Decision #131/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker's current low back difficulties as being related to the February 20, 2013 accident. A videoconference hearing was held on October 6, 2021 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's current low back difficulties as being related to the February 20, 2013 accident.
Responsibility should not be accepted for the worker's current low back difficulties as being related to the February 20, 2013 accident.
The WCB received an Employer's Incident Report on February 25, 2013, reporting the worker injured their lower back in an incident at work on February 20, 2013 reported to the employer that same date. In discussion with the WCB on March 13, 2013, the worker described attempting to push decking materials and feeling a pulling or popping sensation in the lower left back. The worker explained that after this incident, they had difficulty walking due to shooting pain radiating into their left leg. When the worker attended for medical treatment at a local emergency department on February 23, 2013, reporting left lower back pain, radiating into their left leg, worsened when the left was straight, the diagnosis provided was left sciatic pain. On assessment by a sports medicine physician on February 24, 2013, the diagnosis of sacroiliac joint dysfunction was offered, and the worker was referred to physiotherapy.
On March 14, 2013, the worker followed up with their family physician who noted tenderness at the worker's sacroiliac joint but that the worker was able to function with pain medication and provided a diagnosis of back pain. An MRI study of the worker’s lumbosacral spine taken May 15, 2013 indicated “...a moderate-to-large left paracentral and left foraminal disc extrusion that impacts the exiting left L5 and descending left S1 nerve roots. There is also moderately severe left foraminal stenosis at L5-S1." On May 16, 2013, the worker's treating family physician referred the worker to a neurologist for further treatment.
On assessment by the neurologist on June 6, 2013, the physician noted the worker had a positive straight leg raise and noted “mild weakness of S1 upon the left, decreased deep tendon reflex at the ankle as well as some mild sensory decrease in the S1 distribution". The neurologist recommended a lumbar microdiscectomy, and the WCB approved the surgery which took place on June 25, 2013. At a post-operative appointment on August 29, 2013, the neurosurgeon reported the worker's symptoms were “largely resolved", with a small amount of back pain remaining. The worker returned to work on modified duties on September 16, 2013, and to their full regular duties by November 6, 2013.
The worker contacted the WCB on December 1, 2016, to advise of a recurrence of their low back difficulties, with the pain starting in their lower back, radiating down their leg and increasing with time. On December 4, 2016, the worker’s treating family physician provided a diagnosis of sciatica and referred the worker for a further MRI study which took place on December 19, 2016. On January 5, 2017, a WCB orthopedic consultant reviewed the worker's file, including the recent MRI study. Comparing the 2016 MRI with the 2013 MRI, the consultant noted the disc protrusion at L5-S1 was significantly smaller in the more recent study and that there was “minimal adjacent non-mass enhancement which could represent minor scar tissue related to” the 2013 surgery. The 2016 MRI showed desiccation and disc space height loss and a broad based left paracentral disc protrusion with high T2 signal at L5-S1 that might be an annular tear or post-operative signal change. The orthopedic consultant provided an opinion that the initial diagnosis was left L5-S1 disc herniation with radiculopathy and L5-S1 degenerative disc disease, noting it appeared that surgery "…resulted in a satisfactory relief of left sided S1 radiculopathy. The surgical procedure would not affect the process of L5-S1 degenerative disc disease."
On the orthopedic consultant’s recommendation, the WCB obtained chart notes from the treating healthcare providers and arranged a call-in examination of the worker. At the call-in examination on January 13, 2017, the WCB orthopedic consultant noted the lack of clinical evidence of "…persisting radiculopathy in the left lower limb" and concluded the worker's left buttock and thigh pain may relate to the “effects of the progressive degenerative disc disease and facet osteoarthritis, mainly left-sided” but was not related to the 2013 workplace accident. On January 27, 2017, the WCB advised the worker it would not accept responsibility for their current difficulties as it had determined those difficulties were related to their pre-existing condition and not a result of the workplace accident.
On November 9, 2018, the worker again contacted the WCB to advise they continued to experience ongoing difficulties with their lower back, requiring medical treatment and pain medication. The worker advised they underwent another MRI study on November 6, 2018 and were advised they required further surgery. This MRI study indicated:
"Degenerative disc disease at L5-S1 with a shallow left posterior lateral disc protrusion mildly displacing the left S1 nerve root. Left S1 root irritation or compression is not excluded however the appearance of the disc and left S1 nerve root is similar to the previous study. No central stenosis. There is new reactive endplate edema at L5-S1 with a small Schmorl's node at the inferior L5 endplate."
