The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility for the worker's lumbar disc herniation should not be accepted as being causally related to the February 3, 2020 accident; and 2. They were not entitled to benefits after July 23, 2020.

A hearing was held on December 8, 2021 to consider the worker's appeal.

Issue

1. Whether or not responsibility for the worker's lumbar disc herniation should be accepted as being causally related to the February 3, 2020 accident; and 

2. Whether or not the worker is entitled to benefits after July 23, 2020.

Decision

1. Responsibility for the worker's lumbar disc herniation should not be accepted as being causally related to the February 3, 2020 accident; and

2. The worker is not entitled to benefits after July 23, 2020.

Background

An Employer's Accident Report filed with the WCB on February 19, 2020 noted the worker injured their lower back from an incident at work on February 3, 2020, reported to the employer on February 14, 2020. The worker reported using a floor scrubbing machine on February 3, 2020 that "…was bouncy, felt off balance" and feeling sore afterward, including when their shift finished. The worker reported feeling sore the following day but completed their shift and did not report any issues to their supervisors although they noted a co-worker was aware they were in pain. On February 5, 2020, the worker advised they woke in a lot of pain and were taken by ambulance to the local hospital. The employer noted the worker advised they had not initially reported the injury as they "…didn't think it was going to be that bad."

In the report from the worker's attendance at the local emergency department on February 5, 2020, received by the WCB on February 19, 2020, the worker is noted to have reported lower right sided back pain that increased throughout the day resulting in the worker not able to get out of bed. Upon examination, the emergency physician noted the worker had tender right paravertebral area, with no midline tenderness and negative straight leg raises. An x-ray taken at the same time indicated normal findings. The treating physician outlined a diagnosis of musculoskeletal strain with possible disc herniation and provided a sick note to February 14, 2020. The worker saw their treating family physician on February 14, 2020 who diagnosed back pain, recommended the worker remain off work until February 27, 2020 and made a referral for a CT scan.

On February 20, 2020, the WCB spoke with the worker regarding their claim and advised the worker they would recommend a graduated return to work on light duties with reduced hours. The worker returned to work on a graduated basis on February 29, 2020. 

The worker’s initial physiotherapy assessment took place on March 3, 2020. At that time, the worker reported pain to their central lower back, down into the sacral area and out into their hips, with difficulty bending and straightening up after prolonged sitting and pain after prolonged standing. The physiotherapist recorded increased tenderness and tightness in the worker's lumbar paraspinals, provided a diagnosis of a lumbar strain and queried a disc injury. A March 22, 2020 CT scan of the worker’s lumbar spine indicated a “moderate-sized central/right paracentral disc herniation, producing slight compression of the thecal sac and contact and displacement of the right S1 root.” 

At follow-up on March 26, 2020, the treating family physician referred the worker to a spine specialist, who assessed the worker on April 9, 2020, noted the imaging indicated a small disc herniation of L5-S1 centrally, and recommended conservative treatment.

A WCB medical advisor reviewed the worker's file on April 9, 2020 and concluded the diagnosis for the worker's injury was a strain, supported by the medical reporting of low back pain with no radicular pain or neurological symptoms. The medical advisor noted a disc injury had been queried but that the clinical findings did not support that a significant disc injury had occurred. The medical advisor reviewed the March 22, 2020 CT scan results, noting the worker did not report pain going down the right leg to their lateral foot, numbness in that same area or weakness of plantar flexion or loss of ankle reflex and as such, "…there is no evidence that the disc changes seen on imaging are symptomatic or related to [the] workplace injury." The WCB advised the worker by letter dated April 21, 2020 that their claim was accepted for a lumbar strain/sprain and that the L4-S1 disc herniation was not accepted.

On May 7, 2020, the worker contacted the WCB to advise of an increase in their symptoms and pain, with difficulty in bending, lifting and reaching, and that their treating physiotherapist recommended a reduction in their hours of work to help with the symptoms. By May 24, 2020, the worker had returned to their full, regular duties. On May 25, 2020, the worker advised the WCB they were accepting another position with the employer with lighter duties and the worker began in the new role on June 15, 2020. On July 17, 2020, the WCB advised the worker it had determined they had recovered from the February 3, 2020 workplace accident and were not entitled to further benefits after July 23, 2020.

