The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after September 25, 2019. A videoconference hearing was held on May 19, 2021 and reconvened on July 7, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 25, 2019.

Decision

The worker is entitled to benefits after September 25, 2019.

Background

The worker reported to the WCB on July 2, 2019 injury to their lower back and right leg that occurred at work on that day, when they attempted to reposition a resident and felt a sharp pain. The worker sought medical attention the same day, reporting pain in their lower back into their right leg, with no numbness. The physician noted the worker had very limited range of motion in all direction and spasm in their paravertebral muscles and diagnosed a muscular spasm and strain, recommending the worker remain off work for one week and then begin a graduated return to work.

When the worker attended for an initial physiotherapy assessment on July 3, 2019, the treating physiotherapist noted the worker’s report of constant sharp low back pain with sharp/shooting pain down their right lateral thigh to just below the knee. On examination, the physiotherapist found the worker had an antalgic gait, but other testing was limited by the worker’s pain. The physiotherapist diagnosed a lumbar sprain/strain with some radicular symptoms.

On July 9, 2019, the WCB spoke with the worker to discuss the claim. The worker confirmed the mechanism of injury and advised they were still in a lot of pain, at a level of 8/10 on a pain scale, that they were continuing with physiotherapy treatment twice weekly, and that they had previous lower back injury, mostly recently in 2015, but had been pain free for approximately a year prior to the workplace accident.

The employer submitted an Employer’s Accident Report to the WCB on July 9, 2019, confirming the mechanism of injury reported by the worker. The employer also provided an email with the report to the WCB, indicating the worker reported a fall in 2015 where they sustained an L4/L5 disc injury and recovery took 6 months. The employer acknowledged the workplace accident occurred but requested the WCB monitor the worker’s claim due to the worker’s pre-existing back condition.

At a follow-up appointment with the treating family physician on July 23, 2019, the physician noted the worker continued to have limited range of motion and tenderness in their low back. A lumbar spine x-ray conducted that day indicated normal findings, and the physician recommended the worker remain off work for a further two weeks. A lumbar spine CT scan on August 11, 2019 revealed a “…tiny central disc protrusion” at L4-L5 and a “…central disc protrusion which is partially calcified” at L5-S1. At further follow-up on August 13, 2019, the physician discussed the results of the CT scan with the worker and made a referral to a sports medicine physician.

On September 3, 2019, at the request of the WCB, the worker attended for a call-in examination with a WCB physiotherapy consultant. Upon examination, the physiotherapy consultant determined the diagnosis related to the July 2, 2019 workplace accident was a low back strain, based on the medical reporting, with functional recovery from a strain typically occurring over a period of a few days to a few weeks. The WCB physiotherapy consultant concluded the worker’s current difficulties were not medically accounted for in relation to the workplace accident as there had been no improvements in pain or function at 8 weeks post-accident, although diagnostic imaging indicated no abnormalities. The physiotherapist noted findings of pre-existing degenerative joint and disc disease at L4-L5 and L5-S1 but determined there was no evidence to support those conditions were materially affected by the workplace accident.

The worker was assessed by the sports medicine physician on September 6, 2019 who provided a diagnosis of non-specific low back pain, with some radicular features and pain behaviour, and recommended the worker continue with physiotherapy and remain off work.

On September 19, 2019, the WCB advised the worker that based on the opinion of the WCB physiotherapy consultant and a review of their file, the WCB would terminate the worker’s benefits as of September 25, 2019 as it had determined the worker was recovered from the workplace accident.

The worker requested reconsideration of the WCB’s decision to Review Office on September 20, 2019 indicating they were still experiencing the effects of the workplace accident and noted the treating healthcare providers supported their measured recovery. The worker’s treating family physician, in a September 23, 2019 report supported the worker’s request for extension of WCB benefits, noting the worker was still in pain with limited range of motion and that recovery was very slow. A further letter in support of the worker’s request from the treating sports medicine physician dated October 1, 2019 indicated the worker’s pre-existing condition was likely delaying their recovery from the workplace accident.

On October 4, 2019, the WCB advised the worker that it had reviewed the medical information provided but there would be no change to the earlier decision to end benefits on September 25, 2019. The employer’s representative provided a submission in support of the WCB’s decision on October 22, 2019, a copy of which was provided to the worker on November 5, 2019.

Review Office found on November 13, 2019, the worker was not entitled to benefits after September 25, 2019, relying upon the opinion of the WCB physiotherapy consultant that the worker’s presentation at the call-in examination was not medically accounted for in relation to the July 2, 2019 workplace accident and the worker did not require workplace restrictions.

