Decision #149/21 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the October 18, 2019 accident. A videoconference hearing was held on November 17, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the October 18, 2019 accident.

Decision

The worker is entitled to further benefits in relation to the October 18, 2019 accident.

Background

On October 22, 2019, the WCB received an Employer’s Accident Report indicating the worker injured their neck, back and tail bone in an incident at work on October 18, 2019 when, as they threw some equipment into an excavation trench, the edge caved in and they fell in. After the accident, the worker was transported to a local emergency department for treatment.

The hospital report was received by the WCB on October 23, 2019. It noted the worker’s reporting of pain when sitting, decreased range of motion in their shoulder and vertebral tenderness. An x-ray taken that day was noted to be normal and the worker was diagnosed with a muscular/soft tissue injury.

The WCB spoke with the worker on October 25, 2019 to discuss their claim. The worker advised the employer provided sedentary duties beginning on the day after the workplace accident. The worker noted their current symptoms were a painful lower back/tail bone, with their shoulder and neck feeling better. The worker advised the WCB they had a significant injury to their lower back in 2003, which included surgery in 2005, and had ongoing issues with their back since that time; however, they noted they had been able to perform their full regular duties since the time they were hired until the date of the workplace accident. On November 1, 2019, the WCB accepted the worker’s claim.

On November 14, 2019, the worker’s treating family physician examined the worker and found “severe inflammation and possible fracture of a facet and possible compression fracture of a lumbar vertebrae”. It was recommended the worker remain off work pending further medical investigation. The worker chose to return to work and an Offer of Modified Work was signed on November 25, 2019. A Return to Work Capabilities form completed by the worker’s treating family physician on November 26, 2019 indicated the worker could return to the offered modified duties, with gradual improvement expected and a return to full regular duties by January 15, 2020. A Progress Report from the worker’s treating family physician for an appointment on January 3, 2020 was received. The physician noted the worker’s diagnosis continued to be “severe inflammation and possible fracture of a facet and possible compression fracture of a lumbar vertebrae” and recorded the worker’s symptoms of “Still afflicted with a right sided posterior pelvic brim pain and has a pins and needles pain that goes right down the right leg to his toes. Click or pop in his back when he walks around.” Objective findings of “Right SI (sacroiliac) joint inflammation and some sciatica secondarily” were also noted. The worker also attended for an initial physiotherapy assessment on January 9, 2020. A diagnosis of lumbar spine disc pathology was made after lumbar spine and right radicular pain to the foot was noted.

The worker’s file was reviewed by a WCB medical advisor on March 5, 2020 who opined the worker’s diagnosis as a result of the workplace accident was a contusion of the low back, sacrum and coccyx, with a natural history of resolution within two months. However, it was noted as the worker had pre-existing lumbar disc disease, the recovery may be prolonged. Further, the WCB medical advisor stated that the worker’s treating physician speculated the worker may have sustained fractures from the workplace accident but “…no change in the lumbar pathology can be identified on x-ray. It is unlikely that the workplace injury has changed the lumbar disc pathology.” The WCB medical advisor opined the worker’s current difficulties were related to the October 18, 2019 accident.

An updated progress report was received by the WCB on June 8, 2020. The physician reported continued symptoms and noted a right SI joint inflammation and sciatica. The treating physician noted the worker could return to work, with precautions of not walking on uneven ground or stooping and lifting and advised the worker could not sit in equipment or work on their feet.

The worker contacted the WCB on August 23, 2020 to advise they had fallen that morning when their hip gave out. They advised their right arm/elbow and back were very sore but they continued to work. The worker’s treating physician provided a report to the WCB on August 25, 2020. The physician reported the worker’s back was “…much exacerbated from the fall of Aug 23rd (when leg gave out) right arm pain as well” and found “Exquisite point tenderness over the right medial epicondyle. Signs and symptoms of some traumatic neuropraxia of the right ulnar nerve.” The physician recommended the worker remain off work for two weeks to “…heal up this exacerbation.” The worker’s file was reviewed by a WCB medical advisor on September 16, 2020. The advisor opined the worker’s initial diagnosis was a contusion of the low back and sacro-coccygeal region, in the presence of pre-existing lumbar disc disease, which was expected to have resolved within six months. The WCB medical advisor also opined the worker’s current symptoms in their low back and right lower limb area were likely a result of their pre-existing degenerative lumbar disc disease as there was no evidence to support the workplace accident caused or changed the worker’s lumbar disc pathology. On September 21, 2020, the worker was advised by the WCB it had been determined they had recovered from the effects of the October 18, 2019 workplace injury and as such, they were not entitled to further benefits.

