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 wage loss and medical aid benefits after November 25, 2019. A hearing was held on January 31, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after November 25, 2019.

Decision

The worker is entitled to wage loss and medical aid benefits after November 25, 2019.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 106/20, dated November 9, 2020, and 120/21, dated October 24, 2021. The background will therefore not be repeated in its entirety.

On March 13, 2018, the worker provided a Worker Incident Report to the WCB, reporting an injury to their lower back resulting from an incident at work on March 8, 2018. On March 20, 2018, the WCB accepted the worker's claim for a low back sprain/strain and on April 13, 2018, the worker returned to work on modified duties. On June 15, 2018, the worker attended a call-in examination with a WCB sports medicine consultant who concluded the worker's current diagnosis was a left L5 radiculopathy, based on the worker’s initial reporting of low back symptoms and on examining the worker, found weakness of the left toe extensor and a positive straight leg raise test. The diagnosis was accounted for in relation to the mechanism of injury involving repetitive twisting while carrying materials. The consultant recommended restrictions and a strengthening program to improve the worker's symptoms and functioning. The worker attended the strengthening program from July 16, 2018 to August 15, 2018.

The worker advised the WCB on September 11, 2018, they were experiencing pain symptoms in their left shoulder, neck and head. On September 28, 2018, the worker attended another call-in examination with the WCB sports medicine consultant who opined the worker’s current diagnosis was centralizing lumbar radiculopathy related to the workplace accident. The WCB sports medicine consultant recommended the worker return to work on modified duties with restrictions to improve their function. The worker saw a sports medicine physician on October 5, 2018 who recorded tenderness in the worker's left lumbar paraspinals and a positive straight leg raise test on the left. The physician diagnosed discogenic lower back pain and left leg L5/S1 radiculopathy symptoms and recommended an MRI of the worker's lumbosacral spine. The MRI study was performed on January 8, 2019 and indicated an intra-abdominal cystic mass, mild degenerative disc disease and facet joint osteoarthritis in the worker's lower lumbar spine. On February 12, 2019, the treating sports medicine physician noted the worker was referred for further diagnostics regarding the cystic mass, with surgery likely being required. No evidence of radiculopathy was noted on the MRI results.

On February 14, 2019, the WCB determined the worker’s current difficulties were not related to the March 8, 2018 workplace accident as the worker had recovered from the workplace accident and the worker’s entitlement to benefits would end as of February 22, 2019. The worker requested reconsideration of the WCB’s decision to Review Office on February 26, 2019. The worker submitted they had not recovered from the workplace accident and their injuries had worsened. On May 31, 2019, the worker provided further medical information to the WCB, and on June 5, 2019, the WCB determined the February 14, 2019 decision remained unchanged. Review Office determined on June 18, 2019, the worker was not entitled to benefits after February 22, 2019. Review Office relied on and accepted the February 12, 2019 report of the treating sports medicine physician in concluding they could not account for the worker's difficulties in relation to the March 8, 2018 workplace accident.

The worker's representative, on December 10, 2019, submitted a report from a physician with an interest in occupational health medicine dated November 25, 2019, and asked Review Office reconsider their June 18, 2019 decision. In the report, the physician opined the worker's injury arising out of the March 8, 2018 workplace accident was a pelvic girdle muscle strain on the left side. On February 12, 2020, the worker's file, including the additional medical information, was reviewed by a WCB physical medicine consultant who concluded the diagnosis offered by the physician with an interest in occupational health medicine was not medically accounted for in relation to the workplace accident, as a minor soft tissue sprain would be minimally symptomatic and would have resolved in a few weeks at most. On February 21, 2020, Review Office determined the previous decision would stand. The worker's representative appealed the Review Office decision to the Appeal Commission, and the Appeal Commission, in Decision No. 106/20, dated November 9, 2020, determined the worker was entitled to benefits after February 22, 2019 and referred the worker’s file back to the WCB for further adjudication.

