Decision #154/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for her current back difficulties as being related to the August 20, 1998 accident. A videoconference hearing was held on October 26, 2021 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's current back difficulties as being related to the August 20, 1998 accident.
That responsibility should not be accepted for the worker's current back difficulties as being related to the August 20, 1998 accident.
On February 25, 2021, the worker filed a Worker Incident Report with the WCB reporting she injured her lower back in an incident at work on August 20, 1998 which was reported to the employer on the same date. The worker described lifting a heavy item weighing 40 to 50 pounds "…onto the back of machine holder and felt my back snap twice. The pain dropped me to my knees. After a few mins (sic) I believe I stood up slowly (can't remember if someone passed by and I went to office, or went by myself to office to report incident to [supervisor's name].) I believe I went home for the evening." The worker noted she returned to work on her next scheduled shift of August 25, 1998 and sought medical treatment on September 3, 1998.
On March 5, 2021, the worker provided the WCB with copies of correspondence and medical information from a previous 2001 WCB claim. Included in the information received was a copy of a memorandum to file on the worker's previous WCB claim dated January 14, 2020, reporting a recurrence of her lower back injury from 2001.
On March 19, 2021, the WCB received a copy of a September 3, 1998 physician's letter to the employer. The physician noted in that letter that the worker had no prior history of back problems and "…experienced a rotational injury lifting a small roll of poly two weeks ago. She had a sudden onset of pain and a cracking sensation, left mid to low back, and ever since this, she has experienced some difficulty." The physician further noted that the worker was able to continue working her regular duties, although she reported the sensation of her back feeling weak and being prone to recurrence by the end of a work day. Clinically, the physician reported the worker had a normal gait, posture and lordosis, full range of motion in all directions, no tenderness in any area of her back and normal straight leg raise test and reflexes. The physician provided a diagnosis of a minor facet joint injury, which was resolving, and did not provide any restrictions.
The WCB also received information from the employer on March 19, 2021, consisting of an Accident Investigation Report and Notice of Injury from August 20, 1998, which referred to an injury to the worker's lower back after she lifted a roll onto a machine holder and felt her back snap twice.
On March 31, 2021, the worker's current family physician responded to a request from the WCB for further medical information. The physician noted she had been treating the worker since 2014, and medical records from her clinic were only available for the previous ten years, dating back to 2011. The physician enclosed with her letter copies of reports from a spine surgeon dated August 25, 2014 and April 7, 2020; a report from a rheumatologist dated November 29, 2019; diagnostic imaging from 2014; and various reports from the family physician's clinic, including an October 1, 2020 letter from the family physician to the WCB written in support of the worker's claim.
In the October 1, 2020 letter from the worker's current family physician, the physician noted that the March 14, 2014 x-ray of the worker's lumbosacral spine showed "…some minor spurring" and the April 14, 2014 MRI of the worker's lumbar spine showed "…a right disc central protrusion which was contacting the S1 nerve root, as well as osteoarthritis." In the August 25, 2014 report from the spine surgeon, the surgeon referred to the worker having a "…longstanding history of back problems" with an "…initial injury way back in 1998." The surgeon noted the worker was treated for that initial injury "…conservatively and had a good result" but had "…intermittent periods of back pain since then." The November 29, 2019 report from the rheumatologist noted the worker had been suffering from back pain for some time and that she reported having a job that required her to do a lot of lifting and seemed to contribute to her back pain.
On April 9, 2021, the WCB's Compensation Services advised the worker that they had accepted her claim for an accident occurring on August 20, 1998, but were unable to accept responsibility for her ongoing back difficulties, as they were unable to relate those difficulties to the August 20, 1998 accident. Compensation Services noted that the worker did not receive medical treatment for three years after the August 20, 1998 injury and there was no evidence of ongoing complaints between 1998 and 2001. Compensation Services therefore concluded that the 1998 work injury resolved prior to 2001 and was not contributing to the worker's current symptoms.
On May 11, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker stated she was injured at work on August 20, 1998, and continued working her regular duties, but was very careful with what she did. She said she suffered a recurrence in 2001, and that this was the first time the pain was bad enough to warrant further care. The worker submitted that her back has never been the same since the August 20, 1998 incident, and the injury she suffered in 1998 led to her ongoing difficulties.
On May 31, 2021, Review Office determined that there was no coverage for the worker's current back difficulties as they could not account for the worker's complaints as being related to the August 20, 1998 accident. Review Office found that given the minor nature of the compensable injury and the lack of further available medical records around 1998, the worker's compensable back injury likely resolved. Review Office also found that in reviewing the medical information provided, the difficulties that were indicated on the April 2014 MRI were in a different area of the worker's back than was described in 1998. Review Office further noted that the worker had waited many years before contacting the WCB about her current back complaints and her position that those complaints were related to an injury from 1998, and found that this delay was significant.
On June 21, 2021, the worker 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 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.
WCB Policy 220.127.116.11.10, Recurring Effects of Injuries and Illness (Recurrences), deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."
The worker was self-represented. The worker's position was that the back injury she suffered as a result of the August 20, 1998 workplace accident was the start of the chronic back pain she has experienced over the years, and her current back difficulties should be accepted as being related to the 1998 accident.
The worker noted that she did not have any back difficulties prior to the August 20, 1998 accident. Since the accident, however, her back has never been the same, and she has always had some form of pain.
The worker submitted that she continued to work, taking as much care as she could, up until the next incident in 2001. She stated that her strong work ethic contributed to the fact that she showed up at work and worked through to 2001, when it became no longer possible for her to continue. The worker submitted that the 2001 incident occurred because her back was already injured and resulted in a lengthy rehabilitation to enable her to return to work.
