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 further benefits in relation to the August 26, 2020 accident. A videoconference hearing was held on September 15, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 26, 2020 accident.

Decision

The worker is not entitled to further benefits in relation to the August 26, 2020 accident.

Background

In a Worker Incident Report filed with the WCB on September 1, 2020 the worker reported injury to their lower back from an incident at work on August 26, 2020: “I went to open a door…It is a heavy door. I used both my arms, pushed it open and hurt my back. My back made a noise and I twisted it I guess. I was in severe pain afterwards but I did finish my shift.” The worker reported attending for assessment with their treating chiropractor on August 27, 2020, who diagnosed an “Acute flare up of WCB injury to her low back” based on the worker’s reported ongoing lower back difficulties resulting from a previous WCB claim and now flaring up from the August 26, 2020 workplace incident. The treating chiropractor recommended the worker remain off work until September 8, 2020.

In discussion with the WCB on September 3, 2020, the worker confirmed the mechanism of injury and indicated their belief that their back was approximately 80% recovered from their previous WCB injury prior to the August 26, 2020 workplace incident. The worker reported constant lower back pain with pain going down into their left leg. The worker advised they had reported the injury to a co-worker and on the same date, the WCB adjudicator confirmed with the co-worker that the worker reported injuring their back when they twisted and pushed the door. The WCB accepted the worker’s claim on September 8, 2020.

On September 30, 2020, a WCB chiropractic consultant reviewed the worker’s file in relation to the treating chiropractor’s request for an extension of treatment. The consultant recommended a four-week extension but noted a recent report from the treating chiropractor had “…few objective findings suggesting that the claimant would be fit for, at least sedentary duties.” On October 5, 2020, the restrictions were provided to the employer.

A follow-up report from the treating chiropractor received on October 15, 2020 indicated the worker continued to experience “Instability in the lumbosacral area with increased crepitus in the lumbar spine.” The chiropractor noted the worker was to remain off work until October 30, 2020 and that they would work with the employer to find suitable modified duties for the worker.

On October 19, 2020, the WCB chiropractic consultant again reviewed the worker’s file and provided an opinion that the current diagnosis was of a lower back strain, with an expected recovery period of four to six weeks, possibly extended by the worker’s history of prior back injury. The chiropractic consultant concluded that given the length of time since the accident, the worker would be able to perform sedentary duties and recommended a graduated return to work, beginning with sedentary duties and increasing every week.

The WCB provided the temporary restrictions to the employer, indicating a gradual return to work to beginning with 6-hour shifts, increasing by increments of 2 hours per day each week, over a period of 4 weeks. On October 23, 2020, the worker confirmed they would begin the graduated return to work plan offered by the employer on October 28, 2020. On November 18, 2020, the worker provided the WCB with a note from the treating chiropractor indicating that due to increased symptoms, the worker should remain at 8-hour shifts until re-assessed by the chiropractor.

On the treating chiropractor’s request for a further extension of treatment, the WCB chiropractic consultant reviewed the worker’s file on December 1, 2020, noting the latest report from the treating chiropractor did not identify “…a physical barrier to performance of activity.” The consultant confirmed the June 18, 2019 MRI findings indicated a “…right lateral disc protrusion without nerve root compression degenerative disc bulging at L4-5” that would be related to the worker’s age and not related to the worker’s current difficulties or delayed recovery. The WCB chiropractic consultant recommended extension of treatment to December 31, 2020 at which point they expected the worker would be capable of their full regular duties.

The WCB advised the worker of the decision on December 18, 2020 and on December 30, 2020, advised the worker they were not entitled to further benefits as it had been determined they had recovered from the workplace accident.

The worker requested reconsideration of the WCB’s decision to Review Office on January 15, 2021. In their submission, the worker noted they were hurt at work and continued to experience difficulties with their back. On March 24, 2021, the employer provided a submission in support of the WCB’s decision to Review Office. The worker’s treating chiropractor provided a submission to Review Office on March 30, 2021 in support of the worker’s appeal, and in which the chiropractor outlined:

The basis of this patients (sic) appeal is that [they] had an MRI in June 2019 after the initial fall and then [they] had a (sic) X-ray done in Nov 2020 after the second injury. It is very rare that a patient has diagnostic imaging before and after the injury. The new findings on the November 2020 report is that [the worker] has a new 9mm slippage of the spinal column at L4 on L5. This is not a minor slippage. This represents a grade 2 to grade 3 movement of [their] spine that can be attributed to a twisting injury in an already unstable spine from [the] initial fall.

On April 8, 2020, Review Office found the worker was not entitled to further benefits. Review Office accepted the WCB chiropractic consultant’s opinion the worker sustained a soft tissue/strain injury and had recovered sufficiently to start a gradual return to work plan on October 28, 2020. Review Office further noted the worker’s pre-existing degenerative spine condition and found that the worker’s current difficulties could not be medically accounted for in relation to the August 26, 2020 workplace accident.

