Decision #65/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits after February 2, 2016 in relation to the September 12, 2015 accident. A teleconference hearing was held on March 24, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits after February 2, 2016 in relation to the September 12, 2015 accident.
That the worker is not entitled to further benefits after February 2, 2016 in relation to the September 12, 2015 accident.
On September 21, 2015, the worker filed a Worker Incident Report with the WCB, reporting that she injured her lower back at work on September 12, 2015. The worker indicated the injury occurred when she lifted a heavy item and had to swing it out of the way when a door closed on her. The worker further reported that "It was just how I turned that I felt a pull in my lower back and for the rest of the day it was stiff but when I woke up the next day it was really bad."
On September 15, 2015, the worker sought treatment from her family physician. On examination, the family physician noted that the worker's flexion was limited to knee level, a straight leg raise test was positive on the right side at 60 degrees, and there were normal reflexes and sensations, but lumbar spine tenderness. An x-ray taken September 17, 2015 indicated "mild lumbar scoliosis and spondylosis. L5-S1 facet joint OA [osteoarthritis]." In his Doctor First Report dated September 22, 2015, the family physician provided a diagnosis of low back pain and lumbosacral spondylosis.
On September 22, 2015, the worker discussed her claim with a WCB adjudicator and confirmed the mechanism of injury. The worker noted she continued working after the workplace accident until her back pain became progressively worse to the point she could barely move or stand straight, and she sought medical attention. The adjudicator noted that the worker reported currently having pain across her lower back with spasms, and the pain radiating down her right leg to her foot. The worker reported that sitting or bending was very painful, position changes were difficult, and she could not twist or lift.
The worker attended an initial physiotherapy assessment on September 24, 2015, where she was diagnosed with a facet joint sprain and a possible disc lesion. The worker continued with physiotherapy treatment, and on October 5, 2015, the treating physiotherapist recommended restrictions together with a graduated return to work. On October 7, 2015, the WCB's Compensation Services advised the employer that the worker was fit to work with temporary restrictions of no continuous sitting for longer than 15 minutes; no lifting from the waist greater than five pounds; and no push/pull greater than 10 pounds. An eight week graduated return to work plan was also provided. On October 21, 2015, the worker started back to work on a graduated return to work program.
On December 18, 2015, the worker attended a call-in examination with a WCB medical advisor. The medical advisor noted the worker presented at the call-in examination with ongoing low back pain that was improving, and no longer had any radiation or neurological complaints. The medical advisor noted that on examination, that the worker had "…limited range of motion, negative dural tension, normal neurological examination, some pain behaviour, and tenderness." The medical advisor went on to opine that the worker's presentation was consistent with nonspecific back pain, which could be medically accounted for in relation to the September 12, 2015 compensable injury. The medical advisor stated that restrictions of no lifting more than 25 pounds; no push/pull more than 65 pounds; no repetitive or sustained bending; and ability to change positions and not work in any awkward positions would be appropriate. The medical advisor further opined that based on the worker's treatment to date and her return to full hours within restrictions, her prognosis for further recovery was excellent and likely to occur within the next few weeks.
On January 7, 2016, the worker underwent an MRI of her lumbosacral spine, which indicated "A mild degenerative spondyloarthropathy is present. Annular tears are present at L3-L4 and L5-S1. There is also potential for irritation of the left L5 nerve root at L4-L5 due to a central/left paracentral disc protrusion." On January 22, 2016, the WCB medical advisor reviewed the MRI report in conjunction with the notes from her call-in examination. The medical advisor noted that the worker had reported significant improvement and no longer had any radicular features, and that this and her being able to return to most of her work activities supported that the effects of the compensable injury had resolved. The medical advisor further noted that the worker might still have lingering back pain, but that this might be related to her underlying degenerative condition as noted on the MRI. On January 27, 2016, Compensation Services advised the worker that they had determined she had recovered from the effects of her injury and her entitlement to benefits would end on February 2, 2016.
