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 wage loss and medical aid benefits after August 8, 2019. A teleconference hearing was held on September 23, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after August 8, 2019.

Decision

The worker is entitled to wage loss and medical aid benefits after August 8, 2019.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 106/20, dated November 9, 2020. The background will therefore not be repeated in its entirety.

On March 13, 2018, the worker provided a Worker Incident Report to the WCB, reporting injury their lower back resulting from an incident at work on March 8, 2018. On March 20, 2018, the WCB accepted the worker's claim for a low back sprain/strain. On recommendation of the worker's treating family physician, the worker returned to work on modified duties as of April 13, 2018 with restrictions.

On June 15, 2018, the worker attended a call-in examination with a WCB sports medicine consultant who concluded the worker's current diagnosis was a left L5 radiculopathy, confirmed by the worker’s initial reporting of low back symptoms and clinical findings of weakness of the left toe extensor and a positive straight leg raise test. This diagnosis was accounted for in relation to the reported mechanism of injury of repetitive twisting while carrying materials. The consultant recommended restrictions and a strengthening program under the guidance of a physiotherapist to improve the worker's overall symptoms and functioning. The worker completed the strengthening program from July 16, 2018 through August 15, 2018.

On September 11, 2018, the worker advised the WCB of pain symptoms into their left shoulder, neck and head. On September 28, 2018, the worker attended another call-in examination with the WCB sports medicine consultant who provided an opinion the current diagnosis was centralizing lumbar radiculopathy related to the workplace accident. To improve function, the consultant recommended a return to modified duties with restrictions.

The worker saw a sports medicine physician on October 5, 2018 who recorded tenderness in the worker's left lumbar paraspinals and a positive straight leg raise test on the left. The physician diagnosed discogenic lower back pain and left leg L5/S1 radiculopathy symptoms and recommended an MRI of the worker's lumbosacral spine.

The MRI study performed January 8, 2019 indicated an intra-abdominal cystic mass, mild degenerative disc disease and facet joint osteoarthritis in the worker's lower lumbar spine. On February 12, 2019, the treating sports medicine physician noted the worker was referred for further diagnostics regarding the cystic mass, with surgery likely being required. The physician noted that the MRI results provided no evidence of radiculopathy.

On February 14, 2019, the WCB determined the worker’s current difficulties were not related to the workplace accident and that the worker had recovered from the March 8, 2018 workplace accident; therefore, the worker’s entitlement to benefits would end effective February 22, 2019.

On February 26, 2019, the worker requested that Review Office reconsider the WCB's decision on the basis they had not recovered from the workplace accident and their injuries had worsened. On May 31, 2019, the worker provided further medical information to the WCB, and on June 5, 2019, the WCB determined the February 14, 2019 decision remained unchanged. On June 18, 2019, Review Office determined that the worker was not entitled to benefits after February 22, 2019 relying upon the February 12, 2019 report of the treating sports medicine physician in concluding they could not account for the worker's difficulties in relation to the March 8, 2018 workplace accident.

On December 10, 2019, the worker's representative submitted a report from a physician with an interest in occupational health medicine ("occupational health physician"), dated November 25, 2019, and asked that Review Office reconsider their June 18, 2019 decision. In the report, the occupational health physician provided an opinion that the worker's injury arising out of the March 8, 2018 workplace accident was a pelvic girdle muscle strain on the left side.

On February 12, 2020, the worker's file, including the additional medical information, was reviewed by a WCB physical medicine consultant. The consultant concluded the diagnosis offered by the occupational health physician was not medically accounted for in relation to the workplace accident, as such a minor soft tissue sprain would be minimally symptomatic and would have resolved in a few weeks at most. On February 21, 2020, Review Office determined the previous decision would stand.

On February 26, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission, and on November 9, 2020, the Appeal Commission determined the worker was entitled to benefits after February 22, 2019 in relation to the March 8, 2018 accident and referred the worker’s file back to the WCB for further adjudication.

The WCB contacted the worker on November 20, 2020 for further information and the worker confirmed they were permanently laid off from the employer and in receipt of disability benefits. The worker advised of ongoing difficulties with pain symptoms from above the buttock on the left side, radiating downward. The worker also reported they could not sit for long periods and could walk for 15 to 20 minutes, before the pain worsened. The worker noted their symptoms flare up and calm down, with some days better than others and provided the WCB with information regarding their treating healthcare providers.

