Decision #103/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their current reported difficulties are not considered a recurrence or a further injury. A hearing was held on September 7, 2022 to consider the worker's appeal.
Whether or not the worker's current reported difficulties should be considered a recurrence or a further injury.
The worker's current reported difficulties should not be considered a recurrence or a further injury.
The WCB accepted the worker’s claim for injury resulting from an accident at work on January 18, 2013 and subsequently provided the worker with various benefits, including medical aid and wage loss.
On September 6, 2013, the worker was placed on a surgical wait list for an "…anterior cervical discectomy, plating and instrumented fusion…" A WCB medical advisor reviewed the worker’s file on September 11, 2013 and approved the proposed surgery and outlined restrictions of no repetitive bending or twisting of the neck, no lifting or carrying more than five pounds with the right upper limb and no forceful tasks with the right upper limb were provided, to be reviewed three months after the surgery. The WCB referred the worker for early vocational rehabilitation (“VR”) services in September 2013 as it was expected the worker would be unable to return to their pre-accident employment.
On July 2, 2014, the treating spine specialist opined the worker described some improvement in the worker’s symptoms to the point where the worker’s “…overall quality of life is only being modestly impacted by the previous neck and arm pain" and as such, the specialist recommended against the surgery.
On October 1, 2014, the worker underwent a Functional Capacity Evaluation (“FCE”) and based upon the results of that assessment, the WCB updated the worker's restrictions to no repetitive bending or twisting of the neck, should work with spine in neutral position, limit work with right arm held away from body envelope, limit exposure to vibration, no lifting greater than 30 pounds (repetitive under 15 pounds), no push greater than 55 pounds (repetitive under 25 pounds), no pull greater than 70 pounds (repetitive under 35 pounds), and no carrying greater than 15 pounds. WCB Vocational Rehabilitation Services were initiated with initial assessment taking place on November 17, 2014 and a VR plan put in place beginning in May 2015, set to end in October 2015. In September 2015, the worker obtained employment and the VR plan was discontinued.
On March 17, 2016, the WCB received a report from the worker's treating spine specialist who indicated that the worker was reporting "…increasing and escalating difficulties with right arm radicular pain in the same distribution" and a flare up of their difficulties in November 2015. After an MRI study in January 2016, surgery was again recommended and on June 9, 2016, the worker underwent a C4 to C7 and T1 laminectomy, posterolateral decompressions, and an instrumented posterior cervical fusion from C4 to T1. The WCB placed the worker on full wage loss benefits and authorized medical aid benefits, including physiotherapy. On follow up with the worker on June 8, 2017, the spine specialist recommended a revision surgery.
On April 30, 2018, the WCB approved the revision decompression and instrumented fusion surgery to address a diagnosis of non-union of the cervicothoracic junction. The worker was placed on a surgical wait list.
Due to concerns with the physical demands required under the worker's previously developed vocational rehabilitation plan, the WCB reinitiated a vocational rehabilitation process with the worker on August 14, 2019. Aptitude testing and academic assessment took place in October 2019 and the worker participated in computer upgrading from December 2019 to August 2020. The WCB developed a Vocational Rehabilitation Plan under National Occupation Code (NOC) 6621 - Technical Sales Specialist with a start date of October 26, 2020, to end on April 12, 2021.
On December 16, 2020, the treating spine specialist advised the WCB that the worker was removed from the surgical list on the basis of a decision to continue with non-surgical management of the worker’s ongoing neck and cervical spine symptoms, including new symptoms of hand numbness worse with activity. The physician reported that the worker had not recovered or improved and that there was evidence of clinical worsening but noted that the risks of surgery were not offset by the possible benefits of proceeding with the surgery.
A WCB medical advisor reviewed the worker's file on December 30, 2020 with respect to the worker's restrictions, noting that due to the ongoing pandemic, there was no opportunity to arrange for a formal FCE to be done and recommended the worker's restrictions remain unchanged. Due to delays attributed to the pandemic, on February 22, 2021, the end date for the worker’s VR plan was extended to July 26, 2021. On March 24, 2021, the WCB advised the worker there was no change to their restrictions, but that a further review would be conducted in June 2021.
The worker's representative contacted the WCB on March 29, 2021 to express their concern over the length of time since the worker last had an FCE conducted. The WCB advised that while they been previously unable to refer workers for an FCE due to the pandemic, that had recently changed, and a referral was made. The worker attended for a Functional Capacity Evaluation on April 6, 2021, and the assessing physiotherapist provided their report to the WCB on April 13, 2021. The physiotherapist concluded the worker was able to perform job duties "…within a light to medium level of work for physical strength" which should be considered the minimum physical level the worker was capable of, and further noted the worker was capable of lifting, carrying, pushing, and pulling 20 to 45 pounds on an occasional basis for 8 hours per day.
