Decision #95/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after November 27, 2020. A videoconference hearing was held on June 29, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after November 27, 2020.
The worker is not entitled to wage loss and medical aid benefits after November 27, 2020.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 89/21, dated July 13, 2021. The background will therefore not be repeated in its entirety.
The worker has an accepted claim for an injury to their lower back and hips that occurred at work on August 7, 2020. The worker described experiencing a sharp pain in their lower back after getting up from a chair and walking down stairs after an afternoon break. The worker noted on the Report they did not initially report their workplace injury as they thought it would go away.
The worker sought medical treatment on August 11, 2020 and was seen by their family physician, reporting a backache after straining their back. The physician noted “Lower backache muscle spasm noted over the SI (sacroiliac) joints on both sides” and diagnosed the worker with a back muscle spasm. At a follow-up appointment on August 14, 2020, the treating physician recommended the worker remain off work until August 21, 2020.
On August 21, 2020, the WCB contacted the worker to gather further information and discuss their claim. The worker confirmed the mechanism of injury and advised they had mentioned their back difficulties to their co-workers but managed to finish their shift that day. The worker attended for an initial physiotherapy assessment on August 26, 2020. The physiotherapist noted a positive straight leg raise test on the right with increased pain in the worker’s right buttock and back and queried a possible disc protrusion and recommended the worker remain off work. The worker’s file was reviewed by a WCB medical advisor on August 27, 2020. The advisor noted the treating physiotherapist’s query of a disc protrusion however the advisor opined the reported mechanism of injury “…did not involve…abnormal force through the spine…”. The advisor provided a diagnosis of non-specific pain which was not related to the workplace accident of August 7, 2020. As the WCB medical advisor could not relate the worker’s difficulties to a workplace accident, they were unable to provide restrictions for the worker. On September 15, 2020, the WCB advised the worker it had been determined their ongoing difficulties were not related to the workplace accident and their entitlement to benefits would end on September 22, 2020.
Additional medical information was placed on the worker’s file including a request from the worker’s treating physiotherapist on August 28, 2020 for a new chair, September 2, 2020 and September 3, 2020 reports from the worker’s treating physician referring the worker for an x-ray and recommending the worker follow a graduated return to work plan prepared by the physiotherapist, chart notes from the worker’s treating physiotherapist, and a September 4, 2020 x-ray of the worker’s lumbar spine, which noted degenerative changes including minor multilevel spondylosis and lower facet arthropathy at the L5-S1 level. On October 1, 2020, the worker’s file and the additional medical information was reviewed by a WCB medical advisor. The advisor noted no change to their August 27, 2020 opinion that the worker’s difficulties were not related to the workplace accident. The WCB medical advisor provided the reported symptoms could not be medically accounted for in relation to the reported workplace accident. Further, the advisor opined that while the worker’s difficulties may have started at work, the reported workplace accident would not have caused severe back pain for weeks as there was no abnormal force through the worker’s back related to their job duties that would have caused an injury to a disc.
The WCB advised the worker on October 9, 2020 after review of their file, the previous decision to accept their claim was rescinded and they were not entitled to benefits. The worker’s representative requested reconsideration of the WCB’s decision to Review Office on November 9, 2020. The representative noted the worker continued to experience difficulties from the workplace accident and with the WCB’s decision to end benefits the worker discontinued physiotherapy treatment which resulted in increasing back pain. The increase in pain caused the worker to go off work. The employer provided a submission in support of the WCB’s decision on December 24, 2020, a copy of which was provided to the worker’s representative on January 4, 2021. A further response was received from the worker’s representative on January 5, 2021. Review Office determined on January 7, 2021 the worker’s claim was not acceptable. Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker had degenerative changes in their low back and resulting low back pain. However, Review Office could not establish that the worker’s low back difficulties arose out of or in the course of their employment and as such, found the worker’s claim was not acceptable.
The worker’s representative filed an appeal with the Appeal Commission on January 7, 2021 and a videoconference hearing was arranged for May 18, 2021. Pursuant to Appeal Commission Decision No. 89/21, dated July 13, 2021, it was determined the worker's claim was acceptable and the worker was entitled to benefits after September 22, 2020. The Appeal Commission found the worker had not recovered from their injury when the WCB ended their entitlement to benefits on September 22, 2020, supported by the report from the worker's physiotherapist dated September 21, 2020 which recorded the worker's ongoing symptoms. The worker's file was returned to the WCB's Compensation Services for further adjudication.
