The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that there is no entitlement to benefits beyond June 23, 2021 with the exception of physiotherapy in relation to the May 4, 2021 accident, and no entitlement to coverage for physiotherapy beyond August 11, 2021; and that the claim with respect to an injury occurring on June 23, 2021 is not acceptable. A hearing was held on January 19, 2023 to consider the worker's appeal.

Issue

Date of Accident – May 4, 2021:

1. Whether or not the worker is entitled to benefits after June 23, 2021 with the exception of physiotherapy treatment in relation to the May 4, 2021 accident; and 

2. Whether or not the worker is entitled to physiotherapy treatment after August 11, 2021 in relation to the May 4, 2021 accident.

Date of Accident – June 23, 2021:

Whether or not the claim is acceptable.

Decision

Date of Accident – May 4, 2021:

1. The worker is entitled to benefits after June 23, 2021 with the exception of physiotherapy treatment in relation to the May 4, 2021 accident; and 

2. The worker is entitled to physiotherapy treatment after August 11, 2021 in relation to the May 4, 2021 accident.

Date of Accident – June 23, 2021:

The claim is not acceptable.

Background

Date of Accident – May 4, 2021

The WCB received a copy of a medical report relating to the worker's attendance at a minor injury clinic on June 24, 2021. The presenting problem was documented as

…lower back, left leg – 2 weeks, shoveling asphalt at work. felt a pinch and then lower back pain. finished work that day. next day at work did a twisting motion and ++ pain again. went to physio – told slip disk, went to family doctor, no xrays, pain increasing and new numbness. pain increasing and new numbness. pt [patient] states numbness starting in glute and radiates down to left ankle, started last 2/7. states she has intermittent shooting down left leg last 2 weeks…

On examination, the treating sports medicine physician noted the worker had tenderness in her paralumbars and pyriformis on the left, and limited range of motion in lateral flexion and rotation, and provided a diagnosis of "acute lumbar Disc Herniation and left Radiculopathy. " The physician recommended the worker continue physiotherapy and remain off work. A sick note was provided for the period of June 24, 2021 to July 12, 2021, along with a referral to physiotherapy.

The employer provided an Employer's Incident Report dated June 28, 2021, reporting an injury to the worker's back/lower spine that occurred at work on May 4, 2021 and was reported to the employer on June 23, 2021. The employer noted on the Report that the worker was bending and twisting while lifting heavy material on May 4, 2021, but did not report an injury to her supervisor or complete a green card.

On June 30, 2021, the worker attended an initial physiotherapy assessment, reporting pain down her left leg into her foot, with numbness and burning down the back of her leg, which was worse when sitting or bending. The physiotherapist noted the worker's lumbar spine range of motion was "extremely limited, especially forward flexion" and noted the worker had a positive straight leg raise test. The physiotherapist provided a diagnosis of a lumbar disc herniation at L4-L5.

On June 30, 2021, the WCB contacted the worker to discuss her claim. The worker confirmed that she was performing spring clean-up duties in a parking lot on May 4, 2021, using a power broom to move heavy materials, including asphalt and sand into piles, then shoveling the piles by hand into a cart. She noted she lifted and twisted improperly with her back, and her lower back felt hot, with shooting pain. She indicated she did not mention the incident to her co-workers, but did mention it to her supervisors when she returned to the office. She continued to work that day but was in a lot of pain. She worked again on May 5, 2021, and did another twisting, lifting and bending motion when raking leaves on uneven ground. On May 6, 2021, the worker attended physiotherapy, and did not go to work. The worker advised that around the beginning of June, she started feeling left leg pain, and was still seeing her physiotherapist, who advised that she might have a herniated disc. The worker further advised that on or around June 23, 2021, she started experiencing numbness in her left leg. She confirmed that on June 24, 2021, she saw the sports medicine physician, who placed her off work until July 12, 2021.

