising out of this accident, with weekly in-home assistance. She stated she is optimistic about the proposed hip surgery and anticipates it will provide her with greater stability and mobility, with reduction in pain, although she recognizes there are no guarantees.

In sum, the worker’s position is that as a result of the compensable accident of February 20, 2019, the worker sustained multiple lower and upper body injuries, including contusion of her right hip and tearing of the gluteus minimus tendon. The worker has not recovered from the right hip injuries and continues to require treatment arising out of that injury, including the recommended right hip surgery. Therefore, the worker is entitled to further benefits in relation to the right hip and the WCB should accept responsibility for the proposed right hip surgery.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The worker appealed the decisions that she is not entitled to additional benefits in relation to her right hip injury and that the WCB not accept responsibility for the proposed right hip surgery. In order to find in favour of the worker, the panel would have to determine that the worker continued to sustain either a loss of earning capacity or required further medical aid as a result of the compensable right hip injury, and further that the proposed surgery is directly related to the compensable right hip injury. As outlined below, and for the reasons that follow, the panel was able to make such determinations.

The medical reporting from the worker’s treating practitioners confirm to the panel that the worker suffered significant and multiple injuries arising out of the fall, including injuries to her right knee, right hip, buttock, lumbar spine and rib, as well as a right shoulder rotator cuff tear.

Given the specific issues before the panel for determination, the panel focused its review of the medical reporting on those reports relating to the worker’s right hip injury in particular. The panel noted the file reveals consistent medical reporting of the worker’s subjective complaints of pain and soreness in her right hip since the date of accident. Although initially diagnosed as only a hip contusion, by late March 2019 there was suspicion of a gluteal tear and gluteal tendon bursitis resulting in a referral for an MRI study that took place on April 11, 2019. The MRI revealed tendinosis and partial thickness tearing of the gluteus minimus tendon at the greater trochanter as well as degenerative changes in the right labrum.

The panel considered whether the evidence supports a finding that the gluteus minimus tear was the result of the accident. The WCB medical advisor reviewed the file and MRI results on April 24, 2019 and concluded that “An injury (contusion/strain) involving the gluteus minimus muscle at its attachment to the hip could be accounted for by effects of the [compensable injury] involving a fall onto the right hip” but went on to note that the relationship between the compensable accident and the tear was “speculative” given the degenerative findings the MRI also revealed.

There is no evidence of prior complaints by the worker to her treating physician regarding her right hip. Her long-term treating physician confirmed this based on a review of chart notes. Further, there is no evidence from either the employer or the worker as to any prior difficulties with completing her work responsibilities. Prior to the accident, the worker was able to carry out her job responsibilities, which required being on her feet through her shifts and physical capabilities in terms of lifting and moving objects. After the accident, her ability to do so was severely limited. While the MRI findings do reveal degenerative issues in the worker’s right hip, the evidence does not suggest that these were symptomatic, required medical treatment or impacted the worker’s earning capacity.

Further, if there was a pre-existing injury to the worker’s abductor tendon, based upon the evidence before the panel, it would appear to have also been asymptomatic as there are no previous diagnostic or medical reports suggesting any such a pre-existing injury, although as noted the evidence does reveal other pre-existing degenerative changes.

Since the accident occurred, the worker has had continuing and profound symptoms related to her right hip injury as outlined by the treating physicians. The treating orthopedic surgeon provided, in a report dated July 16, 2019 that the worker “...is significantly disabled from this right hip pain at the moment…Her lateral hip injection into the greater trochanteric space in April was not effective at relieving her pain.” Following further diagnostic investigation, the orthopedic surgeon noted on September 10, 2019 mild degenerative changes in the worker’s hip joint with “...a CAM lesion in an ossified labrum. Her MRI was reviewed, showing a partial thickness abductor tendon bulk tear. She also has significant peritrochanteric bursitis.” At that time, surgery was proposed, involving a right hip open abductor tendon repair, fractional lengthening of the IT band, as well as debridement of the trochanteric bursa. At follow-up in December 2019, the orthopedic surgeon concluded that the worker’s “...greater trochanter bursitis as well as partial thickness abductor tendon tear are likely sources of her pain” and again recommended surgical intervention.

The worker’s treating sport medicine physician stated unequivocally, in a report dated March 13, 2020 that,

“Although there was no previous MRI, it is my medical opinion that the partial thickness tear and contusion evident on the MRI is a direct result of your...work-related event. There may well have been some degenerative changes present in the soft tissue in this region, given your previous symptoms, but these were significantly enhanced as a result of your fall of February 2019. The mechanism of blunt trauma and eccentric load to the tendon, on falling on to that side, certainly could create a tear in the structure and create local trauma consistent with acute bursitis.”

The worker’s treating physiotherapist noted in a report dated March 24, 2020 that,

“The contusion is not the relevant clinical issue but what it created within the joint and the gluteus minimus structures.... If [osteoarthritis] was a relevant clinical issue then she would have complained to her medical practitioners prior to this fall. She has not sought prior medical intervention for the hip. While there is an appearance of [osteoarthritis] on imaging its relevance in this case is minimal....”

In contrast to the opinions of the worker’s treating professionals, a second WCB medical advisor reviewing the file on February 20, 2020 was of the view that,

“...the ongoing difficulties in the right hip region are the result of the natural history of degenerative conditions and are not the result of the contusion of the right hip which occurred because of the workplace injury of 20-Feb-2019. The diagnosis of that workplace injury is considered to be a lateral contusion of the right hip. There is no objective medical evidence that the workplace injury altered the degenerative pathology at the right hip region.”

The most recent report from the treating orthopedic specialist dated November 5, 2020 noted the worker’s right hip is still “very sore” and that the surgery is not likely to take place while the COVID-19 pandemic continues.

In this circumstance, where different medical practitioners have come to contradictory conclusions, the panel gives more weight to and is persuaded by the opinions of those professionals treating the worker. The panel also noted that the first WCB medical advisor reviewing the file in April 2019 did allow that the injury to the worker’s gluteal minimus tendon could be accounted for by effects of her fall onto the right hip.

We are therefore satisfied, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker’s ongoing right hip difficulties are related to the compensable fall that occurred in February 2019, and that the worker had not recovered from the right hip injury at the time that the WCB discontinued her entitlement to benefits in December 2019. As such, to the extent that she required further medical aid or experienced additional loss of earning capacity, the worker should be entitled to further benefits.

Regarding the requested surgical procedure, on the basis that the right gluteal minimus tendon tear is the result of the compensable accident and considering the evidence that conservative treatment measures have not been successful, the panel accepts the opinion of the treating orthopedic surgeon that the surgery to repair the tear is required to cure and provide relief from the compensable injury.

The panel therefore determines, on a balance of probabilities, that the worker is entitled to further benefits as a result of the compensable right hip injury, that the proposed surgery is directly related to the compensable right hip injury, and that responsibility for the surgery should be accepted.

The worker’s appeal is allowed.

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 January, 2021