Decision #110/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They did not suffer a subsequent injury to their right hip while attending physiotherapy; and
2. They are not entitled to wage loss and medical aid benefits after July 22, 2020.
A videoconference hearing was held on October 5, 2022 to consider the worker's appeal.
1. Whether or not the worker suffered a subsequent injury to their right hip while attending physiotherapy; and 2. Whether or not the worker is entitled to wage loss and medical aid benefits after July 22, 2020.
1. The worker suffered a subsequent injury to their right hip while attending physiotherapy; and
2. The panel returns the issue of entitlement to wage loss and medical aid benefits after July 22, 2020 to the WCB for further adjudication.
The worker filed a Worker Incident Report with the WCB on August 23, 2018 reporting injury to their lower back, legs, ankles and buttocks as the result of an incident at work on August 14, 2018 which they reported to the employer on August 17, 2018. The worker described lifting the hood of their work vehicle and feeling a sharp pain in their back as they did so. They continued to work but noted their "…leg started feeling sore and my buttocks from sitting felt sore." The worker then noted further symptoms, with pain in their lower back and buttocks that worsened to the point they felt they couldn't walk. The worker’s report also noted a pre-existing back injury.
The worker attended a local emergency department on August 17, 2018 reporting back pain that began three days earlier, that worsened with sitting and radiated to both legs. The worker advised the treating emergency physician of their previous L4-L5 disc herniation. Upon examination, the physician noted no tenderness to the worker’s lower back, negative straight leg raises bilaterally and diagnosed mechanical back pain. The physician noted the worker had another condition that required further investigation, and the worker was sent for tests, but that this non-compensable condition was not related to the worker's lower back pain and opined the worker's back pain was "…mechanical, likely from a degree of sciatica…".
When the WCB contacted the worker to discuss their claim on August 30, 2018, the worker confirmed the mechanism of injury, noting they felt a sharp pain in their lower back just near their tailbone after pulling the hood of the vehicle, while standing on uneven ground. After work on August 17, 2018, the worker sought emergency treatment, at which time a non-compensable condition was identified, and the worker was scheduled for surgery for that condition on September 10, 2018. The worker further advised that on August 22, 2018, they attended an appointment with their family physician who referred them back to the orthopedic surgeon seen approximately ten years earlier in respect of a low back injury. On August 28, 2018, the family physician referred the worker to physiotherapy to begin after the planned surgery. The worker also confirmed their previous back injury involved a herniated disc in the L4-L5 region and that the WCB had established permanent restrictions for them in relation to that injury.
The WCB accepted the worker's claim on September 21, 2018. On the same day, the worker advised the WCB of their surgeon’s recommendation they not participate in physiotherapy until after assessment on October 25, 2018. The orthopedic surgeon assessed the worker on September 28, 2018 and offered an opinion that the worker was suffering an exacerbation of their chronic back pain based on the worker's description of the workplace accident. The surgeon recommended physiotherapy and rehabilitation but noted those treatments would have to wait until the worker was cleared to attend after their non-compensable surgery.
The worker attended an initial physiotherapy assessment on October 31, 2018. When physiotherapy treatment resumed on November 30, 2018 following the worker's recovery from surgery, the physiotherapist noted findings of "Lumbar spine flexion reduced to distal 1/3 of the tibia with pain, side flexion and rotations within normal limits, extension half ROM (range of motion). Slump positive bilaterally; SLR (straight leg raise) positive bilaterally; Tender Lumbar spine paraspinals."
The worker attended a follow-up appointment with the orthopedic surgeon on December 11, 2018 and was referred for an MRI study of their lumbar spine, which took place on January 3, 2019. The MRI study indicated "Degenerative changes at the lower lumbar spine with potential sites of nerve root irritation as described above. Disc material contacts and posteriorly displaces the traversing left S1 nerve root at the L5-S1 level and approaches/contacts the traversing L5 nerve roots bilaterally at the L4-L5 level. No significant spinal canal stenosis." On January 16, 2019, the treating orthopedic surgeon discussed the MRI findings with the worker, noting the disc protrusion and that the worker had tingling in their legs after the August 14, 2018 workplace accident. The surgeon recommended continued physiotherapy and restrictions of no sitting, change positions as needed and limit lift, push and pull.