When the WCB VR consultant contacted the worker for a status update on April 15, 2021, the worker advised they had been in pain since the FCE evaluation. The worker stated, “I flared up my neck on that day and been hurting since." On April 19, 2021, the worker's representative advised there were some discrepancies in the FCE report and on April 23, 2021, advised the WCB the worker had attended for medical treatment with their treating family physician, who took x-rays and recommended further physiotherapy. The WCB received the report from the family physician on April 26, 2021 and confirmed x-rays were taken of the worker's right shoulder and elbow to rule out other diagnoses, with pain management and further physiotherapy recommended.
A WCB medical advisor reviewed the worker’s file on April 27, 2021 and outlined permanent restrictions of no repetitive bending or twisting of the neck, no occasional lifts over 35 pounds, no repetitive lifts over 15 pounds, no occasional push or pull activities over 45 pounds and no occasional carry over 30 pounds.
The worker's representative contacted the WCB on May 18, 2021 to advise of the worker’s experience of increased symptoms since the FCE on April 6, 2021 and described the worker having pain and numbness down their right arm and hand. The representative advised the spine specialist had been contacted and a follow-up MRI and appointment were being arranged. The representative related the worker's increased symptoms to the FCE, noting it caused the worker's original injury to be "substantially" worse. The WCB contacted the worker on the same date to gather further information. The WCB asked the worker whether the physiotherapist advised that they should not do any exercises that they were unable to do, and the worker advised they told the physiotherapist that every activity aggravated their neck and right arm, but they did the best they could. The worker further advised there were some exercises they did not complete and while performing some of the exercises, they felt an increase in their symptoms.
The WCB also contacted the physiotherapist who conducted the April 6, 2021 evaluation. The physiotherapist advised the worker was told before each exercise they could stop any time they experienced discomfort or pain and confirmed that at no time during the evaluation did the worker ask to stop or indicate they needed a break. The physiotherapist noted the worker did comment during the exercises involving walking/lifting/carrying that they had numbness in their hands and would groan and swing their arm or arms at times, making a fist with one or both of their hands and would shake their right arm and stretched their shoulders. Further, tasks involving lifting/carrying/pushing/pulling were limited and then stopped due to pain. The physiotherapist also advised the worker contacted them the next day to advise of their increased symptoms but noted stretching alleviated their symptoms.
On reviewing the worker's file on June 1, 2021, the WCB medical advisor noted the worker's treating family physician had considered a "…possible musculoskeletal source of the right upper limb symptoms" and that the physiotherapy report did not provide any new information regarding the worker's ongoing and increased symptoms. Further, the WCB medical advisor stated that the extent of motion and strength testing was carefully monitored and controlled during functional capacity evaluations, and therefore it was "…not credible that there would be a recurrence of/or new symptoms arising out of a functional capacity evaluation."
On June 1, 2021, the WCB advised the worker that it determined their new symptoms were not related to the April 6, 2021 Functional Capacity Evaluation. On June 14, 2021, the worker's representative requested reconsideration of the WCB's decision to Review Office. The representative noted in their submission, the worker experienced increased symptoms during the 3-hour evaluation after which they attended for medical treatment and required pain and anti-inflammatory medications, physiotherapy and rest. The representative noted the worker's treating healthcare providers supported the evaluation caused an increase and worsening of the worker's symptoms.
On August 25, 2021, Review Office issued a revised decision determining the worker's current difficulties were not a recurrence or a further injury. Review Office agreed with and accepted the opinion of the WCB medical advisor and found the evidence on file did not support the worker experienced a recurrence of the compensable injury or a further injury as a result of the April 6, 2021 evaluation.
The worker's representative filed an appeal with the Appeal Commission on February 22, 2022 and a hearing was arranged
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 has established Policy 18.104.22.168, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In these cases, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate intervening event.
The WCB has also established Policy 22.214.171.124 (Archived), Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) which applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This Policy sets out that a further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
The worker appeared in the hearing with their former spouse, who made an oral submission on behalf of the worker and provided testimony through answers to questions posed by members of the appeal panel. The worker provided testimony through answers to questions posed by their representative as well as by members of the appeal panel.
On September 6, 2022, the worker’s representative filed a request with the Appeal Commission that the appeal panel accept additional evidence in support of the worker’s appeal, describing the nature of this evidence as a letter from the worker’s treating physician and an email confirmation regarding the worker’s eligibility for surgery. As the Request to File Additional Evidence form did not outline the reason why the evidence should be accepted within less than the 7-day period prior to the hearing as outlined in the Appeal Commission Rules of Procedure, the worker’s representative outlined their reasoning to the panel, noting after the hearing was rescheduled from a date in June 2022, they mistakenly diarized the hearing for a date in the week following the new date, and as a result, they did not submit the evidence to the Appeal Commission on time.