On February 16, 2017, the worker contacted the WCB and advised that she had been off work since July 27, 2016 due to lower back pain and had been collecting disability insurance through her employer. The worker advised that she continued going to physiotherapy, but was still experiencing lower back difficulties. The worker further advised that she had been seen by an orthopedic surgeon in December 2016, after having been admitted to a local hospital in mid-November 2016 due to severe pain in her lower back.
On March 3, 2017, the WCB received a copy of the December 3, 2016 report by the worker's orthopedic surgeon. The surgeon noted the worker's complaint of "…back pain radiating to the left leg for several weeks." On examination, the surgeon noted normal alignment of the worker's thoracolumbar spine and a normal neurological exam. The surgeon noted the worker's previous diagnostic imaging showed "…evidence of L4-L5 degenerative disc disease," and referred the worker for another MRI, which was performed February 15, 2017. The MRI indicated, in part:
Large left paracentral disc extrusion at L4-L5 with moderate central canal narrowing appears to impinge on the traversing left L5 nerve root.
Multilevel disc and facet joint degeneration with tiny annular fissures at L2-L3 and L3-L4.
Mild lateral recess narrowing at L3-L4 with encroachment on the traversing L4 nerve roots. No evidence of impingement.
Mild bilateral neural foraminal narrowing at L5 uncertain clinical significance.
At a follow-up appointment on February 15, 2017, noting that non-operative management had failed, the treating surgeon recommended a "…left L4-L5 discectomy…"
On March 8, 2017, the worker's file was reviewed by a WCB orthopedic consultant, who opined that the worker's current diagnosis was "…multi-level lumbar degenerative disc disease (DDD) with irritation of the left L5 nerve root" and that the worker's current symptoms were consistent with the natural history of DDD, with episodes of low back pain and referred leg pain, and were not related to the workplace injury. On March 8, 2017, the WCB Healthcare Department sent a letter to the worker's treating surgeon denying responsibility for the proposed surgery. On March 13, 2017, Compensation Services advised the worker that there was no change to the January 27, 2016 decision that she was not entitled to benefits after February 2, 2016.
On May 11, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that her treating healthcare providers supported she had not recovered from the workplace accident. On June 5, 2018, Review Office determined that there was no entitlement to further benefits. Review Office placed weight on the WCB medical advisor's December 18, 2015 call-in examination and the medical advisor's January 22, 2016 report. Review Office also agreed with the WCB orthopedic consultant's opinion that the worker's diagnosis with respect to the worker's current symptoms was DDD with irritation of the left L5 nerve root, which was a pre-existing condition, and that this had not been structurally changed by the September 12, 2015 workplace accident.
On February 8, 2019, the worker's representative submitted additional medical information, including a report from a neurologist, a chiropractor and chart notes from the worker's treating physician, and requested that Review Office reconsider their May 11, 2018 decision. On March 25, 2019, Review Office requested a copy of the worker's file from the employer's disability insurer, which was received on April 30, 2018. A copy of that file was provided to the worker's representative, who provided a response on May 24, 2019.
On May 31, 2019, Review Office determined that the worker was not entitled to further benefits. Review Office noted that the compensable injury was accepted for a back injury involving discogenic symptoms of referred back pain. Review Office agreed with the WCB medical advisor's opinion that the worker's pre-existing back condition was temporarily aggravated by the workplace accident. Review Office concluded that the pre-existing condition was not enhanced or permanently changed as there was evidence of a resolution of symptoms related to the workplace injury. Review Office found that the worker had recovered from the effects of the workplace injury and any further complaints necessitating treatment and time loss from work were not related to the claim.
On July 15, 2020, the worker's representative 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.
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 18.104.22.168, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated 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 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 was represented by a worker advisor, who provided a further medical report in advance of the hearing, and made an oral submission to the panel. The worker responded to questions from her representative and from the panel.
The worker's position was that the evidence supports, on a balance of probabilities, that she experienced a compensable loss of earning capacity and need for medical aid beyond the current benefits end date, and is entitled to further benefits beyond February 2, 2016.