At the request of the WCB, a WCB medical advisor reviewed the worker's file on January 25, 2019. The medical advisor outlined their opinion that the diagnosis related to the workplace accident was low back strain in the environment of pre-existing degenerative disc disease, which would, in an uncomplicated case, lead to recovery over a period of six to eight weeks. The medical advisor opined that the current diagnosis was non-specific low back pain with L5-S1 radiculopathy, as supported by the MRI findings. The WCB medical advisor noted the worker's current course of physiotherapy was reasonable and that recovery would likely be delayed based on the worker's non-compensable surgery. The medical advisor provided restrictions limiting bending and twisting above the waist, limiting lifting or carrying more than five pounds and limiting prolonged sitting or standing with the ability to take micro breaks. The WCB advised the employer of the restrictions by letter dated January 29, 2019.
The worker contacted the WCB on February 19, 2019 and advised that when they attended an appointment with the physiotherapist the previous week, they experienced a flare-up of their non-compensable condition, and they would seek medical treatment as a result. The worker sought medical treatment on February 20, 2019 with a nurse practitioner, who provided an opinion the worker had a non-compensable injury "…that was caused by PT (physiotherapy) treatment for back injury."
On March 6, 2019, the WCB received a Progress Report from the treating physiotherapist who noted the worker's report of persistent numbness in lumbar and sacral regions and throughout the bilateral lower extremities to the dorsal surface of both feet. The worker reported first noting the flare-up of their non-compensable injury on February 13, 2019, which was reported to the treating physiotherapist on February 15, 2019. The treating physiotherapist also noted the worker reported they were not in pain, so physiotherapy treatment was continuing. In the Discharge Report provided to the WCB on March 11, 2019, the physiotherapist noted the worker had significantly improved in function but reported limited change in symptoms.
A WCB medical advisor reviewed the worker's file on April 22, 2019 and concluded the worker sustained a ventral hernia as a subsequent injury from the effects of the August 14, 2019 accident. On July 31, 2019, the WCB authorized the treating surgeon to undertake the proposed hernia repair, which took place on December 11, 2019. At post-surgical follow-up on December 23, 2019, the treating surgeon noted the worker was healing well from the surgery and provided restrictions of no lifting greater than twenty pounds for six to eight weeks.
When the worker attended an appointment with the orthopedic surgeon on January 6, 2020, the surgeon noted physiotherapy was delayed to February 2020 and that the worker was still reporting tingling in their legs and feet. At follow-up on March 9, 2020, the orthopedic surgeon recommended physiotherapy and/or a reconditioning program with a water component for the worker's back/disc radicular health. The WCB referred the worker to a physiotherapist on March 12, 2020; however, treatment was placed on hold due to the pandemic. When the worker was assessed for physiotherapy on May 19, 2020, the physiotherapist recommended three sessions per week for two weeks, progressing to a reconditioning program daily for two to three weeks.
A WCB physiotherapy advisor reviewed the physiotherapist’s report and on May 26, 2020, approved the initial six sessions to determine if the worker was a candidate for the reconditioning program. The physiotherapy discharge report received by the WCB on June 3, 2020 noted the worker had improved lumbar spine range of motion, full flexion, with no pain in flexion but pain with other movements and found the worker had progressed well with the exercise program. The physiotherapist recommended proceeding with the reconditioning program and on June 10, 2020, the WCB approved the reconditioning program to begin on June 8, 2020 and to end on July 2, 2020, with an anticipated return to work date of July 3, 2020.
On June 11, 2020, the employer advised the WCB that due to the pandemic, they had laid off workers and did not know when the worker would have employment to return to.
