Decision #31/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current back issues are not related to the workplace injury of February 23, 2019. A teleconference hearing was held on January 13, 2021 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's current back issues in relation to the February 23, 2019 accident.
That responsibility should not be accepted for the worker's current back issues in relation to the February 23, 2019 accident.
The employer filed an Employer's Accident Report with the WCB on February 26, 2019, reporting that the worker suffered an injury to his back and ribs on February 23, 2019 when he slipped off a moving vehicle at work. Emergency medical personnel were called and the worker was transported to a local hospital. The Emergency Visit Summary report from the hospital noted that the worker reported slipping off a stair and falling, hitting his buttock, low back and left flank, with no loss of consciousness. X-rays of the worker's chest and lumbosacral spine taken at that time were reported to be normal. The emergency department nurse practitioner noted tenderness at the left L4 paraspinal area, the left 7-8th ribs and the right neck, trapezius insertion, and diagnosed the worker with a soft tissue injury/contusion.
At an initial physiotherapy assessment on February 27, 2019, the worker reported that he had a constant ache into his low back/neck area with intermittent sharp pains greater on the left low back and neck area, which was aggravated by prolonged sitting, standing and driving, and that he had experienced headaches since the workplace accident, with pain over his temples and eyes. The physiotherapist diagnosed the worker with a lumbar sprain/strain and whiplash associated disorder, and recommended as restrictions to avoid prolonged sitting/standing for more than ten minutes; avoid lifting greater than ten kilograms floor to waist, ten kilograms waist to shoulder, and five kilograms above the shoulder; avoid climbing ladders and operating machinery; and allow frequent breaks for stretching and moving around.
At a follow-up appointment on March 4, 2019, the treating physiotherapist updated the worker's restrictions to include working six hours every other day for a week, and the restrictions were provided to the employer that same day. The worker returned to work on a graduated return to work, with modified duties, on March 8, 2019. Physiotherapy treatment continued until March 22, 2019, and the worker received wage loss benefits to March 23, 2019, when he returned to his full regular duties.
On February 27, 2020, the worker contacted the WCB to report further issues with his back. The worker advised that he had ongoing difficulties with his back since the workplace accident, that the symptoms had progressed and that he now had numbness at the top of his legs and into his toes. The worker further advised that he had to take two weeks off work from October 29 to November 11, 2019 due to the pain, and was having to take more time off now.
The WCB received a Doctor's First Report from the worker's family physician for a February 6, 2020 appointment, in which the physician noted a positive straight leg raise test in the worker's left leg and mild to moderate range of motion in his back. The family physician diagnosed the worker with lumbosacral radiculopathy and requested an MRI of the worker's lumbar spine. The MRI, performed February 15, 2020, indicated "Multilevel degenerative disc disease…Changes are most marked at the L3-L4 L5-S1 levels." At a follow-up appointment on February 26, 2020, the worker's family physician noted a change in diagnosis to "lumbosacral discopathy (degenerative)" and recommended physiotherapy and the use of anti-inflammatory medication.
On April 2, 2020, the worker's file was reviewed by a WCB medical advisor, who provided an opinion to file. On April 9, 2020, the WCB's Compensation Services advised the worker that they had determined that a relationship could not be established between his recent back difficulties and the workplace accident, and were unable to accept responsibility for his recent back difficulties. Compensation Services noted that the recent medical information had been reviewed in consultation with the WCB medical advisor, who had opined that the "…MRI findings represent pre-existing age-related degenerative findings."
On June 12, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that he had experienced ongoing lower back pain since the workplace accident and had not had symptoms prior to the accident. He said he was in extreme pain again in February 2020, with the exact same pain in his lower back area as he experienced from the February 23, 2019 injury.
On June 24, 2020, Review Office determined that the worker's current back difficulties were not related to the workplace injury of February 23, 2019 and he was not entitled to any benefits. Review Office found that the evidence did not support a relationship between the worker's current symptoms and the workplace injury. Review Office noted the worker sustained a sprain/strain injury to his lower back, then returned to his regular duties by the end of March 2019, at which time he no longer required medical treatment. Review Office found that the medical evidence supported the worker made a full functional recovery from the workplace accident. Review Office recognized the worker reported similar symptoms in February 2020, but concluded that they were unable to establish those symptoms were related to the workplace injury, noting there had been no contact with the WCB in the previous nine months and there were multiple factors which could be the cause of his current symptoms.
On July 21, 2020, the worker appealed the Review Office decision to the Appeal Commission and a teleconference 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.
The WCB's Board of Directors has established WCB Policy 220.127.116.11, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated purpose of that 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.
WCB Policy 18.104.22.168.10, Recurring Effects of Injuries and Illness (Recurrences), deals with situations where there is a recurrence of the effects 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 self-represented. The worker made a presentation at the hearing and responded to questions from the panel.
The worker's position was that this "second part" of his claim, with the need to take time off from work in late 2019 and subsequently, was part and parcel of his initial February 23, 2019 injury, and his appeal should be granted.
The worker submitted that he had been a full-time physical worker/ heavy labourer for over 40 years and had not suffered any injury or ill effects to his back prior to the February 23, 2019 workplace accident. He noted that his claim was accepted for a workplace injury, following which he underwent physiotherapy and gradually returned to his full-time duties and hours.
