Decision #23/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss and medical aid benefits. A videoconference hearing was held on December 14, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss and medical aid benefits.
That the worker is not entitled to further wage loss or medical aid benefits.
On February 26, 2016, the worker reported to the WCB that he injured his back at work on February 23, 2016, after slipping and falling on two occasions on ice. After the first fall, the worker noted he "…felt pain and tightness in my upper back right away" but continued to work. After the second fall, the worker noted that he "…felt even more pain and tightness in my upper back."
The worker sought medical treatment on February 23, 2016 where he reported the two slip and falls to the physician and noted the tightness in his back that had been getting progressively worse. He further noted the pain was mostly to his midback bilaterally and he had difficulty getting in and out of the car and bending and twisting. On examination, the physician noted bony tenderness with palpation around the T8 area and the worker's midback paraspinals, with restricted rotation to the right. The worker was referred for an x-ray and diagnosed with a midback injury, likely muscular. The physician recommended the worker remain off work for one week, then return for one week of restricted duties with no lifting, carrying, pushing, or pulling greater than 5 pounds.
On March 1, 2016, the worker attended an initial assessment with a chiropractor. The worker reported pain in his mid-thoracic and lumbar spine area, and the chiropractor noted decreased thoracic and lumbar range of motion, with tenderness in the thoracic and lumbar area. The worker was diagnosed with a thoracic and lumbar sprain/strain, and restrictions of reduced lifting, bending, pushing/pulling, standing and sitting were recommended for two weeks.
On March 2, 2016, the worker returned to work on modified duties, and his claim was accepted by the WCB. The worker continued with the chiropractic treatment and was cleared to return to his full regular duties on April 16, 2016.
On November 24, 2017, the worker contacted the WCB to advise he was still having back issues and wanted to re-open his WCB claim. He further advised that he had started working for a different employer but was no longer working due to non-compensable issues. Additional medical information was gathered by the WCB including reports from the worker's treating family physician, sports medicine physician, physiotherapist and chiropractor; a CT scan conducted December 4, 2017 which indicated "Moderate disc space loss at L5 S1, with a central disc protrusion at this level indenting the thecal sac without spinal canal stenosis"; and an MRI performed January 28, 2018 which indicated "Central disc bulge at L5-S1…Left paracentral spurring at T12-L1 level…" Chart notes from the treating family physician were received on March 12, 2018, and included a further MRI performed February 28, 2018, which indicated "Large disc extrusion at T9-T10 that results in severe narrowing of the central spinal canal and compression of the spinal cord. No significant cord signal changes."
On March 26, 2018, a WCB medical advisor reviewed the medical information and the worker's file. The medical advisor opined that the worker's current diagnosis appeared to be a "…thoracic disc extrusion at T9-T10 producing marked central canal stenosis." The WCB medical advisor went on to conclude that the medical evidence on file did not support the worker's current back difficulties were accounted for in relation to the February 23, 2016 workplace accident based on, among other things, the reported mechanism of injury, the lack of radicular symptoms reported by the worker after the workplace accident, the initial diagnoses of thoracic and lumbar strains and the lack of reporting of symptoms for 19 months after the worker had been deemed fit to return to full duties in April 2016. On March 27, 2018, the WCB's Compensation Services advised the worker that based on a review of the new information on his file, he was not entitled to further benefits as a relationship between the workplace accident and his current difficulties could not be established.
On April 16 and April 18, 2018, the worker provided the WCB with additional medical information from his treating family physician and chiropractor. The additional medical information was reviewed by the WCB medical advisor on April 23, 2018, and on April 24, 2018, Compensation Services advised the worker that there would be no change to the earlier decision that he was not entitled to further benefits as there was insufficient evidence that his current difficulties were related to the workplace accident.
An April 24, 2018 report was received by the worker's treating neurosurgeon. After examining the worker, the neurosurgeon opined the worker had a T9-T10 large disc herniation and recommended surgical intervention to remove the disc herniation. On May 16, 2018, the worker's treating sports medicine physician provided a letter in support of the worker's symptoms being related to his workplace injury. This medical information was reviewed by the WCB medical advisor on June 6, 2018 and by a WCB orthopedic consultant on June 7, 2018, and on June 13, 2018, Compensation Services again advised the worker that the medical information provided did not support a relationship between his current difficulties and the workplace accident of February 23, 2016 and he was not entitled to further benefits.
On July 4, 2018, the worker requested that Review Office reconsider Compensation Services' decisions. In his request, the worker noted he had never fully recovered from his February 23, 2016 workplace injury and his treating healthcare providers supported his back difficulties being related to his workplace injury. On August 21, 2018, the employer provided a submission in support of Compensation Services' decisions.
On August 27, 2018, Review Office determined that there was no entitlement to further benefits. Review Office accepted the initial diagnosis on the worker's file of a back strain, placing weight on the medical evidence in close proximity to the workplace accident of February 21, 2016 and the opinions of the WCB medical advisor and WCB orthopedic consultant. Based on the compensable diagnosis of a back strain and the worker's fitness to return to his regular duties by April 16, 2016, Review Office found the worker had likely recovered from the workplace accident. Review Office was therefore unable to account for the worker's further complaints in relation to his claim.
On March 11, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
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.
Subsection 4(2) provides that 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.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
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 188.8.131.52.10, Recurring Effects of Injuries and Illness (Recurrences) (the "Policy") deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."
The worker was represented by a union representative, who provided a video of the workplace accident and two written submissions in advance of the hearing, which included a detailed written argument, a time line, several medical articles from the internet, and additional medical information, including chart notes from the worker's family physician ranging from November 18, 2016 to November 27, 2017. The worker's representative also made an oral presentation at the hearing, with reference to his written submission.
