The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits beyond April 3, 2021. A teleconference hearing was held on April 13, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits beyond April 3, 2021.

Decision

The worker is not entitled to benefits beyond April 3, 2021.

Background

The WCB received an Employer’s Accident Report on November 13, 2020, indicating that on November 11, 2020, the worker injured their neck, lower back and shoulders when they tripped and fell over a barrier on entering the workplace that day. The employer confirmed they offered modified duties to the worker but the treating “…physician would not approve”. The employer submitted a Functional Abilities Form (FAF) dated November 13, 2020 from the worker’s treating family physician noting the worker was unable to work.

The worker had a virtual visit with their family physician on November 11, 2020 and a follow-up virtual visit on November 17, 2020. The treating family physician diagnosed a “backache” with a query as to back strain and recommended the worker remain off work.

On November 19, 2020, the worker confirmed to the WCB that on November 11, 2020, while attempting to enter their workplace, their foot got tangled up in some tape and they tripped, landing on their back, and hitting their buttocks, back and head on the ground. The worker reported they did not lose consciousness but experienced a headache and a stiff neck after the incident. The worker confirmed they worked their full four-hour shift that day. The WCB accepted the worker’s claim and initiated payment of benefits.

When the WCB contacted the worker for a status update on December 1, 2020, the worker reported increased symptoms, including headaches, and always feeling nauseated, not sleeping and pain in their neck and lower back that woke them up at night. The worker reported their pain level as 8/10 in their tailbone area and neck and also reported difficulty with the activities of daily living.

On December 1, 2020, a WCB medical advisor reviewed the worker’s file and provided an opinion that the reported mechanism of injury was consistent with a diagnosis of a back strain, as provided for by the worker’s treating family physician. The medical advisor noted the natural history for recovery of strain injuries was for a gradual recovery over a period of a few days to a few weeks and the degree of the worker’s reported symptoms and functional limitations at that time were greater than would be expected from a strain injury. When the WCB medical advisor contacted the worker’s treating physician on December 4, 2020 to discuss the claim, the treating physician confirmed they had only conducted virtual assessments of the worker due to the Covid-19 pandemic and that the worker reported “…considerable symptoms and functional limitations…”. The treating physician further noted their belief the worker would be unable to perform their job duties for their regular four-hour shifts. The WCB medical advisor advised the worker’s physician that the employer had modified duties available and that a trial of those duties would be considered safe and appropriate. The medical advisor and treating physician agreed physiotherapy treatment would also be helpful.

On December 4, 2020, the WCB advised the employer of the worker’s restrictions as follows: sedentary duties (limited standing or walking to an occasional basis); no stairs or ladder climbing; no heavy lifting or push/pull greater than two pounds; avoid repetitive or sustained bent, flexed, or stooped postures; allow opportunity to change position and stretch as required; and maximum four-hour shifts. The employer confirmed they could accommodate the worker within those restrictions and arrangements were made for the worker to return to work on December 12, 2020.

The worker contacted the WCB on December 11, 2020 and advised they would not be participating in the return to work on December 12, 2020 on the recommendation of their treating physiotherapist. The physiotherapy initial assessment report for December 11, 2020 indicated they had only assessed the worker once and it was difficult to determine if the worker was fit for modified duties as they were “…too guarded, mobility/function very limited and pain focused.”

The worker had a further follow-up virtual appointment with the treating family physician on December 18, 2020, who referred the worker for a spinal x-ray, and recommended they remain off work until January 4, 2021. The x-ray of December 31, 2020 revealed degenerative changes in the worker’s cervical spine at C5-6 and C6-7 and mild osteoarthritic changes in the lower-level facet joints of their lumbar spine.

On January 19, 2021, the WCB physiotherapy consultant discussed the worker’s treatment with the treating physiotherapist and followed-up by letter of the same date, outlining that discussion of the worker’s pre-existing conditions, along with the length and frequency of treatment, that the worker “poorly tolerated” manual therapy and exercises, and that psychosocial issues and pain focus were a barrier to functional recovery. The WCB determined there was benefit to a return to work with restrictions of: sedentary work with a five pound lifting maximum; work within the body envelope; ability to change position as needed; and two-hour shifts to start.