The worker's representative submitted new medical information to the WCB on June 11, 2021 and asked the WCB to reconsider the April 21, 2020 and July 17, 2020 decisions. The new information included an April 23, 2021 opinion from the treating spine specialist who opined the worker sustained "…a specific injury in February 2002 (sic). [The worker] presented immediately with back pain to such extent [they] could not move for a few days followed by gradual improvement. The CT scan that was done within a short time after that indicated an acute disc herniation of L5-S1." The specialist also noted the diagnosis of a back sprain provided at the worker's attendance at the hospital was a working diagnosis, pending further investigation. The worker's representative argued that the spine specialist's opinion, along with the medical evidence the worker continued to experience difficulties with their lower back, as evidenced by the worker's application for disability benefits, copies of which were also submitted, indicated the worker required further benefits beyond July 23, 2020.

A WCB medical advisor reviewed the worker's file along with the new medical information on June 28, 2021 and confirmed there would be no change to the earlier opinion that the worker's diagnosis related to the workplace accident was a strain/sprain type injury, noting on review of the medical evidence, "There was no mention of symptoms down the leg or positive SLR (straight leg raise) until May 6, 2020 (ie no evidence of acute disc condition). Radicular symptoms that start three months after a workplace accident are not likely to have been caused by the accident."

On June 29, 2021, the WCB advised the worker's representative there would be no change to the April 21, 2020 decision denying responsibility for a disc herniation in relation to the workplace accident nor to the July 17, 2020 decision the worker was not entitled to benefits after July 23, 2020. The worker's representative requested reconsideration of the WCB's decision to Review Office on July 14, 2021, relying on the information submitted on June 11, 2021, and submitting that the file evidence supported a finding that the worker sustained a disc herniation as a result of the February 3, 2020 workplace accident and continued to suffer the effects of that injury. On August 9, 2021, the employer's representative provided a response in support of the WCB's decision, a copy of which was provided to the worker and their representative on August 12, 2021.

Review Office determined on September 3, 2021 that the worker was not entitled to benefits for a diagnosis of a lumbar disc herniation and the worker was not entitled to benefits after July 23, 2020. Review Office relied on and agreed with the opinion of the WCB's medical advisor that the worker's diagnosis was a strain, consistent with the mechanism of injury and the worker's presentation, with no evidence to support an acute injury to a disc in the worker's lower back. Further, Review Office agreed that after July 23, 2020, the worker's strain injury was no longer contributing to their loss of earning capacity, and the worker was not entitled to further benefits.

The worker's representative filed an appeal with the Appeal Commission on September 7, 2021 and a videoconference hearing was arranged for December 8, 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 interested parties for comment. On April 21, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation 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 union representative who made an oral submission on behalf of the worker and relied as well upon the November 30, 2020 written submission provided in advance of the hearing. The worker offered testimony in response to questions posed to them by their representative and by members of the hearing panel. The worker’s representative also provided a further written submission dated April 4, 2022 in response to the additional information obtained by the appeal panel following the hearing.

The worker’s position, as outlined by their representative, is that the evidence supports a finding that as a result of the compensable workplace accident of February 3, 2020, the worker sustained an injury to their back that was more significant than the accepted diagnosis of a low back sprain/strain injury and resulted in the herniation of the worker’s lumbar disc as identified in the MRI study of March 22, 2020. Alternatively, the worker’s advocate submitted that if the panel finds that the lumbar disc herniation was a pre-existing injury, the evidence supports a finding that this condition was aggravated or enhanced as a result of the workplace accident and therefore is compensable. Further, the evidence also supports a finding that the worker was not recovered from the workplace injury by July 23, 2020 but continued to require medical aid to address the effects of that injury beyond that date and continued to experience a loss of earning capacity beyond that date. Therefore, the worker’s appeal should be granted, and the panel should determine that the WCB should accept responsibility for the worker’s lumbar disc herniation as being causally related to the accident of February 3, 2020 and that the worker is entitled to benefits after July 23, 2020.

The worker’s representative submitted that the evidence of the treating spine specialist supports a causal link between the injury sustained in the workplace accident and the March 2020 MRI finding of a herniated lumbar disc, and that this evidence is further supported by the reporting of the emergency room physician of February 5, 2020 and of the treating physiotherapist of March 5, 2020, both of whom indicated a suspicion of disc herniation on first assessment of the worker. This evidence supports a finding, on a balance of probabilities, that the disc herniation was likely the cause of the worker’s low back pain and was caused by the workplace incident.

