Decision #32/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after November 18, 2016. A videoconference hearing was held on February 24, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after November 18, 2016.
The worker is entitled to benefits after November 18, 2016.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 44/20, dated April 9, 2020. The background will therefore not be repeated in its entirety.
The WCB accepted the worker’s claim for an injury to their lower back that occurred at work on July 20, 2016. The WCB determined the injury to be a sprain/strain type of injury, and due to a pre-existing condition, a WCB medical advisor provided that the expected recovery period was some eight weeks. On May 14, 2018, the WCB advised the worker of entitlement to benefits to September 14, 2016.
The worker requested reconsideration of the WCB’s decision to Review Office, and the Review Office upheld the WCB decision on August 2, 2018. The worker further appealed that decision to the Appeal Commission. On April 9, 2020, the Appeal Commission determined the worker was entitled to benefits after September 14, 2016 and the worker’s file was returned to the WCB’s Compensation Services for further adjudication.
On April 28, 2020, the worker advised the WCB that they returned to work at half-days on a graduated return to work plan approximately 16 months after termination of benefits in September 2016. The worker further advised that they had surgery on May 12, 2017 and since then, had been terminated by the employer. On May 1, 2020, the worker provided the WCB with a timeline of events since September 14, 2016, noting after back surgery on May 12, 2017, they began a graduated return to work plan on September 5, 2017, with a return to full regular duties expected by November 2017.
A WCB medical advisor provided an opinion in a memorandum to file dated May 1, 2020, noting agreement with an April 6, 2017 opinion provided by another WCB medical advisor that there was no evidence on file indicating the worker’s diagnosis changed or worsened as a result of the July 20, 2016 workplace accident. The WCB medical advisor stated the worker’s current status was post L4/L5 disc arthroplasty and that the worker’s treating orthopedic surgeon reported full recovery took place in four to five months.
On May 4, 2020, the WCB advised the worker a review of their file revealed a November 18, 2016 report from their treating physician in which it was noted the worker had reported being able to walk more with an improvement in symptoms. As such, the WCB advised the worker their benefits were extended up to and including November 18, 2016.
The worker’s representative requested reconsideration of the WCB’s decision to Review Office on May 29, 2020. In their submission, the representative noted the chart note made by the worker’s treating physician at the November 18, 2016 appointment was based on reporting by the worker and no examination had taken place. Further, the representative noted at the same appointment, the physician completed disability forms for the worker and provided information from the worker noting the disability forms were required as a result of their continuing low back difficulties.
On July 22, 2020, Review Office requested a copy of the May 12, 2017 surgery report, which was received on August 4, 2020. Review Office then requested a WCB medical advisor review the surgery report and the worker’s file. On August 20, 2020, the WCB medical advisor noted a further opinion was requested from a neuroradiologist consultant.
On August 27, 2020, the neuroradiologist consultant provided an opinion stating agreement “...with the opinion of the independent radiologist that there has been no interval change in the appearance of the L4-5 disc protrusion between the CT and MRI scans. Furthermore, in my opinion the comparison between the CT scan and MRI scan is valid and reliable and represents standard clinical practice.” The consultant went on to note “…the independent radiologist states that there are degenerative changes within the L4-5 intervertebral disc but no evidence of an annular tear.”
On August 27, 2020, the WCB medical advisor provided a further opinion after review of the worker’s file, noting the medical information indicated the worker had “…severe and long standing, low back pain and right leg radicular symptoms, which affected [the worker’s] function at baseline prior to the July 20, 2016 workplace accident.” The medical advisor concluded the file “…information does not support the occurrence of a material change in pre-existent pathology at the L4-5 level, or a material alteration of the longstanding baseline low back pain and right lower extremity radicular symptoms.” This opinion was shared with the parties on August 31, 2020 and the worker’s representative provided a response on September 3, 2020.
Review Office determined on September 8, 2020, the worker was not entitled to benefits after November 18, 2016, relying upon the opinions of the WCB medical advisor and neuroradiologist consultant. Review Office found the evidence confirmed the worker returned to their baseline in November 2016 and had recovered from the effects of their low back strain sustained in the workplace accident. Review Office could not account for the worker’s ongoing difficulties in relation to the July 20, 2016 workplace accident and found the worker was not entitled to further benefits after November 18, 2016.
The worker’s representative filed an appeal with the Appeal Commission on October 29, 2020 and a videoconference hearing was arranged for February 24, 2021.
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.
The WCB's Board of Directors has established WCB Policy 18.104.22.168, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the 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.
The worker appeared in the hearing represented by a worker advisor. The worker provided evidence in response to questions posed by the worker advisor and by members of the appeal panel. The worker advisor made an oral submission to the panel and relied upon written submissions previously provided to the WCB and Review Office, noting that the worker’s position remained unchanged from prior considerations of the issue.
The worker’s position, as outlined by the worker advisor is that either the workplace accident caused the worker’s L4-5 disc protrusion, or that, if the L4-5 disc protrusion was pre-existing, the condition was enhanced or aggravated by the injury arising out of the workplace accident. In either case, or in the further alternative, the worker advisor argued the worker was not recovered to the point of their baseline, pre-accident status as of November 18, 2016 and ultimately, did not recover function to that level until after the worker recovered from the May 2017 surgical intervention to address the L4-5 disc protrusion.