The worker's position as set out in his appeal form was that the symptoms of his February 23, 2016 workplace injury worsened after the initial treatment, rendering him unemployable, and he is entitled to further wage loss and medical benefits as a result of his ongoing back difficulties.
The worker's representative submitted that they were not denying that the worker suffered a back sprain/strain injury, but that they believed there was another underlying issue as well, which was a T9-T10 disc herniation. He submitted that thoracic radiculopathy represents an uncommon spinal disorder which is hard to diagnose and frequently overlooked in the evaluation of a spine or spinal pain syndrome.
In his submission, the worker's representative provided a detailed review of the medical information on file and new medical information he had provided, with reference to the medical literature he had also provided in advance of the hearing. The representative commented on and rebutted the reports of the WCB medical advisor and WCB orthopedic consultant, based on his research and references to medical literature and medical information.
Based on his own research and his review of the files, including new medical evidence which was provided with his submission in advance of the appeal, the worker's representative submitted that the evidence showed that it was now likely that the disc extrusion had its onset on February 23, 2016.
The worker's representative submitted that there had been a continuity of symptoms since the workplace incident, including symptoms of focal back pain, radiating thoracic radiculopathy, coughing and straining which made the pain worse and the prolonged nature of these symptoms.
In conclusion, the worker's representative argued that the reports of the WCB medical advisor and the WCB orthopedic consultant did not provide a full statement of the facts or resources supporting their conclusions and were misleading, and that no weight should be attached to their opinions or reports.
The employer was represented by two Workers Compensation Officers, who made an oral submission at the hearing. The employer's representative advised that they supported the Review Office decision, noting that it was thorough and objective and that it considered the facts in relation to the legislation, and asked that the panel uphold that decision.
The employer's representative provided a brief overview of the claim, provided comments in response to the submission from the worker representative, and reviewed the applicable legislation.
The employer's representative submitted that the relatively short recovery period between the date of his workplace injury and his clearance to full duties was most consistent with a back strain or sprain.
The employer's representative submitted that the worker maintained an active lifestyle post-injury, participating in high impact sports two to three times per week. He was also able to work 18-hour days, and did not report any back symptoms to either his co-workers or management prior to going off work for other issues. The representative submitted that the worker's activity level, as well as the ability to work 18-hour days, was not consistent with a causal link to the original workplace incident, and there was insufficient medical evidence to objectively support the excessively delayed onset of symptoms with respect to the disc extrusion.
The employer's representative submitted that the worker did not experience symptoms that related to the T9-T10 disc extrusion until October 2017, with the first neurological findings noted in January 2018. The representative submitted that this 19-month period was prolonged and ultimately severed any causal link to the workplace accident.
The employer's representative submitted that while the alleged pain with sneezing and other complaints which the worker's representative had referred to as being sufficient to assume the underlying disc protrusion was misdiagnosed, there was also sufficient evidence in the notes to suggest an alternative causation.
The employer's representative submitted that the WCB healthcare reviews were thorough and based on a complete review of the claim file, and the worker's representative and his treatment providers had not submitted any new clinical evidence to dispute the opinions of the two WCB medical advisors.
The representative further noted that a medical professional did not contribute to any portion of the submission which attempted to refute the medical advisors' opinions, and the arguments therefore remained speculative in nature and ultimately invalid. The representative submitted that the WCB medical advisor opinion cannot be set aside or overturned based on the newly submitted information, which is based primarily on internet research and is not specific to this case.
The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of his February 23, 2016 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a back strain injury.
The worker has also been diagnosed more recently with a T9-T10 disc herniation. The panel accepts that the worker has a T9-T10 disc herniation. The panel is unable to find, however, that this diagnosis is causally related to his February 23, 2016 workplace incident or injury.
In arriving at that conclusion, the panel notes that at the hearing, the worker described what happened with respect to both of his falls on February 23, 2016. The panel was unable to correlate the worker's description of those falls with the videotape evidence of the incidents which had been provided in advance of the hearing. Based on our review and consideration of all of the evidence which is before us, the panel is not satisfied that the mechanism of injury on February 23, 2016 would have resulted in anything more than a back strain injury.
The panel also places weight on the delay in the onset of the worker's current symptoms. The evidence shows that the worker was deemed fit to return to modified duties on March 2, 2016 and his full work duties on April 16, 2016, which the panel understands to be consistent with the normal recovery period for a sprain/strain injury. The worker did not report any further difficulties to the WCB until November 2017 or approximately 19 months later.
The panel is satisfied that the evidence supports that the worker was able to perform his work duties during that 19 month period of time, although he was laid off from October 2016 to May 2017. The worker indicated that he was at home looking after the kids while he was laid off. The evidence further shows that the worker was fairly active and mobile during that period of time, including playing hockey.
While the worker's representative relied heavily on his own research and medical literature provided in advance of the hearing as a basis for concluding that the worker had ongoing symptoms of a T9-T10 disc herniation from the time of his workplace incident forward, the panel is unable to attach any weight to that literature as a basis for establishing that the worker's T9-T10 disc herniation was causally related to his February 23, 2016 incident. In this regard, the panel notes that the authors of that literature have not assessed the worker or reviewed his claim file and there is a lack of first-hand medical information on file to correlate the proposed link between the more recent diagnosis of that condition and the workplace incident, and in the absence of such first-hand information or correlation, such a proposed connection is speculative.
Based on the foregoing, the panel is unable to establish that the worker's ongoing back difficulties are causally related to his February 23, 2016 workplace accident or injury. The panel therefore finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid as a result of his February 23, 2016 workplace accident, and that he is not entitled to further wage loss or medical aid benefits.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of February, 2021