The worker requested reconsideration of the WCB’s decision to Review Office on October 1, 2020. In their submission, the worker noted the employer required them to work outside of their restrictions and as such, their workplace injury did not recover and they are still suffering the effects of the injury. On November 24, 2020, the employer submitted a response in support of the WCB’s decision, a copy of which was provided to the worker on November 25, 2020. On December 16, 2020, the worker’s representative provided a response to the employer’s submission and on January 6, 2021, at the request of Review Office, a WCB medical advisor reviewed the worker’s file. The WCB medical advisor opined the worker’s current medical presentation was “…in keeping with the natural history of the pre-existing DDD (degenerative disc disease). The effects of the workplace contusion are considered to have resolved, given the time from the contusion.” The advisor further provided that failure to follow the physical restrictions provided by the WCB “…would be expected to cause symptoms of low back or sacral pain but not to alter the underlying pathology or the ability to prevent falls” with a neurological deficit not reported. A copy of the opinion was provided to all parties on January 6, 2021, with the worker’s representative providing a response on January 11, 2021.

On January 26, 2021, Review Office determined the worker was not entitled to further benefits. Review Office agreed with and relied on the opinions provided by the WCB medical advisor and found it could not account for the worker’s current difficulties in relation to the October 18, 2019 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on July 15, 2021. A videoconference hearing was arranged for November 17, 2021.

Reasons

Applicable Legislation and Policy

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.

Under subsection 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.

Subsection 27(1) of the Act provides 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."

Section 37 provides that, 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.

Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-Existing Conditions ("the PPI Policy"), addresses the issue of pre-existing conditions when administering benefits. It states that:

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.

With respect to wage loss eligibility, the PPI Policy states, in part 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.

WCB Policy 44.10.80, Further Injuries Subsequent to a Compensable Injury ("the Further Injuries Policy") applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This policy establishes the principles where a further injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker suffered a compensable injury on October 18, 2019. The worker stated that they did not recover from that injury and they continue to suffer pain down the right leg, with stiffness and difficulty walking, and poor sleep. The worker believes the fall suffered in August 2020 was caused by the symptoms suffered as a result of the October 18, 2019 accident, which were exacerbated by a failure to fully comply with modified duties recommended by the worker’s physician and an inability to access physiotherapy and chiropractic care while working in remote locations.

Employer’s Position

The employer participated in the hearing and made a submission to the panel. The employer’s submission focused on workplace practices and noted that the worker’s duties were within the recommended modifications and that the worker had the ability to attend medical appointments while on the job. The employer’s submission did not address the worker’s medical condition.

Analysis

The question before the panel is whether or not the worker is entitled to further benefits in relation to the October 18, 2019 accident. In order for the panel to accept the worker’s appeal, the panel must be able to find, on a balance of probabilities, that the worker continued to remain injured due to their compensable injury after their benefits were terminated by the WCB on September 21, 2020.

On December 22, 2020, the WCB orthopedic advisor noted that it is not possible to distinguish clinically the exact source of pain when contusion occurs in the presence of pre-existing degenerative disc disease (DDD). The orthopedic advisor then concluded that the worker’s medical presentation was in keeping with the natural history of pre-existing DDD and the effects of the workplace contusion were considered to have resolved, given the passage of time since the contusion. However, the panel was not provided with any evidence to support the orthopedic advisor’s conclusion that the effects of the workplace contusion had resolved when the worker’s WCB benefits were terminated. The panel notes that in June 2020, the worker’s doctor confirmed on-going symptoms of right-sided posterior pelvic brim pain and pins and needles pain down the right leg. On July 22, 2020, the WCB's medical advisor confirmed the worker’s continued symptoms were as a result of the combined effect of the accident and the pre-existing lumbar spine conditions. Thus, there is no support for the conclusion that, simply by the passage of time, the worker had recovered from the workplace accident and the worker’s condition should be considered to have resolved. The medical evidence supports that the worker continued to suffer some continuing effects of the compensable injury when the WCB determined that the worker was no longer entitled to benefits

In making the decision that the worker is entitled to ongoing benefits after the WCB ended them on September 21, 2020, the panel does not accept that the incident which occurred on August 23, 2020 is related to or resulted from the compensable injury. 

The worker described how on August 23, 2020, before to going to work, the worker’s hip or leg “gave out”, causing him to fall which resulted in further injury. Although the worker believes that the October 2019 accident was the cause of the August 2020 fall, the panel finds there is a lack of evidence which would support such a conclusion. The panel notes that the MRI imaging did not indicate a nerve compression. The compensable injury of October 2019 was accepted as a contusion. The panel is unable to find medical evidence to support the October 2019 injury caused neurological deficiencies that resulted in the worker's leg giving out. Further, based upon a careful review of the information available, the panel finds that it is not probable that the worker’s compensable injury would result in the isolated incident approximately 10 months remote from the date of the accident. Although the worker’s representative posited that the disc protrusion shown in subsequent MRIs was caused by the October 2019 accident, this is speculative and not supported by the clinical findings. As a result, the panel was unable to find that the August 2020 incident was caused by the compensable injury.

Based on the foregoing, the panel finds that the worker had not recovered from the accident of October 2019 and is entitled to medical aid and wage loss benefits for any time the worker was unable to work as a result of the compensable injury. However, the panel does not accept that the August 2020 incident was a result of any ongoing symptomology arising from the compensable injury and the worker is not entitled to medical aid or wage loss benefits as a result of any inability to work as a result of that incident.

Panel Members

K. Gilson, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of December, 2021

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