The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the March 4, 2021 accident. A hearing was held on October 18, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the March 4, 2021 accident.

Decision

The worker is not entitled to further benefits in relation to the March 4, 2021 accident.

Background

The worker provided a Worker Incident Report to the WCB on March 25, 2021, reporting injury to their lower back and left knee that occurred on March 4, 2021 and was reported to the employer on March 9, 2021. The report indicated that on January 21, 2021, the worker was informed they were being transferred to a different worksite farther away, which required additional travel to work. This transfer was made permanent at the beginning of March 2021. The worker noted their concern with the additional travel due to their prior back injury. The worker reported they worked on March 4, 5 and 6, 2021 but after attending physiotherapy on March 9, 2021, they were removed from work.

The March 9, 2021 initial assessment report from the treating physiotherapist provided a diagnosis of "Aggravation of old L5 disc injury - now bilat (bilateral) signs". The physiotherapist noted the worker's report of working 1.5 hours away from home and travelling in a vehicle with poor shocks on rough roads. The worker reported severe lumbosacral junction pain and lateral left knee pain that increased with their back pain and increased dorsal pain in their right foot with tingling. The physiotherapist recorded impingement signs bilaterally, with all movement of the worker's lumbosacral junction very limited.

On seeing their family physician on March 17, 2021, the worker reported continued pain in their left knee due to a previous injury located on the inside and outside of their knee that is improving, but due to work travel on rough roads, they were now experiencing pain in their lower back, radiating to both legs, but mostly on the left. The physician noted the worker’s report of paresthesia in both legs, in the left heel and right dorsal foot. The physician recorded the worker’s prior diagnosis of L5-S1 degenerative disc disease and that the associated right drop foot was aggravated. On examination, the physician recorded tenderness at the L4 area and both sides of the paraspinals, with decreased flexion, lateral bending and rotation, and normal neurological, reflex, sensation and power testing. The physician diagnosed lumbar spine degenerative disc disease with possible multiple nerve radiculopathy and referred the worker for an MRI and physiotherapy.

The Employer's Accident Report received by the WCB on April 6, 2021 described the worker's report of "…having pain and difficulties from having to travel to new work site and excessive/longer travel required in vehicle causes increase in symptoms from previous compensable claim."

On April 12, 2021, the WCB contacted the worker to discuss their claim. The worker advised that their symptoms began at work on March 4, 2021 after a longer commute to the work site, and during their shift, travel on a rough highway. The worker further advised that by the time that shift ended, their lower back and left knee were very painful. They described multiple symptoms as follows: their left knee feeling like it was "on fire" on the inside from being in one position for longer periods; low back pain at 10/10; muscle spasms in the back of both legs; left sciatic pain down to the toes; numbness and tingling into the left heel and arch; tingling to the back of both legs in the hamstring area; when sitting, increased pain symptoms and numbness into both lower legs, but more on the left; inability to sleep; and low back pain when driving to and from work. The worker noted that since being off work, their symptoms were improved until an exercise at physiotherapy aggravated their back symptoms. The worker advised they were still feeling tenderness in the low back but the muscle spasms in both legs were gone, and their pain had improved to a 3/10 on a pain scale. Further, the worker noted the symptoms in their right foot had almost resolved, with a continuing nerve pain-like feeling on the top of the foot, and their left foot symptoms were completely resolved. The worker advised they could sit for approximately 45 minutes before they had to move around. The worker noted a previous lower back injury in 2012 from which they never fully recovered. On April 16, 2021, the WCB accepted the worker's claim.

At an April 19, 2021 appointment with a sports medicine physician, the worker reported ongoing problems with their left knee. The physician noted the worker had a recent flareup of their back symptoms and had been attending physiotherapy, and that the worker was known to have “…chronic back problems with right foot drop/L5 issues.” The sports medicine physician noted an MRI of the worker’s left knee conducted in January 2021 indicated normal findings and offered a diagnosis of patellofemoral pain with presumed chondromalacia. At physiotherapy on April 20, 2021, the physiotherapist recommended the worker could return to work the following week on light duties for three days per week at three hours per day. The physiotherapist recommended restrictions of no prolonged sitting, standing or walking, frequent breaks, a five-pound limit for lifting/carrying and no lifting from the ground.