On January 21, 2021, the employer advised the WCB they could not accommodate the worker within those restrictions. Due to the worker’s continued report of symptoms with an unknown cause, the treating family physician referred the worker for an MRI of their lumbar spine and to a sports medicine physician for a second opinion on February 1, 2021. On the same date, the worker’s treating physiotherapist advised the WCB there had been no improvement in the worker’s symptoms and requested advice as to whether or not the treatment should continue. The WCB case manager discussed this request with the WCB physiotherapy consultant and determined not to approve further physiotherapy treatment as there was no sustained benefit to the worker.

At the request of the WCB, the worker attended for a call-in examination on February 12, 2021 with a WCB medical advisor, who outlined their opinion in a memorandum dated February 25, 2021. The WCB medical advisor opined that the worker’s reported symptoms were out of proportion to the nature and severity of their compensable injury, being a lumbar strain and contusion, which likely resolved “…some weeks ago.” The medical advisor recommended the worker start a graduated return to work plan, initially at two-hour shifts, progressing by one hour on a weekly basis, with the worker being allowed to change positions and stretch as required and avoiding heavy lifting greater than 10 pounds. The WCB medical advisor later added to their report that the worker had, subsequent to the call-in examination, seen a sport medicine physician who proposed a diagnosis of lumbar discogenic pain with some mechanical cervical thoracic discomfort and recommended the worker remain off work for a further two weeks while carrying out further home exercises. The WCB medical advisor opined that this diagnosis was speculative. Noting the worker reported the home exercises provided by the treating physiotherapist were ineffective in improving their symptoms, the medical advisor stated that the recommended additional two weeks of home exercises would not result in a substantial improvement in the worker’s condition and there was no reason to further delay the worker’s return to work on a graduated basis.

A return-to-work plan was developed in conjunction with the employer and on March 2, 2021, the WCB advised the worker that the plan would commence on March 6, 2021, at 2 hours per shift, increasing by 1 hour per shift each week until they were back to their full regular hours. The WCB also advised the worker that their entitlement to benefits would end on returning to their full regular hours as the WCB was unable to establish a relationship between their current difficulties and the November 11, 2020 workplace accident.

On March 26, 2021, the treating sport medicine physician recommended the worker go off work due to an increase of symptoms and referred the worker for a CT scan. On April 6, 2021, the treating sport medicine physician provided a further note placing the worker off work until April 30, 2021. At follow-up with their treating family physician, the worker was provided with further time off work until May 30, 2021.

A WCB medical advisor again reviewed the worker’s file on May 19, 2021 and concluded there were no medical findings to account for the worker’s current degree of symptoms and perceived functional limitations and that the graduated return to work plan previously outlined was appropriate, with the treating sports medicine physician recommending a similar schedule.

The May 20, 2021 MRI study of the worker’s lumbar spine noted “No acute process.” The WCB medical advisor reviewed the findings and noted the study indicated “…no concerning findings and no evidence of an acute injury or process arising from effects of the ci (compensable injury).” On May 27, 2021, the WCB advised the worker there would be no change to the earlier decision their entitlement to benefits would end as of the end date of the graduated return to work plan, being April 3, 2021.

The worker requested reconsideration of the WCB’s decision to Review Office on June 30, 2021, noting they had not recovered from the November 11, 2020 workplace accident and continued to experience difficulties. On July 28, 2021, Review Office upheld the WCB’s decision that the worker was not entitled to further benefits beyond April 3, 2021, accepting the opinion of the WCB medical advisor that the worker had sustained a minor strain injury as a result of the workplace accident, which injury resolved within a short duration.

The worker filed an appeal with the Appeal Commission on December 20, 2021. A teleconference hearing was arranged for April 13, 2022.

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 on their own behalf, supported by their spouse. The worker provided an oral submission to the panel and answered questions posed to them by members of the appeal panel. The worker’s spouse provided testimony in support of the worker’s position and through answers provided to questions posed to them by the panel.

The worker’s position is that they should be entitled to benefits beyond April 3, 2021 as they continue to experience symptoms related to the compensable workplace injury and to seek ongoing treatment of that injury. Further, the worker has not been able to return to work as a result of the injury and should be entitled to benefits in relation to their loss of earning capacity.