The worker’s representative noted the worker’s disagreement with the interpretation of the evidence by Review Office. Specifically, the representative submitted that although the worker did have a prior episode of back pain, noted in the medical history as sciatica, this occurred on July 28, 2016 and required no further treatment until after the compensable injury that occurred on February 3, 2020. In answer to questions from the representative, the worker advised the panel that the prior low back pain episode occurred when bending to put on socks and did not compare in severity to the present injury, noting that the symptoms soon went away after initially seeking treatment.

The worker’s representative further submitted that the evidence indicates that although the worker returned to modified duties and was making progress toward recovery prior to July 2020, the evidence also confirms that the worker experienced increased symptoms as a result of the job duties undertaken upon their return to work such that the worker determined in late May 2020 to take a less physically demanding position in another department. The evidence supports a finding that the worker’s return to work aggravated their compensable low back injury and prevented recovery. 

In answer to questions posed by the representative, the worker described to the panel the mechanism of injury on February 3, 2020, noting that they had several years of prior experience using the floor polisher, but on that date had just returned to that position after doing another job for a period. The worker indicated that the machine was bouncing on the floor, and they needed to apply pressure with their arms to maintain balance and even coverage despite an uneven floor. In response to panel member questioning, the worker elaborated upon their duties that day, noting that they used the machine in a sweeping motion from side to side, twisting their back to get an even result. The worker again noted that the floor was not flat but was “bubbly”.

The worker described to the panel that on the date of the accident, they felt very mild low back pain or discomfort which they attributed to being unaccustomed to the work. They recalled taking an over-the-counter pain relief medication before going to bed that night and again on waking the next morning as they had some pain. On February 4, 2020, the worker completed their regular duties, with increasing pain through the day. The worker testified that a colleague noted their discomfort and asked about it. The worker stated they did not usually complain about pain and thought it would go away. That night the worker again took pain medication before going to bed. On waking on February 5, 2020, the worker was unable to stand up due to the pain, which they described to the panel as “super painful” and “horrible.” The worker was scheduled to write an exam that morning but could not do so due to their pain and stayed home through the day, laying on the floor, until they sought emergency medical care that evening.

The worker described their return to work as painful and requiring that they pay attention to how they move. The worker indicated they returned to a position as an extra, not to their full job duties and that bending, twisting or squatting would cause pain. The worker indicated that the pain was never completely gone. The worker subsequently worked in a two-person team, in which their co-worker was to do the heavier work, and the worker noted they pushed themselves more in this role, although still working within their restrictions. Their symptoms worsened in April and the worker described feeling like they were hitting their limit. When a position became available in another department with lighter work duties, the worker applied and took on a new role in June 2020,

The worker also described to the panel an incident resulting in an increase in symptoms in October 2020 that occurred when the worker was washing their car at a wand wash. The worker noted it hurt when they bent over to wash the vehicle holding the broom wand and they could hardly finish the task. Afterward, the worker went home in pain and took a prescription pain relief medication before seeking treatment at the emergency department. The worker described their symptoms on this occasion as the same kind of pain as was caused by the workplace injury, but more pain, sharper and radiating to their leg. After this event the worker was off work until June 2021. The worker’s representative described this event as an exacerbation of the worker’s continuing injury, sustained on February 3, 2020.

The worker noted that they continue to live with back pain, at a level of 2 or 3 out of 10, depending on their activities and continue to rely on pain relief medications. In response to questions from panel members, the worker testified to their desire to get back to normal activity and function, noting they still are unable to do what they could before the accident.

In the written submission of April 4, 2022, the worker’s representative argued that the additional medical evidence supports the worker’s “entitlement to wage loss and medical aid benefits beyond July 23, 2020 as it demonstrates that [the worker] continued to suffer ongoing effects of [their] compensable low back injury.” Specifically, the chart notes from the treating physiotherapist support a finding that the worker benefit from physiotherapy with a reduction in their low back symptoms which were repeatedly exacerbated by the physical demands of the worker’s job duties during their gradual return to work. Further, the treating physiotherapist’s chart notes confirm that the worker was discharged due to the WCB’s discontinuance of benefits while the worker still had “some symptoms consistent with lumbar disc injury.” The subsequent physiotherapy treatment records, from May 2021 onward, further confirm that the worker continued to experience persistent low back pain with demonstrated nerve root irritation, which the worker’s representative argued was consistent with the injury the worker sustained in February 2020, and that the worker was not capable of returning to their pre-accident level of function until August 2021.

