Decision #09/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits in relation to the August 5, 2013 accident. A teleconference hearing was held on July 29, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits in relation to the August 5, 2013 accident.
That the worker is not entitled to benefits in relation to the August 5, 2013 accident.
The worker filed a Worker Incident Report with the WCB on November 22, 2013, reporting he injured the left side of his body at work on August 5, 2013. The worker described moving a heavy barrel onto a dolly, then tilting it back towards himself, at which time "The whole left side of my body went numb. My face, my arm, legs, feet everything…"
In a discussion with the WCB on November 22, 2013, the worker confirmed he had a prior WCB claim for a back injury from 2012. The worker indicated he was still receiving treatment and had returned to work on July 7, 2013, working full duties, when the incident occurred on August 5, 2013. He reported the left side of his body was still numb at times, with the neck and middle back being sore all the time. The left side of his face, and his left arm and leg were numb and tingling, and he reported losing strength in his right hand when lifting his arm over his head. The worker advised he sought treatment from his family physician on September 3, 2013, and had additional treatment in October 2013, including a CT scan. He further advised he had scheduled appointments with a specialist and for an MRI in December 2013.
The September 3, 2013 chart notes from the worker's treating family physician indicate the worker reported he felt numbness on his left side from the left side of his face down to his left foot while lifting a barrel. The physician examined the worker and noted tenderness in the worker's right upper lumbar/lower thoracic paraspinal muscles, normal range of motion of the spine and normal straight leg raise tests, and that the worker reported he continued to have right thoracic back pain from his previous WCB claim. The family physician diagnosed the worker with muscular back pain and recommended he continue the strengthening exercises recommended by his treating physiotherapist.
The CT scan of the worker's cervical spine performed October 4, 2013 indicated "Significant spinal stenosis is suspected at multiple levels of the midthoracic spine…" and an MRI was recommended to determine if the worker had nerve root compression within the spinal canal. On October 15, 2013, the worker saw a new family physician, who diagnosed a cervical spine strain and referred the worker to a neurologist.
On December 4, 2013, the worker was seen by the neurologist, who noted the worker's prior WCB claim and that the worker reinjured himself in a workplace accident on August 5, 2013. After examining the worker, the neurologist opined that "The clinical presentation is suggestive of some mechanical cervical/thoracic and lumbosacral pain. There is some evidence of a cervical myelopathy that accounts for the increased tone of the lower extremities and probably for some of the sensory deficits. The numbness of the left side of the face is obviously not etiologically related to the latter." The neurologist recommended the worker continue with his conservative treatment of physiotherapy, pending the results of the MRI.
On December 27, 2013, the worker's file, including the December 6, 2013 MRI of the worker's spine, was reviewed by a WCB medical advisor. The medical advisor opined that the most likely diagnosis with respect to the August 5, 2013 workplace accident was a strain type injury involving the mid and lower back muscles and that recovery would be expected within three to four weeks. The WCB medical advisor went on to opine that the worker's current presentation was not related to the effects of the August 2013 injury as the current diagnosis appeared to be cervical spinal stenosis, which was "…typically as a result of the combined effect of cervical degenreative (sic) arthrosis and disc protrusion and likely represents a combined progression of these conditions over weeks to months. A single flexion injury of the mid and lower back would not be causally related to the current spinal stenosis." The medical advisor also noted the findings of the recent MRI at the C6-C7 level were indicative of a chronic degenerative process evolving over many months and not related to the August 2013 flexion injury of the mid and lower spine.
On January 6, 2014, the WCB's Compensation Services advised the worker that his claim had been accepted for an incident that occurred on August 5, 2013, but he was not entitled to benefits as his ongoing difficulties were not related to his compensable injury. Compensation Services noted that as the worker did not attend medical treatment for this injury until September 3, 2013, there was no indication of his medical status or that he was unable to perform his regular duties. Compensation Services found that given the mechanism of injury, it would be reasonable to accept his claim as a strain, from which he would have been expected to have recovered within four weeks of the incident or by September 2, 2013.