The worker described to the panel how the workplace accident occurred. They testified that prior to the workplace accident they never had back pain or difficulty standing, although they had prior issues with their knees and hands. The worker indicated that their symptoms remain consistent and that they continue to require help with dressing and bathing. The worker described experiencing unbearable back spasms and noted that their injury has also affected their sleep patterns resulting in sleep deprivation. The worker indicated they continue to see the sport medicine physician monthly and remain confident that the injury will heal.

In response to questions posed by panel members, the worker testified that their symptoms have, since the injury, worsened and have never improved. The worker testified that their injury is disruptive of their everyday living. The worker indicated that they take pain medication daily, 6-8 tablets and sometimes more when more active; whereas, prior to this injury they took 5 tablets daily to address issues related to other pre-existing, non-compensable health conditions.

The worker confirmed attending for physiotherapy treatment for approximately three months after the injury and that they wanted to continue, although they felt sore after treatment. The worker indicated that they did the recommended home exercises, noting that after about five minutes, they are not able to continue. The worker also described experiencing headaches and neck pain since the fall which are worsened by exercise. They described their back pain as spasms that radiate down into the left thigh.

The worker’s spouse testified that they witnessed the worker’s accident, having just dropped the worker off at work. The spouse also testified to the difficulty the worker has in completing household tasks due to their pain. They noted the worker was never like this before their fall in November 2020 and that the worker was previously active and loved going to work.

In sum, the worker’s position is that they have not yet recovered from the injury sustained on November 11, 2020 and continue to experience a loss of earning capacity and require ongoing medical aid arising from the injury sustained in that fall. Therefore, the worker should be entitled to benefits beyond April 3, 2021.

Employer’s Position

The employer was represented in the hearing by an abilities specialist who provided an oral submission on behalf of the employer and also provided a written submission dated April 6, 2022 in advance of the hearing.

The employer’s position is that the worker is not entitled to benefits beyond April 3, 2021 as the medical evidence supports a finding that the worker’s continuing symptoms and disability beyond that date are not causally related to the workplace injury sustained on November 11, 2020.

The employer’s representative acknowledged that recovery norms are variable and that not all injured persons will recover at the same rate but noted the WCB medical advisor’s opinion of February 12, 2021 indicated a normal recovery for the injury sustained by the worker of up to 6 weeks. They pointed out that the medical reporting does not indicate any significant injuries arising out of the workplace accident, noting that the worker was able to work their entire shift after the injury occurred.

The employer’s representative further noted that the diagnostic CT scan results of March 29, 2021 and the MRI study of May 20, 2021 confirm both that there was no acute traumatic injury, and that the worker had a pre-existing multilevel degenerative disc condition that would not relate to the workplace injury. The employer’s position is that the worker’s continuing symptomology is not related to the compensable injury and is more likely to be related to this pre-existing condition.

In sum, the employer’s position is that the worker is not entitled to benefits beyond April 3, 2021 as the evidence does not support a finding that the worker’s back condition beyond that date was causally related to the workplace accident of November 11, 2020.

Analysis

The question for the panel to determine in this appeal is whether the worker is entitled to benefits beyond April 3, 2021. For the worker’s appeal to succeed, the panel would have to determine that as a result of the injury sustained in the workplace accident of November 11, 2020, the worker continued to require medical aid or to sustain a loss of earning capacity beyond April 3, 2021. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel reviewed the evidence as to how the injury occurred on November 11, 2020 noting the testimony of the worker and their spouse, as well as the reporting by the employer in this regard. It is clear that the worker’s foot got tangled in caution tape as they tried to step over it and as a result the worker fell to the ground landing on their back and buttocks. The worker described to the panel remaining in that position for a bit until a colleague helped them to their feet. The worker said they were shaken by the fall and walked upstairs and sat down a bit before working their usual 4-hour shift.

The medical reporting confirms the worker’s treating family physician assessed the worker in a virtual visit on November 17, 2020 and based on the worker’s report, queried a back strain injury, recommending the worker rest and stretch when they could do so. When the WCB medical advisor reviewed the worker’s file on December 1, 2020, they agreed that the mechanism of injury was consistent with the family physician’s diagnosis of back strain and suggested that recovery should occur in 2-6 weeks, but noted that the worker’s reported degree of symptoms and functional limitations were greater than would be expected with a strain injury.