The worker’s position with respect to the question on appeal is that the worker should be entitled to further benefits relating to the increased symptoms related to the compensable injury that arose following their participation in the FCE on April 7, 2021. The worker does not accept the WCB’s position that the worker’s current symptoms are not related to their participation in the FCE process, nor to the original compensable injury.
The worker’s representative noted that the FCE was specifically requested by the worker to confirm appropriate restrictions were in place given that the worker was in the process of completing a vocational rehabilitation plan with an expected return to work later in the summer of 2021 and given that the restrictions had not been recently reviewed in the context of the worker’s actual capabilities. The worker’s representative took issue with a number of comments within the April 7, 2021 FCE report by the assessing physiotherapist, noting that the worker was late only because of difficulty finding parking, that the physiotherapist did not note in the report that the worker reported numbness, was groaning, and swinging or shaking their arms during the assessment, and further, did not make note that the worker called the next day to report an increase in symptoms.
The worker described to the panel that they sought further medical attention from their family physician when the symptoms which arose after the FCE did not wane. The physician requested a follow up appointment with the treating spine specialist and ordered x-rays of the worker’s arms to rule out any other cause than the compensable injury to the worker’s neck. The worker indicated that they commonly experience flareups of symptoms and know their limits as a result. The worker described knowing when a flareup is beginning and that their strategy is then to stop doing whatever is causing the flareup of symptoms. The worker also described being accustomed to pain and used to working through it. A typical flareup of symptoms, the worker stated, lasts from 1 – 3 months. They noted that this has been the case since after the surgical repair failed several years ago and that their treating spine specialist attributes these symptomatic flareups to the workplace injury and subsequent surgery. The worker also noted that an MRI study from June 2021 revealed no significant changes since 2020 and that they were unable to be assessed by the treating spine specialist until July 2022. At that time, the worker and the physician agreed to put the worker back on the surgical wait list for the surgery initially approved by the WCB in April 2018.
The worker described to the panel their ongoing symptoms, which have remained consistent over time. The worker experiences numbness in their right hand, most frequently, from their hand to mid-forearm. They experience variable numbness in their left arm. They experience occasional shooting pain in their right thigh, when driving. When symptoms flare up, the worker described that they experience pain in their neck, tiredness and lack of energy, heightened sensitivity to weight or pressure on their neck and shoulders and numbness in their right leg and one or both arms. The worker explained that any event or activity out of the ordinary might bring on a flareup of symptoms.
The worker’s representative confirmed that the worker is not taking the position that they need surgery as a result of taking part in the FCE, nor that they sustained a new injury during the FCE, but that the worker’s participation in the FCE caused a flareup of the worker’s symptoms which are ongoing and related to the initial injury and as such, should be compensable.
The employer did not participate in the appeal.
Preliminary Request to File Additional Evidence
The panel considered the worker’s Request to File Additional Evidence provided to the Appeal Commission on September 6, 2022. The Appeal Commission’s Rules of Procedure require that any additional evidence be filed with the Commission no less than 7 days prior to the hearing date. In this case, the worker’s explanation for requesting the submission of their evidence on the day before the hearing was based upon the mistaken calendaring of the hearing date. The panel does not find that explanation sufficient to justify making an exception to the rule and further noted that the worker was not prejudiced by this determination as they were able to provide testimony as to their current medical status and further that the panel could seek out further evidence, such as that which the worker intended to submit, following the hearing should the panel decide it to be necessary to the determination of the issue on appeal.
Whether the worker’s current reported difficulties should be considered a recurrence or a further injury?
The question for the panel to determine on this appeal is whether the worker's current reported difficulties should be considered a recurrence or a further injury. For the worker’s appeal to succeed, the panel would have to find that the worker sustained a new injury subsequent to the compensable injury or that there was a recurrence of the worker’s compensable injury. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.
The panel noted that the basic facts are not in dispute here. The worker was participating in a vocational rehabilitation plan developed by the WCB and was at that time subject to a number of permanent restrictions, as outlined above, which were to be reviewed by the WCB in or about June 2021. The worker requested that the WCB arrange for an FCE which took place on April 6, 2021. On April 7, 2021 the worker contacted the assessing physiotherapist and advised of an increase in symptoms following the evaluation and noting that they were trying to address these with stretching exercises. Approximately one week later, the worker advised the WCB vocational rehabilitation consultant that they “flared up [their] neck on that day and been hurting since.” When the worker’s symptoms did not subside, they sought treatment from their family physician on April 23, 2021 and the physician referred the worker for physiotherapy, prescribed medication and ordered x-rays of the worker’s right shoulder and elbow to “rule out” any other diagnosis.