The worker's treating family physician provided a narrative report to the WCB on November 28, 2018, indicating they referred the worker to a different neurologist for further treatment and requested the WCB reconsider the earlier decision to deny responsibility for the worker's ongoing difficulties. On January 9, 2019, a WCB orthopedic consultant reviewed the new medical information and the worker's file and provided an opinion that the worker's current diagnosis was non-specific, non-radicular low back pain, unrelated to the compensable injury of February 20, 2013. The consultant noted that although the worker's treating family physician was of the view the loss of disc space height was related to the worker's compensable injury and would result in degenerative changes, the 2018 MRI indicated "…essentially no change in disc space height at L5-S1." On January 17, 2019, the WCB advised the worker there would be no change to the earlier decision.
The worker contacted the WCB on May 28, 2019 to advise that while attempting to get out of their car at work on May 27, 2019, they were unable to due to severe pain in their lower back. An ambulance transported the worker to a local hospital and from there to the spine clinic at another facility. On June 5, 2019, the WCB received a copy of the report from the spine clinic physician who provided a diagnosis of mechanical back pain. The worker followed-up with their treating family physician on May 31, 2019 who reported a major exacerbation of the worker’s condition on May 27, 2019, noting spasms in the worker’s lumbar spine and reduced range of motion. The physician stated an MRI was urgently required. On May 15, 2019, the WCB received a copy of an April 17, 2019 assessment from the spine clinic. On examining the worker, the spine clinic physiotherapist opined the worker had L5 and/or S1 radiculopathy, with symptoms of pain “…in the posterior aspect of the hip down to the left knee.” The physiotherapist noted the worker to be “…very functional, there is no evidence of severe nerve root compromise with loss of motor function of the nerve roots…” and that the worker had not exhausted conservative methods of treatment. The physiotherapist recommended the worker receive physiotherapy to improve range of motion, strengthen and improve functional movements.
A WCB medical advisor reviewed the worker’s file on July 2, 2019. On July 12, 2019, the WCB advised the worker there would be no change to the previous decisions that responsibility would not be accepted for their ongoing low back difficulties.
The worker again contacted the WCB on August 30, 2019 to report a recurrence of their symptoms. On September 30, 2019, the WCB received an MRI study dated August 10, 2019 and a copy of a letter from the worker’s treating family physician referring the worker to an orthopedic surgeon. On October 2, 2019, the WCB again advised the worker there would be no change to the earlier decisions.
On receiving additional medical information, including a January 29, 2020 report from the worker’s treating orthopedic surgeon recommending a posterior discectomy and fusion surgery and an x-ray of the worker’s lumbar spine, a WCB orthopedic consultant reviewed the information and recommended the diagnostic imaging be reviewed by a WCB radiology consultant. On April 16, 2020, a WCB neuro-radiology consultant reviewed the imaging and on April 22, 2020, the WCB orthopedic consultant provided their opinion to the worker’s file. The consultant opined the worker’s current diagnosis was L5/S1 degenerative pathology and that the MRI findings did not support recurrence of the L5/S1 disc herniation with compression of the left S1 nerve root. The WCB orthopedic consultant also provided that the degenerative pathology was not medically accounted for in relation to the February 20, 2013 workplace accident and therefore the recommended surgery was not authorized.
On April 24, 2020, the WCB advised the worker the previous decisions remained unchanged. A further decision letter was provided to the worker on July 27, 2020 advising the decision was upheld after review of the May 22, 2020 surgical report was completed.
On February 11, 2021, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. The representative noted in their submission the worker had continued and ongoing symptoms in their lower back, even after the WCB funded surgery in 2013, but after the further surgery on May 22, 2020, their symptoms improved. The worker’s representative related the worker’s ongoing symptoms to the February 20, 2013 workplace accident and stated that the worker was therefore entitled to further benefits.
On March 25, 2021, Review Office concluded responsibility could not be accepted for the worker’s current low back difficulties. The worker’s representative filed an appeal with the Appeal Commission on March 31, 2021 and a videoconference hearing was arranged for October 6, 2021.
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. Section 39(2) of the Act sets out that wage loss 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 Act provides in s 67 that the WCB may refer a medical matter to a medical review panel for its opinion in respect of an issue on which the WCB desires a further opinion. Such a reference may be made at the discretion of the WCB or on request of the worker or employer, as set out below:
Reference by board on its discretion
67(3) Where in any claim or application by a worker for compensation a medical matter arises in which the board desires a further opinion, the board may refer the matter to a panel for its opinion in respect of the matter.
