The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits. A teleconference hearing was held on November 26, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

The worker filed a Worker Incident Report with the WCB on December 7, 2018, indicating she injured her lower back at work on December 6, 2018. The worker reported that after lifting heavy items, she started noticing a sharp pain in her back every time she moved. She reported her back pain to her supervisor and left work early.

On December 10, 2018, the worker saw her family physician, who diagnosed her with lower back pain. The physician recommended the worker remain off work until December 10, 2018 and referred her for physiotherapy. The worker attended an initial physiotherapy assessment on December 11, 2018, where she was diagnosed with a lumbar strain and it was recommended she remain off work.

At a follow-up appointment with the physiotherapist on December 18, 2018, the physiotherapist recommended restrictions of no lifting waist to shoulder greater than 2.5 kg; no carrying greater than 2.5 kg; and no pushing/pulling greater than 5 kg; with a gradual return to work at 2 hours

per day, increasing by 1 hour per day each week. The restrictions, with a notation that the worker could work full hours at sedentary duties within these restrictions, were provided to the employer, and the worker began a gradual return to work on December 19, 2018.

After a follow-up return to work meeting with the worker on January 9, 2019, the employer contacted the WCB with concerns regarding the worker's claim. The employer noted the worker had concurrent employment and expressed concern with respect to the worker's ongoing difficulties despite her having been provided with accommodated duties. In a discussion with her WCB case manager on January 15, 2019, the worker confirmed she had concurrent employment with a company she owned. She noted she had only worked one shift at her concurrent employment in December, with assistance from a family member.

On January 25, 2019, the worker was seen by a sports medicine physician, who noted the worker's report of a workplace accident on December 6, 2018, with resulting lower back pain on her right side that radiated to her right leg. The sports medicine physician noted the worker had also reported a history of previous back pain, "but not like this." The physician reported tenderness at L5, with all other findings on examination being normal, and diagnosed the worker with mechanical back pain and mild osteoarthritis.

On January 30, 2019, the worker attended a call-in examination with a WCB physiotherapy consultant, who opined that the initial diagnosis of December 6, 2018 was non-specific, non-radicular low back pain, which would be equivalent to a sprain/strain injury and would have a natural history of resolution within 8 to 12 weeks. The WCB physiotherapy consultant went on to opine that the worker's current diagnosis was the same, and noted the worker's hesitation "…to perform any movement that is uncomfortable for fear of damaging herself." The WCB physiotherapy consultant further opined that the worker was not totally disabled and recommended restrictions of light to sedentary duties with a 10 lb lifting maximum, and that the worker be allowed to change positions as needed and to stretch from 10 to 15 minutes of each hour. The WCB physiotherapy consultant noted that within these restrictions, the worker should be able to tolerate her normal shift of 4 hours.

On March 6, 2019, the WCB's Compensation Services advised the worker that they were unable to account for her ongoing symptoms and restrictions in relation to her December 6, 2018 compensable injury, and as such, she was not entitled to further benefits. Further medical information was subsequently provided to the WCB, including physiotherapy reports and a report of an MRI of the worker's lumbar spine performed March 28, 2019, which indicated "…mild compression on the right L5 nerve root."

On April 5, 2019, the claim file and the additional medical evidence were reviewed by a WCB sports medicine advisor, who noted the clinical examination findings supported a diagnosis of nonspecific low back pain, and there were "…no clinical findings that correlate with the March 2019 low back MRI findings of right L5 nerve root compression." On April 8, 2019, Compensation Services advised the worker there was no change to the March 6, 2019 decision that she was not entitled to further benefits.

On July 4, 2019, the worker's representative requested that Compensation Services reconsider their decision, taking into consideration a letter from the worker's treating physiotherapist dated April 9, 2019 in which the physiotherapist opined that the worker's condition had worsened because the employer had not followed the recommended restrictions/graduated return to work the physiotherapist had outlined.