On July 6, 2021, the worker provided the WCB with her Worker Incident Report, along with a copy of the Notice of Injury she had completed for the employer. On July 7, 2021, the WCB advised the worker that her claim had been accepted and payment of benefits approved.

On July 7, 2021, the worker saw the treating sports medicine physician at a follow-up appointment, reporting unchanged and persistent lumbar and leg pain. The physician noted the worker had limited straight leg raises at 35 degrees, diffuse tenderness and marked restriction in range of motion, and recommended an additional 4 weeks off work.

On July 8, 2021, the WCB received a copy of the May 6, 2021 initial physiotherapy assessment of a lower back, left leg injury. It was noted that the worker described "pain after bend/hoist @ work", which radiated into her buttocks. Pain with sitting, standing, walking, sneezing, pushing and straining was also noted. The treating athletic therapist provided a diagnosis of "presumed disc injury" and recommended restrictions of no lifting off the ground, and no repetitive spinal flexion for two weeks.

On August 3, 2021, the treating athletic therapist provided the WCB with copies of their chart notes for the worker. At a further follow-up appointment with the treating sports medicine physician on August 4, 2021, the physician noted the worker reported continuing lumbar pain, but some improvement in left leg paresthesia. The physician noted that straight leg raises were still markedly limited and recommended the worker remain off work for a further 6 weeks.

On August 10, 2021, a WCB medical advisor provided an opinion on the worker's file. The medical advisor opined that based on the initial medical information, the worker's diagnosis as related to the workplace accident was a low back sprain/strain injury with associated non-specific low back pain. The WCB medical advisor further opined that the natural history of a low back sprain/strain injury is recovery over a period of days to weeks and noted that:

…progression of symptoms documented on the May 12, 2021 and May 26, 2021 athletic therapy reports reflects the natural history of symptom resolution. The May 26, 2021 report of "Able to do everything at work. Only issue is still getting 'knot' in left glutes" is concordant with material resolution of symptoms.

The medical advisor went on to note that findings on the June 9, 2021 athletic therapy report of increased left leg pain radiating into the worker's calf starting 3 days previously was not concordant with symptoms of a low back sprain/strain injury that occurred on May 4, 2021, considering the findings on the May 26, 2021 report. The medical advisor further opined that the treating sports medicine physician's findings on the June 24, 2021 report were concordant with a diagnosis of left lumbar radiculopathy, which was "…supported by the description of left lower extremity pain radiating to the lower leg with associated paresthesia, as well as the positive straight leg raise test," but the diagnosis could not be accounted for in relation to the work the worker performed on May 4, 2021. Finally, the WCB medical advisor opined the medical evidence did not support the worker was totally disabled and recommended a return to work in a sedentary capacity, with a restriction allowing for position changes as needed.

On August 11, 2021, the WCB received a report from the worker's treating physiotherapist, who noted that the WCB had ended the worker's treatment, but the worker still required treatment as she had not recovered, had limited mobility, continued nerve irritation symptoms and sitting would aggravate the worker's condition.

On August 12, 2021, the WCB advised the worker that based on the information on file, they had determined she had recovered from the effects of her May 4, 2021 compensable injury and any ongoing difficulties were likely related to her pre-existing condition(s). The WCB advised the worker that her entitlement to benefits would therefore end as of June 23, 2021. It was noted physiotherapy treatment had been previously approved and would end as of August 11, 2021.

On October 13, 2021, the worker's treating sports physician provided a letter to the WCB supporting the worker's ongoing need for further physiotherapy. The physician noted that progress reports supported that the worker's function had not improved to a degree of resolution The physician noted that "…lumbar disc issues can be several months to resolve and can benefit from continued physiotherapy and targeted exercise to improve functionality" and recommended that the worker's claim be reviewed and her entitlement to physiotherapy reinstated. On October 13, 2021, the WCB also received a September 30, 2021 report from the worker's treating physiotherapist supporting the worker's need for further physiotherapy treatment. On November 8, 2021, the WCB medical advisor reviewed the new information, along with the worker's file, and on November 24, 2021, the WCB advised the worker that there would be no change to their decision.