The treating family physician noted on December 4, 2020 that the worker was reporting worsening symptoms, plus headache and nausea, with neck stiffness and arm pain as well. On reviewing this report, the WCB medical advisor spoke with the treating family physician on December 4, 2020 and suggested that light duties would be safe and appropriate, and that physiotherapy might also be helpful to the worker’s recovery. The medical advisor on the same date also outlined restrictions for a potential return to light duties.

On assessment for physiotherapy on December 11, 2020, the physiotherapist noted the worker was very guarded in their movement and that the report of multiple areas of injury made it difficult to provide a diagnosis. The physiotherapist provided a “likely” diagnosis of whiplash associated disorder, bilateral rotator cuff tendinopathies and bruised tailbone, but noted as well that it was “Difficult for me to judge if [the worker] could return to work at modified duties. It would appear not, too guarded. Mobility and function very limited. Pain focused.”

The worker continued to seek medical care and attend physiotherapy into January 2021, with ongoing complaints of significant back pain and headache. The physiotherapist reported to the WCB on January 12, 2021 that the recovery was not satisfactory, and that the worker remained pain focused. On January 18, 2021 the treating family physician reported “I am not certain why [the worker] is still in so much pain. I encourage [them] to move around more as pain does not equal more injury.” On January 19, 2021 the WCB physiotherapy advisor spoke with the treating physiotherapist, noting the physiotherapist’s report that the worker was poorly tolerating manual therapy and exercises and that psychosocial issues and pain focus were a barrier to the worker’s functional recovery. The WCB physiotherapy advisor confirmed that if there was no evidence of sustained benefit in terms of changes in pain or function, physiotherapy would be discontinued. Soon thereafter, physiotherapy was discontinued as there was no evidence of benefit to the worker.

On February 2, 2021 the worker’s treating family physician again reported a lack of improvement in the worker’s symptoms and indicated that they were making referrals to a sport medicine physician and for an MRI study.

A WCB medical advisor examined the worker on February 12, 2021 and provided an opinion that:

“The reported mechanism of injury involving a fall as reported would account for a degree of lumbar strain and contusion. [The worker’s] demonstrated ability to get up from the injury and proceed to carry out [their] regular duties spent standing for a further four hours immediately following are not consistent with the presence of a significant injury….The subsequent reported symptoms…have been out of proportion to the nature and severity of the injury….Based on the examination today there is no evidence of any more significant injuries resulting from the Nov 11 2020 incident. The examination today was notable for report of diffuse soft tissue pain inconsistent with the presence of significant discrete structural pathology. A significant degree of fear of movement and re-injury was apparent….Based on my assessment today, to the extent that there was a strain/contusion injury, there is no evidence that this continues to be a significant issue and it is likely that the injury resolved some weeks ago. The degree of reported symptoms is no longer accounted for in relation to effect of the compensable injury.”

The worker was assessed by a sport medicine physician on February 18, 2021 who concluded that the worker “…appears to have persistent lumbar discogenic pain as well as some mechanical cervical thoracic discomfort. This seems to be in relationship to a slip and fall from work but unfortunately [their] recovery has been delayed.

The WCB medical advisor provided a further opinion in response to the sport medicine physician’s report noting that diagnosis was speculative, and that the worker’s current presentation was not indicative of a delayed recovery but of a “constellation of symptoms and perceived functional limitations that cannot reasonably be accounted for in continued relation to effects of the compensable injury of over three months ago.”

The worker continued to attend for treatment by the sport medicine physician, who on March 2, 2021 recommend the worker begin a gradual return to work for two-hour shifts initially. With the return to work, the worker’s reported symptoms increased. On April 1, 2021 the worker reported consistent pain levels with no leg symptoms. The treating sport medicine physician recorded findings of diffuse spinal and paraspinal pain, tender S1 and L5 bilaterally, pain limited weakness to hip flexion and knee extension and limited spinal range of motion, and proposed a new diagnosis of L5/S1 disc protrusion and S1 joint sprain based on the clinical findings and CT scan results.