The physiotherapist's April 9, 2019 report was reviewed by the WCB sports medicine advisor, who opined that "The initial medical documentation on file supports a diagnosis of a lumbar strain in relation to the workplace injury. An acute lumbar radiculopathy in relation to same is not supported due to the absence of documented neurological deficit in the initial and subsequent medical reports." By letter dated July 5, 2019, Compensation Services advised the worker that the March 6 and April 8, 2019 decisions remained unchanged.

On July 21, 2019, the worker requested that Review Office reconsider Compensation Services' decisions. The worker submitted that her treating healthcare providers documented a continuity of clinical findings from the outset that correlated with the March 2019 MRI finding of a right L5 nerve root compression. The worker indicated that she had never had difficulty with her lower back or sciatica until she was injured at work on December 6, 2018. The worker further noted she had not worked since March 15, 2019, as her employer had stopped accommodating her restrictions.

On September 11, 2019, Review Office determined that there was no entitlement to further benefits. Review Office acknowledged the worker's position that she had no difficulties with her back prior to the workplace accident, but found that the evidence supported she had a pre-existing history of back difficulties. Review Office further found that the evidence did not support there had been a structural change to the worker's pre-existing condition.

With respect to the worker's statement that the employer stopped accommodating her restrictions, Review Office noted that the employer had advised that the worker's physiotherapist had provided additional restrictions which were more extensive than previous ones. Review Office stated they could not account for the worker's worsening symptoms, the requirement for restrictions or the need to discontinue working in March 2019 in relation to the lower back strain/sprain that occurred in December 2018.

On March 24, 2020, the worker's representative provided an October 7, 2019 report from a spine assessment clinic and requested that Review Office reconsider their September 11, 2019 decision. The representative submitted that the October 7, 2019 report confirmed the worker had not recovered from the December 2018 workplace accident and recommended she continue with physiotherapy treatments.

On March 31, 2020, the new medical information was reviewed by the WCB sports medicine advisor, who provided a medical opinion to file, a copy of which was forwarded to the parties for comment. On April 21, 2020, the worker's representative provided a response to the March 31, 2020 medical opinion.

On April 22, 2020, Review Office upheld their earlier decision that there was no entitlement to further benefits. Review Office found that the evidence in close proximity to the December 6, 2018 workplace accident supported a compensable diagnosis of a lower back strain/sprain injury, and that the evidence did not identify a more significant injury having occurred. Review Office determined that they were unable to account for the worker's worsening and current difficulties in relation to the compensable injury.

On May 15, 2020, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Following the hearing, the appeal panel requested additional medical information, which was subsequently received and forwarded to the interested parties for comment. On September 10, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

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.

Section 37 of the Act outlines the compensation which is payable to workers, as follows:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Worker's Position

The worker was self-represented on the appeal, and was assisted by a family member at the hearing. The worker was also provided with the services of an interpreter.

The worker's position was that the Review Office decision should be overturned, as her ongoing back difficulties were related to the December 6, 2018 workplace incident and her work duties.

The worker submitted that the incident at work on December 6, 2018 was the cause of her lower back injury and ongoing condition. In response to questions from the panel as to what happened when she injured herself, the worker said she was working on an assembly line where the belt was moving quickly. She had to lift a basket of containers which was behind her and put it on the table which was in front of her to her right, at about chest height. The worker said that as she lifted the basket and twisted to put it on the table, she felt pain in her lower back.

It was submitted that the worker's condition became worse when she returned to work on a graduated return to work plan, as the employer did not follow the restrictions which were recommended by her physiotherapist. Reference was made in this regard to the April 9, 2019 letter from the physiotherapist, where the physiotherapist had also noted that the March 2019 MRI confirmed his suspicions of a lumbar disc protrusion with right L5 nerve root compression, and that the injury was greater than a strain/sprain injury.

In conclusion, the worker submitted that the workplace injury from which she continues to suffer has severely impacted her life, leaving her in a really hard situation since then, and that her appeal should be allowed.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue which is before the panel on this appeal is whether or not the worker is entitled to further benefits. 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 as a result of her December 6, 2018 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The worker has an accepted claim for a low middle back sprain/strain injury. The panel carefully questioned the worker at the hearing with respect to the mechanism of injury. The panel is satisfied that the mechanism of injury, as described on file and at the hearing, was consistent with the diagnosis of a strain/sprain injury.

