Decision #89/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits beyond July 23, 2012. A videoconference hearing was held on June 7, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after July 23, 2012.
The worker is not entitled to benefits after July 23, 2012.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 24/21, dated February 16, 2021. The background will therefore not be repeated in its entirety.
The worker has an accepted WCB claim for a lumbar strain involving the worker's back and right hip that was a result of a workplace accident that occurred on May 14, 2012 when he stepped down heavily into a trench. On January 11, 2013, the WCB confirmed the worker's diagnosis of a lumbar strain in the environment of pre-existing conditions and recommended a reconditioning program that would enable the worker to return to full regular duties.
On February 5, 2013, the worker requested that Review Office reconsider the WCB's decision that the claim was only accepted for a back and hip strain. On April 23, 2013, Review Office found the worker's claim was acceptable for a back and right hip strain and the worker was not entitled to benefits beyond July 23, 2012. On September 17, 2013, and again on December 11, 2014, after reviewing additional medical information that was provided and submissions from the worker and the employer's representative, Review Office upheld their April 23, 2013 decision.
The worker disagreed with the WCB's decisions, and on January 22, 2015, he requested that a medical review panel be convened. The worker provided a copy of a January 8, 2015 report from a physician with an interest in occupational medicine ("occupational medicine physician") in support of his request. The physician noted that copies of the worker's diagnostic imaging had been reviewed and discussed with a radiologist on December 10, 2014. The physician stated that the worker has pre-existing spinal issues related to a previous spinal surgery and "…a developmentally narrow spinal canal with shortened pedicles that has been identified" but noted the worker's progressive symptoms occurred after the May 14, 2012 workplace accident. The physician expressed disagreement with the April 11, 2013 opinion of the WCB orthopedic consultant and opined that "…the clinical and radiologic picture is one of significant enhancement of the lower lumbar degenerative changes with new appearance of broad based left paracentral and foraminal disc protrusion displacing the left S1 nerve root and encroachment of the right S1 nerve root, and new central canal stenosis at L3, L4."
On January 30, 2015, the WCB advised the worker that the request for a medical review panel ("MRP") was denied as the opinion provided by the occupational medicine physician did not meet the required criteria under section 67 of The Workers Compensation Act (the "Act") of providing a full statement of facts and reasons supporting a medical conclusion. On July 7, 2020, the worker's representative requested that Review Office reconsider the WCB's decision.
On October 6, 2020, Review Office determined that an MRP should not be convened, noting the occupational medicine physician speculated on a connection between the workplace accident and the worker's L3/L4 disc damage but did not provide an explanation other than the damage was not on the MRI in 2006. Review Office further noted the physician did not provide an explanation for the worker's ability to perform full regular duties until October 2012, or the worker's September 2012 onset of numbness in both feet, months after the May 14, 2012 workplace accident.
The worker's representative appealed Review Office's October 6, 2020 decision to the Appeal Commission, and a file review was held on February 2, 2021 to consider the worker's appeal. On February 16, 2021, the Appeal Commission upheld the Review Office decision and determined that an MRP should not be convened pursuant to subsection 67(4) of the Act.
On September 28, 2021, the worker's representative submitted additional information, including a June 23, 2021 opinion from the occupational medicine physician and requested that Review Office reconsider their previous decisions (dated April 23, 2013, September 17, 2013 and December 11, 2014) that the worker was not entitled to benefits after July 23, 2012. The representative submitted that the June 23, 2021 opinion, in combination with previous opinions, supported the worker had sustained more significant injuries than the accepted back and right hip strains, and had not recovered from his compensable injuries or reached his pre-accident status when his entitlement to benefits ended on July 23, 2012.
On November 15, 2021, the employer's representative provided a submission in support of Review Office's previous decisions. The representative noted that as indicated in their previous submissions, the worker sustained a "…mild, soft-tissue low back/right hip strain," with all medical reporting at the time of the May 14, 2012 workplace accident providing the diagnosis of a strain injury. The employer's representative further argued that, if anything, the opinion of the occupational medicine physician validated their position that the worker sustained a mild right hip and back strain, with his complaints of nerve pain, which developed months later, not being related to the workplace injury.