On December 2, 2021, the worker provided the WCB with a copy of a September 8, 2021 note from her treating physiotherapist, in which the physiotherapist noted he had been treating the worker for injuries to her lower back that occurred as a result of two incidents, "…one a bending and twisting mechanism and the second a repetitive jarring related to a vehicle" both of which reportedly occurred at work. The physiotherapist opined that the second incident amplified the symptoms from the first incident and noted the diagnosis was an L4/5 disc herniation with radiculopathy into the worker's left leg, which remained unresolved.

On December 20, 2021, the WCB medical advisor again reviewed the worker's file and advised that their previous opinions remained unchanged. The medical advisor stated there was a lack of evidence of an additional workplace incident occurring after the May 4, 2021 workplace accident, and the worker's current symptoms were not medically accounted for in relation to that incident. By letter dated December 21, 2021, the WCB advised the worker that there would be no change to the decision that she was not entitled to benefits after June 23, 2021, except for physiotherapy which was approved to, and ended on, August 11, 2021.

On January 29, 2022, the worker requested that Review Office reconsider the WCB's December 21, 2021 decision. The worker submitted her treating healthcare providers supported she injured her back at work and required further treatment for her ongoing symptoms. On March 29, 2022, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on May 3, 2022.

Date of Accident – June 23, 2021

On August 23, 2021, the worker filed a Worker Incident Report with the WCB, reporting an injury to her low back, left glute and left leg that happened at work on June 23, 2021 when she twisted while in a confined space and "…caused strained (sic) on the lower back to the nerve area. Especially to the left glute down my whole left leg into my foot and toes." The worker reported she saw her treating sports medicine physician on June 24, 2021,and was diagnosed with severe sciatica and given a note to be off work until July 12, 2021, which was extended another 4 weeks on July 7, 2021. At a follow-up appointment on August 4, 2021, the worker was placed off work for an additional 6 weeks. The worker advised that her next appointment was on September 15, 2021 to re-assess and determine her functional abilities and fitness for work.

On August 24, 2021, the employer filed the Employer's Accident Report with the WCB. A copy of a Notice of Injury which was completed by the worker on August 24, 2021 was also provided to the WCB.

A copy of the June 24, 2021 report from the worker's treating sports medicine physician was added to the worker's file from her previous WCB claim. The report noted the worker's complaints of lumbar pain on the left side, radiating on the left to her buttock, thigh and lower leg, posteriorly, with associated paresthesias in the lower leg. On examination, the physician noted tenderness in the worker's paralumbars and pyriformis on the left side, limited range of motion in lateral flexion and rotation. The physician diagnosed the worker with an acute lumbar disc herniation and left radiculopathy, recommended physiotherapy and placed the worker off work.

On August 25, 2021, the worker attended an initial physiotherapy assessment, reporting she aggravated her lower back further on June 23/21 "…by returning to work and riding bumpy vehicle." The treating physiotherapist recorded the worker's complaints of extremely limited mobility, pain into her low back and down her left leg, worse with sitting, and difficulty sleeping. On examination, the physiotherapist noted decreased range of motion and positive straight leg raise tests and diagnosed the worker with an L4/5 disc herniation.

The WCB spoke with the worker on August 31, 2021 to discuss the claim. The worker confirmed the mechanism of injury and advised she reported the incident to her supervisor on June 24, 2021, but did not provide details. She said she notified her supervisor again about the June 23, 2021 incident when she went in on |June 28, 2021 to complete paperwork for her May 4, 2021 incident. The WCB noted the Employer's Accident Report indicated the worker reported the incident to the employer on August 24, 2021, and indicated she had made her supervisor aware of the injury but thought it was all related to her May 4, 2021 claim. The worker further advised she did not mention the June 23, 2021 incident to her treating physiotherapist or sports medicine physician, as she thought it was related to the May 4, 2021 claim.

