Decision #12/22 - 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 after January 28, 2021 in relation to the October 29, 2020 accident. A hearing was held on January 18, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after January 28, 2021 in relation to the October 29, 2020 accident.

Decision

The worker is entitled to further benefits after January 28, 2021 in relation to the October 29, 2020 accident.

Background

On November 11, 2020, the WCB received an Employer's Incident Report that indicated the worker injured their left hip at work on October 29, 2020 when they tripped over the wheels of a rack while moving items from one rack to another and fell onto their left hip. The worker reported the incident to the employer on the same day. The Worker Incident Report provided to the WCB on November 12, 2020 recorded a similar mechanism of injury and noted that immediately after the incident, the worker was placed on modified duties for the balance of their shift. The worker reported they sought chiropractic treatment the following day.

In the Chiropractor's First Report, the chiropractor recorded the worker’s report of sharp lower back/left hip pain after tripping over a clothing rack at work. The chiropractor examined the worker and documented "Protective muscle spasms in the lumbar spine with reduced range of motion. Positive left straight leg test." The chiropractor provided a diagnosis of moderate to severe lumbosacral strain with radicular pain into left hip and noted the worker continued to work but was "exercising caution".

On November 9, 2020, the worker attended an appointment with their treating family physician, reporting severe low back pain radiating to their left buttock and down their left leg with cramping, tingling and numbness. Upon examination, the physician noted the worker was unable to lay on the table and a positive straight leg raise on the left. The physician excused the worker from work for three weeks, diagnosed a suspected lumbar disc herniation and referred the worker for an MRI study.

On November 11, 2020, the worker was transported to a local urgent care facility by ambulance as they were unable to control their pain with medication. The treating physician recorded that the worker had a "…long history [of] recurring episodes of back pain" and after tripping and falling onto their left hip on October 29, 2020, had persistent low back pain, which had increased and was now radiating into their left leg, down to their ankle. The physician noted a straight leg raise on the left was limited to approximately 15 degrees with pain radiating down to the ankle, symmetrical knee jerks bilaterally and a definite reduced ankle jerk on the left and diagnosed sciatica.

When the worker discussed their claim with the WCB on November 13, 2020, they confirmed the mechanism of injury and advised they had issues with their back due to a non-compensable motor vehicle accident in 2000. The worker further noted they were off work as authorized by their treating family physician and awaiting an MRI study.

At a follow-up chiropractic appointment on November 16, 2020, the treating chiropractor noted the worker was improving but continued to experience low back and left hip pain. The chiropractor reported "Ongoing sore/stiff muscles and joints in the lumbar spine and left hip. Positive sacral compression test L5/S1. Range of motion near normal."

At follow-up on November 18, 2020, the treating family physician noted slight improvement, with a positive straight leg raise test on the left again indicated, and recommended rest, non-steroidal anti-inflammatory medication, and physiotherapy.

The worker attended for initial physiotherapy assessment on November 19, 2020, reporting constant sharp, achy pain that woke them up at night, numbness and tingling on the left and weakness bilaterally in their lower extremities. The physiotherapist provided a diagnosis of discogenic low back pain/S1 radiculopathy and recommended the worker remain off work and work with their treating healthcare providers to get their pain under control.

On November 24, 2020, a sports medicine physician assessed the worker and diagnosed acute S1 radiculopathy on the left side.

The worker followed-up with their treating family physician on December 9, 2020 to discuss the results of the December 7, 2020 MRI study that indicated "Very large left-sided disc herniation at L5-S1 that compresses the left S1 nerve root and mildly displaces the remaining cauda equina." The physician referred the worker on an urgent basis to a spine specialist.

At a follow-up appointment with the treating sports medicine physician on December 22, 2020, the physician noted worsening symptoms and continued radicular symptoms, and recommended restrictions of no repetitive lifting and twisting and modified use of legs as tolerated.

A WCB medical advisor reviewed the worker’s file on December 29, 2020 and concluded that the diagnosis related to the described mechanism of injury was a low back strain, which had a natural history of recovery in 6 to 8 weeks although with radicular symptoms, the recovery would be in 3 to 6 months. The medical advisor provided total disability was not supported and provided restrictions of limiting prolonged sitting or standing with the ability to take micro breaks and limiting lifting or carrying to five pounds.