The worker filed an appeal with the Appeal Commission on May 6, 2021. A videoconference hearing was arranged for September 15, 2021. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On January 5, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 the 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 because 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 WCB Board of Directors established WCB Policy 22.00, Decision Making (the “Decision Making Policy”) which confirms that WCB decision-makers must make decisions that are consistent with the Act, Regulations, and Board policies, while following procedures in keeping with the rules of procedural fairness set out by the courts. This policy further provides that WCB decision-makers must continue to seek evidence until they are satisfied there is sufficient evidence upon which to make a decision.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of this 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 Pre-existing Conditions 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 Pre-existing Conditions 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.

Worker’s Position

The worker appeared in the hearing and made a submission to the panel on their own behalf. The worker provided testimony in the course of making a submission and in answer to questions posed by members of the appeal panel. The worker was accompanied by their treating chiropractor who also offered testimony in support of the worker’s appeal and in answer to questions posed by members of the appeal panel.

The worker’s position is that the incident at work on August 26, 2020 re-aggravated the back injury they first sustained as a result of an earlier accident at work in January 2019. The worker indicated that the more recent event caused an increase in symptoms and that those symptoms were not resolved by the point in time that the WCB discontinued the worker’s entitlement to benefits in December 2020. For this reason, the worker believes that there should be entitlement to further benefits in relation to the accident of August 26, 2020.

The worker provided a description of the mechanism of injury on August 26, 2020 indicating that in the course of a shift, they would have to push open the heavy door in question, using both arms, at minimum of 20 – 30 times per day. The worker indicated that their back symptoms are mainly aggravated by opening this door, but also by walking and sitting.

The worker provided the panel with a description of the symptoms experienced and treatment sought following the accident of August 26, 2020. The worker indicated that although they are improving, they have not returned to “100%” yet and continue to experience symptoms. The worker testified that as of December 30, 2020, they were not ready to return to work and that the WCB decision to terminate benefits at that time was premature. The worker indicated they continue to rely on acupuncture for pain relief and are still working modified duties. The worker further advised the panel that an MRI study taken August 30, 2021 was provided to the WCB before the hearing.

The treating chiropractor provided testimony to the panel as to the extent and effects of the worker’s injury, noting that there is MRI imaging from before and after the August 26, 2020 accident. The June 18, 2019 MRI study showed disc protrusion at L3-4 with no nerve root involvement and at L4-5 with mild anterolisthesis. The chiropractor further noted that the November 2020 x-ray taken showed a significant increase in the anterolisthesis at L4-5 to 9 mm, which the chiropractor indicated was significant slippage that would cause an unstable spine and may be the result of a Pars defect fracture, noting the “hot spot” shown on the worker’s November 2020 x-ray. The chiropractor stated their belief that degeneration would not account for the increase in the anterolisthesis of 5 mm over a short period of time, but that acute trauma would explain it. The chiropractor further testified that this slippage would not be expected to reverse, or reduce if it were degenerative, noting that the recent MRI imaging from August 2021 shows 3 mm of anterolisthesis at L4-5. The treating chiropractor also testified as to the nature of the treatment provided to the worker, which has continued since the WCB terminated the worker’s benefits.

In sum, the worker’s position is that the August 26, 2020 workplace injury caused an exacerbation of symptoms or recurrence of the injury the worker first sustained as a result of the January 2019 workplace accident and that there is no evidence of recovery from this injury by the time the WCB discontinued the worker’s entitlement to benefits in December 2020. For this reason, the worker believes they should be entitled to further benefits in relation to the August 26, 2020 accident.

Employer’s Position

The employer was represented in the hearing by a representative who made an oral submission on behalf of the employer and answered questions posed to them by the appeal panel.

In response to the additional information obtained by the appeal panel subsequent to the hearing, the employer’s representative provided a further written submission dated December 17, 2021 in which they reiterated the employer’s position as outlined in the hearing and offered additional comments on the new information reviewed in support of that position.

The employer’s position is that the evidence supports the WCB’s determination that the worker had recovered from the effects of the August 26, 2020 compensable injury by December 30, 2020 and that any further or ongoing difficulties are not causally related to the workplace injury of August 26, 2020.

The employer’s representative noted that both the worker and the treating chiropractor have outlined their belief that the worker’s ongoing difficulties relate to the compensable workplace injury of January 2019. The worker’s evidence is that their back pain intensified in July 2020 such that they attended for medical care. Further, the medical reporting and December 11, 2020 opinion of the WCB chiropractic consultant confirm that the worker has a degenerative back condition and that this condition has not significantly changed from 2019 to 2021.

