Decision #59/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident. A teleconference hearing was held on April 7, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident.
The worker is not entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident.
The employer filed an Employer’s Accident Report with the WCB on June 7, 2019 reporting the worker injured their lower back in an incident at work on May 27, 2019. The worker advised the employer their back became sore as a result of having to wear a lead apron for long periods of time.
The worker attended an initial physiotherapy assessment on June 4, 2019, reporting a sore back and trouble moving as a result. The physiotherapist noted the worker had limited flexion and diagnosed left lumbosacral dysfunction, with a query as to a disc injury. The physiotherapist recommended the worker remain off work.
On June 11, 2019, the WCB contacted the worker to discuss the claim. The worker advised they need to wear a lead apron for long periods of time at work, and they first noticed symptoms approximately six months earlier. The worker further advised there was nothing unusual about their job duties on May 27, 2019 but they felt a “huge spike” in pain in their lower back, more on their left side, on that date. The worker self-medicated for pain and rested before completing another shift on May 31, 2019. The worker noted they tried not to do any lifting during that shift and asked for extra help. When they awoke the next day, they had trouble getting out of bed. The worker reported missing work on June 3, 2019 and June 4, 2019 to seek medical treatment. The WCB accepted the worker’s claim.
A WCB physiotherapy advisor reviewed the worker’s file on June 11, 2019 and provided an opinion that the worker’s diagnosis was of a sprain/strain injury.
The worker underwent an MRI study of their lumbar spine on June 6, 2019. The MRI indicated multilevel degenerative changes along with mild spinal canal stenosis at L3-L4.
A WCB medical advisor reviewed the worker’s file on June 18, 2019. The advisor provided the worker’s diagnosis remained a lumbar strain, with typical recovery occurring in 2 - 6 weeks. Further, the WCB medical advisor noted the worker was not considered totally disabled and recommended restrictions of no prolonged/repetitive trunk flexion or any trunk twisting and occasional lifting up to 10 pounds for 2 to 3 weeks. The WCB provided the employer with the worker’s restrictions on June 19, 2019.
The worker continued to seek treatment from their treating physician and physiotherapist, reporting ongoing symptoms and an inability to return to work. At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on September 10, 2019. After the examination, the WCB medical advisor’s opinion was that the worker’s current diagnosis was non-specific, non-radicular low back pain, which the medical advisor noted could “…arise at any time without an inciting event or injury, and is highly prevalent in the general healthy population.” Further, the medical advisor concluded that “…no significant physical impairment of [the worker’s] low back is demonstrated in relation to the May 27, 2019 lumbar strain injury.” The advisor noted the absence of objective evidence that the workplace accident materially affected the pre-existing degenerative condition noted on the June 6, 2019 MRI and concluded that the degenerative changes were not materially delaying the worker’s recovery. Further restrictions related to the compensable injury were not required.
On September 27, 2019, the WCB advised the worker their current difficulties could not be causally related to the May 27, 2019 workplace accident and the entitlement to benefits would end on October 4, 2019.
The worker requested reconsideration of the WCB’s decision to Review Office on October 9, 2019. In their submission, the worker noted their ongoing difficulties were related to their job duties. On October 21, 2019, the worker provided a further submission in support of their request. The employer provided a submission in support of the WCB’s decision on November 21, 2019.
Review Office determined on November 26, 2019 the worker was not entitled to benefits after October 4, 2019, relying upon the opinion of the WCB medical advisor based on the call-in examination, and determining the worker’s current presentation was not causally related to the May 27, 2019 workplace accident.
The worker filed an appeal with the Appeal Commission on September 17, 2020. A teleconference hearing was arranged for April 7, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. 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.
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.
Medical aid is provided for under s 27 of the Act which 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.
The WCB's Board of Directors has established WCB Policy 220.127.116.11, 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 was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and relied as well upon written submissions provided to the appeal panel and the employer in advance of the hearing date. The worker provided evidence in response to questions posed by the worker advisor and by members of the appeal panel.
The worker’s position, as outlined by the worker advisor, is that the worker continued to experience debilitating symptoms beyond October 4, 2019 as a result of the compensable injury sustained on May 27, 2019 in the course of undertaking their work duties. As a result, the worker continued to require medical aid and to experience a loss of earning capacity beyond that date, and for this reason, the worker is entitled to benefits beyond October 4, 2019.
The worker advisor noted that as a result of the worker’s pre-existing and degenerative back condition, the worker was both more vulnerable to injury and vulnerable to more significant injury to their back.
The worker described to the panel their job duties, outlining the various tasks that might be assigned on any given day, including transferring patients from bed to table and back again, operating the mobile and stationary machinery, locking and unlocking the mobile cart and moving the c-arm on the mobile machine, all the while wearing a lead apron which inhibits bending and squatting motions. On questioning by panel members, the worker confirmed that the lead apron is only worn during portable examinations and otherwise, only when they need to remain in the room to assist a patient in some way. The worker also noted that they hang the apron on a hook provided on the mobile cart when its use is not required.