The worker's representative stated that their primary position was that the September 2015 workplace accident caused the worker's L4-L5 disc protrusion. In the alternative, if the panel were to conclude that the disc protrusion was a pre-existing condition, it was their position that the workplace accident made the worker's pre-existing condition worse for a prolonged period of time and ultimately resulted in the worker needing surgery to repair that injury.
The worker's representative stated that the medical evidence they were relying on in particular in support of their primary position was the extensive June 25, 2020 report from an occupational health physician which they had provided in advance of the hearing. The representative asked that the panel attach significant weight to that report, as being based on the most complete evidence. The representative noted that the occupational health physician had access to a large volume of correspondence and medical information which neither of the WCB medical advisors had access to and had interviewed the worker on several occasions and sought her input into some of the file information in formulating his opinion. The worker's representative noted that the opinion of the occupational health physician was that the September 2015 workplace accident either caused the L4-L5 disc protrusion or was to some extent a pre-existing condition which was effectively enhanced by the workplace accident.
The worker's representative stated that additional medical opinions they were relying on in support of their position were: the report of the treating orthopedic surgeon who, being aware of the mechanism of injury, wrote that he believed the worker's L4-L5 disc herniation was most likely related to trauma, as opposed to wear and tear; the treating physician's February 22, 2017 letter, expressing his opinion that the worker's ongoing back issues were related to her September 2015 workplace accident; and the April 8, 2016 chiropractic report, where the chiropractor reported that the worker had a lumbar disc injury and that treatment to address that condition had not been of much assistance.
The worker's representative submitted that while Compensation Services and the Review Office relied on the WCB medical advisors' opinions, those opinions did not entirely support that the worker had fully recovered from her injury at the time her benefits ended. The representative submitted, among other things, that the WCB medical advisor did not review available information between the call-in examination and her further review of the claim, and that while she seemed to suggest that the worker's presentation was solely consistent with a pre-existing degenerative process, she also commented that the mechanism of injury was a heavy lift and could have injured a disc regardless of the presence of degeneration. It was further submitted that the WCB medical advisor did not explain how she distinguished between the worker's presentation being solely related to pre-existing degeneration as opposed to being due to the compensable non-specific back pain or the result of a compensable disc injury.
The worker's representative submitted that the WCB orthopedic consultant's comments about the imaging of the lumbar spine were essentially a default position, and failed to sufficiently explain why the disc protrusion would not be compensable even in the environment of degeneration, particularly as there was no evidence she had prior back problems. The representative noted that neither the WCB medical advisor nor the WCB orthopedic consultant stated that the mechanism of injury could not cause a disc protrusion, and the medical advisor seemed to suggest that it did, noting that it was a heavy lift which could cause injury to a disc.
With respect to subsequent work incidents that had been described, including two incidents in July 2016, the worker's representative submitted that any exacerbation the worker might have experienced was still predominantly related to her original compensable injury, being the L4-L5 disc protrusion.
In conclusion, the worker's representative submitted that the evidence supports that but for the accident, the worker would have continued working her regular duties, as she had for many years prior, without any need for back surgery. The worker's representative submitted that there is a substantial amount of evidence to support that the worker had not recovered, continued to require medical attention and was unable to work or required work restrictions beyond the benefits end date, and that her appeal should therefore be allowed.
The employer was represented by an advocate, who made an oral submission at the hearing. The employer's position was that they agreed with the WCB's decisions to end responsibility for benefits on this claim.
The employer's advocate submitted that the evidence does not support that the worker's symptoms or disability beyond February 2016 were a direct result of the effects of the September 2015 work injury. Rather, it was submitted that the evidence indicates that her symptoms and disability, and her surgery in particular, were more likely and primarily due to her non-compensable pre-existing degenerative disc disease.
The employer's advocate referred to the WCB medical advisor's report of the December 18, 2015 call-in examination and her January 22, 2016 report following her review of the January 22, 2016 MRI, noting that the medical advisor essentially concluded that the worker had degenerative disc disease in her spinal column and that the work accident had aggravated her pre-existing degenerative disc disease. It was noted that there was no suggestion that the workplace accident had resulted in any permanent enhancement of the worker's pre-existing degenerative condition, and that the medical advisor had added that the worker had largely recovered from the acute work injury by that point and could be left with some lingering back symptoms due to her non-compensable pre-existing condition.