The employer’s representative also submitted that it is the employer’s position the worker’s ongoing back difficulties are also unrelated to the January 2019 compensable injury and outlined the evidence the employer believes supports this position.

The employer relies upon the Decision Making Policy which sets out that WCB decision-makers must continue to seek evidence until they are satisfied there is sufficient evidence upon which to make a decision. The employer further relies upon the Pre-existing Conditions Policy as clarifying when the WCB is and when it is not responsible for a pre-existing condition as defined in that policy.

In sum, the employer’s position is that there is no evidence in support of the worker’s position that they are entitled to further benefits in relation to the August 26, 2020 accident and therefore the worker’s appeal should be denied.

Analysis

The question on appeal is whether the worker is entitled further benefits in relation to the August 26, 2020 accident. For the panel to grant the worker’s appeal we would have to determine that the worker’s ongoing difficulties are causally related to the workplace accident and that as a result, the worker requires further medical aid or continues to sustain a loss of earning capacity beyond the date of termination of benefits. The panel was not able to make such findings as outlined in the reasons that follow.

As a preliminary matter, the panel notes that both the worker and employer, in their submissions to the panel, addressed the possibility that the accident of August 26, 2020 may have caused a flare-up or recurrence of the injury sustained in the worker’s 2019 workplace accident. The question of the worker’s possible non-recovery from or the recurrence of the injury first sustained in January 2019 is not before the panel as it has not been adjudicated by the WCB or by the Review Office. We therefore make no findings or determinations in respect of this aspect of the parties’ submissions.

In reviewing the evidence before us, the panel first considered the reported mechanism of injury on August 26, 2020 as described by the worker and reported to the WCB. We note the worker’s description of feeling an instant pain in their back on pushing the door open, using both arms to do so. The worker described this pain as worse than normal and indicates that they immediately returned to the office and reported the injury to a colleague. The worker sought treatment from their chiropractor the next day, who reported to the WCB “Worker flared up [their] low back by pulling and twisting on heavy door at work” and diagnosed “Acute flare up of WCB injury to [the worker’s] low back.” Although the chiropractor noted the injury arose from a pulling and twisting motion, the worker testified that the injury occurred on pushing with both arms and did not describe any twisting motion in their testimony before the panel. In the initial report to the WCB, the worker described the injury as occurring when they used both arms to push open a heavy door which hurt their back. The worker stated “My back made a noise and I twisted it I guess. I was in severe pain afterwards but I did finish my shift.” The employer’s incident report to the WCB outlines that the worker “pushed one of the doors and felt something pull in [their] back….” There is no information as to this incident noted in the chart notes of the worker’s treating family physician who assessed the worker on November 18, 2020. The consulting sport medicine physician noted in July 2021that the worker injured their low back in July 2020 through “forced twisting and rotational motion” while in the workplace.

The panel also reviewed and considered the medical reporting leading up to and following the incident on August 26, 2020. The panel notes that the worker sought treatment from their family physician on August 21, 2020 some 5 days prior to the compensable accident. The chart notes from that appointment record the worker’s complaint of chronic back pain, noting that since July 2020 the worker has complained of pain in the low back, mostly on the left side, constantly present and sometimes radiating into the worker’s left leg with numbness at times. On examination the physician noted slight tenderness in the left paravertebral region, but no other concerning findings. The physician prescribed pain relief medication, use of a heating pad, physical activity and exercises and noted a potential future referral to a pain management clinic.

The chart notes provided by the treating chiropractor indicate the worker was treated on July 28, 2020 at which time the chiropractor recorded the following:

- Cracking is less. 

- Off work this week 

- WCB injury 2019 

- Possible fracture of lumbar spine 

- Disc bulge lumbar spine 

- Phoned on Aug 18th & said [they] couldn’t make it thru [their] shift & went home.

The chiropractic chart notes from the worker’s August 27, 2020 appointment indicate the worker “will get me [their] WCB claim #. Fell onto a set of stairs and landed on [their] back in Jan 2019.” The Chiropractor’s First Report to the WCB, dated September 2, 2020 but arising out of the August 27, 2020 appointment indicated multiple objective findings including: “spastic quadratus lumborum, multifidus, gluteus medius and piriformis. Facet restriction T12-L1, L3-4 & [left] SI joint dysfunction. Neurologically intact lower limb…Range of motion moderately limited in flexion, rotation & left lateral flexion.”

The panel also noted the October 19, 2020 WCB chiropractic advisor’s opinion that the worker’s compensable diagnosis arising out of the August 26, 2020 accident is lower back strain and that this is consistent with the information provided to file.