On January 16, 2014, the worker requested that Review Office reconsider Compensation Services' decision. The worker disagreed with Compensation Services' decision to deny him benefits and submitted that his injury was more than a "strain". The worker noted that his treating spine surgeon had recommended surgery and his family physician had taken him off work in case of a slip/fall or strain at work.
On March 4, 2014, Review Office determined that there was no entitlement to benefits. Review Office relied on and agreed with the opinion of the WCB medical advisor, and found that the worker likely sustained a strain type injury involving the mid and lower back muscles as a result of the August 5, 2013 workplace accident; that he had recovered from the effects of that strain injury; and that his current symptoms were related to his chronic degenerative condition and not the workplace injury.
On March 9, 2021, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged for July 29, 2021.
Following the hearing, the appeal panel requested a copy of the worker's 2012 claim file and additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On December 9, 2021, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.
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.
Subsection 4(2) provides that 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 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."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 22.214.171.124, Pre-existing Conditions, addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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 worker was self-represented on the appeal, and was accompanied by his spouse at the hearing. The worker's position was that his ongoing back difficulties were related to his August 5, 2013 workplace accident and injury, and he is entitled to benefits under the Act.
The worker noted that his ongoing symptoms and back difficulties are in the same area of his lower back as where he was injured in August 2013. He submitted the injury he sustained was more than a strain injury; that it has never resolved and he now needs to undergo spine surgery as a result of that injury.
The worker stated he had surgery to his neck and upper back in 2013 because it was more urgent at the time. He said that when he had that surgery, the surgeon told him he would also need surgery for his lower back, but this was postponed as the surgeon wanted to be sure he had properly healed from the neck and upper back surgery before proceeding with the lower back surgery. The worker said that his neck and upper back were good after the first surgery, but he continued to experience pain in his lower back, which would flare up, then get a little better, then flare up again.
The worker submitted that his symptoms have flared up again more recently, and he has been told that surgery is required. The surgery was scheduled for October 2020, but was postponed due to Covid. The worker noted that as at the time of the hearing, he had been off work for almost two years, waiting for the surgery. The worker submitted that the evidence of his continuing lower back symptoms and of his need for surgery to the same area as was injured in 2013 further proves his continuing difficulties are related to his 2013 workplace accident and injury.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits in relation to the August 5, 2013 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid as a result of his August 5, 2013 workplace accident. For the reasons that follow, the panel is unable to make that finding.
The worker has an accepted claim for an incident that occurred at work on August 5, 2013. Based on our review of the mechanism of injury, as described, and the medical information on file, the panel is satisfied that the incident was relatively minor in nature. The panel is further unable to find that the August 5, 2013 workplace incident caused any spinal issues in the worker's lower back, and is satisfied that the worker would not have suffered anything more serious than a sprain/strain type injury as a result of that incident.
In arriving at that conclusion, the panel notes that the worker first sought treatment from his treating physiotherapist on August 16, 2013, indicating he was experiencing, among other things, numbness of the entire left side of the body. The physiotherapist indicated that based on the worker's presentation and her assessment, she had advised him to continue with the exercises he had been previously given relating to the stretch/strength of his core and back, "but that I could not explain the symptoms he has been experiencing on the left side of his body since the incident at work on August 5th?"
The worker saw his family physician approximately one month later, on September 3, 2013, who diagnosed the worker with "Muscular back pain," and noted he should continue strengthening exercises as per the physiotherapist.
In addition, the panel notes that the worker indicated in his initial conversation with the WCB adjudicator on September 5, 2013 that he remained at work following the incident, working his regular duties. The panel notes that there is a lack of medical notes or information on file indicating the worker required time off work as a result of the workplace accident or injury.
The panel further notes that the medical information on file shows that the worker has significant degenerative issues throughout his spine, including in his lower back. The worker was seen by a neurosurgeon, who referred in his December 4, 2013 report to numerous degenerative conditions in both the cervical and lumbar spine.