The WCB contacted the worker on November 20, 2020 to gather information. The worker confirmed they had been permanently laid off from the employer and was receiving disability benefits. The worker advised they were experiencing ongoing difficulties with pain symptoms from above the buttock on the left side, radiating downward. The worker also reported they could not sit for long periods and could walk for 15 to 20 minutes, before the pain increased. The worker attended for physiotherapy assessment on November 24, 2020 reporting constant pain around their left sacroiliac joint radiating along their left side towards the front of their hip and towards their right sacroiliac joint. The worker noted poor sleep due to pain, with pain aggravated by sitting, prolonged walking, rising to stand, and worst in the morning. The physiotherapist recorded findings of left hip flexion limited to 90 degrees due to pain at the left sacroiliac joint, tenderness, a positive Gillet’s test on the left side, an antalgic gait and diagnosed left sacroiliac joint dysfunction. On December 10, 2020, a WCB medical advisor reviewed the worker’s file. The medical advisor accepted the February 14, 2020 opinion and concluded that based on an anticipated recovery period of 6 - 18 months for the left L5 radiculopathy diagnosis, the worker would have recovered by August 8, 2019. The WCB advised the worker on the same date the file had been reviewed and it had been determined the worker was entitled to benefits to August 8, 2019.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on January 12, 2021. The representative submitted a January 4, 2021 report from the worker’s treating physiatrist who opined the worker’s diagnosis as a result of the workplace accident was a left SI joint injury, and the worker continued to experience difficulties from that injury. Review Office returned the worker’s file to the WCB’s Compensation Services on January 14, 2021 and on January 15, 2021, the WCB advised the worker there would be no change to the earlier decision.

On January 21, 2021, the worker’s representative again requested reconsideration of the WCB’s decisions to Review Office, noting the worker’s treating healthcare providers and a WCB medical advisor who conducted a call-in examination noted the worker’s consistent report of SI joint difficulties. On February 25, 2021, the worker’s representative provided the WCB with a copy of a February 23, 2021 report from the worker’s treating physiatrist who reported the worker presented to them with SI joint mediated pain, treated with pain injections. A WCB medical advisor reviewed the worker’s file on March 25, 2021 and opined the medical evidence on file supported the worker’s current diagnosis was nonspecific left low back pain. The advisor concluded the mechanism of injury did not indicate a significant injury such as an injury to the sacroiliac joint related to the worker’s job duties, and further that the worker’s current sacroiliac joint area pain was not medically accounted for in relation to the March 8, 2018 workplace accident. A copy of this opinion was provided to the worker’s representative on March 26, 2021, who provided a submission in response on April 1, 2021. Review Office accepted the WCB medical advisor’s opinion and on April 13, 2021 found the evidence on file did not support the worker injured their sacroiliac joint at the time of the workplace accident. Review Office concluded the worker was not entitled to wage loss and medical aid benefits after August 8, 2019.

The worker’s representative filed an appeal with the Appeal Commission on April 26, 2021. A teleconference hearing was arranged for September 23, 2021. On October 28, 2021, the Appeal Commission determined the worker was entitled to wage loss and medical aid benefits after August 8, 2019 and returned the worker’s file to the WCB for further adjudication.

The WCB contacted the worker on November 9, 2021 for a status update. The worker confirmed they continued to experience pain and had been referred to a different orthopedic specialist to discuss surgery. The worker noted disagreement with the diagnosis accepted by the WCB and confirmed by the recent Appeal Commission decision, being a left L5 radiculopathy, and stated the medical evidence on file supported they were misdiagnosed. On the same date, the worker spoke with their WCB case manager’s supervisor who confirmed the accepted diagnosis as set out in the Appeal Commission decision, which the worker again advised they disagreed with. On November 12, 2021, the WCB advised the worker after review of the worker’s file, including the accepted diagnosis of a left L5 radiculopathy, the treatment the worker had received, and the length of time that had passed since the March 8, 2018 workplace accident, it had been determined the worker had recovered from the effects of their workplace injury and was entitled to wage loss and medical aid benefits to November 25, 2019.

On January 5, 2022, the worker submitted a detailed chronology of the medical information on their file and requested Review Office reconsider the decision to end their entitlement to wage loss and medical aid benefits. The worker provided the evidence supported their workplace injury involved their sacroiliac joint, which was misdiagnosed as a left L5 radiculopathy. In addition to requesting reconsideration by Review Office, the worker also submitted a request to the WCB’s Board of Directors under s 60.9 of the Act, noting their belief the Appeal Commission erred in making the October 28, 2021 decision as the new medical information regarding a sacroiliac information was not considered. On January 27, 2022, the WCB’s Legal and Corporate Services Department acknowledged receipt of the worker’s request. On February 2, 2022, Review Office sent a letter to the worker confirming the worker’s representative’s advice their reconsideration request with Review Office was placed on hold pending a decision by the WCB’s Board of Directors on the s 60.9 request. On March 24, 2022, the WCB’s General Counsel advised the worker their request has been reviewed; however, it was noted the concerns raised in their request dealt with how the Appeal Commission treated and considered the evidence given at the hearing, which was not an appropriate subject for a s 60.9 application and their request would not be forwarded to the WCB’s Board of Directors.

