The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits beyond May 12, 2020. A videoconference hearing was held on June 23, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 12, 2020 in relation to the November 20, 2019 accident.

Decision

The worker is entitled to wage loss and medical aid benefits after May 12, 2020 in relation to the November 20, 2019 accident.

Background

The worker filed a report with the WCB on November 25, 2019 indicating he injured his low back at work on November 20, 2019. The worker reported he went under his truck trailer to do an inspection, and when he came out from under the trailer, he was unable to stand up due to back pain. The worker was transported to a local hospital by ambulance.

The November 20, 2019 hospital report indicated the worker had limited range of motion in his lumbosacral spine "…in particular forward flexion and extension side flexion was limited to about 50% of what is expected." The attending physician noted tenderness on palpation of the left paravertebral musculature of the worker's lumbosacral spine and negative straight leg raise testing, and diagnosed the worker with a low back sprain.

At an initial assessment with his family physician on November 22, 2019, the worker reported injuring his back on November 20, 2019 after being under his trailer, bending over, then shifting to his side and feeling a pain in his back that went down his left leg and caused him difficulty getting up and walking. The family physician noted the worker reported a past history of back pain and provided a copy of a September 2019 CT scan which had been ordered by another physician and indicated a "…broad-based left paracentral and juxta-articular disc protrusion at L4-5, impinging on the anterior thecal sac, and the left L5 nerve root." On examination, the family physician found point tenderness at approximately the L4-L5 level, decreased flexion, with positive straight leg raise and tripod testing, and diagnosed the worker with a disc protrusion. At a follow-up appointment on November 28, 2019, the family physician updated the diagnosis to an acute disc protrusion and referred the worker for physiotherapy.

On December 3, 2019, the worker attended an initial assessment with a physiotherapist, following which the physiotherapist diagnosed the worker with an L4/L5 disc injury with left radicular pain and queried an L5/S1 injury. The physiotherapist outlined restrictions of avoid lifting from floor to waist greater than five pounds, avoid repetitive back bending, frequent position changes, and avoid prolonged sitting/standing. The worker's claim was accepted by the WCB on December 4, 2019 and payment of benefits commenced.

On December 13, 2019, due to ongoing difficulties, the worker's family physician referred him to a spine specialist, who saw the worker on January 23, 2020. The specialist noted the worker reported his initial injury started in approximately August 2019, with no specific incident being reported, just that he was working long days at that time, and that he developed left lower extremity pain in the lateral aspect of his calf and eventually low back pain. The worker reported he continued to work and was being treated by a physiotherapist, with some improvement, but his low back pain had not completely resolved. On November 20, 2019, while at work, he was crouched under a truck and when he got up the pain was significantly worse and he could not move. The specialist noted the worker had been off work since that time and was "…quite limited in his function." The specialist reviewed the September 2019 CT scan and noted there was a disc protrusion at L4-S1 and some question of contact of the traversing L5 nerve root. The specialist opined that it was likely the worker had radiculopathy secondary to the disc herniation, and recommended the worker undergo a further MRI and continue with physiotherapy.

On January 16, 2020, the worker's file was reviewed by a WCB medical advisor, who placed an opinion to file, and suggested that chart notes be obtained from the physician who had ordered the September 2019 CT scan.

An MRI of the worker's lumbar spine was performed on February 28, 2020 and revealed that the "…L4-L5 demonstrates quite a large central and left paracentral/posterolateral disc herniation. Marked compression of the thecal sac is produced despite generous spinal canal…"

On April 9, 2020, the WCB received a narrative report from the worker's previous walk-in clinic physician dated April 7, 2020, which provided a history of the worker's treatment at that clinic. The physician noted in that report that the worker first sought treatment for his low back on February 2, 2019, when he reported having injured his back in an incident at work the previous day. The worker was seen by another physician at the clinic on February 17, 2019 with respect to ongoing difficulties, and again on August 24, 2019, when he was referred for a CT scan. The CT scan, which took place on September 2, 2019, was reviewed with the worker on September 7, 2019, and it was recommended he continue physiotherapy treatment. The physician noted that the worker last attended his clinic on March 12, 2020, when he advised he had a WCB claim due to an injury on November 20, 2019. The physician noted that the worker had not been seeking treatment from his clinic for ongoing issues or for that injury.

The WCB also received an April 9, 2020 report from the worker's treating spine specialist, which indicated that the results from the February 28, 2020 MRI had been reviewed with the worker, and the options of conservative treatment, including pain injections, and surgical intervention in the form of a posterior decompression/discectomy were discussed.

On April 27, 2020, the WCB medical advisor reviewed the worker's file again. The medical advisor opined that the worker's current diagnosis was an L5 radiculopathy from an L4/L5 disc herniation. The advisor noted the medical evidence on file indicated the worker had low back pain radiating to his left leg prior to the November 20, 2019 workplace accident and had sought treatment in August and September 2019 for those symptoms. The medical advisor noted the September 2, 2019 CT scan indicated an L4/L5 disc protrusion, with left-sided nerve impingement. The advisor further noted the worker reported increased pain after the workplace accident, but stated that in her opinion, the mechanism of injury did not involve "…considerable duration, force or repetition so it wouldn't be expected to cause structural injury to the low back or discs."