The worker attended for physiotherapy assessment on November 24, 2020 reporting constant pain around their left sacroiliac joint (“SI joint”), with the pain radiating along their left side towards the front of their hip and towards their right SI joint at times. The worker noted poor sleep due to pain, with pain aggravated by sitting, prolonged walking, rising to stand, and at worst in the morning. The physiotherapist recorded findings of left hip flexion limited to 90 degrees due to pain at the left SI joint, tenderness at that joint, a positive Gillet’s test on the left side, with an antalgic gait with decreased stance phase on their left leg and diagnosed left sacroiliac joint dysfunction.

On December 10, 2020, a WCB medical advisor reviewed the worker’s file. Relying upon the February 14, 2020 opinion, the medical advisor concluded that based upon a recovery period of 6 - 18 months for the accepted diagnosis of a left L5 radiculopathy, the worker ought to have recovered by August 8, 2019. The WCB advised the worker the same day that the file had been reviewed and it determined the worker was entitled to benefits to August 8, 2019.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on January 12, 2021. The representative submitted that based upon a January 4, 2021 report from the worker’s treating physiatrist, the worker’s diagnosis as a result of the workplace accident was properly a left SI joint injury, and that the worker continued to experience difficulties arising from that injury. Review Office returned the worker’s file to the WCB’s Compensation Services on January 14, 2021 and on January 15, 2021, the WCB advised the worker and their representative there would be no change to the earlier decision.

On January 21, 2021, the worker’s representative again requested reconsideration of the WCB’s decisions to Review Office, noting the treating healthcare providers and a WCB medical advisor who conducted a call-in examination noted the worker’s consistent report of SI joint difficulties. On February 25, 2021, the worker’s representative provided the WCB with a copy of a February 23, 2021 report from the worker’s treating physiatrist. The physiatrist provided the worker presented to them with SI joint mediated pain, treated with pain injections.

A WCB medical advisor reviewed the worker’s file on March 25, 2021 and provided an opinion that the medical evidence on file suggested the worker’s current diagnosis to be nonspecific left low back pain, based on the worker’s reporting. The medical advisor concluded the initial mechanism of injury did not suggest a significant physical or structural injury such as an injury to the SI joint related to the worker’s job duties, and further that the worker’s current SI joint complex area pain was not medically accounted for in relation to the March 8, 2018 workplace accident. A copy of this opinion was provided to the worker’s representative on March 26, 2021, who provided a submission in response on April 1, 2021.

Review Office accepted the WCB medical advisor’s opinion and determined the evidence on file did not support the worker injured their SI joint at the time of the workplace accident. Review Office concluded the worker was not entitled to wage loss and medical aid benefits after August 8, 2019.

The worker’s representative filed an appeal with the Appeal Commission on April 26, 2021. A teleconference hearing was arranged for September 23, 2021.

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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor provided documents for consideration by the panel in advance of the hearing and made an oral submission in the course of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker advisor outlined the worker’s position that they should be entitled to further benefits beyond August 8, 2019 as their injury remained both symptomatic and disabling beyond that date and this was the continuing result of the workplace accident of March 8, 2018.

The worker advisor argued that the subjective reporting and medical findings confirm that the worker continued to experience symptoms in their left sided lower back, left SI joint and left anterior hip region. The medical reporting confirms that the worker experienced intermittent SI joint pain since the accident, and as outlined in the medical information materials submitted in advance of the hearing, an SI joint injury can be caused by repetitive twisting, bending or heavy lifting such as caused the worker’s injury in this case. The worker advisor further submitted that the medical reporting supports the worker’s position that the appropriate diagnosis arising out of the compensable workplace accident includes left SI joint dysfunction as outlined in the medical reporting from the worker’s treating physicians.

The worker advisor outlined the medical evidence that confirms the worker’s continued and ongoing difficulties beyond August 2019, including the findings from the worker’s assessment on September 11, October 3, October 23 and November 20, 2019 by the occupational health physician as outlined in the November 25, 2019 report. The worker advisor noted as well the medical findings in late 2020 and early 2021 from the worker’s treating physiotherapist and treating physiatrist which indicate the worker continues to experience left low back and SI joint dysfunction.