The physiotherapist’s report for the reconditioning program noted findings of full lumbar spine range of motion with slight pain in end range flexion, full upper and lower extremity strength tests bilaterally with slight lower back pain reported in resisted shoulder flexion in standing. The physiotherapist further reported the worker presented with "…no pain behaviours and no painful facial expressions throughout the sessions and assessments" yet reported a pain scale of 8 out of 10. The physiotherapist noted the worker’s improvements in flexibility and strength bilaterally and that the worker could lift twenty pounds with no difficulty from floor to shoulder. The physiotherapist indicated the worker was capable of returning to their pre-accident job duties as they demonstrated their ability to perform those duties with no visible difficulties, and also noted the worker's report of right anterior hip pain and that the worker was seeking medical treatment in that regard.
In discussion with the WCB on July 13, 2020, the worker advised that during three weeks of physiotherapy, their right hip pain increased and now they felt a pop/sharp pain whenever they twist to their left or sit for 30 minutes and stand up. The worker confirmed they had not sustained a new injury and were seeing their treating orthopedic surgeon that day. The progress report from the orthopedic surgeon recorded the worker's report of pain to their right anterior hip, pain to flexion and internal rotation, and findings of trunk flexion, extension and tilt pain. The surgeon referred the worker for an MRI study to rule out a labral tear.
A WCB medical advisor reviewed the worker's file on July 15, 2020 and concluded that an injury to the worker's right hip was not accounted for in relation to the effects of the workplace accident or the treatment for same, providing "It is not likely that PT (physiotherapy) instructed exercises would result in a labral tear." Further, the WCB medical advisor provided that a diagnosis beyond non-specific low back pain was not apparent and based on the physiotherapy discharge report, the worker could perform their job duties within the permanent restrictions placed by WCB in a previous claim.
On July 20, 2020, the WCB advised the worker it could not establish that their current difficulties were related to the August 14, 2018 workplace accident and as such, their entitlement to benefits would end as of July 22, 2020.
On October 16, 2020, the worker attended for a further appointment with their treating orthopedic surgeon reporting back pain and tingling to their legs after attempting to drive for 45 to 90 minutes, and the surgeon recommended the worker be retrained for different work as they were unable to sit for long periods of time. A WCB medical advisor again reviewed the worker’s file and provided that the permanent restrictions placed by the WCB on the worker's earlier claim did not preclude the worker from driving and noted that the worker had been previously retrained by the WCB for other work. On November 25, 2020, the WCB advised that there would be no change to the decision that the worker was not entitled to benefits after July 20, 2020.
The worker requested reconsideration of the WCB's decision to the Review Office on January 27, 2021, providing a submission and noting they continued to experience ongoing difficulties, including lower back pain, tingling and numbness in both their legs and feet and pain in their right hip and as such, could not return to their pre-accident duties or duties within the occupation they had been retrained for. The Review Office determined on March 15, 2021 that the worker was not entitled to wage loss and medical aid benefits after July 22, 2020, relying upon the medical opinions provided by the WCB medical advisors and finding that the physiotherapy reconditioning report supported the worker had returned to their pre-accident baseline and could return to work within their permanent restrictions.
The worker contacted the WCB on March 18, 2021 to report a subsequent injury to their right hip sustained while participating in physiotherapy on June 29, 2020. The worker had advised the physiotherapist of a popping sound and pain to that area and received treatment for their hip, and the worker noted their belief they sustained the injury due to the exercises administered by the physiotherapist. The worker further noted their treating orthopedic surgeon ordered an MRI study, conducted on March 10, 2021, which indicated a labral tear.
On April 6, 2021, the worker requested reconsideration by Review Office of the WCB's decision they had not sustained a subsequent injury to their right hip. The worker's submission included a copy of the March 10, 2021 MRI, as well as a March 31, 2021 opinion from the treating orthopedic surgeon noting the worker had no issues with their right hip prior to the physiotherapy treatment and that the labral tear was related to that treatment. On May 13, 2021, the worker also submitted copies of the chart notes from the physiotherapy treatment for review by the Review Office. On May 27, 2021, the Review Office found the worker did not sustain a subsequent injury to their right hip while attending physiotherapy, noting the worker did not describe a mechanism of injury that would be consistent with suffering a right hip labral tear and did not report a new injury. Further, Review Office noted the reconditioning report supported the worker as capable of returning to their pre-accident duties and had the worker sustained a labral tear in their right hip while participating in the reconditioning program, that injury would have affected their ability to participate in the program.