The WCB contacted the worker to discuss the status of their claim. The worker advised the WCB they had started on a graduated return to work plan but was not sure of the date. They noted the plan started with four hours per day on alternating days and by January 26, 2021, they were working eight hours a day, four days per week. The WCB then contacted the worker's treating healthcare providers to gather further information. Chart notes from November 2020 to February 2021 and a copy of a November 9, 2020 CT scan were received from the worker's treating family physician on August 9, 2021 and chart notes from the treating physiotherapist for September 21, 2020 to November 21, 2020 were received on August 10, 2021. Further chart notes from the physiotherapist for the periods of November 21, 2020 to January 21, 2020 and January 21, 2021 to March 21, 2021 were received on August 17, 2021.
The worker's file, including the new information provided, was reviewed by a WCB medical advisor on August 23, 2021. The advisor noted the Appeal Commission decision accepted the worker sustained a low back injury on August 7, 2020 when they were in a prolonged awkward position in a chair that was uncomfortable then got up. The WCB medical advisor opined "This is not a typical mechanism to produce structural injury to the low back as there is not enough abnormal force to damage the anatomic structures in the back." The WCB medical advisor further opined that the mechanism may have resulted in the worker sustaining a strain/sprain injury or a non-specific/soft tissue low back injury. The advisor further noted that the worker had had an x-ray taken on September 4, 2020 which indicated minor degenerative changes in their lumbar spine. The changes were therefore a pre-existing condition. The advisor further noted that the reported mechanism of injury would not have produced "…sufficient force to materially alter degenerative disc or facet changes, so there is no evidence of an aggravation or enhancement of pre-x (pre-existing)." The WCB medical advisor opined it was likely the worker's pre-existing condition that prolonged recovery of the soft tissues of their low back. A typical recovery for a low back strain/sprain was noted to be 6 to 8 weeks; however, given the worker's pre-existing degenerative condition, the WCB medical advisor noted it would likely be 12 to 16 weeks for the worker.
Additional information from the worker's physiotherapist was received by the WCB, along with information from the employer on September 3, 2021 regarding the worker's time loss from August 10, 2020 to June 4, 2021. The worker's file was further reviewed by a WCB medical advisor on September 11, 2021. When asked to provide an opinion on whether the worker was totally disabled due to the workplace injury, the medical advisor opined "…during the acute phase of a strain/sprain, total disability is not supported or beneficial to recovery. If someone says they can't tolerate their regular work and day to day activities, they should be encouraged to modify their tasks (home and work) to avoid lifting more than 10lbs, awkward positions with their back, repetitive or sustained bending/twisting, and they should alternate between sitting/standing as needed." Further, the advisor noted the worker's treating physician had accepted the recommendation of the worker's treating physiotherapist and recommended the worker return to work on a graduated schedule, with modified duties. The recommended schedule was noted to be:
• Week one: 4 hour shifts; lift up to 20 lb, change position as needed
• Week two: 6 hour shifts; same restrictions
• Week three: 8 hour shifts; same restrictions
• Week four: full hours; lift up to 35 lbs
• Week five: full hours; lift up to 40 lbs
• Week six: full hours and duties
On September 29, 2021, the WCB advised the worker their claim had been accepted for a lower back strain/sprain in the environment of degenerative changes. Based on the recommended graduated return to work schedule provided by the WCB medical advisor, the worker was advised they were entitled to full wage loss benefits for the period of August 8, 2020 to September 2, 2020; partial wage loss benefits based on working 4 hours per day from September 3, 2020 to September 9, 2020; and partial wage loss benefits based on working 6 hours per day for September 10, 2020 to September 16, 2020. It was noted that based on the schedule, the worker would have been working 8 hours per day after September 16, 2020 and as such, would not have been entitled to wage loss benefits. Further, the WCB advised that the recovery period for their workplace injury was determined to be 16 weeks, which meant the worker was not entitled to further benefits after November 27, 2020.
The worker's representative contacted the WCB on October 12, 2021 to discuss the decision. The representative noted disagreement with how the WCB determined the worker's entitlement to benefits and requested further investigation. On October 20, 2021, x-rays taken on October 16, 2019 and September 4, 2020 were compared by a WCB medical advisor who opined the findings on the x-rays were "…similar and there is no evidence of any clinically significant change between the x-rays of October 2019 to September 2020." The employer provided information on November 18, 2021 regarding an ergonomic assessment that had been conducted for the worker. Additional chart notes from September 2020 to July 2021 were requested from the worker's treating physiotherapist and received on November 22, 2021. On December 2, 2021, the WCB advised the worker and their representative the additional medical information had been reviewed however, there would be no change to the earlier decision.