On November 24, 2021, Review Office determined that there was no entitlement to benefits beyond July 23, 2012. Review Office noted that the worker's injuries had previously been accepted as a strain to the back and hip, recovery from which would typically occur within a short duration. Review Office stated that they were unable to determine a more significant injury occurred on May 14, 2012 based on the doctor's assessments in close proximity to the accident, and noted that the worker continued to work his regular duties for a period of time after the accident. Review Office acknowledged the opinion provided by the occupational medicine physician, but preferred and placed weight on the opinion of the WCB orthopedic consultant that there was no clinical evidence to support the May 14, 2012 workplace accident aggravated or enhanced the worker's pre-existing degenerative disc disease and osteoarthritis. Review Office concluded that the worker had recovered from the compensable injury by July 23, 2012 and was not entitled to further benefits beyond that date.
On December 2, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act and regulations made under the Act, and by the policies established by the WCB's Board of Directors. As the date of injury is identified as May 14, 2012, the applicable legislation is the Act as it existed at that time.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Section 37 of the Act outlines the compensation which is payable to workers, as follows:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
WCB Policy 126.96.36.199, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was assisted by a worker advisor, who made an oral presentation at the hearing. The worker advisor also noted that they were relying on their earlier written submissions on file. The worker provided evidence in response to questions from the worker advisor, and both the worker and the worker advisor responded to questions from members of the panel.
The worker's position overall was that there was sufficient evidence to support the worker had not recovered from his accident-related injuries by July 23, 2012, and his appeal should be granted.
The worker advisor submitted that their primary position was that the May 14, 2012 workplace accident, combined with the worker's continuing to perform his physically demanding job duties while injured, caused an injury which was more significant than, or additional to, the accepted low back and right hip strain. In this regard, the worker asked that the panel attach weight to the opinions of the occupational medicine physician in his letters of October 9, 2014, January 8, 2015 and June 6, 2021, as well as the opinion of a treating neurologist in a letter dated July 9, 2013.
In the alternative, the worker advisor submitted that if the panel found that the post-accident MRI findings represented pre-existing conditions, the workplace accident, together with continuing to work while injured, caused an enhancement of those conditions, or at least a combined effect injury, which persisted beyond July 23, 2012, and for which the WCB would be responsible under the Policy.
In the further alternative, it was submitted that if the panel found that the compensable injuries were solely low back and right hip strains, the worker had not recovered from those injuries by July 23, 2012, as continuing to work caused them to deteriorate and prevented recovery.
The worker advisor went on to note various areas in which they disagreed with the WCB's position in this case. It was submitted that the WCB's made insufficient efforts to gather information in this case, which resulted in omissions which were significant and directly relevant to the consideration of the issue of the severity and duration of the worker's injuries.
The worker advisor was also critical of the quality of the WCB Healthcare opinions and noted several concerns in that regard, including that the WCB medical advisors failed to address certain issues, and relied on assumptions and generalizations as to recovery periods in providing their opinions. The worker advisor strongly objected to the WCB using general recovery periods as a basis to determine the worker's recovery and benefit entitlement, noting that every worker is an individual and the WCB is supposed to adjudicate claims based on individual merit. The worker advisor further noted that the medical advisors, including the WCB orthopedic consultant did not appear to have considered whether the worker's MRI findings delayed recovery past the two-month general recovery period.
In response to questions from the worker advisor the worker stated that he believed he was taking pain medication regularly after his injury, especially after working in the evenings. He said he did not take them while he was working, as it could be dangerous if he did and he did not want them affecting him at work. The worker said that with more activity and as the day progressed, "things inevitably got worse." Some days were better than others, but by late afternoon or evening he needed to take medication. The worker said he believed it helped a little in the short term, but overall, "every time it wore off, I was back to square one." The worker further stated that there were no job tasks he avoided because of his injury, that "I certainly didn't avoid anything, but I might have been a little slower doing them…I can tell you unequivocally that I didn't refuse any sort of work until I was physically unable to move and get up in the back of a truck in October."
The worker advisor submitted that the worker continued to work from the date of the accident, and it did not make sense that his ability to work in the spring of 2012 did not point to his injuries having resolved, but was said to support the conclusion that his injuries had resolved by July 23, 2012 or the summer. It was submitted that the worker's having continued to work did not help determine the severity or resolution of the work-related injuries, but simply showed the worker was resilient and dedicated and had a high pain threshold. The worker advisor submitted that unfortunately that dedication backfired, where continuing to work while hurt caused harm by continually aggravating the worker's existing injury.