The panel is satisfied that the early medical reports and clinical findings further support that the worker suffered a relatively minor strain/sprain injury. The December 10, 2018 initial report from the worker's family physician thus diagnosed her with lower back pain. The December 11, 2018 initial report from the treating physiotherapist diagnosed her with a lumbar strain.

The panel is of the view that the evidence indicates that overall, the worker's symptoms were gradually improving. On December 24, 2018, the worker saw her family physician again, who noted the worker's subjective complaints were "better," clinical findings were all negative and that the worker was working.

The panel places significant weight on the January 25, 2019 report of the treating sports medicine physician. The panel is unable to find that there was anything sinister in the worker's presentation by the time the worker saw the sports medicine physician. The panel notes that while the worker indicated she was still having symptoms, the treating sports medicine physician reported all findings on his examination of the worker were normal, with the one exception of there being tenderness on palpation on L5.

The worker has argued that her symptoms worsened because the restrictions which were recommended by her physiotherapist were not observed. In particular, it was argued that the physiotherapist recommended the worker commence her return to work at 2 hours per day, increasing by 1 hour per day each week, but that the worker was assigned to 4 hour shifts from the outset. While information on file indicates that the worker did start back to work at 4 hour shifts, the panel notes that it also indicates she was working a significantly reduced number of shifts at the beginning, doing lighter sedentary duties and being able to take breaks, and that the number of shifts gradually increased over time.

The panel notes that the worker's employment was part-time, consisting of 4 hour shifts, at an average of 5 shifts per week, and that the worker was paid partial wage loss benefits to February 7, 2019, at which time she was working full-time shifts, at 4 hours per shift.

The panel is further satisfied, on a balance of probabilities, that the worker had essentially recovered from her workplace injury as at March 6, 2019, when her benefits were ended. The panel finds that there is an absence of clinical evidence to support that she continued to suffer from her compensable injury or was unable to return to work due to the effects of her workplace accident as at March 6, 2019, and is unable to relate the worker's current or ongoing symptoms and medical condition after March 6, 2019 to her compensable injury or symptomatology prior to that date. The panel notes that this is consistent with our understanding of the natural history for a lumbar strain, of gradual recovery over a period of a few days to a few weeks.

While the worker has argued that the December 6, 2018 workplace accident caused the right L5 nerve root compression that is noted on the March 28, 2019 MRI, the panel is unable to make such a finding. The panel accepts the stated impression from the March 28, 2019 lumbar spine MRI that "There is compression on the right L5." Based on our review of the medical information on file, however, the panel finds that there is a lack of clinical findings to correlate with the findings on the March 28, 2019 MRI of right L5 nerve root compression.

The panel accepts that the mechanism of injury "could" potentially have injured a disc, the panel is not satisfied that the clinical or other evidence establishes, on a balance of probabilities, that the workplace accident actually caused the nerve root compression on the worker's right L5 as shown on the MRI report.

The worker indicated that she had not worked since March 15, 2019, as the employer was unable or refused to accommodate her restrictions as at that date. The panel notes that the employer indicated that they were provided with restrictions which were more significant than those which had previously been recommended. The panel is unable to account for the need for such increased restrictions or a worsening of the worker's symptoms in relation to the December 6, 2018 workplace accident or the worker's compensable injury.

In conclusion, the panel acknowledges the worker's complaints and concerns with respect to her ongoing symptoms and difficulties. Given the mechanism of injury, the clinical findings on file, and our understanding of the natural history of the compensable injury of a lumbar strain, the panel is unable to relate the worker's ongoing symptoms, conditions or restrictions subsequent to March 6, 2019 to the effects of her December 6, 2018 workplace accident or compensable injury.

Based on the foregoing, the panel is unable to establish, on a balance of probabilities, that the worker's ongoing back difficulties are causally related to her December 6, 2018 workplace accident or injury. The panel therefore finds that the worker did not suffer a further loss of earning capacity or require further medical aid as a result of that accident, and is not entitled to further benefits.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of October, 2021