The worker filed an appeal with the Appeal Commission on November 23, 2020. A videoconference hearing was arranged for May 19, 2021.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On August 16, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

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 44.10.20.10, 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 Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The Policy allows for consideration of evidence concerning the progression of a pre-existing condition based on statistical norms or predictions based on the best available data. The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.

Worker’s Position

The worker appeared in the hearing on their own behalf, making an oral submission to the panel, as well as responding to questions posed by members of the appeal panel. The worker also relied upon written materials provided to the appeal panel and shared with the employer in advance of the hearing, and subsequent to the hearing, provided a copy of their oral submission in writing at the request of the panel.

The worker’s position is that they had not recovered from the effects of the compensable injury by September 25, 2019, as evidenced by the reports of the treating physicians, and that as a result, they should be entitled to benefits beyond that date.

The worker submitted that the treating physicians confirm that more time was required for recovery and the worker states that this time was needed for additional consults and examinations to arrive at a definitive diagnosis. The worker also stated that while waiting for those examinations and diagnostic tests to be performed, their condition deteriorated resulting in additional left foot pain and weight loss. The worker referenced the results of a January 16, 2021 MRI study that showed “evidence of synovitis and joint effusions involving several of the MPT joints on left foot. The appearance is concerning for an active inflammatory arthropathy possibly rheumatoid.” The worker also noted the MRI revealed “nonspecific midfoot marrow edema” on their right foot and mild degenerative arthrosis on the lumbar spine. On the basis of the 2021 MRI findings, the worker submitted that the development of rheumatoid arthritis was related to their compensable injury.

With respect to the WCB comments as to “pain focused behaviour” the worker argued that pain status is critical to understanding a person’s clinical status and progress and linked their pain symptoms to the subsequent diagnosis of rheumatoid arthritis.

The worker also made submissions with respect to the diagnostic tools and tests used in their case, referring to the academic literature submitted to the panel in advance of the hearing. The worker noted that tests, such as those relied upon by the WCB physiotherapy advisor in the call-in examination of September 3, 2019 may not be reliable or may have limited diagnostic validity, and as such should not be relied upon other than to assess need for further imaging or other testing.

On questioning by panel members, the worker indicated that they remain completely disabled from all work, with inflammation in joints throughout their body related to the development of rheumatoid arthritis. The worker explained to the panel members that following the injury in 2014, they made a full recovery in 2015 and did not continue to require treatment thereafter.

In sum, the worker’s position is that the evidence does not support that the worker had recovered from their compensable injury as of September 25, 2019 and that further medical assessment and testing was required beyond that date to determine the full extent of their injury. For this reason, the worker’s appeal should be granted, and the worker should be entitled to benefits beyond September 25, 2019.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and provided answers to questions posed to them by the appeal panel members. The employer also provided a written submission following the hearing in response to the worker’s written submission, as requested by the panel.

The employer’s position is that there is no evidence to support that the worker was not recovered from the compensable injury as of September 25, 2019 and therefore the worker’s appeal should be denied, and the decision of the Review Office upheld.

The employer’s advocate noted that the worker had a previous history of a similar injury that affected the worker’s opposite side and resulted in a lengthy period of recovery, with significant pain behaviour noted. The worker’s history of excessive pain behaviour should be considered in light of the inconsistencies in clinical findings compared to casual observation of the worker, as noted in the Call-In Examination report of September 3, 2019.

The employer’s advocate reviewed the medical findings and reports, noting the reports immediately following the injury specifically noted no neurological findings were present and argued that the medical reports support the WCB’s acceptance of the worker’s claim on the basis of a diagnosis of lumbar sprain/strain. The advocate pointed to the September 6, 2019 report of the sport medicine physician who diagnosed non-specific lower back pain, noting that this typically means that a physiological pain generator cannot be identified with testing.

Further, with respect to the worker’s submissions as to the subsequent diagnosis of rheumatoid arthritis, the employer’s advocate argued there is no evidence this condition was caused or enhanced by the soft tissue injury sustained in the workplace accident of July 2, 2019 but noted as well that this condition could account for the worker’s symptoms.

The employer’s advocate also referenced the worker’s pre-existing degenerative disc disease, as evidenced by the 2015 MRI study report, and noted that the recent imaging confirms progression of this condition. In the result, the employer’s advocate submitted that the worker’s complaints are not medically or pathoanatomically accounted for in relation to the workplace accident or to the diagnostic testing results, and the employer accepts the opinion of the WCB consulting physiotherapist and medical advisor in this regard. The employer argues that the worker’s symptoms and condition beyond September 25, 2019 arises from the worker’s pre-existing non-compensable condition and is not related to the workplace injury of July 2, 2019. Pursuant to the Policy, the employer argues that the WCB is not responsible for the worker’s loss of earning capacity as the evidence supports it is caused by the pre-existing condition rather than the workplace injury or the relationship between the pre-existing condition and the workplace injury.

