Decision #97/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on June 9, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on November 29, 2019, stating he was making a second claim for a workplace injury to his groin/pelvic area related to a previous WCB claim involving an injury on November 22, 2017 and repetitive heavy lifting thereafter in November and December 2017.
The worker contacted the WCB on January 15, 2020 for an update on his claim, at which time he was advised to submit another Worker Incident Report and provide more information. At the worker's request, another Report was completed by telephone that same day, for a cumulative type injury. It was noted in that Report that the worker injured his groin/low back on December 20, 2017 and reported this to the employer on January 4, 2018. With respect to the cause of the injury, the worker reported:
I believes [sic] that the initial cause of injury is from Nov 22/17 and the repetitive lifting. I lifted a hydraulic lift weighing approximately 800 lb with couple of other coworkers. 3 in total. It was lifted by hands. I felt pain in the lower back/strain on the left side.
Prior to Nov 22/17 I did not have any issues with my low back/groin. I did not seek any medical attention either.
Repetitive lifting: Mid November and throughout December is our heaviest time of the year. Stages, lighting, risers…, stacking chairs, pushing chairs and stacking up and down. One stage is 4x8 and is about 100 lbs. Some days moving staging and risers and chairs for the Xmas concerts.
The worker indicated he initially believed his symptoms were related to a kidney stone attack he experienced on December 20, 2017, but he continued to experience pain after his treating healthcare providers advised him he no longer had kidney stones. The worker confirmed that his last day worked was December 12, 2018.
On January 20, 2020, the WCB spoke with the employer, who confirmed that the worker was injured in November 2017 and had filed a previous WCB claim for that injury. The employer further advised that the worker performed light duties "on and off" until December 11, 2018 and reported no other workplace incidents.
The WCB obtained medical information from the worker's previous WCB claim file, including a copy of a December 20, 2017 emergency department treatment record in which a diagnosis of renal colic was queried, and a report of an MRI of the worker's pelvis taken January 1, 2019, which indicated mild focal tendinosis of the left prepubic adductor aponeurosis; mild osteitis pubis; and bilateral hip osteoarthritis. The WCB also requested and received a January 10, 2020 report from a physical medicine and rehabilitation physician to the worker's treating sports medicine physician, where it was noted that the worker had been seen for a review of his more than two-year history of "…left lumbosacral low back pain referring to the left groin and testicle…" and that he had some symptoms of osteitis pubis and bilateral hip degenerative arthropathy.
On March 2, 2020, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's diagnosis, supported by the medical evidence on file, was mild focal tendinosis involving the left prepubic adductor aponeurosis, mild osteitis pubis and bilateral hip osteoarthritis. The WCB medical advisor opined that tendinosis and osteoarthritis were degenerative changes and not accounted for in relation to the workplace activity in November and December 2017. The medical advisor further opined that osteitis pubis was not accounted for in relation to a workplace activity, as osteitis pubis was generally considered an idiopathic condition. The medical advisor commented that osteitis pubis was sometimes associated with certain athletic activities, such as running, acceleration/deceleration and kicking, but that these were different from the job activities described by the worker and not likely to be associated with the development of this condition.
By letter dated March 25, 2020, the WCB's Compensation Services advised the worker that his claim was not acceptable, as an accident arising out of and in the course of his employment had not been established.
On May 4, 2020, the worker requested that Review Office reconsider Compensation Services' decision, noting that he not only continued performing heavy duties in December 2017, but also maintained his regular duties through to June 2018, and he believed that continuing to work his regular duties aggravated his injury. The worker further noted that his treating healthcare providers all supported that the November 2017 injury was the start of his difficulties.
On May 22, 2020, Review Office determined that the worker's claim was not acceptable. Review Office agreed with the opinion of the WCB medical advisor that the worker's degenerative changes (tendinosis of the left prepubic adductor aponeurosis and hip osteoarthritis) were not caused by the worker's job duties and were pre-existing conditions. Review Office also noted that the evidence on file did not support the worker's job duties involved running, acceleration/deceleration and/or kicking, which were considered some of the risk factors associated with a diagnosis of osteitis pubis. Review Office further noted that osteitis pubis was generally considered an idiopathic condition. Review Office therefore concluded that the worker did not sustain an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act").
On August 26, 2020, the worker's representative submitted additional medical evidence, including narrative reports from the treating sports medicine physician and chiropractor, as well as copies of text messages between the worker and the employer, and asked that Review Office reconsider their earlier decision.
On September 29, 2020, Review Office determined that the worker's claim was not acceptable. Review Office stated that they considered the comments from the worker's healthcare providers, but placed weight on the March 2, 2020 opinion of the WCB medical advisor. Review Office noted that the worker's representative also argued that the worker's duties aggravated his pre-existing conditions, but found that although the worker might experience symptoms when completing some work-related or other activities involving lifting movements, that was not the same as the work activity being the cause of his conditions or structurally altering the affected body part. Review Office stated that they were unable to establish a relationship between the worker's job duties and his reported groin/pelvic difficulties.
On October 19, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an accident is defined in subsection 1(1) of the Act, which reads as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes:
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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 written submission in advance of the hearing and made an oral presentation to the panel. The worker's representative requested that the panel also consider the written submissions which they had provided to Review Office.
The worker's position was that the evidence established that his duties, performed over a prolonged period of time, caused him to be injured and met the requirements for an acceptable claim.