The worker resubmitted their request for reconsideration to Review Office on April 8, 2022, with their representative providing a submission on April 14, 2022. Both the worker and their representative noted the worker continued to experience difficulties as a result of the workplace accident, which was supported by the worker’s treating healthcare providers.

On June 7, 2022, Review Office determined the worker was not entitled to benefits after November 25, 2019. Review Office found the WCB accepted responsibility for the worker’s injury to November 25, 2019 and that no new medical evidence has been provided to support the worker’s current ongoing difficulties relate to the initial compensable low back strain or subsequent radiculopathy. Review Office acknowledged the worker continues to have other medical issues and continues to report pain radiating across their low back from left to right; however, the evidence does not establish a causal relationship between the March 8, 2018 workplace accident and those difficulties.

The worker’s representative filed an appeal with the Appeal Commission on July 25, 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 22(1) creates an obligation upon workers in relation to injuries sustained as a result of an accident, to:

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made an oral submission on behalf of the worker. The worker provided testimony in response to questions posed to them by the worker advisor and by members of the appeal panel.

The worker advisor outlined the worker’s position that the available medical evidence does not support the WCB’s conclusion that the worker was recovered from the compensable low back injury as of November 25, 2019 and therefore the worker should be entitled to wage loss and medical aid benefits beyond that date.

The worker advisor noted that the WCB’s determination of the worker’s recovery as of November 25, 2019 is stated to be based upon the January 2019 MRI study, an opinion of the WCB medical advisor, and the typical recovery timeframes for L5 radiculopathy, as well as an October 8, 2019 physiotherapy report and the November 25, 2019 report of the physician specializing in occupational health. The worker advisor pointed out that the October 8, 2019 physiotherapy report did not reference any new clinical findings from that time period but contained a summary of the treatment provided to the worker in 2018. The worker advisor also noted that the clinical findings outlined in the November 25, 2019 report by the occupational health physician support the fact that the worker was not yet recovered at that time.

The worker advisor argued that medical reporting indicates the worker continued to experience the same, ongoing symptoms and functional limitations beyond November 25, 2019 as they did prior to that date, noting as well the findings of the previous Appeal Commission panels in respect of the worker’s non-recovery in February and August of 2019.

The worker advisor also commented upon the likely impact of the worker’s relative inactivity from the time of their layoff in mid-September 2018 through to and beyond November 25, 2019, noting that the recommendation of the WCB medical advisor contained in the call-in examination notes from September 2018 that the worker needs to return to work in order to improve their function was never acted upon. Specifically, the WCB took no steps to assist the worker with a return to work. The worker advisor argued that if a return to work was essential at that time in order to support the worker’s functional improvement, then perhaps the worker’s lack of recovery can be related, at least in part, to not having the opportunity to return to work.

The worker described their current symptoms, including pain radiating to their right side and a burning sensation about their right hip. The worker noted that they try to walk two hours daily in order to maintain mobility as well as doing home stretching exercises, as when they are less mobile, their symptoms flare more often, with frequent night waking and difficulty with stepping out of bed, on waking. The worker described that their symptoms have worsened in the past year.

The worker confirmed that they have not been able to seek further physiotherapy due to the cost and have not returned to any work activities since their layoff in November 2018.

The worker advisor acknowledged that this is a challenging case where there are multiple factors at play including age-related degeneration, but submitted that as a result of the workplace accident, and with no active treatment or possibility of a return to work since 2018, this worker has developed a chronic low back condition. The worker had not recovered by November 25, 2019 but had continuing symptoms of pain and functional limitations beyond that date. Therefore, the worker should be entitled to wage loss and medical aid benefits after November 25, 2019.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for determination in this appeal is whether the worker is entitled to wage loss and medical aid benefits after November 25, 2019. For the worker’s appeal to succeed, the panel would have to determine that the worker was not recovered from the effect of the March 8, 2018 workplace accident by November 25, 2019 and as such, that the worker’s continuing loss of earning capacity and need for medical aid beyond that date are the result of the compensable injuries sustained. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The worker’s position, as detailed above, is that the available evidence does not support the WCB’s position that the worker had recovered from the compensable low back injury with L5 radiculopathy by November 25, 2019, even though more than 18 months, the expected end date for recovery, had passed since the workplace accident in which that injury was sustained. The worker’s advocate also noted that the WCB determination that the worker was recovered was based upon the same evidence relied upon by previous appeal panels in determining that the worker had not recovered.