The worker's representative requested reconsideration of the WCB's September 29, 2021 and December 2, 2021 decisions to Review Office on December 9, 2021. The representative noted disagreement with the opinions of the WCB medical advisors and indicated the WCB ended the worker's entitlement to benefits based on those opinions and had not given weight to the worker's treating healthcare providers' opinions or the worker's reporting of their symptoms. The worker's representative submitted the worker continued to suffer the effects of the August 7, 2020 workplace accident and required benefits after November 27, 2020. The employer provided a submission in support of the WCB's decisions on January 26, 2022, a copy of which was shared with the parties.
Review Office determined on January 31, 2022, that the worker was not entitled to wage loss and medical aid benefits after November 27, 2020. Review Office accepted the opinion of the WCB medical advisor that the worker's degenerative condition in their back could delay recovery from a low back injury and a gradual return to work plan would benefit the worker. Review Office found it reasonable that the graduated return to work schedule should have been more gradual to reflect the delay in the worker's recovery due to the degenerative condition, and as such, should be extended to ten weeks from the five weeks set out in the original schedule, bringing the worker's entitlement to wage loss benefits to November 27, 2020. Accordingly, Review Office found it was premature to discontinue the worker's wage loss benefits on September 16, 2020 and found the worker was entitled to benefits to November 27, 2020. However, Review Office also found there was no entitlement to benefits after that date considering the mechanism of injury, the amount of time that had passed since the workplace accident and the amount of treatment the worker had already received.
The worker's representative filed an appeal with the Appeal Commission on April 7, 2022 and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and polices of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.
Subsection 4(1) of the Act provides that where a worker is injured in an accident, the worker is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
Subsection 27(1) provides that the Board may provide a worker with such medical aid as the Board considers necessary to cure and/or provide relief from an injury resulting from an accident.
Subsection 39(2) of the Act provides that the WCB will pay for wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
The term “accident” is defined in Subsection 1(1) of the Act and provides as follows:
“accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker;
(i) event arising out of, and in the course of, employment or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment and
(c) an occupational disease
and as a result of which a worker is injured.
WCB Policy 184.108.40.206, Pre-Existing Conditions (the “Policy”) sets out the Board policy as it relates to pre-existing conditions. The Policy states in part:
a. 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.
b. 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 an accident 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 also includes the following relevant definitions:
Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.
Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.
Pre-existing Condition: A condition that existed prior to the compensable injury.
In other words, where a worker with a pre-existing condition sustains an injury as a result of a workplace accident and the worker recovers from the accident such that it is no longer contributing to a material degree to a loss of earning capacity, any on-going loss of earning capacity will not be the responsibility of the WCB provided that the pre-existing condition is not a compensable condition and has not been enhanced by the workplace accident.
The worker was represented by a worker’s compensation specialist at the hearing. It was the worker’s position that she ought to be entitled to benefits beyond November 27, 2020.
The worker described for the panel her previous accident which took place in August 2020. She said that as she rose from her chair and pushed her chair back, she suffered sudden pain which ‘took her breath away.’ She said she was not sure exactly how she injured herself, only that it occurred as she was standing up from her chair. The worker attributes her injury to the poor ergonomic set up of her work station.
Following the workplace accident, the worker was prescribed pain medication and attended physiotherapy. She began a graduated return to work program on September 3, 2020, as recommended. Wage loss and other benefits were initially discontinued effective September 22, 2020.
At the time that the worker began her return to work program, she says she had not yet recovered from the workplace injury. She continued to experience pain and difficulties with her lower back. On October 14, 2020, the worker says that the pain grew worse and she experienced what she described as severe muscle spasms in her back. She discontinued working and remained off work until January 2021.
Initially after going off work in October 2020, the worker was waiting on a CT scan to confirm a possible disc protrusion and then, subsequently, on an ergonomic assessment of her workstation. During this period, she continued to experience low back symptoms and restrictions which were aggravated by activities of daily living. Although she had not yet fully recovered, the worker successfully completed a second return to work attempt in January 2021.