The worker stated that she presented everything to her doctors from 1998 forward, and asked that further testing be done, to no avail. The worker said she did not know how anyone could tell what was wrong without further testing. The worker stated that when she started seeing her current family doctor in 2013, an MRI was finally ordered and performed on April 14, 2014. The worker submitted that the 2014 MRI confirmed that something more serious had occurred in 1998; that the L5/S1 had been damaged and the pain was coming from there. The worker submitted that this was the same location as where the doctor first examined her after she was injured in 1998, and that the 2014 MRI showed that all the problems were in the same area as was described in 1998.
The worker submitted that her back problems never resolved; that they just got progressively worse. The worker said she realized the WCB needed proof, and has tried her best to obtain further documentation, but earlier documents have been destroyed. The worker said she provided all the records she had, being records relating to the 1998 and 2001 incidents, as well as another incident in 2006, where she was off work again for a period of time and covered by disability insurance. The worker said she believed there was enough evidence to establish what happened and where she was injured.
The worker said she has done everything possible to keep herself healthy and carry on with her life. Her pain is somewhat under control now, but she knows it is going to get worse. She said her healthcare providers have always told her, since the 2014 MRI, that her back is going to get worse. The worker further noted that she cannot do her job anymore. She said that since all this has happened, she has moved into a light duties job, with lower pay, and she feels that this is unfair. She wants to go back and work her remaining years until she can retire without penalty.
The employer did not participate in the appeal.
The worker filed a claim on February 25, 2021, reporting she injured her lower back in an incident at work on August 20, 1998. The WCB has accepted the worker's claim for an accident having occurred on that date.
The issue on appeal is whether or not responsibility should be accepted for the worker's current back difficulties as being related to the August 20, 1998 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing back difficulties are related to, or a consequence of, the worker's 1998 compensable injury. For the reasons that follow, the panel is unable to make that finding.
Based on our review of the mechanism of injury and the available information, the panel finds that the initial injury which the worker suffered as a result of the August 20, 1998 workplace accident was relatively minor.
In this regard, the panel notes that the worker returned to work for her next scheduled shift following the accident, working her regular duties on an assembly line.
The panel also notes that the worker was seen and assessed by a family physician shortly after the accident. Clinical findings as noted by the physician in his September 3, 1998 report were normal, and the physician diagnosed the worker with a minor facet joint injury, adding that he believed this would resolve spontaneously. The panel is satisfied that there is a lack of clinical findings in that report indicating anything more serious than a minor back injury.
The panel reviewed the September 3, 1998 medical report with the worker in detail at the hearing. Leaving aside the diagnosis that was provided in that report, the worker confirmed that the information provided, with respect to the description of the injury, the worker's symptoms and the clinical findings as set out therein, was generally accurate.
The evidence further indicates that the worker continued working her regular duties for more than two and one half years after the accident, without seeking or receiving medical attention or treatment for any back difficulties. The panel acknowledges the worker's comment that she was being cautious while working, but notes that no restrictions were provided and the worker was able to continue, and did continue, performing her full regular duties.
The worker filed a claim in 2001 for a back injury, arising out of an incident on April 4, 2001. In her report to the WCB of that incident, the worker described, in part, that when she went to grab an item, she "…had incredible pain shoot down my right buttock and down into my right leg." Medical reports following that incident also refer to the worker complaining of pain occasionally shooting or radiating into her legs, and provide a diagnosis of mechanical low back pain or a sprain/strain injury.
The panel notes that unlike the reports from the 2001 claim, the Worker Incident Report for the 1998 claim and the September 3, 1998 medical report do not indicate that the worker was experiencing radiating pain to her leg or legs. The panel questioned the worker at length at the hearing as to when she started experiencing radiating pain or pain going down her leg, but the worker stated she could not say and was unable to provide any kind of definitive response to that question.
The available medical documentation indicates that there were further large gaps in time where the worker was not seeking medical attention for any back issues. In the panel's view, if the worker had been experiencing ongoing problems with her back, either before or after 2001, she would have been seeking medical attention or assistance.
The worker argued that the 2014 MRI confirmed that the injury she initially suffered on August 20, 1998 was much more serious than the physician had indicated at the time, and that she had suffered a disc injury at the L5/S1 level. Based on our review of the available medical evidence, however, the panel is unable to relate the findings on the April 14, 2014 MRI to the 1998 compensable injury. While the findings on the MRI indicate that at the L5/S1 level, there is a "right central disc protrusion which is contacting the right S1 nerve root" and "facet joint osteoarthritis," clinical findings on the September 3, 1998 medical report were not indicative of a disc injury and the panel is unable to find any signs of a disc problem in 1998. The panel further notes that the findings on the 2014 MRI were in a different area than was indicated in the 1998 reports.
The panel also notes that the worker was referred by her current family doctor to the spine surgeon, who saw her in August 2014 and again in April 2020. In his April 7, 2020 report, the spine surgeon noted that the worker claimed she had a work-related injury in 1998 and had been complaining of intermittent problems ever since. The spine surgeon referred to the results of a more recent MRI from December 2019, noting that it showed there was a central disc herniation at the L5-S1 level. The spine surgeon concluded that it was "…hard to confirm or deny that this L5-S1 central disc herniation is related to the original injury of 1998."
The worker's family doctor also referred the worker to the rheumatologist, who noted in her November 29, 2019 report, that the MRI of the worker's lumbar spine from 2014 showed degenerative disc disease and facet osteoarthritis and provided an impression of "…degenerative changes in the spine…"
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing back difficulties are not related to, or a consequence of, her 1998 compensable injury. The panel therefore finds that responsibility should not be accepted for the worker's current back difficulties as being related to the August 20, 1998 accident.
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 23rd day of December, 2021