As noted in the worker advisor’s submissions to the panel, this is a challenging case. The worker in their evidence maintained that they continue to suffer the effects of the compensable low back injury and continue to seek treatment, noting consistency of symptoms and that they have never been pain free since the date of injury, now five years ago. The panel acknowledges the worker’s testimony in this regard, but confined its deliberations to consideration of whether or not the evidence supports the worker’s position that they were not recovered from the compensable injury as of November 25, 2019.

The panel noted the findings of the previous Appeal Commission panels in relation to the worker’s claim. The first appeal panel made a finding in its decision of November 9, 2020, that the medical evidence available to February 22, 2019 indicated that the worker had not recovered from the compensable workplace injury as of that date. In reaching that determination, that panel considered and relied upon the opinion of the WCB sport medicine advisor of December 28, 2018 that the natural history of lumbar radiculopathy was from 6 to 18 months and concluded that the worker’s presentation at that time was likely still related to the workplace injury, noting reported medical findings of restricted forward flexion but none of continuing neurological deficits, with continuation of restrictions recommended. The subsequent appeal panel, in its decision of October 28, 2021, concluded that the available evidence did not support a finding of recovery from the compensable workplace injury by August 8, 2019.

In implementing the second appeal panel decision, the WCB determined on November 12, 2021 that, as recovery from L5 radiculopathy would not typically exceed a period of 18 months, and as there was “no evidentiary evidence to support an ongoing diagnosis of lower lumbar radiculopathy”, the worker was recovered as of November 25, 2019. The WCB’s decision relied upon the January 8, 2019 MRI study and a WCB medical advisor opinion, although it is not stated which one. The decision also referenced and relied upon the October 8, 2019 physiotherapy report and the November 25, 2019 occupational health physician report as supporting the worker’s recovery.

The panel notes that although recovery norms may provide useful guideposts in adjudication of claims, the panel does not support the reliance upon those norms in determining a specific worker’s entitlement to further benefits, in the absence of clinical findings that confirm or indicate recovery has occurred. The panel further noted that the WCB adjudicator relied upon an October 8, 2019 physiotherapy report that contain a summary of clinical findings from March 14, 2018 through July 11, 2018, but does not contain any information as to the worker’s clinical presentation in 2019. In other words, this report does not offer any relevant evidence upon which the panel can rely on considering the question before us. The WCB also relied upon the November 25, 2019 report of the consulting physician specializing in occupational health, which was considered by the previous appeal panel as well. The panel noted that in that report, the occupational health physician outlined their clinical findings from assessment of the worker through the fall of 2019, which included reduced lumbar range of motion in flexion and extension, as well as positive passive left straight leg raise testing. The occupational health physician recommended further physical therapy and noted that a physiatrist referral was pending. Although the physician concluded that the worker’s current presentation related primarily to a previously undiagnosed pelvic girdle muscle strain which the WCB has not accepted as being related to the compensable workplace injury, the reported clinical findings do not indicate or support that the worker was recovered from the compensable low back injury by that date. The panel also noted that the worker’s subjective reports to the occupational health physician report on September 11, October 3, October 23 and November 20, 2019 included ongoing left posterior hip and low back pain that worsens with walking, with tingling and cramping into their left toes. Thus, both the clinical findings and the worker’s own reports at that time also do not support the determination that they had recovered by November 25, 2019.

The panel further noted there are no clinical findings or medical reports in the period following November 25, 2019 that would support the WCB’s determination that the worker was recovered by November 25, 2019 and therefore no longer entitled to benefits beyond that date. The panel was unable to locate any further medical reporting within the WCB claim file specifically in relation to the worker’s low back condition until nearly one year later, when the October 2, 2020 MRI study of the worker’s lumbar spine was undertaken.

Considering the totality of the evidence before the panel, we find that the worker was not recovered from their compensable low back injury by November 25, 2019 but continued to experience related symptoms and reduced functional ability beyond that date. Further, the evidence supports a finding that the worker had a continuing need for medical aid arising from the compensable injury and continued to experience a loss of earning capacity beyond November 25, 2019 as a result of the compensable injury.

The panel therefore determines on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker is entitled to medical aid and wage loss benefits after November 25, 2019. We note that is a “point in time” decision and as such, refer the claim back to the WCB for further determination as to the specific benefits entitlements and duration of those entitlements.

The worker’s appeal is granted.

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 10th day of March, 2023