In the hearing, the worker described to the panel their ongoing experience of symptoms relating to the compensable injury, noting that these have been relatively consistent over time, and subject to periodic flareups when the worker engages in activities that they are not accustomed to or that are out of the ordinary. The worker further testified that they try to manage their symptoms in part by limiting the extent or degree of activity and resting or taking a break as needed. The worker described that during the FCE process, they participated in all required activities taking stretch breaks as needed and limiting the extent of their effort in an attempt to limit an increase in their symptoms. Nonetheless, the worker did experience an increase in symptoms, as is evident from the worker’s testimony, their call to the assessing physiotherapist on the day following the FCE, their conversation with the WCB VR consultant approximately one week later and their seeking medical care on April 23, 2021. In each case, the worker described an increase in their symptoms following the FCE, which the worker consistently attributed to their participation in that process.
The panel notes that the worker’s testimony with respect to their ongoing symptoms arising out of the compensable workplace injury is consistent with the information provided by the treating spine specialist in their report of December 16, 2020. At that time, the physician reported that the worker “has not had any recovery or improvement, and in fact describes some clinical change” referencing their earlier report to the worker’s treating family physician of December 2, 2020. The December 2, 2020 report from the spine specialist notes the worker’s continued report of “ongoing neck, cervical spine related disability” and “new symptoms of hand numbness” that are worse with activity. At that time the physician noted that “The mild radiographic worsening and clinical worsening is not enough to push us to offset the risks of surgery” and confirmed that the worker had been taken off the surgical list, but that decision could be revisited should the worker’s symptoms worsen.
The evidence before the panel confirms that the worker’s symptoms, which were ongoing and related to the compensable workplace injury did worsen in April 2021, after the worker attended for the FCE. The panel is satisfied that the evidence establishes that after the worker attended for the FCE, they developed a temporary increase in symptoms which the worker described to the panel as a flareup. Further, we find that this increase in the worker’s symptoms is more likely than not attributable to the worker’s continuing compensable injury, the symptoms of which were exacerbated by the worker’s participation in the FCE assessment process.
The panel considered whether the evidence supports that the worker’s April 2021 symptomatic flareup is a further injury as defined by the Further Injuries Policy. We find that there is no evidence that the worker experienced a further and separate injury that is or may be causally related to the original compensable injury. The worker’s own testimony negated such a finding, as does the information provided by the physiotherapist who conducted the FCE and the opinion of the WCB medical advisor of June 1, 2021.
The panel also considered whether the evidence supports that the worker’s increase in symptoms in April 2021 was a recurrence of the compensable injury as defined by the Recurrence Policy. In considering this question, the panel notes that the Recurrence Policy addresses those specific circumstances where a worker returns to employment after a workplace accident and later experiences a renewal of symptoms or increase in permanent impairment. The Policy is explicitly designed to provide guidance in terms of how the WCB will determine a worker has experienced a recurrence and how wage loss benefits will be calculated for workers who have experienced a recurrence. Thus, for the Policy to be applicable, a worker must be sufficiently recovered from their compensable injury such that they have returned to their employment, whether fully or in part, with restrictions or without. In this case, the worker was participating in a vocational rehabilitation program at the time that their symptoms related to the compensable injury increased in intensity but had not at that time returned to any employment and was not expected to for some months thereafter. Further, the medical evidence supports that there was not a renewal of symptoms that were not previously present, nor an increase in permanent impairment, but as noted above, a temporary flareup of the worker’s continuing symptoms as had occurred previously and has occurred since. The panel is therefore satisfied that the Recurrence Policy does not have application in these circumstances. Given our finding that the increase in the worker’s symptoms is more likely than not attributable to the worker’s continuing compensable injury and given the worker had not returned to employment at the time that this exacerbation of symptoms occurred, we are unable to find that there was a recurrence of the compensable injury.
The worker’s testimony and the medical reporting in the WCB claim file support the panel’s finding that the worker continues to experience symptoms arising out of the compensable injury. In April 2021, the treating physician determined that the worker required additional medication and recommended physiotherapy to the worker to treat the increase in symptoms, or flareup of symptoms. The panel further noted the worker’s testimony that they have recently again consulted with the treating surgeon and have again been wait-listed for a further surgery. While the panel makes no findings with respect to the compensability of this surgery, we note that the WCB had previously approved a surgical revision procedure on April 30, 2018, which the worker and their surgeon subsequently decided not to pursue in favour of continued non-surgical management, and we understand from the worker’s testimony that this is the same procedure now anticipated.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker has not sustained a new injury subsequent to the compensable injury and that there has not been a recurrence of the worker’s compensable injury; rather, we find that the worker continues to experience symptoms related to and arising from their compensable injury. The panel is unable to comment on whether this finding entitles the worker to further benefits as the WCB will need to adjudicate that question. The worker’s appeal is therefore denied.
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 7th day of October, 2022