Decision #78/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further wage loss and medical aid benefits. A videoconference hearing was held on May 25, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss and medical aid benefits.
The worker is entitled to further wage loss and medical aid benefits.
The employer submitted an Employer's Accident Report to the WCB on July 23, 2021, indicating the worker injured their lower back in an incident at work on July 22, 2021. The employer described the worker's report of lifting a resident's legs that were very heavy then "…immediately my lower back was very painful." The worker sought medical treatment on July 23, 2021, reporting to the walk-in clinic physician that they began to experience lower back pain at work the previous evening after working with a heavy resident but did not recall any heavy lifting. The physician noted the worker was in "…mild painful discomfort with movement" and found mild tenderness in the worker's lower back at the L3-S1 level, a painful right straight leg raise but no swelling. The physician diagnosed musculoskeletal lower back pain, recommended the worker be off work for two days before starting some holiday time and referred the worker to physiotherapy.
When the WCB contacted the worker on July 26, 2021 to discuss the claim, the worker confirmed the mechanism of injury and described symptoms of spasms in their low back area that radiated down their right buttock to their hip and not being able to sit for very long. The worker advised they were scheduled to return to work on July 29, 2021.
On July 28, 2021, the worker attended for follow-up at the walk-in clinic, reporting they did not feel any significant improvement in their symptoms. The physician noted continued tenderness in the worker's lower back and pain with all range of motion and a positive straight leg raise test bilaterally. A further sick note was provided for July 29, 2021 and July 30, 2021. At the next follow-up on August 10, 2021, a different physician from the walk-in clinic examined the worker and noted "On exam of the LS (lumbar spine) there is tenderness over the right lower paravertebral muscles. Range of motion all around slightly decreased due to discomfort. Straight leg raise negative on the left and right. Power and sensation of the legs are normal." The worker advised they had been off work for approximately three weeks but were now feeling better and wanted to return to their regular duties, and the physician provided the requested note allowing the worker to return to the full regular duties on August 11, 2021.
The worker contacted the WCB on August 23, 2021 to advise they had attended a local emergency room on August 21, 2021 with "severe back pain" in the same area as their injury from the July 22, 2021 workplace accident. The worker advised they had returned to their regular duties and had not sustained a new injury. The worker noted the treating emergency physician advised the worker to see their family physician for an MRI referral. The worker reported sharp, hard pain/backache which radiated to both hips and down their right leg and advised they could not sit but could walk slowly. The emergency department report from August 21, 2021 noted the worker's reporting of worsening symptoms for approximately three weeks and that the worker aggravated the injury at work. On examination, the treating emergency physician noted the worker’s limited active range of motion due to pain, negative bilateral straight leg raise tests, no tenderness and that they were able to ambulate with no significant issues. The physician diagnosed low back pain and queried a disc herniation. An x-ray of the worker's lumbar spine taken that day indicated "Spondylosis and multilevel disc narrowing with slight anterior wedging of L3 which could be recent…"
When the worker consulted their family physician on August 31, 2021, the physician recorded the worker's reporting of the workplace injury and attendance at the emergency room with the second episode of pain. The treating physician provided a diagnosis of a compression fracture at L3 and noted the worker was at risk for osteoporosis. The physician recommended the worker undergo a bone density test and provided a sick note recommending the worker remain off work to September 30, 2021.
The worker attended for initial physiotherapy assessment on September 7, 2021. The physiotherapist recorded that straight leg raise testing was discontinued at 45 degrees due to back pain and noted the worker had stiffness and tenderness through their lumbar spine, and tone and tension in their lumbar paraspinal region on palpitation. The physiotherapist diagnosed low back strain and L4-L5 and L5-S1 disc injury with radicular pain and recommended restrictions of lifting/carrying five pounds; limited (10%) lifting floor to waist; limited (10%) sitting; occasional trunk bending/twisting; and four-hour shifts.
A WCB medical advisor reviewed the worker's file on September 20, 2021, noting the worker reported to their treating physician they felt they had recovered and returned to their regular duties but presented at the emergency room eleven days later with increasing pain. The medical advisor opined that "A confirmed pain generator can often not be determined for low back pain"; however, they noted that symptoms of back pain would be expected to gradually improve rather than to completely resolve and then return eleven days later with increased pain levels. The medical advisor concluded the worker's current presentation was not medically accounted for in relation to the July 22, 2021 workplace accident.