The worker’s position relies upon the opinion of the treating orthopedic surgeon that as a direct result of the accident of July 20, 2016, the worker sustained an L4-5 disc herniation, and/or acute exacerbation of the pre-existing L4-5 disc protrusion. The worker advisor noted that while there is evidence of pre-existing L4-5 disc protrusion and the worker had been referred for surgical consult prior to the workplace accident, there is no evidence that the surgical consult would have resulted in a surgical option for the worker prior to the accident. Further, the evidence supports a finding that there was a significant change in the worker’s symptomatic presentation and functional ability following the workplace accident, such that the worker’s treating physician requested an expedited consult with the orthopedic surgeon, and that there was no return to the worker’s pre-accident function until after the worker recovered from the May 2017 surgery.
With respect to the August 27, 2020 opinion of the WCB medical advisor that the accident could not have caused the L4-5 disc protrusion or worsened the worker’s pre-existing lumbar disc condition, the worker advisor pointed out that this opinion is based upon an incorrect understanding of the facts. The medical advisor’s opinion is based in part upon the understanding that the worker did not report any symptoms arising out of the workplace accident until several weeks following the event, but the file evidence contains copies of text messages between the worker and the employer, that confirm the worker did report symptoms of back pain to the employer as early as July 25, 2016 and subsequently, as the worker was not able to continue working as a result.
The worker advisor directed the panel to consider the worker’s testimony in the previous Appeal Commission hearing as to the worker’s functional capabilities in November 2016. At that hearing, the worker testified they were unable to work or drive and could only walk short distances and for short periods of time. Symptomatically, the worker testified to difficulty with sleep due to cramping and discomfort in their leg and lower back.
In summary, the worker advisor’s position is that the worker’s compensable back injury had not resolved when the WCB terminated the worker’s benefit entitlement on November 18, 2016 and did not resolve until after the worker had recovered from the May 2017 surgery. Therefore, the worker should be entitled to benefits beyond November 18, 2016 through the period of the worker’s recovery from that surgery in 2017.
The employer did not participate in the hearing.
The question on this appeal arises out of the WCB’s determination that the worker was not entitled to further benefits on the basis that they had recovered from the injurious effects of the compensable accident by November 18, 2016. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to suffer the effects of the compensable workplace injury after November 18, 2016 and as a result, was entitled to further benefits. For the reasons outlined below, the panel was able to make such a determination.
The medical reporting confirms that, prior to sustaining the compensable workplace injury, the worker had a history of lower back issues, and that prior to the accident the worker had been referred for surgical consult to address those lower back issues. The medical history on file suggests that before the workplace accident, the worker’s lower back symptoms would from time to time flare up, causing temporary aggravation of the degenerative condition.
The WCB determined that the worker’s compensable injury sustained in the accident of July 2016 was a lower back sprain/strain type of injury that would typically resolve in a period of weeks, although the worker’s pre-existing degenerative condition could be expected to prolong that recovery. The worker’s position is that the compensable workplace injury of July 20, 2016 resulted in more than a sprain/strain injury that did not resolve by November 18, 2016 and in fact, did not resolve until after the worker fully recovered from the back surgery that took place on May 12, 2017.
The WCB noted in its decisions that the worker not only had a pre-existing degenerative back condition, but also had a “pre-existing” surgical consult request. The worker advisor rightly noted that there is no evidence that this surgical consult, had it occurred prior to the workplace accident, would have resulted in a surgical option or recommendation for the worker. The panel agrees that it is speculative to say that this surgical referral would have led to any particular result, and places little weight upon the fact of the referral. The panel does however note that the worker’s treating family physician makes a further request for a surgical consult soon after the workplace accident. The medical chart notes of August 2, 2016 indicated the worker was to see the orthopedic surgeon in November, but after the worker’s August 10, 2016 assessment with the treating family physician, the physician followed up again with the surgeon with the result that the consult took place on September 19, 2016.
The September 19, 2016 surgical consult resulted in the orthopedic surgeon’s recommendation that the worker be treated with an anterior discectomy and arthroplasty at L4-5. The surgeon noted that during the assessment the worker had difficulty in remaining still and appeared uncomfortable, “levitating between sitting, standing and walking at all times.” The findings of the clinical assessment are set out in the report to the treating physician and the surgeon concludes “This patient no doubt has an acute disc herniation at L4-5. This has nothing to do with the previous  injury. I would therefore suggest that this patient has an acute work-related injury sustained in July with an L4-5 disc herniation.”
With respect to the orthopedic surgeon’s assertion that the worker’s L4-5 disc herniation was the result of the workplace accident, the panel noted that the medical advisor opinion of April 6, 2017 referenced a lack of new objective findings following the workplace accident and posited that if the workplace accident made the worker’s condition worse, “...there would be clinical evidence of worsening within a couple of days of the incident and a noticeable change in the medical attention” given to the worker. The medical advisor stated there is no documented evidence that the pre-existing injury diagnosis changed or worsened as a result of the accident of July 20, 2017. The panel understands that the medical advisor was referencing a lack of new clinical findings in the period immediately following the accident, and notes that the medical advisor made no reference to any evidence of changes in the worker’s functional abilities during this period.