The WCB's Board of Directors has established WCB Policy 22.214.171.124, 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.
The worker appeared in the hearing represented by legal counsel who made oral submissions on behalf of the worker. The worker offered testimony through answers to questions posed by their lawyer and in response to questions from members of the appeal panel.
The worker’s position, as outlined by their counsel, is that as a result of the compensable workplace accident of February 20, 2013, the worker sustained injury to their lower back which, despite treatment including surgery, remains symptomatic and impacts the worker’s functional abilities such that the worker continues to experience a loss of earning capacity and require medical aid related to that injury.
Counsel noted that the worker was relatively young at the time of the accident and had no history of problems with their lower back. The compensable injury occurred as a result of the worker pushing and twisting with both legs from a prone position and caused the worker to experience shooting pain down their left leg. The worker described that their symptoms progressed following the 2013 surgical repair, getting slowly worse beginning in 2015 such that the worker continued to require use of pain medication to do their work. The worker explained their statement to the WCB of November 6, 2013 that they were “doing well” and that their back “feels good” reflected that they were feeling much better at that time than previously. The worker testified that following the June 2013 surgery “I could still feel it but I was just so happy to -- I couldn’t live the way it was before, it was like, it was so intense, it was -- I almost, like, too much pain. So it was still, it still hurt but it was like night and day difference, like, gone. I felt like I was healed.”
The worker testified that when their pain increased after 2015, they sought care from their family physician as well as deep tissue massage to address their symptoms. The worker described an incident at work in May 2019 when there was a significant increase in symptoms such that the worker was taken by ambulance for emergency care. The worker attributed this increase in symptoms to being the result of driving 3.5 hours daily to and from work, noting that sitting for extended periods of time would squeeze the disc and that symptoms would usually dissipate after walking awhile. The worker did not return to work after that event, and ultimately the family physician referred the worker to an orthopedic surgeon for assessment. The orthopedic surgeon assessed the worker and recommended a further surgery which took place on May 22, 2020. The worker indicated that since that surgery occurred, they no longer require use of pain medication and feel awesome. The worker gradually returned to work after surgery and began a new job in fall 2020. The worker described current symptoms of pain and stiffness, noting difficulty with tying their shoes or bending over. As a result, the worker is careful in their movement.
The worker confirmed to the panel that from 2017 through 2019 they worked for a number of different employers in the same field as the worker was employed in at the time of the accident, and that there were no physical restrictions in place during this period.
Counsel for the worker indicated that the worker’s position is that the injury and trauma sustained in February 2013 caused the degenerative changes noted in the May 15, 2013 MRI study and that continuing to work with this injury caused further damage to the worker’s spine. Counsel relied upon the opinion of the treating orthopedic surgeon of January 29, 2020 that the worker’s “persistent mechanical and neurogenic pain…is a direct end result of [their] previous injury of 2013.” In light of the differing medical opinions of the WCB neuroradiology consultant and the worker’s treating orthopedic surgeon, counsel noted the panel’s ability to convene a Medical Review Panel to provide further clarity as authorized by s 67 of the Act.
In sum, the worker’s position is that the evidence confirms they continued to suffer the effects of the February 20, 2013 compensable workplace injury after their return to work in late 2013 and that their continuing lumbar spine condition, including degeneration, is the direct result of that injury. Therefore, the WCB should accept responsibility for the worker’s current low back difficulties as being related to the February 20, 2013 accident.
The employer did not participate in the appeal.
The issue for the panel to determine is whether the WCB should accept responsibility for the worker’s current low back difficulties as being related to the February 20, 2013 accident. In order to grant the worker’s appeal, the panel would have to find that the worker’s current low back condition is related to or the result of the accident, or that as a result of the accident there was an aggravation or exacerbation of a pre-existing condition of the worker’s lower back. For the reasons outlined below, the panel was not able to make such findings and therefore the worker’s appeal is not granted.