The WCB medical advisor again reviewed the worker’s file on May 19, 2021 and concluded that a relationship between the recent CT scan findings and the worker’s current reported symptoms, functional limitations or effects of the compensable injury “would be considered speculative and unlikely.” The medical advisor did note that the presence of “pre-existing age-related disc degeneration may have contributed to a degree of delay in recovery” from the compensable injury but at more than 6 months post-injury, the worker’s current presentation could no longer be accounted for as related to the compensable injury. The medical advisor again recommended the worker return to full duties on a graduated return to work basis, as proposed in March.

The panel noted that subsequently and even on the date of the hearing, the worker continued to report no change to their pain nor to their sleep quality, and a limited ability to stand or walk for more than 5 minutes.

The panel also noted the absence of any diagnostic imaging findings in relation to traumatic injury to the worker’s back. The December 21, 2020 x-ray revealed no fractures, but did indicate degenerative disc space changes from C5 – C7 with facet osteoarthritic changes throughout the cervical spine and mild osteoarthritic changes in the lower lumbar region. The Lumbar spine CT scan of March 29, 2021 indicated moderate facet joint arthropathy from L1 through to L5, with shallow posterior disc bulging at L2-L3, L3-L4 and posterior disc bulging at L4-L5 and L5-S1 levels. The May 20, 2021 MRI study of the worker’s thoracic and lumbar spine regions indicated no acute process or ligamentous injuries, no significant thoracic spine abnormalities, and some disc bulging at multiple levels of the lumbar spine with facet arthropathy at the lower lumbar vertebrae.

The panel considered the October 20, 2021 opinion of the treating sport medicine physician, provided in response to questions posed by the worker’s then representative and provided to the Appeal Commission by the worker on December 20, 2021, that:

“I would consider [the worker’s] May 20, 2021 MRI consistent with [their] age and does not provide objective evidence of a causal relationship between [their] event and [their] present symptoms. In my medical opinion [the worker’s] longstanding [pre-existing non-compensable medical conditions] do have an effect on recovery and can be associated with neuropathic pains. In my opinion, based on the reports from the patient, the workplace event in November 2020 appears to be a major contributor to [the worker’s] present disabilities and symptoms. The pain evidence supporting this relationship is chronologic reports from the patient. Of note I did not see the patient until 3 months post event even in a consultation role.”

The worker believes that their ongoing symptoms are a continuing result of their fall on November 11, 2020, but the evidence before the panel does not support that position. We accept the diagnosis offered by the worker’s treating family physician that the worker sustained a back strain injury as a result of a relatively minor fall and note that this injury occurred in the environment of the worker’s pre-existing degenerative back condition and in the context of other non-compensable health conditions. This diagnosis is supported by the subsequent opinions of the WCB medical advisor and the diagnostic imaging over the next six months.

The panel finds that the worker’s non-compensable pre-existing conditions more likely than not delayed the worker’s recovery from the back strain beyond the normal recovery period for such an injury of several weeks. In this regard we accept the opinions offered by the treating sport medicine physician and the WCB medical advisor, and also note the absence of any evidence that the worker’s pre-existing conditions were enhanced as a result of compensable injury.

On consideration of all the medical reporting and opinions provided as well as the diagnostic imaging and the worker’s evidence, the panel further finds that the worker’s ongoing symptoms beyond April 3, 2021 can no longer be related to the compensable injury sustained on November 11, 2020. In this regard, we accept and rely upon the opinions provided by the WCB medical advisor. We note that the treating sport medicine physician’s opinion to the contrary is based primarily on the worker’s self-reporting of symptoms and is qualified by the fact that the physician did not assess the worker until more than three months after the injury occurred, by which point that strain injury was likely no longer contributing to the worker’s presentation; therefore, we give less weight to that opinion.

The panel therefore determines, on the standard of a balance of probabilities, that as a result of the injury sustained in the workplace accident of November 11, 2020, the worker did not continue to require medical aid or to sustain a loss of earning capacity after April 3, 2021. Therefore, the worker is not entitled to benefits beyond April 3, 2021 and the appeal is denied.

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 25th day of May, 2022