The WCB medical advisor further opined that the worker may have been vulnerable to an injury due to his pre-existing condition, so the November 20, 2019 accident may have caused a temporary increase in symptoms, but that those symptoms would have been expected to settle gradually over a few months, back to baseline. The advisor opined that given the time that had passed and the treatment to date, any acute effects from the workplace accident should have resolved and ongoing symptoms were more likely related to the natural history of the worker's pre-existing condition. On May 6, 2020, the WCB advised the worker that they had determined his ongoing symptoms were not related to the November 20, 2019 workplace incident, but to his pre-existing back issues, and he was therefore not entitled to benefits beyond May 12, 2020.

On June 29, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that he had initially injured his back in an incident in July 2019, and re-injured it on November 20, 2019. The worker provided a letter from his treating spine specialist which acknowledged the worker's pre-existing back condition but indicated the specialist believed the worker's current disc herniation and L5 radiculopathy were related to the November 20, 2019 workplace accident.

On September 1, 2020, Review Office determined that the worker was not entitled to benefits beyond May 12, 2020. Review Office found that the worker aggravated his pre-existing low back condition on November 20, 2019 and agreed with the WCB medical advisor that the mechanism of injury would not have been expected to cause structural injury to the worker's low back or discs. Review Office found that given the passage of time since the accident and the treatment rendered, the worker was no longer suffering the effects of that aggravation. Review Office therefore concluded that the worker no longer had a loss of earning capacity related to the workplace accident and there was no entitlement to wage loss and medical aid benefits beyond May 12, 2020.

On September 27, 2020, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for June 23, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On March 30, 2022, the appeal panel met to discuss the case further 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 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.

Section 37 of the Act outlines the compensation which is payable to workers, as follows:

Compensation payable 

37 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), 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.

With respect to wage loss eligibility, the 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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: 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: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented, and was accompanied by a family member and provided with the services of an interpreter at the hearing. The worker made a presentation at the hearing, and he and his family member responded to questions from the panel.

The worker's position was that he continued to suffer from the effects of his November 20, 2019 compensable injury beyond May 12, 2020 and is entitled to wage loss and medical aid benefits beyond that date.

The worker disagreed with the WCB's position that his ongoing difficulties after May 12, 2020 were due to a previous injury in July 2019 or pre-existing condition. The worker indicated that the injury he had in July 2019 was minor in nature and he never took any time off work due to that injury. He was able to continue working his regular job duties after the July 2019 injury and to do everything without difficulty or problems. The worker noted he attended two physiotherapy sessions at that time, and felt better after doing so.

The worker submitted that the injury he suffered on November 20, 2019 was a new injury which had nothing to do with his previous injury. He described what happened that day, indicating that as he came out from under the truck, he felt excruciating pain and was unable to stand up or walk. The worker noted there was not much space under the trailer and the truck, and he "actually kind of crawled under and then I crawled out and that's where the problem started." He contacted his employer, who called an ambulance, and he had to be lifted and put in the ambulance and taken to hospital.

The worker submitted that when he was discharged from the hospital, he was told to see his physician, and he arranged to see his family doctor the next day. His family doctor referred him for physiotherapy, but the physiotherapy did not really help. He was also referred to a spine specialist, who ordered an MRI, and recommended surgery based on the results of that MRI.

The worker noted that his treating spine specialist supported his position. He referred to and relied on the June 11, 2020 letter from the treating specialist, in which the specialist stated that she believed the worker's current condition was related to the November 20, 2019 workplace accident and injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after May 12, 2020 in relation to the November 20, 2019 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 beyond May 12, 2020 as a result of the November 20, 2019 workplace accident. For the reasons that follow, the panel is able to make that finding.

The panel notes that there is no dispute that the worker had a pre-existing back condition. The worker confirmed that he suffered a previous injury in July 2019. The CT scan, which was performed in September 2019, also showed that the worker had a "…broad-based left paracentral and juxta-articular disc protrusion at L4-5, impinging on the anterior thecal sac, and the left L5 nerve root."

The worker submitted, however, that the injury which occurred in July 2019 was minor and was not affecting him at the time of his November 20, 2019 workplace accident. Information on file indicated, and the worker confirmed at the hearing, that he did not take time off after the July 2019 injury and had been able to continue with his regular job duties and activities up until the November 20, 2019 workplace accident.

Following the hearing, the panel requested and was provided with chart notes from the walk-in clinic physician. The chart note from August 24, 2019 indicates that the worker had attended the clinic complaining of low back pain for the previous 15 to 20 days going down to the left leg, and a CT scan was ordered. The chart note from the subsequent visit on September 7, 2019 indicated that the CT scan had been reviewed, and physiotherapy was recommended. Subsequent chart notes show that the worker attended the walk-in clinic twice more before the end of November, on October 20 and November 9, 2019, for other unrelated complaints, with no mention being made of back difficulties.