In sum, the worker’s position is that but for the workplace accident and compensable injury sustained in that accident, the worker would not have had persistent low back pain that required medical intervention and resulted in a loss of earning capacity beyond July 23, 2020. The evidence, on balance, supports a finding that the worker sustained a disc herniation as a result of the workplace accident and that the effects of that injury continued beyond July 23, 2020, or that, alternatively, if the herniation is found to be a pre-existing condition, the evidence supports that this condition was made worse by the workplace accident with the combined effect of the pre-existing condition and exacerbation causing the worker to sustain a continued loss of earning capacity and need for medical aid beyond July 23, 2020. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and who provided a written submission dated March 31, 2022 in response to the additional information obtained by the appeal panel following the hearing.

The employer’s advocate outlined the employer’s position that there is no evidence to support a finding that the worker’s lumbar disc herniation is causally related to the workplace accident of February 3, 2020 and further that the worker is not entitled to benefits after July 23, 2020 as the evidence supports a finding that the compensable low back strain injury was resolved by that date. The employer’s advocate submitted that the medical reporting supports a finding that the worker sustained only a low back strain injury as a result of the operation of their cleaning equipment on February 3, 2020, noting that there is no evidence of any specific event that caused the worker’s injury but that the worker reported feeling pain after engaging in their job activities.

The advocate further noted the April 12, 2020 and June 28, 2021 opinions of the WCB medical advisor that the diagnosis of a strain injury is most consistent with the reported mechanism of injury and the worker’s presentation after the injury occurred. There is no clinical evidence of radicular symptoms until some three months later, suggesting there is no causal relationship between those symptoms and the workplace event. The advocate pointed to evidence that the worker had a significant pre-existing back condition, which resulted in an emergency room attendance in July 2016, and submitted that the evidence of a flareup of symptoms in October 2020 as a result of a non-compensable event further supports the employer’s position that the worker has a pre-existing and non-compensable degenerative back and disc condition that results in periodic symptomatic flare-ups.

In their written submission of March 31, 2022, the employer’s advocate stated that the whole of the evidence, including the information obtained by the appeal panel subsequent to the hearing, demonstrates that the worker sustained “a fairly straight forward back strain as a result of the accepted compensable injury. A basic back strain typically resolves completely within a few weeks post-accident and the medical evidence on file shows that this was the case for [the worker]. Furthermore, the medical evidence indicates that [the worker’s] disc-related issues were not caused by this workplace accident.”

In sum, the employer’s position is that the worker’s appeal should be denied as the evidence does not support a cause-and-effect relationship between the workplace accident and the disc condition and does support that the worker was recovered from the effects of the workplace accident by July 23, 2020.

Analysis

There are two questions on appeal. The panel must determine whether the worker’s lumbar disc herniation should be accepted as being causally related to the February 3, 2020 accident, and whether the worker is entitled further benefits after July 23, 2020 in relation to that accident. For the panel to grant the worker’s appeal we would have to determine that the worker’s lumbar disc herniation was caused by the compensable accident or that it was a pre-existing condition aggravated or enhanced by the injury sustained in the accident, and further, that the worker required further medical aid or sustained a loss of earning capacity beyond July 23, 2020 related to the compensable injury. As outlined in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied on both questions.

The panel considered the evidence as to the mechanism of injury, noting that the accident occurred on the worker’s first day of work but doing a job the worker had previously done and was experienced in. Although the worker attributed their low back injury and the subsequently identified herniated lumbar disc to the use of the floor cleaning machine on that day, the panel is not satisfied that the mechanism of injury described, and the medical reporting from the time most proximate to the injury support that position.

The first medical reporting with respect to the worker’s injury is from the emergency department record of February 5, 2020 which indicates an onset of low back pain on February 4, 2020, that significantly increased with movement and some radiation into the right leg when moving. The chart notes indicate no sciatica, negative bilateral straight leg raise testing and normal neurological findings. Diagnostic x-ray imaging revealed a normal lumbar spine. At the time of discharge the worker was able to walk down the hall with no issues and was instructed to return if their pain increased or were unable to ambulate or experienced neurological symptoms. The worker next followed up with their own family physician on February 14, 2020 at which time the physician noted a diagnosis of “back pain” and did not note any other concerns.