On September 21, 2021, the WCB advised the worker a relationship between their current difficulties and the workplace accident could not be established and as such, they were not entitled to further benefits.
On September 28, 2021, the WCB received an MRI study of the worker's lumbar spine conducted on September 19, 2021, indicating "Mild lumbar spondylosis. There is no significant narrowing of central canal or neural foramina." On October 13, 2021, the worker provided the WCB with a copy of a September 27, 2021 letter from their treating physician in which the physician opined "The injury is consistent with a diagnosis of mechanical back pain…Prognosis is good but the patient would benefit from having some time off work to allow for the back spasms to subside and to allow time to attend PT (physiotherapy). Within a week or two she should be able to commence back at work with a work hardening program." On reviewing the new information on October 18, 2021, the WCB medical advisor stated the MRI findings were indicative of "…a degenerative condition, not caused by any specific trauma or activity" and noted no change to the previous opinion provided.
On October 19, 2021, the WCB advised the worker there would be no change to the earlier decision they were not entitled to further benefits. The worker's representative requested reconsideration of the WCB's decision to Review Office on November 10, 2021, arguing that the treating healthcare providers supported the worker had not fully recovered and experienced a recurrence of the low back injury, which required further medical treatment and time away from work. The representative noted the evidence on file that, after time off work, the worker felt better but within a short period after resuming their regular duties and running out of medication, the worker experienced recurrence of their injury, without the benefit of any treatment. On December 14, 2021, the employer's representative provided a submission in support of the WCB's decision, which was shared with the worker and their representative.
On January 11, 2022, Review Office determined the worker was not entitled to further wage loss and medical aid benefits. Review Office agreed with and accepted the opinions of the WCB medical advisor and was unable to find a causal connection between the worker's current difficulties and the July 22, 2021 workplace accident.
The worker's representative filed an appeal with the Appeal Commission on January 12, 2022. A videoconference hearing was arranged for May 25, 2022.
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. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
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 18.104.22.168, Pre-existing Conditions 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 employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The worker appeared in the hearing represented by a union representative who made an oral submission on behalf of the worker and relied upon a written submission provided May 16, 2022. The worker provided testimony in the hearing through answers to questions posed by their representative and by members of the appeal panel.
The worker’s position is that they are entitled to further benefits because they had not fully recovered from the effects of their compensable back injury when they requested to be cleared for a return to work, and because the increased low back symptoms they experienced in August 2021 more likely than not related to their ongoing compensable injury.
The worker’s representative highlighted that the August 10, 2021 report from the walk-in clinic physician indicated the worker presented with “lower back problems” but wanted to return to work after three weeks away. The physician noted the worker reported feeling better at that time and that they were receiving physiotherapy. The physician documented ongoing tenderness of the worker’s paravertebral muscles and reduced range of motion on examination and provided the worker with a note authorizing their return to their pre-accident work duties.
The worker explained to the panel that they asked the physician to authorize a return to work because the worker felt they needed to go back to work, noting that they had only recently returned to work after an extended period of illness and wanted to work for the sake of their mental health. The worker described to the panel that they felt optimistic about their ability to do their job after several weeks of rest and taking care of their back. The worker’s representative noted that on returning to work, the worker had three full shifts, followed by two days off and then two more full shifts before they experienced an increase in their low back symptoms while at home on August 20, 2021.
The worker’s representative acknowledged that typically symptoms of a low back strain do improve gradually over time and that this was the case for the worker during the three weeks following their injury; however, after the return-to-work attempt, the worker’s symptoms worsened. The representative confirmed that despite the August 10, 2021 statement of the walk-in clinic physician that the worker was continuing with physiotherapy, the worker was not assessed for physiotherapy until September 7, 2021 and as of August 10, 2021 their injury had been treated only with rest and pain medication. As noted in the emergency department records, the worker’s pain medication “ran out” just before their symptoms increased in August 2021 resulting in the worker’s attendance for treatment on August 21, 2021 with pain in the same areas as previous, in their lumbar region radiating into their hips and down into the right leg.
The worker’s representative also noted the statements from two of the worker’s colleagues provided with the submission of May 16, 2021 and noted these confirmed that when the worker returned to work in August, they did so with apparent discomfort and required assistance with their duties.