On March 21, 2022, the worker's representative submitted additional medical information and requested Review Office reconsider the previous decision the worker was not entitled to wage loss and medical aid benefits after July 22, 2020. The representative argued that the medical evidence including the January 20, 2022 opinion of the worker's treating orthopedic surgeon, submitted, supported a finding that the worker sustained an injury greater than a sprain/strain type injury and required further benefits as a result. Further, the worker's representative submitted the work hardening/reconditioning program the worker attended provided the worker with exercises outside of their restrictions and as a result, caused the worker to have an increase in symptoms that they had not recovered from. On May 16, 2022, Review Office again determined that the worker was not entitled to benefits after July 22, 2020.
On May 31, 2022, the worker's representative filed an appeal of the May 27, 2021 and May 20, 2022 Review Office decisions with the Appeal Commission 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 also established Policy 18.104.22.168, 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 WCB has also established WCB Policy 22.214.171.124, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, 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.
The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury. “Enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The worker appeared in the hearing with an advocate who made oral submissions on behalf of the worker and relied as well upon a March 21, 2022 written submission to the Review Office and the evidence provided to the panel in advance of the hearing date. The worker provided testimony through answers to questions posed by their advocate and by members of the appeal panel.
The worker’s position, as set out by their advocate, is that the worker sustained a further injury, of a right anterior labral tear arising out of the physiotherapy treatment provided to the worker for their compensable workplace injury of August 14, 2018 and therefore that further injury is compensable under the provisions of the Further Injuries Policy. Further, the worker’s position is that they continued to sustain a loss of earning capacity and to require medical aid as a result of the right hip injury sustained in June 2020, and as a result of their ongoing recovery from the compensable workplace injury of August 14, 2018, which was further aggravated by their participation in the aggressive physiotherapy treatment in June 2020.
In their submission, the worker’s advocate outlined the worker’s position that during the aggressive physiotherapy reconditioning treatment in June 2020, which the WCB authorized, the worker was pushed to engage in activities beyond their restrictions. The advocate noted that the WCB initially failed to provide the worker’s restrictions to the treating physiotherapist and that even after receiving this information, the physiotherapist continued to require the worker to work beyond their physical limits as part of the reconditioning therapy. The result, according to the worker’s advocate, was that the worker caused an injury to their anterior right hip, identified in the March 10, 2021 MRI study as a “small nondisplaced anterosuperior labral tear/separation”. As this injury occurred in the course of delivery of treatment for the original compensable injury, the labral tear is a “further injury” as defined by the Further Injuries Policy and as such, is also compensable.
The advocate stated the worker’s position that as a result of the right hip injury, the worker was not capable of a return to work as of July 22, 2020 and required further medical aid, and therefore the worker should be entitled to benefits after July 22, 2020 in relation to their right hip injury.
The worker’s advocate also relied upon their written submission on behalf of the worker to the Review Office, dated March 21, 2022, that the workplace accident of August 14, 2018 resulted in an injury to the worker’s low back that was more significant than just a sprain/strain and caused the worker’s ongoing radicular symptoms. The advocate noted that the evidence rules out any pre-existing non-compensable conditions as being the cause of the worker’s radicular symptoms and therefore the workplace accident more likely than not aggravated, if not enhanced the worker’s pre-existing L5-S1 disc injury. The advocate further submitted that the worker’s ongoing low back symptoms, including radicular symptoms, were not resolved by the time the worker engaged in the physiotherapy reconditioning program in June 2020, and that as a result of the exercises that the worker undertook there, in excess of the worker’s permanent physical restrictions, the worker’s low back symptoms were further exacerbated, resulting, ultimately, in the worker’s treating physician adding further physical restrictions in September 2021 to limit the worker’s time spent sitting, walking and standing. On this basis, the worker’s position is that they were not recovered from the compensable injury to the point where a return to work was possible as of July 22, 2020 but continued to require treatment for their compensable low back injury beyond that date. For this reason, the worker should be entitled to wage loss and medical aid benefits after July 22, 2020.