The employer was represented by an advocate, who participated in the hearing by teleconference.
The employer's position was that there should be no entitlement to benefits after July 23, 2012 and the worker's appeal should be dismissed.
The employer's advocate submitted that all initial indications were that the worker suffered a minor injury, reporting he "tweaked" his hip, the pain was relatively mild and he did not think his injury was serious. The initial information was not indicative of anything more than a strain-type injury, and all medical reports provided a diagnosis of a strain injury. The worker continued working his regular duties for five months, and based on their examinations of the worker, none of the treating practitioners indicated he should be taken off work or even had to work light duties.
The advocate stated that while the worker advisor referred in his submission to the incident and continuing to work having a combined effect of causing deterioration, no evidence was supplied to support this assertion. The advocate noted that file information showed the worker did not make complaints to the employer or the WCB while he continued working, and the first note indicating the worker was having difficulties at work was September 28, 2012, quite some time after the incident.
The employer's advocate submitted that a comparison of the worker's 2006 and 2012 CT and MRIs shows there was a marked progression of pre-existing degeneration and severe spinal stenosis which was not related to the workplace injury. The advocate submitted that the changes indicated on the CT and MRI would take years to develop and would not be expected to have developed in a matter of months. The advocate further submitted that there is no evidence the workplace injury or continuing to work caused an enhancement of those pre-existing conditions.
The employer's advocate submitted that if the worker had experienced a traumatic incident as suggested by the occupational health physician, one would not have expected him to be able to continue working his regular duties with or without pain medication, and to have then become markedly disabled five months later. The advocate noted the 2012 CT scan, taken a couple of months after the workplace incident showed degenerative and congenital problems, and no indication of any acute trauma. The advocate further submitted that if the worker sustained a traumatic neurological injury, one would expect that he would have felt numbness and tingling at the time of the incident, not months later, and that he would have reported it earlier. The advocate submitted that the employer did not see how the symptoms of numbness and tingling were related to the workplace injury, and argued it was more likely that these symptoms related to the progressive degenerative disc disease which was noted on the diagnostic testing.
The employer's advocate asked that the panel accept the April 11, 2013 opinion of the WCB orthopedic consultant, who reviewed the entirety of the file and indicated the mechanism of injury and medical reports supported a diagnosis of a low back/right hip strain compensable injury, based on the opinion of the worker's practitioners who treated him at the time of the injury and in the following months. The consultant opined that the current symptoms were consistent with the diagnosis of multilevel degenerative disc disease and that the described degenerative changes on diagnostic imaging would have taken years to develop.
The employer's advocate further submitted that the WCB orthopedic consultant did not base his opinion on recovery norms, although he indicated what the normal recovery period is, but on objective medical evidence of diagnostic testing, examination and clinical findings, as well as the worker's noted ability to continue working regular duties. It was noted that the consultant also wrote that there was no objective evidence to support aggravation or enhancement of the pre-existing degenerative disc disease and osteoarthritis by the workplace injury. The advocate noted that the consultant's medical opinion was based on objective medical evidence, with a full statement of facts and reasons provided for the opinion, as acknowledged in the February 16, 2021 Appeal Commission decision.
In conclusion, the employer's advocate submitted that there is no question that the worker has a very bad back, but this does not change that the evidence does not support a cause and effect relationship between the worker's ongoing or current diagnosis and difficulties which developed months after what was described at the time as a minor workplace incident, and the worker's appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to benefits after July 23, 2012. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid as a result of his May 14, 2012 workplace accident beyond July 23, 2012. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a lumbar strain involving the worker's back and right hip. Based on our review of the May 14, 2012 mechanism of injury, as described on file and by the worker at the hearing, the panel is of the view that the mechanism was relatively minor in nature. The panel is further unable to find that the mechanism of injury as described would have resulted in a more serious injury than the strain injury which was accepted by the WCB.
The worker has argued that the May 14, 2012 workplace accident, in combination with the worker's continuing to perform his job duties while injured, caused an injury which was more significant than, or additional to, the accepted low back and right hip strain. The panel is not satisfied that the evidence supports this position. The evidence shows that the worker continued to work his regular duties for several months following the accident, and the worker confirmed at the hearing that he was able to do all of his duties and never refused any of the work.