On April 27, 2021, the worker advised the WCB that their treating physiotherapist had added an exercise to their program on April 20, 2021 which caused more back pain with increasing symptoms and on April 22, 2021, the worker had a lot of pain in the back with numbness and tingling in the left leg. The worker further advised that after the MRI study on April 23, 2021, they were experiencing increased numbness and tingling in the right foot, sharp pain in the low back and could not sit or stand without pain, numbness, and tingling in both legs.

On April 28, 2021, the WCB received the April 23, 2021 MRI study of the worker’s lumbar spine which indicated multilevel degenerative changes in the spine and no significant spinal canal stenosis. On May 3, 2021, a WCB medical advisor reviewed the worker’s file and concluded that the evidence did not support a diagnosis to account for the worker’s left knee symptoms, nor a diagnosis beyond non-specific low back pain for the worker’s lower back. The WCB medical advisor compared the April 23, 2021 MRI to the 2013 MRI and noted there was no indication of any structural changes. The medical advisor also noted that the treating healthcare providers’ advice for the worker to be off work “…appears to be based on reported symptoms and associated perceived functional limitations.”

On May 18, 2021, the WCB advised the worker that it would not accept ongoing responsibility for their low back and left knee difficulties and the worker was not entitled to further benefits after May 27, 2021.

On January 25, 2022, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. In their submission, the representative noted the treating healthcare providers, and in particular the treating physiotherapist recommended the worker could return to work on a gradual basis, indicating the worker had some symptomatic and functional improvement but still required ongoing treatment including time away from work and physiotherapy treatment.

Review Office determined on March 1, 2022 that the worker was not entitled to further benefits, relying upon the medical advisor’s opinion that a diagnosis of a radiculopathy was not supported by the medical evidence on file. Further, the Review Office agreed that the diagnosis related to the workplace accident was non-specific back symptoms and that a specific injury or structural abnormality was not apparent. As such, Review Office determined the worker’s ongoing low back difficulties were not related to the March 4, 2021 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on March 15, 2022 and a hearing was arranged.

Reasons

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 WCB Policy 44.10.20.10, 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 and “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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made an oral submission on behalf of the worker and also relied upon the January 25, 2022 written submission to the Review Office. The worker provided testimony through answers to questions posed by their advocate and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that there is no evidence to support the WCB’s position that the worker was recovered from the compensable workplace injury by May 27, 2021. As a result of the lower back and left knee injuries sustained on March 4, 2021, the worker continued to require medical care beyond May 27, 2021 and continued to engage only in restricted tasks at work until the end of July 2021 when the worker left work. The worker advisor relied upon the physiotherapy treatment notes from late May – July 2021 as providing evidence that the worker had not recovered by that point but required continuing treatment of the lower back and left knee. The worker confirmed that they continued treatment with the physiotherapist until the end of July 2021 and that as of July 28, 2021 they discontinued working until November 18, 2021 when another return to work attempt was made following completion of a physiotherapy program arranged by the disability insurance program provider.

The worker advisor argued that the WCB determination was made based upon typical recovery norms or expectations but stated that such expectations need to be adjusted and revised where there is a relevant pre-existing condition, such as is the case here where the worker had only recently returned to work from their prior injury. Further, the worker advisor submitted that the WCB ought to have requested an opinion from its medical advisor as to whether the worker’s pre-existing condition impacted their recovery from the compensable injury, noting that the WCB did seek and obtain such an opinion before determining the worker’s ability to return to work in respect of the 2020 compensable accident. The worker advisor noted that the WCB had determined that the worker’s lower back pain arising out of the November 2020 claim was resolved by January 2021 such that the worker was capable of a return to full duties. The worker stated they worked a lot of overtime hours in January and February 2021 and that their low back and knee symptoms arising from the 2020 accident were slowly improving, but that they were working injured through this period.