The worker provided testimony to the panel indicating their ongoing inability to work. The worker testified to waking daily in pain and continuing to seek medical care for difficulties arising out of the March 8, 2018 workplace injury even to the present.

In sum, the worker’s position is that the injury sustained in the workplace accident of March 8, 2018 was not a minor injury and that there is no evidence of the worker’s recovery by August 8, 2019. Rather, the evidence supports that the worker continued at that time and continues in the present to experience symptoms arising out of the workplace injury including significant pain in their left SI joint that has not yet fully resolved with the result that the worker is unable to return to employment and requires ongoing medical aid. Therefore, the worker should be entitled to further wage loss and medical aid benefits after August 8, 2019.

Employer’s Position

The employer was represented in the hearing by two staff representatives who observed the hearing but did not make any submission or provide any position on behalf of the employer.

Analysis

The issue for determination on appeal is whether the worker is entitled to wage loss and medical aid benefits after August 8, 2019. In order to grant the worker’s appeal, the panel would have to determine that the worker’s continuing loss of earning capacity beyond August 8, 2019 was a result of the workplace accident of March 8, 2018 or that that the worker continued to require medical aid to cure and provide relief from the injury sustained in the accident, beyond August 8, 2019. For the reasons set out below, the panel was able to make such findings.

As set out in the background, on appeal from the February 21, 2020 Review Office decision that the worker was not entitled to benefits after February 22, 2019, the Appeal Commission panel determined on November 9, 2020 that the worker had not recovered from the March 8, 2018 workplace accident by February 22, 2019 and was entitled to benefits beyond that date. In making its ruling, the appeal panel found that the injury the worker sustained as a result of the workplace accident “was not minor in nature” and that the results of the MRI study of January 8, 2019 alone, without correlation, did not provide conclusive evidence of the worker’s recovery. The panel also considered the worker’s position that the WCB’s accepted diagnosis of a left L5 radiculopathy (revised from the initial accepted diagnosis of low back sprain/strain) was a misdiagnosis and that the WCB should accept that the compensable injury also included injury to the left SI joint but found the evidence did not support the worker’s position. The appeal panel determined the evidence supported a finding the worker had not recovered from the compensable workplace injury by February 22, 2019, noting its decision was a “point in time” decision, and referring the worker’s claim back to the WCB for further determination of the worker’s specific benefit entitlement and duration of entitlement.

We accept and rely upon the prior panel’s findings in considering the present appeal.

The panel reviewed the medical reporting with a view to ascertaining whether the clinical evidence supports the WCB’s determination that the worker was recovered from the compensable workplace injury by August 8, 2019. In doing so the panel gave particular attention to the medical reporting beyond February 22, 2019. The medical record includes information confirming that in April 2019 the worker was surgically treated for the abdominal mass. The panel notes that this was a non-compensable medical condition, first identified in the MRI study of January 8, 2019.

The panel also reviewed the November 25, 2019 report provided by the physician specializing in occupational health. The occupational health physician reported assessment of the worker over the course for 4 appointments from September to November 2019. During this period, the worker reported that their “...left posterior hip and low back region is always sore, worsening with several minutes walking, at which time [their] anterior left hip becomes quite painful as well.” The worker also reported that standing was more comfortable than sitting and that sitting increased posterior and lateral buttock pain. The worker complained of tingling into their left toes associated with pressure on the buttock and with walking, and that their toes cramp up when leg symptoms flare. On clinical examination, the physician recorded findings including reduced lumbar flexion and extension, reduced left hip flexion and extension, significant left hip girdle pain attempting one-leg standing on the left, limited passive left straight leg raise, positive Gaenslen’s test on left side and significant left SI joint line tenderness. The occupational health physician noted “...widespread hypertonus and tenderness with some guarding around rectus femoris attachment, the lateral thigh and ITB, and the posterolateral gluteals.” The physician confirmed that the intra-abdominal mass was “incidental” to the worker’s pain complaints and unrelated to the work injury. The occupational health physician concluded the injury sustained by the worker was left-sided pelvic girdle muscle strain and that there was no evidence of lumbar spine radiculopathy.