The panel noted the WCB claim file reveals and the worker confirms, that the left side L5-S1 disc herniation caused by the workplace accident was surgically treated on June 25, 2013 by a microdiscectomy. The surgical report confirms this was a minimally invasive procedure that targeted only the specific injury arising out of the accident. In the August 29, 2013 post-operative report to the worker’s treating family physician, the surgeon reported that the worker “has done extremely well since” the surgery and that while the worker continued to report “a small amount of back pain” which the surgeon described as expected, the worker’s symptoms had largely resolved. The surgeon recommended a gradual return to the worker’s pre-accident employment to begin approximately one month later, and the claim file confirms that the worker was able to return to their regular duties without restriction in early November following a period of modified duties. The worker testified before the panel as to the improvement after the surgery, describing a “night and day” difference.
We noted that there was no further activity in the WCB claim file until November 2016 when the worker reported further injury to their lower back. At that time the worker identified a worsening of symptoms to the pre-surgical, post-accident level from 2013, indicating their treating family physician attributed this to a recurrence of the injury sustained in 2013. Medical chart information from the treating family physician confirms that the worker sought treatment for lower back pain in spring 2015 which resulted in a further lumbar spine MRI study taken on April 27, 2015. That study revealed “advanced degenerative narrowing” at the L5-S1 level as well as a “minor posterior disc prominence” at L4-L5 and a “left paracentral and lateral disc bulge” at L5-S1, with possible irritation or compression of the nerve root. We noted that the further MRI study in October 2015 again revealed disc protrusion at L5-S1 but that the herniation decreased in size from the April 2015 study and the December 16, 2016 lumbar spine MRI study revealed that the L5-S1 disc protrusion was “significantly smaller” than on the October 2015 study, with disc materials approaching and possibly mildly contacting the left S1 nerve root. The December 2016 study also revealed possible scar tissue relating to the 2013 surgery and mild facet arthropathy.
On review of the medical information on January 5, 2017, a WCB orthopedic advisor offered the opinion that it appeared the 2013 surgery “resulted in a satisfactory relief of left sided S1 radiculopathy” and that the surgery would not have affected the process of L5-S1 degenerative disc disease which was first identified in 2013. The orthopedic advisor who assessed the worker in a call-in examination on January 13, 2017 found no “clinical evidence of persisting radiculopathy in the left lower limb. The left buttock and posterior thigh pain may relate to the effects of the progressive degenerative disc disease and facet osteoarthritis, mainly left-sided.” The orthopedic consultant concluded the worker’s clinical presentation at that time related to the worker’s L5-S1 degenerative disc disease, facet arthropathy and degenerative foraminal stenosis which had progressed in the 3.5 years since the surgical repair of the left S1 radiculopathy. The orthopedic consultant again confirmed that the 2013 surgery for the compensable left S1 radiculopathy achieved “a good result” and would not affect the progression of the non-compensable degenerative L5-S1 conditions.
When the worker sought treatment from a spine clinic in 2019, the assessing physiotherapist, in a report dated April 17, 2019, noted the worker was “very functional” with “no evidence of severe nerve root compromise with loss of motor function of the nerve roots”. On reviewing the November 2018 MRI study, the physiotherapist found there to be “correlation between the disc injury, the degenerative changes and the symptomology.” The WCB orthopedic advisor who reviewed this report on April 22, 2019 commented that:
“The most probable interpretation of the correlation drawn by the treating Physiotherapist is that they were referring to [the worker’s] presentation at that time in clinic (in terms of symptomology), and on the November 6, 2018 MRI study (in terms of disc injury, or rather pathology as no new traumatic event was recorded, and degenerative changes). That is, the Spine Assessment Clinic treating Physiotherapist commented on [the worker’s] presentation at that time only. There was no link made to the February 20, 2013 workplace accident.”
The worker also testified as to the onset of significant pain on May 27, 2019 after driving a distance to their jobsite for the day and attributed this event to having spent the previous six months driving 3.5 hours daily to and from the jobsite. The emergency medical record for May 27, 2019 describes the episode as “a flareup” and notes as well that the worker had recently tapered off their pain control medication. The worker was assessed at that time with mechanical back pain and the assessment notes indicate normal strength from L2 through S1 of the worker’s spine and intact lower leg reflexes. The panel notes that although the worker experienced a significant exacerbation of symptoms on that date, there is no evidence of any injury or trauma or that there is any relationship between this incident and the 2013 workplace injury.
The orthopedic surgeon subsequently consulted by the worker offered their opinion to the WCB on January 29, 2019 that the worker’s “recurrent disc herniation and more fibrosis…is clearly the end result of the previous surgery” and in a report to the treating family physician of the same date, stated their view that the worker “…has a long term effect on [their] previous L5-S1 laminectomy and discectomy. [They have] persistent mechanical and neurogenic pain, which is a direct result of [their] previous injury of 2013….This is post laminectomy instability and pain with recurrent disc herniation at the same level of the previously covered injury.”