On September 1, 2021, the WCB advised the worker that her claim was not accepted. The WCB noted the medical evidence on file did not describe a workplace incident occurring on June 23, 2021. The WCB further noted that in their initial discussion with the worker on June 30, 2021 with reference to her May 4, 2021 claim, the worker did not mention an injury occurring on June 23, 2021. The WCB therefore advised that they could not establish an accident arising out of or the course of the worker's employment on June 23, 2021.

On September 21, 2021, the worker provided the WCB with a copy of the September 8, 2021 report from the worker's treating physiotherapist, which noted the worker was being treated for two injuries, the second of which aggravated the symptoms from the first incident and provided the diagnosis of a L4/5 disc herniation, with radiculopathy into her left leg, which had not resolved. The worker also provided a Work Abilities Form completed by the worker's treating sports medicine physician on September 15, 2021, noting the worker was capable of sedentary duties only.

On January 29, 2022, the worker requested that Review Office reconsider the WCB's decision to deny her claim. The worker submitted that she was injured at work while performing a new task she was being trained on. The worker further submitted that her treating healthcare providers supported an injury occurred, for which she was receiving treatment, and that she required further treatment and benefits. On February 25, 2022, the worker provided Review Office with a further submission, detailing the chronology of her injury. On March 31, 2022, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on May 3, 2022.

Both Claims

On May 9, 2022, Review Office dismissed the worker's appeals on both claims. With respect to the worker's May 4, 2021 workplace accident, Review Office concluded that there was no entitlement to benefits beyond June 23, 2021, with the exception of physiotherapy for which there was no entitlement for coverage beyond August 11, 2021. With respect to the second claim, Review Office further concluded that they were not able to establish that an injury occurred on June 23, 2021, and that the claim was not acceptable.

On August 24, 2022, the worker filed an appeal on both claims with the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. The applicable legislation is the Act as it existed at the date of accident.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes: 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

Subsection 4(2) of the Act provides that a worker who is 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB's Board of Directors has established WCB Policy 44.05, Arising Out of and in the Course of Employment, which provides, in part, as follows:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Worker's Position

The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that she had not recovered from her May 4, 2021 workplace injury as at June 23, 2021 or August 11, 2021, and is entitled to further benefits, and that the workplace claim arising out of the June 23, 2021 incident was acceptable as a continuation of her May 4, 2021 injury.

The worker provided a brief overview of the timeline of events relating to her injuries and claims. The worker noted that all three of her healthcare providers have provided letters of support confirming that her injuries were sustained at work and that it was a continuation of her May 4, 2021 herniated disc which led to her lumbar radiculopathy.

The worker submitted that the evidence shows this is a direct relationship between her returning to work fulltime, at her regular duties doing a manual labour job, and her symptoms becoming worse and resulting in a further increase of symptoms or injury of sciatica and lumbar radiculopathy.

The worker submitted that she not recovered from her injury when her benefits were terminated and her claim was denied. She stated that she was not in a condition to return to work or return to some lifestyle activities. She could not return to physiotherapy because she could not pay for it. She had exercises at home and some medications, but was left to continue her healing on her own, and eventually had to go on sick leave. The worker indicated that she had subsequently left her employment, and is currently working at an office job.

Employer's Position

The employer was represented by its WCB Coordinator, who participated in the hearing by videoconference. The employer's representative made a submission at the hearing, and responded to questions from the panel.

With respect to the May 4, 2021 claim, the employer's position was that the information on file does not establish an ongoing relationship between the worker's ongoing difficulties and her workplace injury.

The employer's representative quoted from, and placed weight on, the WCB medical advisor's August 10, 2021 and November 8, 2021 medical reports in support of their position. The representative asked that the panel uphold the May 9, 2022 decision that there is no entitlement to further benefits beyond June 23, 2021, with the exception of physiotherapy, and no entitlement for coverage of physiotherapy beyond August 11, 2021.