After additional medical information was provided to the worker's file, including chiropractic chart notes and the December 7, 2020 MRI study, the WCB medical advisor again reviewed the worker's file on January 6, 2021. The medical advisor provided that the worker's current diagnosis of an L5-S1 disc herniation with left S1 radiculopathy was supported by the December 7, 2020 MRI. Noting the worker's report of a long history of recurring episodes of back pain, the medical advisor opined that the described mechanism of injury of tripping and falling onto the left hip was not typically associated with a disc herniation. The medical advisor requested the worker's WCB adjudicator obtain the worker's medical records for the two years prior to the workplace accident to determine if the disc herniation diagnosis was related to the October 29, 2020 workplace accident. The medical advisor also provided that recovery from a low back strain was expected some 9 weeks following the workplace accident, and as such, restrictions were not medically supported.

When the requested medical information was received on January 11, 2021, the WCB medical advisor provided a further opinion on January 12, 2021 that the prior medical records supported the worker had a pre-existing disc herniation, supported in part by a September 24, 2020 virtual appointment note reporting left lower back pain, with pain radiating into the left calf and thigh, and tingling to the foot, and by chart notes from the treating chiropractor indicating treatment of left gluteal symptoms. The WCB medical advisor concluded that the worker's current low back symptoms were related to the pre-existing L5-S1 disc herniation, and that the worker had recovered from the compensable low back strain.

On January 21, 2021, the WCB advised the worker that it determined the worker was recovered from the compensable low back strain injury and they were not entitled to further benefits after January 28, 2021.

The worker requested reconsideration of the WCB's decision to Review Office on February 4, 2021. In their submission, the worker acknowledged they experienced low back difficulties prior to the October 29, 2020 workplace accident but noted they had not experienced the severe pain as they had after the accident. Further, the worker noted their treating healthcare providers supported they suffered the disc herniation as a result of the workplace accident and that they required further treatment for their symptoms.

On March 19, 2021, Review Office upheld the WCB's decision the worker was not entitled to further benefits after January 28, 2021 on the basis of the opinions of the WCB medical advisor that the worker's low back symptoms and the disc herniation indicated on the December 7, 2020 MRI were pre-existing and were not aggravated or enhanced as a result of the October 29, 2020 workplace accident.

The worker filed an appeal with the Appeal Commission on May 19, 2021 and a hearing was arranged for January 18, 2022.

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 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. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

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

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 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. “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, represented by a family member who made a submission on behalf of the worker and provided answers to questions posed by members of the appeal panel. The worker also provided testimony in response to questions from the members of the appeal panel.

The worker’s position, as outlined by their representative, is that the worker had not fully recovered from the injuries sustained in the compensable workplace accident of October 29, 2020 by January 28, 2021 when the WCB discontinued their benefits. The worker continued to require medical aid and to work reduced hours beyond that date because of the workplace injury and therefore they should be entitled to further benefits beyond January 28, 2021.

The worker’s representative outlined to the panel that the medical reporting confirms that the worker did not have a pre-existing condition in their low back, noting the information on file with respect to a pre-accident prescription for pain medication is incorrect. This is confirmed by the information provided by the worker’s treating family physician. Further the family physician’s medical chart notes for the worker indicating sciatica prior to the date of accident is, as explained in a subsequent letter from the physician of September 22, 2021, neither diagnostic nor specific, but descriptive of the nature of the symptoms the worker reported.

The worker’s representative noted that the first diagnostic evidence of a herniated disc is found in the December 7, 2020 MRI study. The worker’s position is that the disc herniation was caused by and is the result of the workplace fall, as confirmed by the worker’s subsequent symptoms and complaints.

The worker described their job duties to the panel noting that their work requires them to be on their feet throughout each shift. Prior to the accident, the worker was working 30-35 hours weekly, but they have not been able to return to that schedule since the accident. The worker described experiencing recurring low back pain, in the tailbone area, from time to time since 2015, which they attributed to the hours spent standing at work. The worker indicated that low back soreness would arise, from time to time, later in a shift but not on every shift. Prior to the accident, the worker did not require medical intervention to address this low back pain but could treat it with rest and over the counter pain medication as required. The symptoms would typically be gone by the next morning. As confirmed by the treating family physician in a letter dated June 19, 2021, prior to the accident there was never any evidence of disc slippage or radiculopathy.