This view is countered by the WCB orthopedic consultant in a memo dated April 22, 2020 that sets out that the worker’s presentation is “most in keeping with low back pain rather than left sided radiculopathy” as confirmed by clinical findings and a review of the MRI studies. Further, the WCB orthopedic consultant noted the treating orthopedic surgeon referenced a 2013 left laminectomy and resulting instability of the worker’s spine, but the June 25, 2013 surgical report suggests only a laminotomy was performed, and there is no evidence of reporting of spine instability from any of the six MRI studies conducted.
As confirmed by the WCB consulting neuroradiologist, who compared the six MRI studies of the worker’s back from May 15, 2013 through to August 10, 2019, the left posterolateral and left lateral disc protrusion at the L5-S1 level first identified in the May 2013 MRI compressed the left S1 nerve root, but “On all subsequent post-operative MRI scans of the lumbar spine, the small left posterolateral and left lateral disc protrusion contacts the left S1 nerve root, but does not appear to compress” that nerve root. Further, the post operative scans all reveal that this disc protrusion “has decreased in size from the pre-operative examination and remains stable and unchanged...” The neuroradiologist also noted that the disc degeneration at the L5-S1 level is progressing over the course of 2013 to 2018 from “mild to moderate with the development of reactive bone marrow edema involving the inferior aspect of the L5 vertebral body at the L5-S1 intervertebral disc margin. Finally, the neuroradiologist also confirmed that there is no evidence of a complete L5 or S1 laminectomy although the possibility of a small left L5 laminectomy cannot be excluded, and there is no evidence of instability or malalignment of the worker’s spine at the L5-S1 level.
There is evidence before the panel that from time to time after the 2013 surgical repair of the accident injury, the worker experienced flareups of lower back symptoms. This resulted in the worker seeking medical care from the treating family physician and the further diagnostic MRI studies beginning in 2015, as well as further investigation by the WCB beginning in late 2016. Throughout this period, there is evidence of periodic increase in symptoms that caused the worker to seek medical care, but the diagnostic studies do not indicate any evidence of recurrence of the compensable workplace injury. Rather, the diagnostic reports support the opinions provided by the WCB medical advisor that the worker has a degenerative back condition at the L5-S1 level, that has not been impacted by either the 2013 injury or by the subsequent surgical repair of that injury.
The panel finds this evidence to be consistent with the expected progression of a degenerative condition that will typically worsen or deteriorate over time, with symptoms that may wax and wane from time to time. In this regard, we accept the consistent and considered opinions provided by the WCB orthopedic consultants and the WCB neuroradiology consultant, that the worker has a pre-existing degenerative back condition at the L5-S1 level, and that there is no basis to find that the 2013 surgical treatment of the worker’s compensable injury aggravated or enhanced that pre-existing degenerative condition.
On considering the totality of evidence before us, the panel finds that following the 2013 surgery arising out of the compensable workplace injury, the worker recovered to such an extent that they were successfully able to return to work in late 2013. While the evidence confirms the worker’s 2020 lumbar spine surgery addressed a problem in the same area of the worker’s low back as was injured in 2013, this does not mean it was necessarily related to that injury. As noted in multiple WCB medical advisor opinions, the evidence confirms that the worker’s 2013 surgery successfully addressed the workplace injury, and that although the worker reported symptoms thereafter, these could be attributed to the overall degenerative condition of the worker’s low back. The medical reporting and opinions on file confirm that the surgery successfully addressed the injury to the worker’s L5-S1 disc which resulted from the workplace accident. We accept and rely upon the opinions of the treating orthopedic surgeon as to the worker’s recovery and the opinions of the WCB medical consultants as to there being no evidence of recurrence of the compensable injury.
On considering the contents of the differing medical opinions before the panel, we find it unnecessary to convene a Medical Review Panel, as proposed by the worker’s counsel in making their submission. The panel finds that the totality of evidence before us does not support the opinion offered by the treating orthopedic surgeon relating the worker’s back condition in 2020 to the surgical treatment of the workplace injury of 2013.
The panel concludes, on the standard of a balance of probabilities and on the basis of the evidence reviewed and considered, that responsibility should not be accepted for the worker's current low back difficulties as being related to the February 20, 2013 accident. The worker’s appeal is therefore denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of November, 2021