In answering questions posed to them by their advocate, the worker confirmed that they did not return to work following the injury in 2018 and very seldom went out. The worker noted that after their low back injury in 2007, their condition gradually improved over time and that they were able to sit for up to 2 hours at a time. The worker noted ongoing issues of tightness in their right buttock but confirmed they had no previous pain in the front of their hip prior to the June 2020 physiotherapy program. The worker described to the panel the nature of their physiotherapy conditioning treatment, with reference to the physiotherapy program logs submitted by the advocate. The worker noted feeling a bit sore immediately after a session, with pain increasing about an hour later. The worker indicated that their physician advised them to work within their restrictions during the program but that the physiotherapist would push them to work beyond those limits. The worker described noting a popping sound in their hip on June 29, 2020 when doing a box carry exercise after a push/pull cart exercise. The worker noted that this was a new issue, not previously noted and that the popping sound was accompanied by pain in the front of their right hip. With respect to the right hip injury, the worker stated they received injection treatments in June 2021 and September 2022.
In sum, the worker’s position is that they sustained a right hip injury arising from the physiotherapy treatment provided for their compensable workplace injury of August 14, 2018 and as such, the right hip injury is also compensable. Further, the worker’s position is that the worker was not recovered from the compensable low back injury and the compensable right hip injury to a point where they were able to return to work as of July 22, 2020 and as such, they continued to sustain a loss of earning capacity and to require medical aid beyond that date in relation to both the back and hip injuries.
The employer did not participate in the appeal.
There are two questions for the panel to determine on this appeal. The panel must determine whether the worker sustained a subsequent injury to their right hip while attending physiotherapy and whether the worker is entitled to wage loss and medical aid benefits after July 22, 2020. 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 that arose out of the treatment for that injury. The panel would also have to find that there is evidence indicating the worker sustained a loss of earning capacity and required medical aid to cure and provide relief from the compensable injury after July 22, 2020. As outlined in the reasons that follow, the panel was able to make such a finding in respect of the first question but refers the second question back to the WCB for further adjudication in light of the answer to the first question. The worker’s appeal is therefore granted in part.
The panel first considered whether the evidence supports the worker’s position that they sustained injury to their right hip as a result of their participation in the physiotherapy reconditioning program in June 2020. The worker’s position is that in the course of the physiotherapy reconditioning treatment, they were pushed to engage in activities beyond their restrictions, as evidenced by the physiotherapy logs submitted. Because the WCB failed, initially, to provide the worker’s restrictions to the treating physiotherapist and because even after the WCB did so, the physiotherapist required the worker to work beyond their physical limits as part of the reconditioning therapy, the worker sustained an injury to their anterior right hip.
The panel considered that there is no evidence of any prior injury to the worker’s right hip despite ample medical evidence relating to this injury and the worker’s prior low back injury. This is further confirmed by the reporting of the sport medicine physician who treated the worker following the compensable injury beginning in September 2018.
The panel also noted that the worker advised the treating physiotherapist that they sustained an injury to their right hip when it occurred, and the file record confirms the physiotherapist noted the worker’s report of right hip pain and recorded this in their subsequent reports to the WCB and discussions with the WCB case manager. The panel further noted that the worker reported ongoing right anterior hip symptoms following their physiotherapy treatment in late June 2020 such that they sought treatment for this concern from their treating sport medicine physician on July 13, 2020.