The worker also confirmed to the panel that from time to time, before the accident, they would experience tingling in their foot from heel to toe, toward the end of a shift. The worker noted that the tingling would go away when they moved. The worker had mentioned this to their family physician, but the physician did not suggest any follow up.

The worker described to the panel how the accident occurred, indicating that while stepping beside a clothing rack, they caught their left foot on the wheeled bar at the base of the rack and tripped. The worker recalled trying to grab onto the vertical pole on the rack to their left, reaching with their left arm so as to prevent the fall, but missing it. The worker indicated they recall taking a step or two forward before they fell to the ground, landing on their left side.

The worker indicated to the panel that they continue to seek treatment arising out of this injury, including two pain relief injections in 2021, the first in July and second in December. The worker also continues to seek regular medical care from the treating sport medicine physician and is hoping the physician will clear them to increase their work hours to 25 hours per week as of the next appointment, scheduled in late January 2022. The worker indicated that their symptoms are improving and described “generally getting better.”

In sum, the worker’s position is that the workplace accident of October 29, 2020 caused injury to their lower back that had not resolved but continued to require medical treatment beyond January 28, 2021 and further, that as a result, the worker continues to sustain a loss of earning capacity since that date. For this reason, the worker should be entitled to benefits after January 28, 2021 in relation to the October 29, 2020 accident.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker is entitled to further benefits after January 28, 2021 in relation to the October 29, 2020 accident. For the panel to grant the worker’s appeal we would have to determine that the worker’s continuing difficulties beyond that date are causally related to the workplace accident and that as a result, the worker required further medical aid or sustained a further loss of earning capacity after the date of termination of benefits. The panel was able to make such findings as outlined in the reasons that follow.

The panel considered the evidence as to the nature of the injury sustained on October 29, 2020. The worker’s testimony offered additional detail that was not available in the WCB claim file. The panel found the worker to be a credible witness on their own behalf and accepts their testimony as how the accident occurred. We noted the worker’s description of a trip and fall accident in which they unsuccessfully reached out with their left arm to grab a bar to prevent the fall, and then stumbled a step or two before falling to the floor, landing on their left side and hip. While the worker was able to complete their shift on that day, their symptoms increased after work and by the next day, the worker was not able to go to work.

On seeking initial medical attention on October 30, 2020, the treating chiropractor provided a diagnosis of lumbosacral strain with radicular pain into their left hip. By November 9 2020, the worker’s symptoms were described as severe low back pain with referring pain into the left buttock and down the left leg. The worker’s treating family physician at this point suspected lumbar disc herniation and ordered an MRI of that region. On the MRI referral form of that date, the physician described “severe pain lower back referring to left leg: cramping, tingling, numbness” and a positive straight leg raise on the left leg. On November 18, 2020, the physician noted worsening pain, that the worker had sought treatment from an urgent care department in the previous week, and again noted a positive straight leg raise test on the left.

The urgent care chart notes from November 11, 2020 indicate the worker’s report of intermittent left leg tingling and spasms, worsening and persistent, worsening low back pain radiating down the left leg into the ankle. A lumbo-sacral x-ray taken that day indicated mild disc space narrowing at L5-S1 but no other findings.

The physiotherapist who assessed the worker on November 19, 2020 noted that the clinical findings suggested “Discogenic Low Back Pain/S1 Radicu[l]opathy”.

The worker sought treatment from a sport medicine physician on November 24, 2020 who noted acute S1 radiculopathy in the worker’s left leg. At that time, the worker reported constant left buttock pain, foot numbness and pain down into the calf.

The December 7, 2020 MRI study of the worker’s lumbar spine indicated a “Very large left-sided disc herniation at L5-S1 that compresses the left S1 nerve root and mildly displaces the remaining cauda equina.”

The panel notes that following the accident, the evidence indicates the worker’s symptomatic presentation initially worsened and then remained relatively consistent through the reporting of the various treating medical practitioners. There is little evidence of any improvement in the worker’s condition through the months leading up to the termination of WCB benefits. In a report dated April 23, 2021, the treating sports medicine physician outlines that on January 19, 2021, the worker was doing “mildly better” but that the examination was consistent. In subsequent assessments, further improvement is noted through to April 2021 when the last assessment took place. The panel noted that physician declined to comment on causation but stated that the worker’s “…symptoms do coincide with [their] workplace incident” and that the symptoms of a herniated disc with radiculopathy are consistent.