The panel also obtained copies of the reports from the treating physiotherapist, which indicated that the worker attended two physiotherapy sessions, on September 10 and 17, 2019, respectively. The September 17, 2019 report indicated that the worker "…complains of mild aching lower back pain and stiffness. Prolonged sitting and driving makes the lower back stiff. Advised him to perform regular back stretches."

The panel is satisfied that the evidence shows that there was a significant change in the worker's condition and in his ability to move and function following the November 20, 2019 workplace accident. The worker was unable to walk on his own or drive, and was taken to hospital by ambulance. Unlike previously, the worker was unable to continue working after that accident.

The panel is further satisfied, based on our review of all of the evidence which is before us, on file and as presented at the hearing and subsequently in response to requests from the panel, that the worker had not recovered from the effects of his November 20, 2019 workplace accident and injury as at May 12, 2020.

In arriving at that conclusion, the panel is unable to place weight on the April 27, 2020 opinion of the WCB medical advisor that the worker's ongoing symptoms or condition were "…more likely to be related to the natural history of his pre-x condition." The panel acknowledges the medical advisor's comment that the mechanism of injury did not involve "considerable duration, force or repetition so it wouldn't be expected to cause structural injury to the low back or discs."

The panel notes, however, that the medical advisor also indicated that the worker's back was vulnerable to injury due to his pre-existing condition, so the mechanism of injury may have caused a temporary increase in the symptoms. The WCB medical advisor similarly indicated in a May 9, 2020 note to file that the worker had a lower threshold for sustaining an injury to his back because of his pre-existing condition, so the November 20, 2019 accident resulted in an acute exacerbation of his pre-existing condition.

While the WCB medical advisor further indicated in her April 27, 2020 opinion that the worker's symptoms would be expected to settle gradually, back to his baseline, over a few months, and concluded that time and the treatment afforded to date should have resolved any acute effects from the compensable injury, the panel is unable to find that this had actually occurred. In the panel's view, the evidence clearly shows that the worker continued to be unable to work, that his condition had not significantly improved with conservative treatment, and that surgical intervention was being recommended. In the circumstances, the panel is satisfied that the evidence does not support that the worker had returned to baseline or to his pre-accident condition as at May 12, 2020.

Imaging of the worker's lumbar spine was available in this case from before and after the November 20, 2019 accident, in the form of a CT scan and an MRI. A difficulty arose, however, in that these are different modes of imaging which were not considered to be directly comparable.

In her April 27, 2020 opinion, the WCB medical advisor noted the CT showed a disc protrusion and the MRI showed a herniation. The medical advisor went on to state that since these are different modes of imaging, "the results cannot be directly compared so this does not confirm any structural worsening from the C/I [compensable injury]." The panel is of the view, however, that the reverse must also apply in these circumstances, that the MRI did not disprove or contradict any structural worsening from that injury.

The panel places weight on the August 11, 2021 report from the treating spine specialist, which was provided in response to an inquiry from the panel. In that report, the specialist similarly noted that it is difficult to fully compare the structural changes between the CT scan in 2019 and the follow-up MRI. The specialist went on to opine that:

Regardless, there was definite change in his symptoms from 2019 to my assessment with his repeat work injury. He shows evidence of the left paracentral disc at L4-5. Again, as this is a CT scan it is difficult to compare size and overall impingement. We do see repeat injuries causing further disc herniation aggravating his symptoms. Based on the fact that he was doing fairly well prior to his re-injury, I would anticipate there was a definite change. He has also responded very well to surgery.

Ultimately, it is my belief that the repeat injury at work caused further nerve root impingement resulting in him requiring surgical intervention.

The evidence indicates that the worker underwent surgery on July 23, 2020, consisting of a left L4-5 decompression/discectomy. A follow-up report from the treating specialist dated November 18, 2020 indicated that the worker was progressing well, and that while he had yet to find a job, he had been given the "full go ahead without limitations" and no follow up was required. In her August 11, 2021 report, the treating specialist further indicated that the worker had done extremely well following the surgery, with near resolution of his symptoms and return to work. At the hearing, the worker also stated that he is doing fine now, and has been back working since February 2021 and performing his full regular duties.

In the circumstances, the panel is satisfied, on a balance of probabilities, that the worker's injury or change in his condition as a result of his November 20, 2019 workplace accident and injury resulted in surgery being necessary. The panel therefore finds that the worker's injury caused an enhancement of his pre-existing condition, which is compensable.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid beyond May 12, 2020 as a result of the November 20, 2019 workplace accident. The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after May 12, 2020 in relation to the November 20, 2019 accident.

The worker's appeal is granted.

Panel Members

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 26th day of April, 2022