The panel considered that the July 13, 2020 clinical findings outlined by the treating sport medicine physician confirm signs of an injury to the worker’s right hip and that the subsequent diagnostic MRI study confirmed the clinical findings. Specifically, the March 10, 2021 MRI study report indicated a “small nondisplaced tear/separation about the anterosuperior labrum” but did not indicate any evidence of degeneration or other concern. The sport medicine physician outlined their view, in a report dated January 20, 2022 that the labral tear identified in the MRI study was consistent with the worker’s symptoms following their participation in the work hardening program and that it “would have been caused by the experience” in that program. While the WCB medical advisor concluded, in their opinion of July 15, 2020 that it was “not likely” a labral tear would result from the physiotherapy program and that the injury was not confirmed, the panel noted that the medical advisor did not at that time have the benefit of reviewing the MRI report that confirmed a labral tear, nor the detailed physiotherapy reports and logs that confirm the extent of the exercises the worker was engaged in through the reconditioning program. Given that the sport medicine physician had the benefit both of further information from the worker as to the nature of the reconditioning program and the diagnostic confirmation from the MRI study, the panel prefers and relies upon their opinion with respect to the nature of the right hip injury sustained by the worker.
The WCB’s Further Injuries Policy provides that a further injury occurring subsequent to a compensable injury is itself compensable when the further injury arises out of the delivery of treatment for the original compensable injury. The panel finds that to be the case here where there is evidence the worker was participating in reconditioning treatment for their compensable low back injury in preparation for a planned return to work when symptoms arose in their right hip. Later medical reporting confirmed an injury to the worker’s right anterosuperior labrum, which the treating physician stated could have occurred as a result of the worker’s efforts in the reconditioning program.
On this basis, we are satisfied, on a balance of probabilities, that the worker suffered a subsequent injury to their right hip while attending physiotherapy. The worker’s appeal on this question is granted.
The panel also considered whether the worker is entitled to wage loss and medical aid benefits beyond July 22, 2020. The worker’s submissions on this question related both to the worker’s low back injury and their right hip injury.
Having determined that the worker’s right hip injury is related to the treatment provided for their compensable low back injury of August 14, 2018, the panel noted that the question of the worker’s related benefit entitlements, if any, has not been previously adjudicated by the WCB given the adjudicative decision that the right hip injury was not related to the compensable workplace injury. The panel is therefore without jurisdiction to make any findings or determinations with respect the worker’s potential entitlements to wage loss and medical aid benefits beyond July 22, 2020 as arising out of the right anterior hip injury and returns this question to the WCB for primary adjudication.
In the advocate’s submission to the panel, they relied upon their March 21, 2022 submission to the Review Office which outlined the position that the compensable accident of August 14, 2018 resulted in an injury to the worker’s low back that was more significant than just a sprain/strain and was the cause of the worker’s ongoing radicular symptoms. The advocate noted that the evidence submitted and on file rules out any pre-existing non-compensable conditions as being the cause of the worker’s radicular symptoms and therefore the workplace accident more likely than not caused aggravation, if not enhancement of the worker’s pre-existing L5-S1 disc injury, and that the symptoms of the worker’s ongoing low back injury were further exacerbated by the worker’s June 2020 participation in the physiotherapy reconditioning program in excess of the worker’s permanent restrictions. The advocate further noted that the worker’s physical restrictions were further extended in September 2021 to limit the worker’s time spent sitting, walking and standing. As a result, the worker was not capable of a return to work after July 22, 2020 and required further medical aid and wage loss benefits arising from the workplace accident.
The panel considered the worker’s position in this regard. The panel noted the evidence of the worker’s pre-existing low back condition arising from a workplace accident in 2007 which resulted in establishing permanent restrictions of no lifting, pushing and pulling over 20 lbs., no repetitive or sustained bending or twisting of the spine, no prolonged sitting without being able to move about and working with the spine in a neutral position, changing position as needed. The medical reporting from the worker’s 2007 WCB claim file in which these restrictions were established, indicates as well that in 2007 the worker had multi-level degenerative disc disease. The MRI study from that time revealed disc herniations at L4-5 and L5-S1 with contact of descending nerve roots at both locations. The January 3, 2019 MRI study confirmed these degenerative changes with findings of disc material contacting and posteriorly displacing the traversing left S1 nerve root at the L5-S1 level and approaching or contacting the traversing L5 nerve root bilaterally at the L4-L5 level.