When this opinion was reviewed on February 12, 2020 by the WCB physical medicine consultant, the diagnosis offered by the occupational health physician was discounted on the basis it relied upon subjective findings and was not medically accounted for in relation to the workplace accident. The WCB consultant did agree however that there was no evidentiary support for the earlier opined diagnosis of left lower lumbar radiculopathy. The WCB consultant concluded the worker’s current presentation was no longer medically accounted for in relation to the workplace accident as there were “...no documented objective medical findings, nor identification of any physical or pathoanatomic diagnoses on the available...file for review that could plausibly be related to the claim incident of March 08, 2018.”

A physical medicine specialist reviewed the worker’s records on April 1, 2020 and conducted a virtual consult with the worker on referral from the worker’s treating sport medicine physician. The specialist stated, in a report of the same date that the worker “...has a mostly nonspecific clinical presentation of chronic low back pain with some fear avoidance behaviour. The anatomic source of [their] pain is unclear from the history and imaging. It is possible that the sacroiliac joint pain is one of the possible sources that may be investigated further by diagnostic injection.”

In November 2020, the worker was again assessed for physiotherapy by the physiotherapist who treated the worker in relation to the lumbar injury in summer 2018. The physiotherapist recorded examination findings on November 24, 2020 including limited left hip flexion due to pain at the SI joint, limited lumbar spine active range of motion, reduced left hip strength, antalgic gait and use of cane, very tender to left SI joint, positive left side Gillet’s test, painful SI joint gapping test, negative straight leg raise test on the left, as well as shortened left hamstrings, quadriceps and hip flexors.

Following the previous Appeal Commission decision, the WCB’s physical medicine consultant again reviewed the worker’s file including the new information provided since February 2020. In a report dated December 8, 2020, the physician confirmed their previous (February 2020) opinion and noted “There is only subjective reporting by [the worker] of ongoing difficulty with activity post February 22, 2019, however which was not able to be confirmed objectively. I cannot rule out that recovery could have required the full estimated recovery period of 18 months.”

The panel notes that despite the WCB medical consultant’s view that there is no objective evidence of ongoing disability, there also is no objective evidence that the worker had recovered by August 8, 2019. The WCB’s determination that the worker had fully recovered by August 8, 2019 was not based upon a clinical assessment through a call-in examination nor upon evidence provided to the WCB by the treating medical professionals at that time, although the WCB physical medical consultant who reviewed the file was apparently dissatisfied with the quality of clinical findings. Despite concerns as to the quality of evidence of the worker’s condition beyond February 2019, the WCB did not investigate further but determined the worker was recovered based upon the passage of time and typical recovery norms. In doing so, the WCB relied upon the WCB sport medicine consultant’s December 28, 2018 opinion that “The natural history of lumbar radiculopathy is 6-18 months” although both the occupational health physician and the WCB physical medicine consultant had subsequently agreed there was not evidentiary support for a diagnosis of lumbar radiculopathy. In the result, the WCB calculated that August 8, 2019 is 18 months following the date of accident and therefore determined this to be the appropriate end date of the worker’s recovery from the workplace injury.

On the basis of the evidence before the panel, we find that the worker was not recovered from the compensable workplace low back injury by August 8, 2019 and continued to experience both symptoms and impaired functional ability relating to that injury beyond that date. We find that the evidence before us supports the worker’s position that there is no evidence of recovery from the workplace injury by August 8, 2019 and further, that the worker continued to require medical aid arising out of the injury beyond that date. We also find that the evidence supports the worker’s position they continued to experience a loss of earning capacity beyond August 8, 2019 arising out of the compensable workplace injury.

The worker’s advocate urged the panel to make a finding that the compensable diagnosis arising out of the workplace accident should have included SI joint injury or dysfunction, as diagnosed by the treating physiatrist in early 2021; however, this issue has already been considered and determined by the prior appeal panel and as noted above, we accept those findings.

Therefore, the panel concludes, on a balance of probabilities, that the worker is entitled to wage loss and medical aid benefits after August 8, 2019. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of October, 2021