In sum, the employer’s position is that the objective medical reporting does not support an ongoing cause and effect relationship between the compensable injury and the worker’s ongoing difficulties, and further, did not support such a causal relationship as of September 25, 2019 at 12 weeks post-injury. Therefore, the worker’s appeal should be dismissed, and the panel should determine that the worker is not entitled to benefits after September 25, 2019.

Analysis

The question on appeal is whether the worker is entitled to benefits beyond September 25, 2019 when the WCB terminated benefits to the worker arising out of the compensable injury of July 2, 2019. For the worker’s appeal to be granted, the panel would have to determine that as of September 25, 2019, the worker continued to require medical aid or experience a loss of earning capacity as a result of the compensable injury sustained in the workplace accident. The panel was able to make such findings as outlined in the reasons that follow.

The Act provides that when a worker has sustained a loss of earning capacity due to injury resulting from an accident, wage loss benefits are payable until the loss of earning capacity ends or the worker reaches 65 years of age, whichever is sooner. It also provides that a worker is entitled to compensation where medical aid is required as a result of an accident. The WCB determined the worker was no longer entitled to benefits, setting out in its letter of September 19, 2019 that on the basis of claim information, including diagnostic and medical reports from the worker’s treatment providers, the accepted diagnosis, anticipated recovery period and input from the WCB medical advisors, the worker had “functionally recovered from [their] work injury and any ongoing difficulties/symptoms, recommended restrictions cannot be medically accounted for in relation to the work injury.” As a result, the WCB determined to discontinue benefits beyond September 25, 2019. The WCB also noted the lack of evidence that the worker’s pre-existing degenerative lumbar spine degenerative condition was materially influenced by the workplace injury.

In considering the worker’s position that they were unable to return to their pre-accident employment and continued to require medical treatment as of September 25, 2019 due to the ongoing disability resulting from the compensable injury, the panel reviewed the medical evidence as to the nature and extent of the worker’s disability at that time.

The panel reviewed the September 3, 2019 report from the WCB physiotherapy advisor arising out of the worker’s call-in examination of the same date, noting numerous findings that are described as “not accounted for pathoanatomically” as well as multiple comments with respect to the worker’s pain behaviour, including facial grimacing and reports of pain with various movements. The physiotherapy advisor concluded the worker’s presentation was not medically accounted for in relation to the workplace injury in that there had been no significant improvement in the worker’s pain or function at 8 weeks post-injury, which was not accounted for on the basis of the recent imaging. Further, casual observation of the worker did not accord with the examination findings and imaging. As well, the clinical testing results did not align with the x-ray and CT scan findings. The physiotherapy advisor went on to comment that based upon the 2015 MRI and 2019 CT scan, there was evidence of lumbar spine anatomic changes “concordant with pre-existing degenerative joint and disc disease at the L4-5 and L5-S1 levels” but no evidence the pre-existing condition was “materially influenced...” by the accident.

The conclusions reached in the call-in examination were later confirmed by the WCB medical advisor in a memo dated September 12, 2019. Of note, the medical advisor also found the worker’s presentation to be “remarkably similar” to that seen in a prior claim made by the worker in 2014, although in that case the worker’s left side was affected and, in this case, the right. The medical advisor concluded the worker’s “presentation...is unaccounted for in relation to the continued effects of the reported July 1 2019 workplace incident” and as a result, found no ongoing requirement for workplace restrictions “in specific relation to continued effects” of the compensable injury.

The sport medicine physician who first assessed the worker three days after the call-in examination recorded findings that included pain on right straight leg raise, pain in back with femoral nerve testing on the right, tenderness midline lower back, minimal range of motion in all directions and negative Waddell’s sign. The physician diagnosed non-specific low back pain, with some radicular features and pain behaviour, and explained to the worker there was nothing sinister evident but that they were concerned about the worker’s pain. The physician prescribed pain medication and exercises, recommended the worker continue with physiotherapy and stated the worker was unable to work due to pain, with follow-up to occur in two weeks. At the follow-up on September 20, 2019, the sport medicine physician recorded similar findings although the worker indicated some improvement. The physician noted the worker’s recovery was not satisfactory due to their ongoing pain and that, with respect to the worker’s ability to return to job duties, the worker would be unable to tolerate sustained activity due to pain. Continuing treatment with physiotherapy, pain medication and a gradual increase in walking was recommended with follow up in 2 weeks.

