Decision #20/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Her claim is not acceptable; and
2. She is not entitled to wage loss benefits.
A teleconference hearing was held on December 17, 2020 to consider the worker's appeal.
1. Whether or not the claim is acceptable; and
2. Whether or not the worker is entitled to wage loss benefits.
1. The claim is acceptable; and
2. The worker is entitled to wage loss benefits.
On November 15, 2018, the worker reported to the WCB that she injured her upper and lower back at work on November 12, 2018 while she was lifting a resident who was falling. The worker noted on her Worker Incident Report that she did not seek medical treatment until November 13, 2018 as she didn’t feel any pain until the night of the incident when she “…woke up with a seized back.”
The worker was seen at her local emergency department on November 13, 2018 reporting sudden onset of lower back pain. X-rays were taken and a CT scan was conducted, which was noted to indicate grade 3 spondylolisthesis, degenerative narrowing and bilateral pars defect. It was recommended the worker remain off work for one week, then follow-up with her family physician. The emergency department physician advised the worker to avoid heavy lifting, pushing and dragging and referred the worker to the spine clinic.
The worker’s file, including the diagnostic imaging, was reviewed by a WCB medical advisor on November 15, 2018. The advisor provided in a file note that the imaging “…demonstrate a pre-existing spondylosis (pars defect) and associated spondylolisthesis (slippage). This represents a pre-existing condition, unlikely to have been materially affected by recent lifting at the workplace.” A diagnosis of non-specific low back pain in the environment of pre-existing spondylolisthesis was provided. The worker attended for an initial chiropractic assessment on November 19, 2018. The chiropractor diagnosed the worker with costovertebral/costotransverse joint dysfunction and a paraspinal strain and queried a possible disc injury after the worker reported extreme pain between scapulas which radiated into her ribs and down both her arms. It was noted the worker had been off work but that she could return to work with light sedentary duties for 2 hours a day. On November 30, 2018, the worker was advised her claim was accepted and provided wage loss benefits for November 13, 2018 to November 20, 2018. A further letter was sent to the worker on December 19, 2018 advising she was not entitled to wage loss benefits after November 20, 2018 as it had been determined her current difficulties were not related to the November 12, 2018 workplace injury.
On January 4, 2019, the worker requested reconsideration of the WCB’s decision to Review Office noting that she had not recovered from her injury and continued to experience symptoms and provided a letter in support of her condition from her family physician, along with information regarding the working conditions at her workplace. The worker’s file was returned to the WCB’s Compensation Services for further investigation.
A WCB orthopedic consultant reviewed the worker’s file and on February 19, 2019 opined that based on the information on file and the mechanism of injury, the worker sustained a low back strain/sprain from the workplace accident of November 12, 2018. Further, recovery from such an injury with conservative treatment would be expected within six to eight weeks. The WCB orthopedic consultant noted the worker’s “…very longstanding pre-existing condition of spondylolytic spondylolisthesis…” which was “…unlikely to be aggravated by the workplace injury.” It was further noted the worker was considered to have recovered to her pre-injury level of function with no workplace restrictions required. On February 21, 2019, the worker was advised there would be no change to the earlier decision.
The worker was seen by a neurosurgeon on March 15, 2019. The treating neurosurgeon reviewed the diagnostic imaging and opined the worker’s diagnosis to be “…spondyloptosis of L5 on S1; with a severe lordotic deformity profound compression of the S1 nerve root and in all likelihood the distal nerve roots of the sacrum as well.” The worker was scheduled for spine surgery on March 27, 2019.
The worker again requested reconsideration by Review Office on May 1, 2019. In her submission, the worker attributed her back injury to her heavy workload and stated she should be entitled to further wage loss. On June 5, 2019, Review Office advised the worker the issue under review had been expanded to include whether or not her claim was acceptable. On June 19, 2019, the worker provided Review Office with information related to employment issues she had with the employer. The employer provided a submission in support of the WCB’s decision on July 18, 2019 and the worker provided a response on July 23, 2019.
On August 2, 2019, Review Office determined the worker’s claim was not acceptable and she was not entitled to wage loss benefits. Review Office relied and placed weight on the opinions of the WCB medical advisors that the worker had a significant pre-existing degenerative lumbar spine condition and was prone to aggravations of those symptoms. Based on the reported mechanism of injury, Review Office accepted the opinion of the WCB medical advisor that the diagnostic imaging noted the pre-existing conditions were “…not likely materially affected by workplace duties or influences” and as such, found that an accident as defined by the WCB legislation did not occur and the worker’s claim was not acceptable. As the worker’s claim was not acceptable, she was not entitled to wage loss benefits.
The worker filed an appeal with the Appeal Commission on July 13, 2020. A teleconference hearing was arranged and held on December 17, 2020.
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 18.104.22.168, 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.
The worker represented herself at the hearing.