The August 27, 2020 opinion provided by a WCB orthopedic consultant also concluded that the worker`s accident did not cause a new L4-5 disc herniation, noting the worker initially reported a belief that the accident re-aggravated a prior injury and reporting only back stiffness which would support the WCB determination that the worker`s injury was a lower back strain. The consultant went on to conclude “...there is abundant medical information reported directly by [the worker] or by [their] treating health care professionals, indicating severe and long standing, low back pain and right leg radicular symptoms, which affected [the worker’s] function at baseline prior to the July 20, 2016 workplace accident.”
The panel agrees that the evidence supports the conclusion of the WCB orthopedic consultant that the worker’s accident did not cause a new L4-5 disc herniation, noting the diagnostic findings support that this was a pre-existing condition.
The orthopedic consultant also reviewed the medical reporting following the accident and concluded the worker’s assertion that there was a material change to the worker’s baseline symptomology or pathology is not supported as there is a period of time after the accident during which the worker did not report low back or right leg radicular symptoms to the employer or the treating medical professionals.
However, the panel finds that the evidence, including the testimony of the worker in the previous Appeal Commission hearing on May 28, 2019 as well as the worker’s subjective reports contained in the medical reporting, supports the position that there was a definitive change in the worker’s symptomatic presentation and functional ability soon after the workplace accident.
The panel noted the evidence in the claim file that, after the accident, the worker reported symptoms of stiffness and pain to the employer as early as July 25, 2016. The employer acknowledged, in a conversation with the WCB on August 8, 2016 that it was aware of the worker’s pre-existing back issues and that, prior to the accident, the worker would take a “day off here and there” as a result. The employer also confirmed that after the accident on July 20, 2016, the worker used vacation days on July 21 and 25, due to back pain, and that on July 26, 2016, the worker left work midway through the day due to back pain. The file reveals that ultimately the worker did not return to working until the graduated return to work on September 5, 2017, following their surgery in May 2017.
The panel also took note of a change in medical reporting of the worker’s lower back complaints after the accident. On attending a family physician’s office on August 2, 2016, the worker was assessed with “acute on chronic low back pain”. In contrast, the chart notes from previous visits to the worker’s treating family physician earlier in 2016 (specifically, in January, February, April and May) note only low back pain or chronic low back pain. The treating family physician’s September 21, 2016 chart note indicated “acute disc herniation – L4/L5”.
The evidence of change in medical reporting of the worker’s chronic lower back condition after the workplace injury occurred, and the evidence that after July 20, 2016, the worker took the next two days off work, reportedly due to back pain, and then on attempting to return to work, was only able to work a half-day on July 26 due to back pain does not appear to have been considered by either of the WCB medical advisors in reaching their conclusion that there was no change in the worker’s symptomatic presentation in the days immediately following the workplace accident.
There are no further clinical assessment findings recorded in the treating family physician’s chart notes following the worker’s surgical consult in September 2016, but at the Appeal Commission hearing in May 2019, the worker provided testimony as to their functional abilities as of November 2016. The worker testified to being unable to work or drive, and only able to walk short distances and for short periods of time. Symptomatically, the worker testified as to difficulty with sleep due to cramping and discomfort in their leg and lower back.
The panel accepts that there is evidence of a change in the worker’s symptomatic presentation following the workplace accident that impacted the worker’s functional abilities to such an extent that the worker was not able to return to their full-time employment until more than one year later, and then, only after a period of recovery from the surgical intervention to repair the damaged L4-5 disc herniation.
As to whether or not the accident aggravated or enhanced that pre-existing condition, the panel is satisfied, on the basis of the evidence heard and reviewed in the file that there was a change, a worsening, in the worker’s symptomatic presentation following the workplace accident. Further, the panel is satisfied on the basis of the evidence, that the worker did not recover to their pre-accident baseline presentation, neither symptomatically or functionally, until after they recovered from the May 2017 surgical repair of the disc. Whereas prior to the accident, the evidence supports that the worker’s lower back symptoms would from time to time flare and subside, after the accident and until the surgical repair, there is little evidence of any such a reduction in the worker’s symptomatic presentation following the accident, with the result that the workers remained unable to return to work until after the surgical intervention.
The panel therefore determines, on a balance of probabilities that the worker’s compensable injury of July 20, 2016 did not resolve by November 18, 2016 such that the worker continued to experience a loss of earning capacity and required medical aid to cure and provide relief from that injury beyond that date. Further, the panel determines, on a balance of probabilities, that the evidence supports that the worker’s loss of earning capacity and requirement for medical aid arising out of the compensable injury of July 20, 2016 continued through the period of the worker’s recovery from the surgical repair of that injury that took place on May 12, 2017.
Therefore, the worker is entitled to benefits after November 18, 2016. The worker’s appeal is allowed.
K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of March, 2021