There is ample evidence before the panel that the worker had a pre-existing low back condition at the time the August 26, 2020 injury occurred. February 12, 2019 x-ray findings confirm degenerative anterolisthesis at L4, degenerative disc disease at L3-4 and L4-5, facet arthrosis at L4-5 and L5-S1 and right thoracolumbar convexity. The June 18, 2019 MRI study revealed mild degenerative changes without any nerve root compression. The examination notes from the July 29, 2019 call-in examination with the WCB medical advisor, arising out of the worker’s 2019 WCB claim, indicate the worker was found to have “some degenerative changes on imaging, varying degrees to the neck and low back.” The treating family physician’s chart notes of August 21 and November 18, 2020 and January 7, 2021 reference chronic back pain as well as mild degenerative changes without nerve root compression. The November 20, 2020 lumbosacral x-ray findings reveal degenerative changes from L2 through L5, in addition to the findings of anterolisthesis at L4-5. The WCB chiropractic advisor noted on December 11, 2020 that the 2019 MRI findings “appear to be commensurate to age and are not likely contributing to either current symptoms or delayed recovery.” The sport medicine physician’s report of July 6, 2021 includes a diagnosis of mild degenerative anterolisthesis, chronic mechanical pain with either recurrent or persistent disc protrusion. The August 30, 2021 MRI study reveals degenerative changes in the worker’s lumbar spine which are noted to be similar to the June 18, 2019 MRI study, “aside from progression in facet arthropathy at L4-5.”

Of the medical opinions available for the panel to consider, only the treating chiropractor is of the view that the imaging findings relating to the worker’s lower back condition arose out of the August 26, 2020 workplace accident, or as noted above, out of the prior compensable workplace injury. In their May 5, 2021 submission to the Appeal Commission, the chiropractor argued that:

“WCB would like to classify these findings as pre-existing and age related. However, given the facts that the patient had an MRI done prior to the workplace injury and a new x-ray done after the workplace (sic), there can be no denial that the changes are a direct result of the injury. Furthermore, an anterolisthesis of 9mm is not related to age related changes in the spine. An anterolisthesis requires a force/impact large enough to forcefully move the segment forward by 9mm. A fracture of the spine either due to the initial fall in 2019 or a traumatic twisting rotation could explain this type of change. Not age.”

The panel noted that the chiropractor’s conclusion the anterolisthesis at L4-5 is the result of trauma rather than degeneration is not consistent with the balance of the evidence before the panel. This slippage is described in the February 12, 2019 x-ray report as degenerative. It is described in the June 18, 2019 MRI study report as degenerative. The WCB medical advisor on July 29, 2019, noted only degenerative findings from the available imaging. The consulting sport medicine physician also noted on July 6, 2021 that the previous imaging showed degenerative anterolisthesis at L4-5 and the August 30, 2021 MRI study also described these changes as degenerative.

We are satisfied that the evidence confirms the worker had a chronic lower back condition that was symptomatic at the time of the compensable injury and further that this condition including the degenerative lumbar spine changes as identified by the imaging studies are a pre-existing condition as defined by the Pre-existing Conditions Policy.

Considering the evidence that the worker was experiencing low back symptoms immediately prior to the workplace accident as well as the worker’s descriptions of a relatively benign mechanism of injury resulting in a worsening of those symptoms, the panel finds that the circumstances of the injury do not support a finding that the August 26, 2020 incident caused anything more serious than a minor low back sprain injury in the environment of their pre-existing low back condition. The evidence also does not support that the mechanism of injury could have caused the degenerative findings confirmed by subsequent diagnostic imaging and further, there is no evidence before us of any “traumatic twisting rotation” injury such as the treating chiropractor referenced in their submission.

We are further satisfied on the basis of the evidence before us that by the end of December 2020, the worker was recovered from the lower back strain injury sustained on August 26, 2020. As outlined by the WCB chiropractic consultant on October 19, 2020, recovery from this diagnosis would typically occur in 4-6 weeks, although given the worker’s age and pre-existing condition, the recovery period could be lengthened. There is evidence that the worker was able to begin a graduated return to work on modified duties from late October 2020, increasing up to 8-hour shifts. Although the worker did not increase to full-time hours by the end of December as anticipated, this was due to the worker’s reported symptom intolerance rather than any clinical findings that would relate to the compensable workplace injury.

Applying the provisions of the Pre-existing Conditions Policy, we are satisfied that the evidence before us supports the worker’s recovery from the compensable lower back sprain and there is no evidence before us to support that this condition has been permanently enhanced as a result of the compensable injury of August 26, 2020. Given our finding that the pre-existing condition is not a compensable condition, any loss of earning capacity or requirement for additional medical aid therefore is not the responsibility of the WCB.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker’s ongoing lower back difficulties are not causally related to the

workplace accident of August 26, 2020 and that as a result, the worker is not entitled to further benefits in relation to the August 26, 2020 accident. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of January, 2022