In conclusion, the employer's advocate noted that the worker ended up going on a disability insurance claim and submitted that this was the more appropriate avenue for her benefit eligibility and coverage in this case. The advocate submitted that the worker's appeal should therefore be dismissed.
The issue before the panel is whether or not the worker is entitled to further benefits after February 2, 2016 in relation to the September 12, 2015 accident. 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 beyond February 2, 2016 as a result of her September 12, 2015 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a low back injury. Based on our review of all of the information before us, on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker's September 12, 2015 workplace accident resulted in an aggravation of the worker's pre-existing degenerative disc disease which had effectively resolved as at February 2, 2016 when her WCB benefits ended.
While the worker's representative has argued that the September 2015 workplace accident caused the worker's L4-L5 disc protrusion, or alternatively that if the protrusion was a pre-existing condition, it enhanced that condition, the panel is unable to make such a finding. Rather, the panel is satisfied that the evidence indicates that the worker had pre-existing degenerative disc disease at multiple levels of the lumbar spine. The panel finds that this is supported by the imaging on file, including the September 17, 2015 and January 7, 2016 MRI of the worker's lumbar spine.
The panel is further unable to find that the evidence supports that the disc protrusion as seen on the MRI was caused by the accident, or that the workplace accident resulted in structural changes to the worker's spine. The panel acknowledges the WCB medical advisor's comment on January 22, 2016, that the mechanism of injury "could" have injured a disc regardless of degeneration or not. The panel further acknowledges the occupational health physician's opinion that, in the absence of clinical evidence that the worker had functional back limitations or pain prior to September 2015, the injury "caused significant enhancement…of discal damage and spinal instability, resulting in further deterioration awaiting corrective surgery…" The panel is not satisfied, however, that the clinical or other evidence establishes, on a balance of probabilities, that the workplace accident actually caused or enhanced the worker's disc protrusion or her lumbar spine condition.
The panel is further of the view that the evidence supports the worker had recovered from the effects of her workplace accident as of the beginning of February 2016. In this regard, the panel notes that in her examination notes of the December 18, 2015 call-in examination, the WCB medical advisor documented that the worker reported that she was generally about 90% better, and that there was no longer any radiation or neurological complaints. The medical advisor further noted, on examination, that the worker had negative dural tension, normal neurological examination, some pain behaviour, and tenderness, and that this was consistent with nonspecific back pain. On January 22, 2016, after reviewing the January 7, 2016 MRI results, the medical advisor further opined that the MRI confirmed the presence of degeneration of the spine, and that this was consistent with the worker's age.
The panel notes that there were significant inconsistencies in the information on file, as well as between information on file and as presented at the hearing. While the worker indicated at the hearing that she was off work from September 15, 2015 and did not start a graduated return to work until February 2016, information on file indicates that she started back to work on a graduated return to work on October 21, 2015. Information on file further indicates that she continued working reduced hours, which increased over time, and was paid partial wage loss benefits based on the hours she worked through to the beginning of February 2016, when she returned to her full regular work schedule.
Information on file shows that after her benefits ended in February 2016, the worker went on disability benefits with the disability benefits provider. The panel notes that the worker did not contact the WCB again until February 16, 2017, when she called to indicate she wished to appeal her claim. The worker advised at that time that her symptoms had become worse, that she had been off work since July 27, 2016 and had been receiving monies from her disability benefits.
The panel also notes that there are indications on file that the worker experienced a number of smaller incidents after February 2016, which resulting in increased lower back pain or symptoms for periods of time. This includes two incidents, on July 5, 2016 and July 27, 2016. The panel notes that the worker filed another WCB claim in July 2018 in respect of the July 27, 2016 incident, which was subsequently denied by Compensation Services.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid beyond February 2, 2016 as a result of her September 12, 2015 workplace accident. The worker is therefore not entitled to further benefits after that date in relation to the September 12, 2015 accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of May, 2021