In sum, the worker’s position is that although the claim was accepted for an acute sprain/strain of the back, this was in the environment of pre-existing disc degeneration and pre-existing scoliosis. The mechanism of injury of “extreme pressure from the lead apron” could have caused not only a sprain/strain of the back with radiculopathy, but in the environment of disc herniation approaching nerve roots. could have aggravated or enhanced the pre-existing conditions to cause the nerve root irritation indicated in the attending physician’s chart notes. From the beginning of the claim, symptoms of radiculopathy are reported, and these continue beyond the termination of benefits by the WCB. There is no evidence on file to show symptom improvement or an ability to return to work when benefits were terminated. Therefore, the worker should be entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident.
The employer was represented in the hearing by an advocate and by its’ WCB coordinator. The advocate made an oral submission on behalf of the employer and answered questions posed by the panel. The employer’s WCB coordinator provided evidence through answers to questions posed by members of the appeal panel.
The employer’s position is that the worker’s ongoing back symptoms beyond October 4, 2019 are not related to the compensable workplace injury of May 27, 2019 but are the result of the worker’s pre-existing, non-compensable degenerative back condition. The compensable injury was a lower back sprain/strain, in an environment of pre-existing multilevel degeneration. There is no evidence of an acute structural injury and or of any enhancement of the worker’s pre-existing degenerative back condition. The medical findings from the September 10, 2019 call-in examination indicate “non-specific, non-radicular low back pain” which more likely than not relates to the worker’s pre-existing back condition, rather than to the workplace injury. For this reason, the worker should not be entitled to benefits after October 4, 2019.
The employer’s advocate noted there was no evidence that the worker was engaged in any new or different duties on the date of accident, and that this was not a traumatic injury claim but a claim relating to injury arising out of and in the course of completing regular work duties. The employer acknowledged that the lead apron worn by the worker in the course of their duties is heavy.
With respect to the disc bulges and protrusions noted in the MRI study report, the employer noted that there is no evidence that these were caused by or the result of the workplace accident. Further, there is no evidence of an acute structural injury as outlined in the June 18, 2019 opinion of the WCB medical advisor who provided restrictions and recommended the worker return to work on modified duties. The employer’s advocate noted that the treating physician’s June 18, 2019 findings of disability are not consistent with the MRI findings.
The employer’s advocate argued that the worker’s degenerative back condition provides an explanation for their ongoing symptoms, but this is not related to the compensable workplace injury of a lower back sprain/strain, noting that there is no evidence the worker’s multilevel degenerative back condition was enhanced by the workplace injury.
In sum, the employer’s position is that the panel should uphold the Review Office decision that the worker is not entitled to benefits after October 4, 2019 in relation to the compensable workplace injury of May 27, 2019.
The issue on appeal is whether or not the worker is entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident. In order to grant the worker’s appeal, the panel would have to find that the worker had not recovered from the compensable injury and as a result continued to sustain a loss of earning capacity or to require medical aid to cure and provide relief from that injury. For the reasons outlined below, the panel was not able to make such findings.
The claim arose out of an injury sustained by the worker to their lower back arising out of and in the course of their employment on May 27, 2019. The worker provided testimony as to the specific activities of their work that they believe caused the injury. The evidence before the panel suggests that there was no specific inciting incident or moment of acute injury, but that the worker’s injury became evident over the course of that day’s work and thereafter. The worker testified that their workload had been different in nature over the previous several months, but there was no increase or significant change in duties on that particular day.
The WCB accepted the worker’s claim on the basis of the early medical findings and accepted that the compensable diagnosis was of a sprain/strain to the worker’s lower back. The panel reviewed the medical findings and reports in the worker’s claim file noting that the compensable diagnosis of low back sprain/strain injury was determined by the WCB physiotherapy advisor based upon the physiotherapy findings on initial assessment of June 4, 2019 as well as the worker’s reports to the WCB. The compensable diagnosis was confirmed as a lumbar strain upon review of the June 6, 2019 MRI study report which revealed an absence of acute structural injury and multilevel degenerative findings from the L1 level through to the S1 level. The MRI study also revealed mild spinal canal stenosis at L3-4. As set out in the WCB medical advisor’s June 18, 2019 opinion, the initial medical findings supported restriction of the worker’s activities for 2-3 weeks but did not support a finding of total disability. The WCB medical advisor stated that the typical recovery would be in 2-6 weeks without residual or recurrent physical impairment.