The initial physiotherapy assessment of March 3, 2020 noted a diagnosis of lumbar strain, with a query as to a disc injury. Objective findings included limited lumbar range of motion and strength, with normal neurological testing and lumbar pain noted on straight leg raise at 60 degrees on the left leg and 70 degrees on the right. The physiotherapist also recommended a return to modified duties noting the worker’s ability to walk, stand and sit with position changes as needed, and restrictions as to repetitive and sustained bending or twisting. By March 18, 2020, after 3 physiotherapy sessions, the physiotherapist reported improved lumbar range of motion with continuing lumbar discomfort on bilateral straight leg raise to 70 degrees and the worker’s report of decreased intensity of pain, with some pain out into their hips.

The CT of the worker’s lumbar spine of March 22, 2020 indicated normal findings to the L3 level, a “mild disc bulge” and minor facet arthropathy at L3-L4, and a “moderate-sized central/right paracentral disc herniation, producing slight compression of the thecal sac and contact and displacement of the right S1 root” as well as minor facet arthropathy at L4-S1. The treating family physician referred the worker to a spine specialist on March 30, 2020 noting the worker’s reports of “ongoing back pain since the beginning of February 2020” and that the initial diagnostics showed nothing concerning although the CT imaging did note some issues. The spine specialist assessed the worker virtually on April 9, 2020 with reference to the CT scan and indicated to the worker that they should continue with work, taking precautions including use of a back brace and that the likelihood of recovery was 80% or greater.

Physiotherapy chart notes from April 9, 2020 indicate the worker’s report that they were managing well, and that the worker did not appear to be having neurological symptoms, with low back pain “largely staying manageable” and on April 14, 2020, the worker reported the pain was better overall. The WCB medical advisor reviewed the file on April 12, 2020 including the CT scan results, and noted that the claim was accepted for a strain injury which was

“…consistent with the report of pain being in the low back, no mention of radicular pain or mention of neurological symptoms, no radicular pain with [straight leg raise] and normal neurological exam. The [diagnosis] of a disc injury has been queried, but given the clinical findings, the [diagnosis] of a significant disc injury cannot be confirmed. [The worker] had a CT which showed a disc herniation at L4S1 that could contact the right S1. Such findings can be seen on imaging and be asymptomatic. Since [the worker] has not reported pain going down the right leg to the lateral foot, numbness in that same distribution, or been noted to have weakness of plantar flexion or loss of the ankle reflex, there is no evidence that the disc changes seen on imaging are symptomatic or related to [their] workplace injury.”

The May 6, 2020 physiotherapy chart notes indicated an increase in symptoms that the worker related to an increasing workload. The physiotherapist reported to the WCB on May 7, 2020 noting a new diagnosis of disc herniation with findings of normal neurological testing and positive bilateral straight leg raise testing and recommended the worker continue to work with restrictions and a gradual increase from 6 hour shifts to 8 hours by the end of May. Beginning with the May 7, 2020 report and continuing into July, 2020, the physiotherapist charted clinical findings that are likely indicative of a disc injury as noted by the WCB medical advisor, including pain going down the right leg into the thigh and foot, numbness in the foot and positive straight leg raise testing. The physiotherapist’s chart notes record that some of these symptoms continued through to July with varying intensity depending upon the worker’s activities and that other low back symptoms, including intermittent centralized pain that radiated around the worker’s hips also continued into July. The July 22, 2020 physiotherapy discharge report noted normal neurological testing and negative straight leg raise with continued intermittent central low back pain that can wrap around both hips, worse with bending, lifting and some difficulty with quick movement and walking pace when symptoms are present.

On reviewing the medical reporting and clinical finding, the panel agrees with the opinions provided by the WCB medical advisor that the clinical findings near in time to the injury support a determination that the worker sustained a low back strain/sprain type of injury but do not support a determination that the worker sustained a disc injury at that time. When the WCB medical advisor again reviewed the available medical information on June 28, 2021, they concluded there was no evidence to support a causal relationship between the workplace injury of February 3, 2020 and the worker’s lumbar disc herniation:

“There was no mention of symptoms down the leg or positive [straight leg raise] until May 6, 2020 (ie no evidence of acute disc condition). Radicular symptoms that start three months after a workplace accident are not likely to have been caused by the accident. Clinical information up to that time was more supportive of non-specific back pain (meaning no identifiable structural abnormality to account for the symptoms). If such a presentation occurs after an abnormal force to the low back, it would be the clinical equivalent to a strain/sprain injury….”