It was the worker’s position that the claim ought to be accepted. The worker stated that she sustained an injury on November 12, 2018 when assisting a patient transfer from commode to bed. As she was assisting with the transfer, the patient’s knees buckled. The worker was required to catch and hold the patient, causing injury to the worker’s back. Although the worker did not notice symptoms right away, she stated she was later woken from sleep that same night with back pain. She reported the injury to her employer and sought medical attention the next day.
The worker attended for chiropractic treatment and acupuncture. She was prescribed anti-inflammatory medication and pain killers. By mid-January 2019, she noted fairly substantial improvement. In February 2019, however, she had a sudden resurgence of acute pain and ultimately was required to undergo spinal surgery.
The worker has worked as a health care aide for several years. She noted that her duties are significant and physically demanding, involving frequent lifting and handling of patients. Prior to the accident, she had been able to fulfill all of her normal and regular duties. Although she acknowledged prior low back problems, she states that the problems were manageable and had not prevented her from being able to perform her duties until the injury on November 12, 2018, after which everything changed. The worker therefore submitted that her claim ought to be accepted and she should be entitled to wage loss benefits.
The employer was represented by an advocate as well as the regional manager for workplace safety and health. A written submission was provided in advance of the hearing in addition to an oral submission at the hearing.
The employer took the position that the appeal should be dismissed. The employer submitted that evidence of a link between the workplace incident of November 12, 2018 and subsequent low back difficulties was not established. The worker did not notice any pain at the moment of injury and the onset of symptoms did not occur until several hours later when the worker awoke in the middle of the night with back pain. Had the workplace incident been the cause, the discomfort would have been immediate. The employer further noted bone scans revealed degenerative changes rather than damage caused by an acute event. The worker’s injury in this case was consistent with the worker’s history of periodic back pain flare-ups stemming from her degenerative condition.
Consequently, while the employer was sympathetic to the worker and the injury that she sustained, it was the employer’s position that the injury was the result of a pre-existing degenerative back condition which was a consequence of aging and everyday life and was not causally related to the workplace incident of November 12, 2018. As such, the worker did not suffer an ‘accident’ as defined under the Act. In the alternative, if the worker did sustain an injury as a result of a workplace accident, she recovered from that injury by mid-January 2019 when treatment reports suggest that she had returned to baseline.
There are two issues before the panel: first, whether or not the claim is acceptable and second, if it is, whether the worker is entitled to wage loss benefits. For the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a workplace accident and compensable injury on November 12, 2018 which entitled her to wage loss benefits. For the reasons that follow, the panel is able to make that finding.
According to the medical information on file, when the worker first sought medical attention following the workplace incident, she was observed to be in acute pain and distress in the low back and upper mid back. Following the injury, the worker was referred to diagnostic testing where the presence of degenerative changes were noted, including degenerative narrowing, spondylolisthesis and bilateral pars defect. There was, however, no evidence of acute fracture, spinal stenosis or disc herniation.
A follow up MRI was completed on December 20, 2018 which confirmed severe degenerative narrowing at the L5-S1 level and the listhesis but it was noted that the cause of the worker's acute symptomology had not been visualized. Additional medical information at the time noted that the worker’s pain was dependent on activity.
In early January 2019, the worker underwent acupuncture treatment and reported significant relief from her symptoms. A progress report from the worker’s chiropractor dated mid-January 2019 notes the worker’s upper back is ‘feeling close to normal’ and that she had gained full range of motion.
The file was reviewed by a WCB orthopedic consultant. The consultant concluded, based on his review of the medical information and the mechanism of injury, that the worker sustained a low back strain/sprain as a result of a workplace injury on November 12, 2018. The WCB consultant further noted that, although the worker also had a long-standing pre-existing degenerative condition, the condition appeared to have had little clinical significance in the past for the worker and, based on his review of the imaging studies, was unlikely to have been aggravated by the workplace injury. Recovery from the injury was expected within six to eight weeks.
The panel places weight on the opinion of the WCB orthopedic consultant. Based on that opinion, and having reviewed all of the medical information, the panel is satisfied that the mechanism of injury in this case is consistent with the findings of a back strain/sprain injury. The panel further finds that the injury was correlated through clinical examinations by the worker’s treating practitioners and that the improvement noted in the worker’s condition in January 2019 was consistent with the nature and type of injury sustained. Although the medical evidence establishes the existence of a pre-existing degenerative condition, we accept the conclusions of the WCB orthopedic consultant that the condition was not aggravated by the workplace incident of November 12, 2018.
Based on all of the foregoing, the panel finds, on a balance of probabilities, that a workplace accident occurred on November 12, 2018 that caused injury to the worker. The panel further accepts that the worker had an injury that would have rendered her unable to work and that she would, therefore, be entitled to wage loss.
The worker’s appeal is therefore allowed.
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 12th day of February, 2021