The worker’s representative submitted that the WCB medical advisor’s opinion that the worker’s condition in late August 2021 was consistent with their pre-existing degenerative condition does not take into account that the worker sustained an injury to their low back which the WCB accepted as being compensable. It is more probable that the worker’s symptoms were the result of the combined effect of their pre-existing condition and their compensable workplace injury. The worker’s position is that but for the workplace accident and resulting injury, the worker would not have experience the acute exacerbation of low back symptoms just 4 weeks following that injury.
The worker’s representative urged the panel to consider and rely upon the opinion of the worker’s treating family physician who stated, in a report dated April 13, 2022, that
“The back injury sustained in July 22, 2021 never resolved. It only became less symptomatic because [the worker] was not working or putting an excessive strain on it. Once [they] returned to work and began putting a regular and excessive load on [their] lumbar spine, it was clearly not able to tolerate the extra weight – this resulted in the pain and spasms that were seen in the immediate x-ray performed in the ER department….”
In testimony, the worker described their employment duties and the events leading up to the injury sustained on July 22, 2021. The worker indicated that they did not feel instant or extreme pain at first, but that they did feel “not right”. When they finished with the task they were engaged in at the time of injury, the worker went to sit down and in doing so, felt extreme pain in their lower back and spine. The worker testified that they needed assistance to stand up and could hardly walk. A colleague helped with writing the incident report. The worker indicated that they had not experienced anything like this previously and noted that the 2017 workplace injury resulted in a different kind of pain.
The worker confirmed they initially sought treatment from a walk-in clinic the day after the injury. When physiotherapy was recommended, they tried to make an appointment with the physiotherapist used in the past but did not succeed in that. The worker self-treated with medication, ice, rest and stretching. The worker confirmed that they did not engage in any activity during their time off, although they did drive to visit their children in another province as planned, taking numerous breaks along the way, as they had not been together in the previous 2 years. The worker stated that they remained occasionally symptomatic from the illness they experienced in 2020 and had ongoing weakness from it.
The worker stated that they knew the physician seen on August 10, 2021 through their work and asked them to provide permission for a return to work. The worker recalled that the physician twice asked if they were sure about returning to their work and the worker responded in the affirmative indicating that they wanted to try to return to normal for the sake of their mental health. The worker indicated that they still had symptoms at that time but could manage their pain with medication and believed that they could return to regular duties based on how they felt when off work. The worker described that this was a “huge mistake” in retrospect as they were not able to carry out all their duties without assistance from coworkers and found it difficult to manage by the end of their shifts, even with pain medication taken at the outset.
The worker confirmed that they were unable to see a physiotherapist until September 7, 2021 and that the treatment offered helped to reduce their pain symptoms. In October 2021, when the worker began a graduated return to work, they still had back pain and had to use a brace and monitor their body mechanics so as not to cause further pain and continued to rely upon pain relief and anti-inflammatory medications. The worker indicated they did not return to full regular duties without restrictions until January 2022.
The worker’s representative confirmed to the panel, in response to questions posed, the worker’s position that the workplace injury sustained on July 22, 2021 was more significant than a lumbar strain and noted the opinion of the treating family physician that the worker likely sustained a wedge fracture and disc bulge due to the workplace incident. The representative pointed out that although there is evidence of pre-existing degenerative changes in the worker’s spine, there is no evidence that these were previously symptomatic.
In sum, the worker’s position is that they are entitled to further wage loss and medical aid benefits as the evidence confirms the worker had not fully recovered from the effects of the compensable workplace injury by August 10, 2021 when they first attempted a return to work and that but for the workplace injury, the worker would not have required the subsequent medical aid or sustained the subsequent loss of earning capacity.
The employer was represented in the hearing by an advocate who provided an oral submission to the panel on behalf of the employer.
The employer’s position, as outlined in the advocate’s submission, is that the WCB correctly determined that the worker sustained a muscular strain injury as a result of the compensable workplace accident and that the worker was, by August 10, 2021, recovered to their baseline condition such that they no longer required medical aid arising from the injury and had no further loss of earning capacity as a result of the injury beyond that date.