The worker submitted that he subsequently missed two weeks' work in or around November 2019 due to the same low back symptoms and being unable to perform his duties. He said he did not contact the WCB at that time because he thought he had only tweaked his back and it would just take time to recover. He went back to work after two weeks and was fine. Then in February 2020, he again experienced the same symptoms as when he was initially injured in February 2019, at which point he went to see a doctor and requested that an MRI be done.
In conclusion, the worker said he disagreed with the WCB's position that his back issues are age-related, as he never had any lower back issues prior to the initial injury in February 2019. Since then, however, and as a result of his workplace accident, he has continued to experience the same low back difficulties on and off, and the WCB should accept responsibility for his ongoing or current low back difficulties.
The employer was represented by its HR Manager. The employer's representative indicated that they supported the WCB's decision that the worker's current back issues are not related to his February 23, 2019 workplace injury and his appeal should be dismissed.
The employer's representative noted that they did not dispute the accident or injury which the worker suffered in February 2019. With respect to the worker's more recent back difficulties, however, they were relying on the medical information on file, and in particular, the WCB medical advisor's comment that the findings of the March 18, 2020 MRI showed age-related degenerative disc disease.
The issue before the panel is whether or not responsibility should be accepted for the worker's current back issues in relation to the February 23, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, the worker's more recent or current back difficulties are causally related to or a consequence of his February 23, 2019 workplace accident or injury. The panel is unable to make that finding, for the reasons that follow.
The panel considered the mechanism of injury as described in the Worker Incident Report and the information on file, and accepts that the worker experienced a fairly significant fall on February 23, 2019. The panel is not satisfied, however, that the evidence supports that the worker's current back difficulties are related to or a consequence of that fall.
The panel notes that the worker was diagnosed with a lumbar sprain/strain and whiplash associated disorder. The panel accepts that diagnosis as being consistent with the mechanism of injury, and is unable to find that the medical evidence supports that the worker suffered an injury of a more severe or sinister nature as a result of the workplace accident.
The panel notes that the evidence shows the worker returned to work on a graduated return to work basis approximately two weeks after the accident, and was back to his full regular duties by March 23, 2019, being one month after the date of accident. It is the panel's understanding that a return to full regular duties within four weeks is consistent with the typical recovery period for a sprain/strain injury.
The evidence further shows that the worker continued performing his regular duties for several months after that, before taking took two weeks off work starting October 29, 2019.
In response to questions from the panel with respect to the period of time between March and October 2019, the worker said he had back pain but it was not as severe; that it was "on and off again pain" and he worked through it. He said that every once in a while after his return to work, his back was a little tender, that his pain "…was never gone away completely…" and that "…on and off…every once in awhile, yes, maybe I was not positioned properly…maybe I tweaked my back." The worker said he would "…figure…that's normal, until you strengthen your back muscles up again" and that "I was going to have to deal with some sort of minor pains and stuff as time goes on until maybe my back's back to what it originally was." He said he did his exercises and stretched his back and did not recall missing any time from work during that period.
The worker said he took time off at the end of October, however, "…because the pain had gotten to a point where I…couldn't work." He said he thought what caused him to take that time off work was just doing his normal duties and there was no incident and nothing in particular that caused him to be off work. He said he spent the next two weeks at home relaxing and doing his exercises, after which his back seemed better and he returned to work.
The panel notes that there is an absence of medical or other evidence which would connect the worker's low back symptoms approximately eight months later to the February 23, 2019 workplace incident/injury. The worker said he saw a doctor at a walk-in clinic at the time, who provided him with a sick note. The worker did not contact the WCB, however, or report further back issues to the WCB until a further several months later, when he spoke to the WCB on February 27, 2020. The employer's representative also advised at the hearing that they did not have any record of the worker reporting a work-related injury, and that their notes indicated that his two-week absence starting in late October 2019 was for an "off-work injury."
The worker indicated that following his return to work in November 2019 he continued performing his regular work duties through to February 23, 2020, when he again went off work. The worker stated at the hearing that there was no incident and nothing in particular which led to him being off work at the time either. He said his pain became progressively worse to the point that it was debilitating. The worker remained off work until April 16, 2020, when he again returned to his regular work duties.
The worker has argued that his lower back difficulties in late 2019 and in 2020 were related to his February 23, 2019 workplace accident, being exactly the same symptoms and the same debilitating low back pain as he experienced when he was initially injured in February 2019. The panel notes, however, that information on file indicates, and the worker confirmed at the hearing, that his symptoms would come and go, and he subsequently experienced other symptoms, including numbness and tingling in his upper leg and continuing down into his left leg then later into his toes, which symptoms were not present at the time of the initial injury.
Based on the foregoing, the panel is satisfied that the worker had functionally recovered from his workplace accident and injury when his physiotherapy treatments ended and he returned to his full work duties on March 23, 2019. The panel is further unable to find that his current or further low back symptoms or difficulties are causally related to his February 23, 2019 workplace accident.
The panel acknowledges the worker's complaints of ongoing low back difficulties, but is unable to connect those difficulties to his February 23, 2019 workplace accident or injury.
The panel therefore finds, on a balance of probabilities, that the worker's more recent or current back difficulties are not causally related to or a consequence of his February 23, 2019 workplace accident or injury, and that responsibility should not be accepted for the worker's current back issues in relation to that accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
D. Loewen, 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 March, 2021