The panel noted the WCB’s position that the MRI findings related to a pre-existing lower back condition. In coming to this conclusion, the WCB relied upon the medical advisor’s January 12, 2021 opinion that the worker’s described mechanism of injury of a trip and fall to the ground, landing on their left hip could not have caused or resulted in a disc herniation and would only have caused a low back strain injury. However, the panel also had benefit of the worker’s testimony as to how the injury occurred, as outlined above, which makes it clear that the fall was somewhat less straight-forward than the brief description outlined in the initial reporting to the WCB. We further note that the file does not indicate that the WCB adjudicator sought any further detail or information from the worker and therefore the medical advisor did not have as complete a picture of the mechanism of injury as was available to the panel.

The WCB medical advisor, in their January 12, 2021 opinion outlined the evidence relied upon to support the opinion that the disc herniation confirmed by the December 7, 2020 MRI study, pre-dated the workplace accident. As noted above, the medical advisor relied upon the described mechanism of injury. The medical advisor further relied upon the family physician’s chart notes of pre-accident virtual appointments of September 24, 2020 and October 22, 2020, each based upon reported symptoms but without any clinical findings noted. The medical advisor also referenced the chiropractic notes from January through September 2020 which include reference to left gluteal symptoms and concludes that this is “Suggesting prior radicular symptoms.” The medical advisor also referenced November 11, 2020 Emergency Room chart noted a long history of recurring back symptoms and the family physician’s comment of low back pain present prior to the injury. Based on this evidence, the medical advisor concluded “the diagnosis concordant with the described mechanism of injury was a low back strain” and therefore that the documented L5-S1 disc herniation “would be considered preexisting.”

The panel accepts the worker’s testimony that prior to the accident, they did experience low back pain from time to time at or near the end of a shift, which they treated with over-the-counter pain relief medication, and which would subside by morning. The worker also testified that they occasionally experienced numbness or tingling in their foot while at work but also confirmed to the panel that this would subside with movement. The family physician’s chart notes prior to the accident confirm the worker’s prior complaints of low back pain and occasional numbness in their feet at work but do not indicate any further findings consistent with the radicular findings noted post-accident. The worker’s back pain, although recurrent, was neither persistent nor worsening prior to the accident whereas afterward it was. Further, the panel noted the letter from the treating family physician of June 9, 2021 which sets out that the physician had treated the worker since 2010 and that:

Since around 2015 [the worker] has been complaining on and off of back pain. It was believed to be Musculo skeletal in origin due to [their] work…which involved standing for many hours. [Their] pain would resolve with rest, medication and treatment with chiropractor or massage. An Xray lumbar spine was done in 2018 and was reported as normal. Exam was done few times over the year, [they] never had any evidence of slipped disc, [their] straight leg test was always negative and no symptoms of radiculopathy.

The panel also noted the physician’s September 22, 2021 letter confirming that the use of the term “sciatica” in the chart notes was neither diagnostic nor specific, but descriptive of the nature of the symptoms the worker reported.

On reviewing the evidence, the panel is satisfied that the medical reporting from the treating professionals, who examined the worker both before and after the injury, confirms that as a result of the compensable workplace accident, the worker sustained an injury more serious than a simple low back sprain/strain injury. We are further satisfied that the evidence, including the initial findings of the treating family physician, treating chiropractor and treating physiotherapist after the accident as well as the evidence of the treating sports medicine physician supports a finding that the workplace accident more likely than not caused the herniation of the worker’s L5-S1 disc evident on the December 7, 2020 MRI study.

There is no evidence before us to support that the worker had recovered from the injuries sustained in the workplace accident by January 28, 2021 as determined by the WCB to an extent that they did not experience a loss of earning capacity beyond that date and did not require further medical aid. To the contrary, the evidence supports a finding that the worker continued to experience a loss of earning capacity after January 28, 2021 and that they continued to seek and obtain medical treatment in respect of the injury sustained in that accident beyond that date.

We therefore determine, on the standard of a balance of probabilities, that the worker is entitled to further benefits after January 28, 2021 in relation to the October 29, 2020 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of February, 2022

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