The worker advisor also noted the WCB medical advisor’s comment that there was “no diagnosis yet determined to account for the left knee symptoms” and suggested that this meant the medical advisor could not identify a specific left knee diagnosis based upon the available medical information, rather than that there was not a left knee injury. The worker advisor urged the panel to give little or no weight to the medical advisor’s May 3, 2021 opinion given the absence of any comment on the potential impact of the worker’s pre-existing back injury and lack of comment on the other symptoms noted by the treating healthcare providers including the findings of paraspinal tenderness and patellofemoral tenderness.

The worker advisor urged the panel instead to give greater weight to the opinions of the treating healthcare provider who had the benefit of assessing the worker, noting that the treating physiotherapist only supported a gradual return to restricted work as of April 26, 2021 and recommended ongoing physiotherapy treatment for the left knee and lower back. As the treating physiotherapist did not approve the worker’s full resumption of pre-accident duties by May 27, 2021, the evidence supports a finding that the worker should be entitled to further benefits in relation to the March 4, 2021 accident.

The worker also outlined to the panel a number of concerns with respect to their return to work from the prior injury and the present injury relating to the relocation of the worker’s primary work site and proposed accommodations offered by the employer. Copies of the worker’s personal journal and notebooks were submitted to the WCB claim file outlining the worker’s specific concerns.

In sum, the worker’s position is that the evidence, particularly that of the treating physiotherapist, does not support the WCB’s determination that the worker was recovered from the March 4, 2021 injury by May 27, 2021, but rather leads to the conclusion that the worker required further medical aid and continued to experience a loss of earning capacity beyond that date. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by an advocate who made submissions on behalf of the employer and answered questions posed to them by members of the appeal panel.

The employer’s position is that the evidence does not support the worker’s position that they are entitled to further benefits; rather, the evidence supports a finding that the worker aggravated their pre-existing degenerative disc condition but that this aggravation was resolved by the time the WCB terminated the worker’s entitlement to benefits in late May 2021. Therefore, the worker’s appeal should be denied, and the decision of the Review Office upheld.

The employer’s representative reviewed the medical reporting in respect of this injury as well as the worker’s November 2020 compensable injury, noting that on February 25, 2021 the treating physiotherapist recorded findings of increasing lumbar spine impingement pain and fluctuating left knee and lower back symptoms which the worker attributed to working overtime. The representative noted the treating physiotherapist described the worker as experiencing flareups and improvement prior to this injury as well as after the March 4, 2021 injury and argued that such swings between good days and bad days in terms of symptomatic presentation are the hallmarks of a diagnosis of degenerative disc disease.

The employer’s representative noted that the MRI study of the worker’s left knee from January 15, 2021 was normal indicating no continuing left knee issues, and that the worker’s treating physician, on March 17, 2021 commented on the worker’s pre-existing lower back condition and noted that the more recent left knee complaints were improving. By April 9, 2021, the WCB case manager noted the worker’s report that their left foot symptoms were gone, although the worker reported a lingering ache in their left knee and slight swelling. The WCB medical advisor opinion of May 3 2021 concluded there is no diagnosis to account for the worker’s left knee symptoms as being related to the workplace injury. The medical advisor further noted that the April 23, 2021 lumbar spine MRI study did not reveal any structural changes since the previous study on January 19, 2013, nor did it reveal any evidence of radiculopathy. The medical advisor therefore concluded there was no evidence of a material aggravation of the worker’s pre-existing lumbar spine condition.

The employer’s representative further submitted that the reported mechanism of injury is not consistent with a disc or knee injury and urged the panel to adopt the May 3, 2021 conclusions of the WCB medical advisor.

The employer’s position is that the worker is not entitled to further benefits and that the benefits already provided to the worker are sufficient, noting that any ongoing symptoms are more likely than not attributable to the worker’s pre-existing degenerative back condition which has not been enhanced by this accident.