The employer’s representative confirmed that the employer’s position is that the worker sustained a musculoskeletal injury to their low back as a result of the workplace accident. They further confirmed the employer’s position that the worker’s ongoing symptoms are more likely than not related to the worker’s pre-existing degenerative back condition.
The employer’s representative noted and relied upon the opinions of the WCB medical advisor, of September 20, 2021 and December 18, 2021 as confirming that the injury did not aggravate the worker’s pre-existing back condition and further, that the worker had recovered from the acute workplace injury by August 10, 2021. As the worker was determined to have recovered from the compensable workplace injury, any further symptoms or difficulties cannot be related to the compensable injury. Therefore, the worker is not entitled to further wage loss and medical aid benefits.
The question on appeal is whether the worker is entitled to further wage loss and medical aid benefits. For the worker’s appeal to be granted the panel would have to determine that the worker continued to sustain a loss of earning capacity and to require medical aid in relation to the injury sustained in the compensable workplace accident of July 22, 2021 at the time that the WCB determined the worker was no longer entitled to benefits. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker is entitled to further wage loss and medical aid benefits.
The panel considered whether the evidence establishes that the worker was recovered from their compensable workplace injury when they returned to work on August 11, 2022. The medical reporting confirms that the worker sought medical attention on three occasions following the injury and prior to the August 11, 2022 return to work. On July 23, 2021 the worker presented at a walk-in clinic with “mild painful discomfort” in their lower back with movement. The treating physician noted mild tenderness in the lumbar area paraspinal muscles and a painful right straight leg raise and diagnosed “MSK lower back pain.” Physiotherapy was recommended and the physician provided a sick note for the next two working days, noting the worker would then be on holidays. On July 28, 2021 the worker sought care from the same walk-in clinic physician, reporting no significant improvement. The physician again noted tenderness at the same lower back location, as well as pain with all range of motion testing from about 45 degrees and positive bilateral straight leg raise testing. A sick note was provided, and the worker was advised to “continue” physiotherapy. On August 10, 2021 the worker sought care from another walk-in clinic physician who, the worker testified, knew them from their employment. The physician recorded the worker’s report that they were feeling better now and wanted to return to regular duties. The chart notes also indicate the worker is receiving physiotherapy. Objective findings noted include tenderness over the right lower paravertebral muscles of the lumbar spine, reduced range of motion “all around” and negative straight leg raise bilaterally. The physician diagnosed muscular back pain and provided the requested note to permit the worker to return to regular duties.
The panel noted the worker’s testimony with respect to the August 10, 2021 physician visit, and in particular the worker’s description of their own insistence that they were ready to return to work after several weeks of rest and that the physician asked them more than once if they were sure they were ready to return. The panel also noted that despite the medical reporting of July 28, 2021 and August 10, 2021 indicating that the worker was receiving physiotherapy, the worker did not receive any physiotherapy until September 7, 2021.
The worker testified that they continued to experience symptoms when they returned to their regular duties on August 11, 2021 and required use of pain medication prior to each shift. The evidence of the worker and the co-workers confirms the worker was not fully able to meet the job demands but required assistance from the co-workers and was working with pain. The worker also noted that they took on the lighter duties at work during this period but still found it difficult to manage their pain by the end of each shift.
On August 21, 2021, after an episode of increased lumbar pain while at home the evening before, the worker sought emergency treatment. The attending physician recorded that the worker’s back pain had worsened over the previous three weeks, and that the worker ran out of the prescribed pain medication and their symptoms “started again” the previous evening. The chart notes indicate the worker’s active range of motion was limited due to pain and had bilateral negative straight leg raise tests. The physician queried disc herniation, ordered an x-ray and MRI and provided pain medication. The x-ray indicated mild lumbar spondylosis, mild disc narrowing at L5-S1 and L2-3 and slight anterior wedging of L3.
The worker followed up with their family physician on August 31, 2021 by telephone and provided a brief history of the injury. The physician provided further prescriptions for the pain medication provided to the worker at the emergency department. The worker followed up with the second walk-in clinic physician on September 2, 2021 who noted the x-ray findings from the emergency department and found no pain with pressure over spine but discomfort with extension and recommended the worker continue with physiotherapy. When the worker was first assessed for physiotherapy on September 7, 2021, the physiotherapist noted the worker’s report of low back pain, worse on the right side, painful sitting, numbness and tingling in the gluteal muscles, and shooting pain into the right thigh. The physiotherapist found the worker’s lumbar active range of motion to be limited and strength reduced and noted straight leg testing was discontinued bilaterally at 45 degrees due to pain. The physiotherapist diagnosed low back strain and lumbar disc injury at L4-L5 and L5-S1 with radicular pain and recommended 10 weeks of physiotherapy with a home program as well. They recommended a return to work on modified duties with restrictions for at least two weeks.