The panel further noted that there was no change to the worker’s restrictions prior to July 22, 2020 and that the worker was again found to be able to work within the previous restrictions. The recommendations from the treating physiotherapist set out in the June 29, 2020 discharge report confirm the worker demonstrated an ability to return to their previous employment within the permanent restrictions, and to continue indefinitely with the provided home exercise program. The panel also noted the November 18, 2020 opinion of the WCB medical advisor which sets out that:
“To the extent that [the worker] continues to experience a degree of low back and leg symptoms (whether related to the 2007 injury, the 2018 injury, age-related disc degeneration, [their] other chronic medical conditions, or some combination of all of these) the prior permanent restrictions…would continue to be appropriate.”
The panel does not find that the medical reporting following the compensable injury supports the worker’s position in this regard. There is no evidence of a worsening of the worker’s low back condition after June 2020, although there is evidence that the worker experienced a temporary increase in symptoms following their participation in the physiotherapy reconditioning sessions. The panel noted in particular the physiotherapist’s June 29, 2020 findings of “Lumbar spine range of motion is full with slight pain reported on right side flexion” and that the worker reported “tingling in the lower extremity bilaterally” that increased for a day following the exercise program. Also, as noted by the treating sport medicine physician in their March 31, 2021 report, the worker reported “an exacerbation of [their] back pain” after the June 22 and 23, 2020 sessions which was not recovered by the June 29 and 30, 2020 sessions. The sport medicine physician opined that if the worker was “over training and overly aggressive with [their] rehabilitation program it may have increased [their] back pain and caused a recovery period to be necessary.” In other words, such an increase in pain following aggressive exercise is not unexpected nor unusual and the panel finds that the worker’s increase in low back pain symptoms arising out of their participation in the reconditioning program does not indicate a worsening of the worker’s back condition.
The panel also noted that the treating sport medicine physician’s opinion of January 20, 2022 confirms some differences between the MRI studies from 2007 to 2019 “in keeping with an exacerbation and worsening of [the worker’s] pre-existing condition...[The worker] had an exacerbation as described above which symptomatically from a report standpoint would be in keeping with the pre-existing condition being worsened with the incident described through [the] workplace in August.” The panel does not conclude, however, that this opinion leads to a finding that the worker’s pre-existing degenerative disc disease was permanently enhanced as a result of the workplace injury of August 14, 2018, nor that the opinion supports a finding that the worker’s condition was permanently worsened further as a result of the June 2020 reconditioning program. While there is evidence of worsening of symptoms related to the worker’s low back condition following the August 14, 2018 compensable injury, there is also, as noted above, evidence of the worker’s gradual recovery from that injury by July 2020. The panel finds that the worker’s pre-existing degenerative disc condition was more likely than not aggravated by the workplace injury, but that the worker was, for the most part, recovered from this aggravation and returned to their pre-injury baseline status by July 2020. While the worker’s recovery was much longer than would have been expected based upon the degree of injury initially sustained, we note that there were intervening compensable and non-compensable health circumstances that extended the worker’s recovery and ultimately resulted in the need for the worker to be reconditioned before a return to work as contemplated in July 2020. We are therefore satisfied, on a balance of probabilities, that the worker had recovered from the workplace accident to the point that it was no longer contributing, to a material degree, to a loss of earning capacity as of July 22, 2020 and that the worker’s pre-existing low back condition was not enhanced as a result of compensable injury of August 14, 2018.
In conclusion, on the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained a new injury to their right hip subsequent to the compensable injury, arising out of the physiotherapy treatment for the compensable injury. The panel is unable to determine whether this finding entitles the worker to further benefits after July 22, 2020 as the WCB has not yet adjudicated that question; however, the panel is satisfied that the worker was recovered from the compensable low back injury sustained in the accident of August 14, 2018 by July 2020 and is therefore not entitled to further benefits in relation to this primary injury as of July 22, 2020. The worker’s appeal is therefore granted in part and the file is returned to the WCB for further adjudication.
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 14th day of November, 2022