The panel acknowledges the worker's job duties are physically demanding, and that the worker indicated at the hearing that things would get worse as the day wore on, and he would have to take pain medication in the evenings. The evidence also shows, however, that the worker did not report experiencing any difficulties at work to the employer or the WCB prior to late September, and no restrictions were provided for the worker by the treating physicians. The panel notes that the first reference to the worker having trouble working with the pain and discomfort is in a note on file of a conversation with the WCB on September 28, 2012, or more than four months after the date of accident, and that the worker did not go off work until October 10, 2012, when his family physician took him off work for a period of two weeks.
In response to a question from the panel as to what they believed the compensable injury is, the worker advisor stated that they believed it was what the occupational medicine physician identified, being "Traumatic L3-L4 disc herniation or protrusion, and the enhancement of pre-existing findings at the lower levels of the lumbar spine" and perhaps also a strain/sprain.
Based on the information which is before us, the panel is unable to find that the worker suffered a traumatic or neurological injury as a result of the May 14, 2012 accident. The panel notes that the initial medical reports indicate no neurological deficits or signs and symptoms. When this was put to the worker advisor at the hearing, his response was that he recognized the notes indicate "something to the effect of…no neurological signs symptoms," but added that this did not indicate what type of neurological clinical assessment was performed. The panel recognizes that the doctors' reports may be brief, but is nonetheless satisfied that they include what was important to note.
The panel notes that the worker advisor had also argued in his submission that the WCB had made insufficient effort to gather information in this case which resulted in omissions. The panel further notes, however, that there does not appear to have been any previous request or indication that the WCB should have requested such information as being relevant or that such information actually exists or would be of any significance.
The worker has relied on the occupational medicine physician's opinion that the mechanism of injury likely resulted in an injury to the L3-L4, causing the larger posterior disc protrusion seen on subsequent MRIs, and that the significant changes between the 2006 and 2012 MRIs are likely the result of the workplace accident.
The panel has reviewed the December 11, 2006 and September 18, 2012 MRIs and notes that there is a significant progression of the condition of the worker's lumbar spine as indicated on the results from the 2012 MRI as compared to the results of the 2006 MRI, where the findings with respect to the degenerative disc disease can be characterized as mild on the 2006 MRI and moderate to severe on the 2012 MRI. The panel understands that such changes require years to develop and is satisfied that the findings on the 2012 MRI, which was performed approximately four months after the workplace accident, represent the progression of the worker's multilevel degenerative conditions over an extended period of time as opposed to having developed from an acute injury.
The panel accepts the worker's description of his current symptoms having started as a "slow burn." The panel is of the view, however, that the development of those symptoms, where "there were good days and bad days" and "Things slowly got worse" would appear to be more consistent with a natural progression of a degenerative condition such as is seen on the MRIs. The panel is therefore unable to relate the delayed onset of those symptoms to the workplace accident or compensable injury, and finds that the 2012 and 2013 MRI findings represent pre-existing conditions which are not related to the workplace accident
While the worker advisor has also argued, as an alternative to their primary position, that the workplace accident, together with continuing to work while injured, caused an enhancement of his pre-existing conditions, or at least a combined effect injury, which persisted beyond July 23, 2012, the panel is unable to accept that argument. The panel finds that there is an absence of evidence to indicate that the workplace accident, together with continuing to work following that accident, caused an enhancement of the worker's pre-existing conditions, and is satisfied that those conditions or changes in those conditions cannot be related back to the compensable injury.
The worker has argued, in the further alternative, that if the compensable injuries were solely low back and right hip strains, he had not recovered from those injuries by July 23, 2012, as continuing to work caused them to deteriorate and prevented recovery. The panel accepts that the worker's compensable injury occurred in the environment of pre-existing conditions, such that the recovery period may have been somewhat longer than what might be considered to be the normal period of recovery. Having said that, the panel is of the view that the evidence supports the worker had functionally recovered from his compensable injury by July 23, 2012, and is satisfied that the worker did not sustain a loss of earning capacity or require medical aid as a result of his May 14, 2012 workplace accident beyond that date.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid as a result of his May 14, 2012 workplace accident beyond July 23, 2012. The panel therefore finds that the worker is not entitled to benefits after that date.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of August, 2022