As of the date of the hearing, the worker testified that she has continued to experience difficulties with her back periodically since the initial workplace accident. An MRI conducted in March 2022 did not reveal a disc protrusion. In the worker’s view, however, given the 19-month time lapse between the initial CT scan and the follow up MRI, it was possible that the disc protrusion had resolved in the intervening period of time.
The worker has since obtained an opinion from a medical specialist who opined that there were sparse findings to support that the disc lesion was responsible for the worker’s difficulties. He has further concluded that she likely suffered instead from chronic lumbar muscle strain and dysfunction, particularly the left quadrates lumborum which was aggravated or enhanced by the workplace injury.
In the worker’s view, her ongoing back difficulties are a result of chronic muscle strain. By returning to work and performing the same duties in the same chair that caused the initial injury contributed to a recurrence of her compensable injury in October 2020. Although WCB extended wage loss benefits to November 27, 2020 following the worker’s successful appeal to the Appeal Commission, the worker says that she ought to be entitled to benefits beyond November 27, 2020 because there is no evidence to support the WCB’s presumptive expectation that she had recovered from her injuries within the 16 week period.
The employer was represented by a WCB coordinator.
It was the employer’s position that the worker was not entitled to wage loss benefits beyond September 16, 2020 or to medical aid benefits beyond November 27, 2020 as the evidence did not support that she required time off work after September 16, 2020 or that her need for ongoing treatment was related to the compensable injury.
Wage loss benefits were based on the graduated return to work program outlined by the WCB medical advisor which limited wage loss benefits up to September 16, 2020. Compensation services extended the period for medical aid benefits to November 27, 2020, also in keeping with the opinion of the WCB medical advisor on the anticipated duration of recovery of a sprain/strain injury in the context of the presence of degenerative changes to the worker’s back.
The employer therefore submitted that the decision of Compensation Services was in keeping with the medical evidence and relevant sections of the applicable legislation and WCB policies. As such, the decision should be upheld and the appeal dismissed.
The issue before the panel is whether or not the worker is entitled to benefits after November 27, 2020. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that she had a loss of earning capacity beyond September 16, 2020 and medical aid beyond November 27, 2020. For the reasons that follow, the panel is unable to make that finding.
The panel carefully reviewed the history as well as the medical evidence. The worker was initially diagnosed with a sprain/strain injury in her lower back. She attended physiotherapy and showed signs of recovering. By September 3, 2020, the worker’s treating physician cleared her to return to work. The worker’s physiotherapist recommended a gradual return to work beginning September 23, 2020.
After successfully beginning a graduated return to work program, the worker went off work completely on October 14, 2020. There was, however, a lack of medical evidence that would support the conclusion that it was the compensable injury that caused the worker to cease working as of that date. In fact, physiotherapist notes record that the worker was ‘feeling pretty good at work’ that day.
Diagnostic testing reveals that, at the time of the workplace injury, the worker had minor degenerative, or age related, changes in the worker’s back. Specifically, x-rays taken in October 2019 showed degenerative disc narrowing at L4L5 and L5S1 with facet arthropathy in the mid to lower spine. A lumbar spine x-ray taken on September 4, 2020, revealed minor multilevel spondylosis with lower facet arthropathy. Although a CT scan was completed in November 2020 which suggested the possible presence of a disc protrusion, the results were not conclusive. A follow up MRI taken in March 2022 did not reveal a disc protrusion.
Based on the medical evidence, the panel accepts that the worker’s injury occurred in the context of a pre-existing degenerative condition in her back and the presence of the pre-existing degenerative condition may have prolonged her recovery beyond the average recovery period of 6-8 weeks to a period of 12-16 weeks.. Although the worker also submitted medical evidence suggesting that the workplace injury took place within the context of a pre-existing chronic muscular dysfunction or myofascial pain condition, it did not explain or provide a rationale for justifying a recovery period for the strain/sprain injury beyond 12-16 weeks.
In the circumstances, in the panel’s view, a reasonable period of recovery within the context of the worker’s pre-existing condition would be 12-16 weeks. In this particular case, the 16 week recovery period would expire on November 27, 2020. Given all of the foregoing, and that both the worker’s treating physician and physiotherapist indicated that the worker was capable of participating in a graduated return to work program during that 16 week period, the panel is unable to conclude that a longer period of benefits is warranted.
Given all of the above, the panel therefore finds, on a balance of probabilities, that the worker is not entitled to benefits after November 27, 2020. The worker’s appeal is therefore dismissed.
K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of August, 2022