The panel did note that the treating spine specialist came to another conclusion, after assessing the worker virtually on April 9, 2020 and again in person on March 29, 2021; however, the panel also noted that the specialist’s opinion is not based upon a full review of the file evidence and as a result, relies heavily on the subjective reporting from the worker. Further, the panel noted the initial history taken by the spine specialist in April 2020 indicated that this was the worker’s first episode of back pain, while the medical records confirm the worker had a prior history of low back pain and the worker confirmed this in their evidence. As such, the panel finds that the spine specialist did not have a complete picture of the worker’s history and prior medical reporting and therefore we give less weight to the opinions provided by the specialist as to causation and relationship between the compensable workplace injury and the worker’s ongoing low back condition.

Although there is a disc protrusion at L4-S1 noted on the March 22, 2020 CT imaging, there is no evidence of clinical correlation of neurological findings or signs proximate to the date of the accident. In fact, such findings are not noted in the medical reporting until the physiotherapy report of May 6, 2020. A delay of some three months from the date of injury to the reporting of symptoms that relate to disc protrusion suggests that the disc protrusion was not likely caused by the compensable workplace accident, nor that it was directly impacted by the workplace event. Otherwise, such findings would have been expected to be noted sooner. The CT imaging results of themselves do not necessarily imply the presence of symptoms or disability and in this case, lack the required clinical correlation as noted by the WCB medical advisor.

The panel finds that the evidence does not, on the standard of a balance of probabilities, support the worker’s position that the disc protrusion at L4-S1 was caused by the workplace injury. We find that it is more likely than not that the disc protrusion was a pre-existing condition, which was not caused by the worker’s job activities on February 3, 2020.

The panel also considered the alternate position put forward by the worker’s representative, that if the disc herniation was a pre-existing condition, it was altered or affected by the compensable injury such that the worker experienced an aggravation or enhancement of the disc herniation as a result of the workplace accident. The panel finds there is no evidence to support that position. Although the worker ultimately reported continuing symptoms that likely relate to the disc injury, there was a significant period between the date of the accident and the onset of those symptoms. Further, the worker’s medical records confirm that they previously experienced an episode of lumbar disc symptoms and that they experienced another such episode in October 2020. The panel finds this pattern of sudden and episodic increase in symptoms and disability to be consistent with a lumbar disc herniation, but this does not mean that the herniation was aggravated or enhanced by the worker’s low back strain injury particularly where there is a significant lag between the injury and the appearance of those symptoms. On the basis of the evidence before the panel, we are satisfied, on the standard of a balance of probabilities, that the compensable injury did not cause or result in any aggravation or enhancement of the worker’s pre-existing L4-S1 disc injury.

The panel also considered whether the evidence supports a determination that the worker was entitled to further benefits after July 23, 2020. The panel noted that the WCB decision of July 17, 2020 considered the physiotherapist’s reporting to July 13, 2020 which recommended a return to work without restrictions after July 31, 2020. The panel considered that the physiotherapist’s final report of July 22, 2020 noted improvement in the worker’s symptoms by that date, although the worker continued to experience intermittent central low back pain that wrapped around both hips and worsened with bending and lifting and caused the worker some difficulty with quick movement and walking pace when those symptoms are present. Further, the physiotherapist described the worker’s ongoing symptoms as intermittent and mild, and “consistent with lumbar disc injury.”

Although the WCB adjudicator noted a typical recovery period for low back strain-type injury of 2-3 months, where such an injury occurs in an environment of a pre-existing disc herniation as is the case here, it is possible that the pre-existing condition could complicate and prolong recovery beyond typical norms. As the medical reporting indicates here, by late July 2020, more than 5 ½ months post-accident, the worker’s low back symptoms were largely resolved, any lingering symptoms were related to the lumbar disc injury, and the worker was cleared for a full return to work as of the end of the month.

On this basis and on a standard of a balance of probabilities, the panel is satisfied that the evidence supports a determination that the worker was no longer entitled to WCB benefits after July 23, 2020. There is no evidence of any continuing loss of earning capacity relate to the compensable low back strain and there is no ongoing need for medical aid to provide relief from that injury.

Therefore, the panel determines that responsibility for the worker’s lumbar disc herniation should not be accepted as being causally related to the February 3, 2020 accident and that the worker is not entitled to benefits after July 23, 2020.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of May, 2022