The worker’s treating family physician on September 23, 2019 noted continuing pain, especially in the lower back radiating to the right leg, with “very limited” range of motion, although the worker reported some very slow progress. On this basis, the physician requested an extension of WCB benefits of a “few more weeks.”

On October 1, 2019 the sport medicine physician wrote to Review Office in support of the worker’s request for reconsideration noting that the worker’s mechanism of injury and initial symptoms were consistent with radicular back pain and noting that recovery from radicular back pain could occur over “months”. The physician commented that the worker was making some improvement with treatment but “would be unable to work now due to the pain from this injury.” The physician also commented that the worker’s “history of diabetes, prior back injury, and [degenerative disc disease] ...could prolong [the worker’s] recovery from the current injury”, noting that the worker also has difficulty coping with pain.

The panel noted the WCB physiotherapy advisor’s comments as to the worker’s presentation and pain behaviour, as well as the WCB medical advisor’s comments that the worker’s behaviour described by the WCB physiotherapy advisor was like that seen in a prior claim. While the treating sport medicine physician also remarked upon the worker’s pain behaviour, the panel noted the sport medicine physician did not discount the worker’s pain as being unrelated to the compensable injury; rather, the sport medicine physician sought to address the worker’s pain through continued physiotherapy, pain medication, appropriate activity and reassuring the worker that the pain does not mean there are any “sinister” findings. Likewise, the treating family physician also acknowledged the worker’s ongoing pain reports and noted that while progress was being made, more time was required for the worker to recover. The treating physicians support that the worker’s pain was related to the injury and required further treatment.

The Policy provides that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury; but where the worker has recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and the pre-existing condition is not a compensable condition, the WCB is not responsible.

Here, there is evidence the worker had a pre-existing lower back condition, but there is a lack of evidence to support that the pre-existing condition is itself compensable, or that it was enhanced or aggravated by the workplace injury. As noted by the WCB physiotherapy consultant, changes evident in the diagnostic imaging are “concordant with pre-existing degenerative joint and disc disease” but do not indicate that the pre-existing condition was “materially influenced” by the injury sustained in the workplace accident. We find there is no evidence to contradict this opinion, and the panel finds that the worker’s pre-existing lumbar spine condition was neither aggravated nor enhanced as a result of the compensable injury.

But there is evidence to support a finding that the worker had not recovered from the workplace accident to the point that it was no longer contributing, to a material degree, to a loss of earning capacity as of September 25, 2019. The treating family physician and treating sport medicine physician both support this conclusion. The family physician on September 23, 2019 noted the worker was making very slow progress toward recovery and would require a few more weeks to recover. The sport medicine physician on September 20, 2019 recommended ongoing treatment, noting the worker would be unable to tolerate sustained activity, and then stated on October 1, 2019 that the worker`s pre-existing lower back injury and degenerative disc disease could prolong their recovery, and that the worker at that time was unable to work due to pain “from this injury.” The panel accepts and relies upon the opinions of the treating physicians in this regard.

While the WCB made its determination that the worker was recovered from the compensable injury on the basis of typical recovery norms, as noted by the WCB case manager in the September 19, 2019 decision letter, “Each situation is reviewed on an individual basis based on medical information received from [the] treatment providers.” The evidence from the treatment providers here supports a finding that as a result of the compensable accident, the worker sustained a lower back strain injury with radicular features, in an environment of pre-existing lumbar degenerative disc disease and prior back injury. In the result, the worker’s recovery was prolonged and was not completed by September 25, 2019 as the WCB anticipated it should be.

The worker also made submissions to the panel as to a potential causal relationship between lumbar spine injuries and subsequent development of arthritic conditions, including rheumatoid arthritis. There is a lack of evidence before the panel to support that any such causal relationship exists between the worker’s subsequent diagnosis of rheumatoid arthritis and the compensable injury. We therefore find that the worker’s ongoing arthritic condition cannot be related to the compensable injury of July 2, 2019.

On the basis of the evidence before us, the panel is satisfied on a balance of probabilities that the worker had not fully recovered from the compensable workplace injury as of September 25, 2019 and as a result, continued to require medical aid for that injury and to experience a loss of earning capacity as a result of the injury. The panel makes no determination of the duration of any benefits payable to the worker beyond September 25, 2019 but notes the request of the treating family physician, made September 23, 2019, for a few more weeks of compensation and directs the WCB to further investigate and make its own determination as to the question of duration of the worker’s further entitlement.

Therefore, the worker is entitled to benefits beyond September 25, 2019. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of August, 2021