The worker's representative submitted that this claim not only related to the worker's performance of heavy job duties through the month of December 2017, but also the continuing performance of his regular duties through to June 2018, which included very heavy lifting, bending and repetitive motions. The representative submitted that the evidence demonstrated the job was physically very demanding, particularly towards the end of the calendar year and continuing through to January 2018.
It was submitted that the worker managed to continue working by taking pain medications. There were many days, however, where he could not go to work or had to leave work early, and the evidence showed he missed 23 full days between January 26 and July 18, 2018. The representative submitted that continuing to work made the worker's injury worse, and it was a testament to his work ethic and high pain threshold that he continued working so long.
The worker's representative submitted that what transpired early on with the worker's experience with kidney stones complicated the matter and effectively ended the investigation of other possible sources of his pain and symptoms for months. He submitted that it was only after June 2018, when kidney stones were firmly ruled out, that further medical investigation of another medical condition started.
The worker's representative submitted that the medical evidence and text messages from the worker to the employer nevertheless showed a continuity of symptoms through to the January 1, 2019 MRI, which revealed the sources of the worker's difficulties. It was submitted that the common theme among the medical providers was that the worker had experienced abdominal and groin area pain, the first evidence of which was at his hospital visit in December 2017. Then in June 2018, the worker attended a physiotherapist and a chiropractor, who identified clinical findings of deficiencies in ranges of motion and strength which had not previously been documented and which, it was submitted, were attributable to the worker's continuing performance of his regular job duties and repeated evidence of his worsening injury.
It was submitted that the worker's ongoing difficulties also continued to be noted in the numerous text messages the worker sent to the employer, particularly in January 2018, describing his symptoms or how they impacted him at work on particular days.
The worker's representative noted that while a precise diagnosis of injury need not be identified for the claim to be acceptable, the majority of the medical evidence pointed to the worker's primary pain and limitations emanating from adductor tendinosis and osteitis pubis. The representative noted that according to the worker's sports medicine physician, these conditions often stem from overuse, heavy lifting and twisting which, it was submitted, the worker's regular job duties entailed. The representative therefore submitted that the worker's job duties either caused those conditions, or alternatively, if they were considered to be pre-existing conditions, caused a prolonged worsening of those conditions.
The worker's representative submitted that the treating physician's comments with respect to these diagnoses should carry more weight than the comments by the WCB medical advisor. The representative submitted that while the WCB medical advisor identified a non-exhaustive list of possible or probable causes for the initial development of osteitis pubis, the treating sports medicine physician noted in letters dated July 16, 2019 and August 1, 2019 that this condition and adductor tendinosis were often seen with heavy lifting, and commented on the worker's persistent pain with heavy lifting.
The worker's representative further submitted that the March 2, 2020 opinion of the WCB medical advisor was partly based on incomplete and/or incorrect information and should therefore be accorded less or no weight. The representative noted, in part, that the WCB medical advisor appeared to understand that the worker continued working after December 2017 with no limitation in function, while the text messages on file and email information showing the worker missed 23 full dates between January and July 2018 indicated otherwise.
In closing, the worker's representative submitted that in the absence of a pre-accident MRI to compare with the January 1, 2019 MRI, the primary focus of inquiry should be on whether the worker's regular job duties were capable of causing him injury and whether there is medical evidence of a compatible injury or injuries, in the form of subjective reporting, functional changes and clinical findings. It was submitted that both of these elements were present in this case, and the claim should be accepted.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The worker described his job duties in detail in response to questions from his representative at the hearing. The panel also carefully questioned the worker with respect to the nature of his job duties and the work he performed in December 2017. The panel accepts that the worker's job duties involved heavy physical work and that his workload would have increased significantly in late November and December 2017.
Based on our review of all of the evidence and submissions, however, the panel is unable to relate the worker's medical conditions to his work duties as described.
The worker's representative confirmed at the hearing that the diagnoses they were relying on as being related to the worker's job duties were left adductor tendinosis and osteitis pubis. The representative advised that they did not have any medical evidence to support that a third condition or diagnosis of bilateral hip osteoarthritis was caused by or related to his job duties.
While the worker appears to have focused in particular on the hospital visit in December 2017 as being the start of his difficulties, the panel finds that the initial complaints were not work-related but were related to an attack or issue involving kidney stones. The panel acknowledges the worker's argument that the kidney stones complicated the case and delayed investigation of other possible causes until June 2018 when the presence of kidney stones was ruled out. The panel notes, however, that there is an absence of evidence of a specific onset of osteitis pubis or adductor tendinosis, and is unable to find that the medical or other evidence supports that the worker suffered another injury in December 2017 or January 2018 or that his ongoing difficulties are connected to his work activities at or since that time.
The panel notes that there are two different medical opinions on file with respect to the causes of the two conditions of adductor tendinosis and osteitis pubis. The panel has considered these opinions, but is unable, based on the evidence, to link the worker's activities and the mechanism of injury in this claim to these diagnoses or conditions.
The panel further notes that while the worker has relied on the July 16, 2019 and August 1, 2019 letters from the treating sports medicine physician, we are of the view that those reports are essentially speculative in nature. In the July 16, 2019 report, the physician thus indicated that the diagnoses in question "…can be associated with the back pain he experienced in November 2017…" and in the August 1, 2019 letter the physician indicated that these types of injuries "…can relate to the initial injury of his back moreso with his continued working which may have resulted in his current symptoms…" (italics added) The panel is therefore unable to attach weight to the treating physician's comments or opinions.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's job duties and his performance of those duties did not cause a workplace injury, or aggravate or enhance a pre-existing condition.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. As a result, the panel finds that the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of August, 2021