With respect to the claim for an injury dated June 23, 2021, the employer's position was that the claim is not acceptable given the delay in the worker's reporting that she was injured and the varied descriptions of the mechanism of injury provided by her treating health care providers. The employer's representative therefore asked that the panel uphold Review Office's May 9, 2022 decision.

Analysis

Date of Accident – May 4, 2021:

Issue 1: Whether or not the worker is entitled to benefits after June 23, 2021 with the exception of physiotherapy treatment in relation to the May 4, 2021 accident; and

Issue 2: Whether or not the worker is entitled to physiotherapy treatment after August 11, 2021 in relation to the May 4, 2021 accident.

For the worker's appeal on these issues to be successful, the panel must find, on a balance of probabilities, that the worker had a further or continuing loss of earning capacity and/or required further medical aid beyond June 23, 2021 as a result of her May 4, 2021 accident, and a further need for physiotherapy treatment beyond August 11, 2021. The panel is able to make those findings, for the reasons that follow.

The worker acknowledged and the medical evidence indicates that the worker's symptoms were improving as she continued physiotherapy treatments following her May 4, 2021 workplace injury. The worker returned to work full-time on light duties on May 12, 2021, and to her regular full-time duties in or around the end of May, 2021.

The panel is satisfied that the evidence indicates that while the worker's symptoms improved, her injury had not resolved and remained symptomatic through to June 23, 2021. The panel notes that the report from the treating athletic therapist from June 9, 2021 indicates that the worker reported experiencing increased left leg pain radiating into calf, which started three days ago, and she recalled no specific incident. The panel notes that this was shortly after the worker returned to her full duties, and is satisfied that this increase in symptoms is concurrent and consistent with her returning to full duties in a physically demanding job.

The panel finds that the worker's May 4, 2021 injury remained symptomatic after June 23, 2021 and that the workplace events of June 23, 2021 did not result in a new or distinct injury but in a continuation or worsening of the original May 4, 2021 workplace injury and symptomatology. In this regard, the panel is of the view that there was not enough a break between the worker's May 4, 2021 workplace accident, her return to work and the June 23, 2021 workplace event to consider that event to have been a recurrence. Based on the totality of the information, the panel finds that it is more reasonable and more likely than not that the increase in the worker's symptomatology on June 23, 2021 was related to her ongoing symptoms and her activities at work which resulted in a flare up of her symptoms.

The panel notes that while the treating athletic therapist early and repeatedly referred to disc problems or a disc injury as being related to the workplace injury, this does not appear to have been have been pursued by the WCB. Given the worker's ongoing symptomatology and later reporting of radiculopathy, it is unclear to the panel why the WCB did not consider or investigate the meaning or connection between a disc issue and the workplace injury.

The evidence indicates that the worker was provided with physiotherapy treatment through to August 11, 2021. The panel is satisfied that the evidence supports that the worker continued to experience difficulties beyond that date as a result of her workplace injury, and required but was unable to attend for further treatment.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had a further or continuing loss of earning capacity and required further medical aid beyond June 23, 2021 as a result of her May 4, 2021 accident, and a further need for physiotherapy treatment beyond August 11, 2021. The panel therefore finds that the worker is entitled to benefits after June 23, 2021, and to physiotherapy treatment after August 11, 2021 in relation to the May 4, 2021 accident.

The worker's appeal on these issues is allowed.

Date of Accident – June 23, 2021:

Issue: Whether or not the claim is acceptable.

For the appeal on this issue to be successful, the panel must find that the worker suffered an injury arising out of and in the course of her employment on June 23, 2021. Given our finding on Issue #1 above, that the workplace events of June 23, 2021 did not result in a new or distinct injury but in a continuation or worsening of the original May 4, 2021 workplace injury, the panel finds that the worker did not suffer an injury arising out of and in the course of her employment on June 23, 2021. The worker's claim is not acceptable.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of March, 2023