The panel reviewed the WCB medical advisor’s September 20, 2021 opinion, which indicated the absence of a “confirmed pain generator” but noted that regardless of the pain generator, “it would be expected that symptoms would gradually get better” rather than “completely resolved then return 11 days later and be worse. That progression is not consistent with any likely [diagnosis]… So the current presentation cannot be medically accounted for in relation to the [compensable injury].” Following review of the worker’s MRI study of September 19, 2021 that confirmed mild lumbar spondylosis with some mild or minimal diffuse disc bulging at multiple levels with bilateral facet joint arthrosis in the lower lumbar levels, the WCB medical advisor provided a further opinion on October 18, 2021 that the MRI findings could not be acutely related to the compensable injury and that those findings rather related to pre-existing degeneration that was not likely to have been aggravated or enhanced by the workplace injury.
The panel finds that the evidence supports the worker’s position that they were not recovered from the compensable injury when they first attempted to return to work on August 11, 2021 but continued to require medical aid and later, to sustain a loss of earning capacity related to the compensable injury. We note that the objective findings on August 10, 2021 are consistent with the previous reporting and that the worker had not at that time received any treatment beyond pain medication and rest, and, that despite the medical reporting that the worker was engaged in physiotherapy, that was not the case. We accept the worker’s testimony that they wanted to return to work quickly as they had only recently returned to work from another unrelated health condition and that when they sought medical authorization to return to work, the physician twice asked the worker if they were sure about that, and the worker indicated that they wanted to try. We also note the evidence of the worker and their coworkers with respect to the return-to-work difficulties experienced, and the worker’s evidence that when they ran out of pain medication after the return to work, their pain symptoms increased. The worker testified to their belief, in retrospect, that it was premature to return to work at that time, especially to their regular job duties. The panel noted that the worker’s job is physically demanding in nature and the worker noted that it was a “huge mistake” to return so soon to those duties. Further, the medical reporting confirms that the worker required ongoing pain relief medication at that time and was directed to continue with physiotherapy treatment, and that when the worker ran out of medication, their symptoms increased to the point that they sought out emergency care. The panel also noted the WCB medical advisor did not have the benefit of hearing from the worker or their colleagues as to how the worker managed their ongoing back symptoms during the brief return-to-work period from August 11-20, 2021. Taken as a whole, this evidence supports a finding that the worker had not fully recovered from their injury as of August 10, 2021.
Later diagnostic findings indicate that the worker has a mild degenerative lumbar back condition. The panel accepts the October 18, 2021 opinion of the WCB medical advisor that this would be a pre-existing condition that is not likely to have been aggravated or enhanced by the mechanism of injury sustained on July 22, 2021. Nonetheless, in the context of this pre-existing condition in the same region as the workplace injury, the panel finds that it is unreasonable to expect complete recovery from the compensable workplace injury within a period of just three weeks, particularly without the benefit of the recommended physiotherapy treatment. Given that the worker’s back injury was sustained in the environment of their pre-existing degenerative back condition, it is not unexpected that the worker continued to experience symptoms and required further treatment after their return to their pre-accident work just three weeks following the initial injury.
While the evidence supports that there were some improvements in the worker’s symptoms by August 10, 2021, there is no indication of full recovery at that point, and the panel is satisfied that the subsequent exacerbation of the worker’s lower back symptoms on August 20, 2021 more likely than not is related to the compensable injury of July 22, 2021, in the context of the worker’s pre-mature return to regular work duties just 10 days earlier and their pre-existing condition.
On the basis of the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker continued to require medical aid related to the compensable injury of July 22, 2021 and that they sustained a loss of earning capacity after August 10, 2021 as a result of that injury. Therefore, the worker is entitled to further wage loss and medical aid benefits. The worker’s appeal is granted.
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 8th day of July, 2022