The worker then underwent an MRI of his entire spine on December 6, 2013, where degenerative difficulties, including a number of degenerative conditions in the lumbar spine, were identified. The panel reviewed the MRI report, but was unable to identify any indication of an acute injury having occurred. The panel further notes that it was expressly stated in the report of that MRI, that by comparison with the previous MRI of the lumbar spine from March 25, 2013, "There has been no significant interval change in the appearance of the lumbar spine since the prior MRI scan."
In his subsequent report dated December 18, 2013, the treating neurosurgeon indicated that as summarized in his consultation report, "…the clinical presentation is the result of multiple problems and the cervical myelopathy does not account for the sensory deficit to the face, nor some of the pain experienced by the [worker]."
Following the hearing, the panel requested and reviewed a copy of the worker's 2012 claim file. Medical information on that file indicated that the worker's file was reviewed by a WCB orthopedic consultant on May 10, 2013, who noted with respect to the MRI of the lumbar spine which was carried out on March 25, 2013, that:
This study identified severe L5-S1 degenerative changes with some anterolisthesis, annular disc bulging and fairly severe degenerative facet hypertrophy bilaterally resulting in severe left L5-S1 foraminal stenosis, moderate right foraminal narrowing and probable impingement of left L5 root and less right L5 root. Also noted moderate degenerative narrowing of the L5-S1 disc. At L4-5 there were some degenerative facet changes.
The worker subsequently attended a call-in examination on May 21, 2013 with the WCB orthopedic consultant, following which the consultant opined that:
There are two pre-existing conditions, idiopathic scoliosis at (sic) noted on the straight x-ray and on the evident long-standing right shoulder elevation. The other pre-existing condition is lumbar disc degeneration and facet osteoarthritis at L5-S1…
The WCB orthopedic consultant further reviewed the worker's 2012 and 2013 claim files on February 11, 2014, at which time he opined that:
The [worker] has evidence of progressive cervical disc degeneration, spinal stenosis and eventual limited synringomyelia at the cervical dorsal junction. Note that the MRI of the lumbar spine December 6, 2013, was reported as showing no difference from the previous MRI lumbar spine of March 25, 2013. This tends to confirm that the pre-existing condition of lumbar disc degeneration with degenerative spondylolisthesis was longstanding…
In my opinion, on the balance of probabilities, the two reported workplace incidents caused soft tissue injuries, which did not affect the inevitable progress of the pre-existing condition of advanced cervical disc degeneration, spinal stenosis, and the development of a limited degree of syringomyelia, which in itself would be progressive…
The panel places weight on the opinions of the WCB orthopedic consultant as noted above.
When asked at the hearing how he knew the spinal issues were related to his ongoing difficulties, or what he was relying on in that regard, the worker stated that this was in the treating neurosurgeon's files, though he could not say where. As indicated above, the reports from the treating neurosurgeon indicate that the worker had multiple degenerative issues in his spine. The panel is of the view that if the treating neurosurgeon was of the opinion that the condition of the worker's spine was related to, or had been aggravated or enhanced by the workplace accident, he would have indicated this in his reports, but he did not.
In response to the panel's question, the worker also noted that this was clearly more than a strain injury because his treating physicians knew he needed surgery. The panel is unable to find that an expectation that surgery would be required in the future, or the current need for surgery for the worker's lower back condition, several years after the workplace injury, proves that the worker's ongoing back difficulties are related to the August 5, 2013 workplace accident and injury in this case.
Based on the foregoing, the panel is unable to establish, on a balance of probabilities, that the worker's ongoing lower back difficulties are causally related to his August 5, 2013 workplace accident or injury. The panel therefore finds that the worker did not suffer a loss of earning capacity or require medical aid as a result of the August 5, 2013 accident, and is not entitled to benefits in relation to that accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of January, 2022