Analysis

The question on appeal is whether the worker is entitled to further benefits. For the worker’s appeal to succeed the panel would have to determine that the worker sustained a loss of earning capacity or required further medical aid resulting from the compensable workplace injury of March 4, 2021 beyond May 27, 2021. As outlined in the reasons that follow, the panel was not able to make such a determination and therefore the worker’s appeal is denied.

The panel considered the mechanism of injury as described by the worker. The worker clarified in their testimony that the injury occurred as a result of riding in a work vehicle traveling for approximately 1.5 hours to a work site and back again, via a rough road. The worker indicated that sitting in the vehicle on this return trip caused onset of significant symptoms in their low back and left knee, in particular, but also in their legs and feet.

The panel noted that the worker had just returned to work in January 2021 following a compensable injury to their left knee that occurred at work in November 2020. The 2020 WCB claim file contains medical reports indicating that the worker made a full recovery from that injury such that they returned to full regular duties at the beginning of January 2021, although the worker indicated that they returned to work injured. The panel also noted that the January 15, 2021 left knee MRI study did not indicate any ongoing left knee issues. Although the treating sport medicine physician stated on April 19, 2021 that the worker’s symptoms were related to patellofemoral pain and “[p]resumed chondromalacia”, the physician also indicated that they did “not think anything structural is going on.” The panel also noted the conclusion of the WCB medical advisor in their May 3, 2021 opinion that neither the worker’s reported symptoms nor the MRI study results were suggestive of patellofemoral issues.

The panel considered the MRI study from April 23, 2021 as compared to a previous lumbar spine MRI from January 19, 2013. This most recent MRI study was undertaken based on clinical reporting of radicular pain and paresthesia in multiple nerve root areas and the MRI findings indicate multilevel degenerative changes but no significant spinal canal stenosis, with evidence of a shallow diffuse disc bulge approaching the base of the L5 nerve root on the left and a right paracentral disc protrusion that contacts the right S1 nerve root. A review of the 2021 MRI study by the WCB medical advisor on May 3, 2021 indicated “no new findings compared to a prior scan” of January 19, 2013 and “nothing to correlate with the proposed “multiple nerve radiculopathy” suggested by the sport medicine physician on March 17, 2021. The WCB medical advisor also noted the absence of any clinical findings to support a diagnosis of radiculopathy. As a result, the WCB medical advisor concluded that the diagnosis at that time was non-specific low back pain. The panel accepts and relies upon this opinion.

The panel is satisfied, on the basis of the evidence before us, that the mechanism of injury arising from travel as a passenger in a vehicle on a rough road for approximately 1.5 hours in each direction as reported by the worker is consistent with no more than a minor injury to the worker’s left knee and low back. We find it more likely than not, based on the various medical opinions and reports in evidence, that the worker’s pre-existing degenerative back condition was aggravated as a result, causing a flareup of symptoms such as is typical of such a condition. Further, we are satisfied that there is no evidence that the worker’s pre-existing degenerative low back condition was enhanced as a result of this injury.

With respect to the worker’s left knee, we note that the worker’s complaints of persistent joint line pain predated this incident and that there remains a lack of evidence before us of any structural basis for the worker’s left knee symptoms, nor any specific diagnosis to account for the worker’s continuing report of symptoms beyond May 2021. Although the worker had a prior left knee injury, there is also no evidence of any ongoing injury or condition related to that injury that could have been aggravated or enhanced by the March 4, 2021 incident. The panel accepts and relies upon the May 3, 2021 opinion of the WCB medical advisor that there is no evidence to relate the worker’s ongoing report of left knee symptoms to the accepted compensable injury.

Therefore, on the basis of the totality of the evidence before us and on the standard of a balance of probabilities, the panel determines that the injuries sustained by the worker in the accident of March 4, 2021 were resolved by May 27, 2021 and that any ongoing symptoms or issues related to the worker’s left knee and lower back cannot be attributed to this accident. As such, the panel is satisfied that the worker is not entitled to further benefits in relation to the March 4, 2021 accident. The worker’s appeal is dismissed.

Panel Members

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 2nd day of December, 2022