This resulted in WCB initiating return to work conversations with the employer; however, before a return to work could be organized, the worker’s treating physician provided that the worker was unable to return to work and the employer did not offer any modified duties as a result. The worker’s treating physician reported clinical findings on June 18, 2019 including painful and minimal flexion and extension, improved straight leg raise, tenderness from L1-L5 and on bilateral paraspinal muscles and left ankle jerk present. The physician noted, with respect to recovery, “si [sacro-illiac] improvement but will require further time off work. MRI does show disc protrusion and potential for nerve root compression and milf [sic] spinal stenosis” at L3-L4.
Reviewing the subsequent physiotherapy and medical chart notes, the panel noted the assessments of the worker’s injury and progress toward recovery provided by the treating professionals, as follows:
• On July 4, 2019 the physician assessed acute back injury, with probable nerve root component, facet injury and underlying spinal stenosis;
• On July 26, 2019 the physician assessed back pain, lumbar strain with radiculopathy and nerve root irritation;
• On August 8, 2019 the physiotherapist assessed lumbar spine dysfunction and disc dysfunction, with more physiotherapy requested;
• On August 22, 2019 the physiotherapy discharge report noted continuing symptoms of pain and stiffness in the worker’s lower back with limited lumbar flexion and extension;
• On August 27, 2019 the physician’s chart noted the worker suffered a setback earlier that month but that their pain was starting to improve and the physician assessed back pain with sciatica;
• On September 16, 2019 the physician assessed back pain with referred pain in their buttock, leg pain and radicular symptoms;
• On November 13, 2019 the physician assessed back pain, osteoarthritis of the lumbar spine with spinal stenosis and radiculopathy; and
• On December 17, 2019 the physician’s chart noted the worker was approved for long term disability coverage and the physician assessed chronic back, radicular pain and cervical spasm, along with other unrelated complaints.
The panel also reviewed and considered the findings from the September 10, 2019 WCB call-in examination. At that time, the worker noted an overall improvement in symptoms of 50% and that improvement continued, with improved results in physiotherapy. Examination findings included bilateral 90 degree straight leg raises with no reported radicular or neurological symptoms, symmetrical patellar and Achilles reflexes and no reported tenderness on palpation of the lower back. After the call-in examination, the WCB medical advisor offered an opinion that the worker’s current diagnosis was non-specific, non-radicular low back pain, which the medical advisor noted could “…arise at any time without an inciting event or injury, and is highly prevalent in the general healthy population.” Further, the medical advisor concluded that “…no significant physical impairment of [the worker’s] low back is demonstrated in relation to the May 27, 2019 lumbar strain injury.” Importantly, the medical advisor also noted the absence of evidence that the workplace accident materially affected the pre-existing degenerative condition noted on the MRI and was of the view that the degenerative changes noted in the MRI did not materially delay the worker’s recovery.
There is no doubt based upon the evidence before the panel that the worker had significant pre-existing degenerative disc issues at each level studied in the MRI of June 6, 2019, but the panel noted the lack of evidence of any structural changes to the worker’s pre-existing degenerative back condition. The worker’s position is that if their pre-existing degenerative back condition was aggravated or enhanced as a result of the compensable accident, the WCB would be responsible for the full injurious result, applying the Pre-Existing Conditions Policy; however, the panel finds that the clinical findings do not support that there was an aggravation or enhancement of the worker’s pre-existing degenerative back condition.
Rather, the medical evidence suggests that there was a decrease in the symptomatic presentation of the worker’s lower back injury with physiotherapy, as would be expected where there is a diagnosis of lumbar sprain/strain. Further, although the medical findings confirm that the worker continued to experience lower back symptoms of pain and stiffness beyond October 3, 2019, the panel is not persuaded that these symptoms are related to the worker’s compensable workplace lumbar sprain/strain injury. In this regard, the panel noted inconsistency in the reported symptoms over time, the changing nature of the assessments by the worker’s treating practitioners through the period leading up to and following the termination of the WCB benefits, and the findings from the September 10, 2019 call-in examination.
The panel accepts that the injury sustained on May 27, 2019 was a lumbar sprain/strain, as determined by the WCB. Further, the panel accepts and relies upon the September 10, 2019 opinion of the WCB medical advisor that there is no evidence to support that this injury aggravated or enhanced the worker’s pre-existing degenerative back condition. The panel finds on a balance of probabilities that the worker’s pre-existing degenerative lumbar back condition accounts for the worker’s continuing lumbar back symptoms beyond October 3, 2019.
The panel finds on a balance of probabilities that by October 4, 2019, the worker recovered from the effects of the compensable injury and as a result did not continue to sustain a loss of earning capacity or to require medical aid to cure and provide relief from that injury beyond that date. Therefore, the worker is not entitled to benefits after October 4, 2019 in relation to the May 27, 2019 accident.
The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of May, 2021