The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their back difficulties should not be accepted as a recurrence of the January 10, 2020 accident. A hearing was held on January 17, 2023 to consider the worker's appeal.

Issue

Whether or not the worker’s back difficulties should be accepted as a recurrence of the January 10, 2020 accident.

Decision

The worker’s back difficulties should be accepted as a recurrence of the January 10, 2020 accident.

Background

The WCB accepted the worker’s claim for an injury to their lower back that occurred as a result of an accident at work on January 10, 2020. The worker reported repetitive bending and squatting beginning on January 9, 2020 which led to increased symptoms by the end of the day on January 10, 2020. As the worker’s symptoms did not improve, they reported the injury to the employer on January 13, 2020 and filed a claim with the WCB on January 15, 2020. The worker sought chiropractic treatment on January 14, 2020 and was diagnosed with an acute lumbosacral strain/sprain with radiculopathy.

In a discussion with the WCB on January 29, 2020, the worker advised they injured their lower back approximately 4 years earlier, while lifting steel beams and noted they received physiotherapy and chiropractic care for that injury. The worker confirmed that on January 9, 2020, they were lifting heavy beams and performing job duties that involved repetitive bending and squatting. The worker first noticed difficulties that day, which worsened by the end of the next day. The worker self-treated with pain relief medication and use of an ice pack but as their symptoms did not improve, they sought chiropractic treatment on January 14, 2020. The worker advised that they continued to experience sciatic nerve pain down their right leg but had minimal back pain.

On February 3, 2020, the WCB advised the employer of the worker’s restrictions and the worker returned to their full hours on light duties. The worker attended an initial physiotherapy assessment on February 5, 2020 reporting low back pain, right groin/leg pain and right big toe paresthesia. The physiotherapist noted restricted lumbar flexion and side flexion, a positive straight leg raise test and diagnosed a lumbar disc strain. The physiotherapist recommended restrictions of no lifting floor to waist, no crouching/stooped position, and lifting/carrying to a maximum of fifteen pounds and noted the worker may require reduced work hours. On February 6, 2020, after an increase in symptoms, the physiotherapist recommended the worker’s return to work schedule be modified to work 3 days per week at full hours with light duties and to attend physiotherapy on the days they were not working.

After a further increase in symptoms and being placed off work by the treating physiotherapist, the worker saw their family physician on March 16, 2020. The physician noted the worker’s report of back pain over a period of 3 months, with the worker seeking treatment with various providers. The treating physician also noted the worker’s report of a previous MRI study that indicated the worker had arthritis. On examining the worker, the family physician noted limited range of motion in flexion and extension and tenderness to percussion in the L1 area. Both straight leg raise testing and femoral stretch were noted as normal, as well as power and reflexes. The physician diagnosed back pain not yet determined and recommended lab work and further diagnostic imaging, with the worker to remain off work for 2 weeks while the testing was conducted. A lumbosacral spine x-ray taken on March 17, 2020 indicated “Intervertebral disc space narrowing is present at L5-S1 facet arthropathy is present at L4-L5 L5-S1. No fractures are identified. No other abnormalities within the lumbar spine are seen.” At a follow-up virtual appointment on March 31, 2020, the worker’s treating physician recorded the worker’s report of dramatically improved back pain and noted the testing performed was indicated to be normal, “…other than mild OA (osteoarthritis) to spine” with a CT scan scheduled. The physician recommended the worker remain off work for another week.

The worker continued to seek medical treatment and physiotherapy on a regular basis. At an April 21, 2020 appointment, their physiotherapist updated the worker’s restrictions to include avoid lifting over 20 pounds, avoid flexion and stooped positions, consider a stool for working below chest level and hours limited to 3 days per week (every other day) for 2 weeks. These restrictions were provided to the employer on April 30, 2020 and the worker returned to work on May 4, 2020. On June 26, 2020, the worker attended an appointment with the treating family physician who noted limited range of motion in forward and lateral flexion, a positive straight leg raise test on the right and percussion tenderness to the spine, and recommended light to moderate duties for 4 days per week.

On July 6, 2020, the worker underwent an MRI study of their lumbar spine, which indicated “Right paracentral disc herniation at L4-5 that impinges upon the right L5 nerve root. This is new from the previous MRI.” On July 9, 2020, the worker was assessed by a physiatrist on referral by their family physician. The physiatrist noted the worker’s report of a workplace injury in January 2020, chiropractic treatment, and the return to work with an aggravation and flare up. Upon examining the worker, the physiatrist noted “Muscle power testing was normal in hip flexion, abduction, adduction; knee flexion, extension; ankle dorsiflexion, eversion, inversion, and plantar flexion bilaterally graded 5/5…Sensation was unremarkable to pinprick testing over L2-S1 dermatomes. Gait and balance appeared unremarkable. SLR (straight leg raise) was moderately positive on the right side.” A diagnosis of a “…right L5 radiculopathy without any evidence of residual sensory or motor neurological deficits” was provided. The treating physiatrist recommended the worker continue with core stabilization exercises and physiotherapy.

On August 21, 2020, the worker advised the WCB that they had a flare up at work, indicating that there was no specific incident that occurred, but they felt their back tightening up during their shift that day, with no change in their duties. The worker had been treated by their family physician and physiotherapist, who recommended continued light duties.

On October 19, 2020, the employer confirmed the worker has missed time from work but had returned to working 4 days per week by September 8, 2020. On October 29, 2020, the worker advised the WCB their back was doing better, and they had returned to their regular duties. On the same date, the worker saw their family physician who noted the worker was working 5 days per week and had “no pain at this time, can get numb to toes if sits too long”. The treating physician also noted they had reviewed the CT scan conducted on October 15, 2020, which indicated “Persistent right paracentral disc extrusion at L4-5, likely still compressing the right L5 nerve root.”

The worker’s file was reviewed by a WCB medical advisor on December 3, 2020 who opined “The reported resolution of pain and return to regular duties appears to indicate material resolution of the compensable condition.”

The worker contacted the WCB on August 12, 2021 to report an increase in their low back symptoms that caused them to go off work again. The worker noted they had not changed their employment or their job duties but due to pain in their lower back on the right, which travelled through their hip and down their leg, they sought medical treatment. The WCB noted the worker advised that they were symptom-free since their last contact with the WCB but had continued with physiotherapy and saw their treating family physician on a regular basis.

The WCB received a physiotherapy initial report on August 19, 2021 for the worker’s August 12, 2021 appointment. The worker reported to the physiotherapist that they “Bent forward to pick up item and rotated while forward flexed” and was experiencing pain in their right sacroiliac joint, down into their right hamstring and glute area, with a heavy feeling in their right calf and tingling and numbness in their foot. The physiotherapist recorded reduced range of motion in the worker’s lumbar spine, positive L4, L5, myotome and dermatome testing and decreased Achilles reflex and diagnosed an L4-L5 nerve root impingement/compression and that would be confirmed by an already scheduled CT scan. The physiotherapist recommended the worker remain off work. On August 13, 2021, the worker attended an appointment with the treating family physician reporting worsening back pain over a two week period and having to leave work on August 13, 2021 due to pain. The physician noted the worker’s report of recent improvement with physiotherapy and recommended the worker remain off work until September 1, 2021.

In discussion with the WCB on August 25, 2021, the worker confirmed they experienced a gradual progression of their symptoms to the point where on August 6, 2021, they could not work any longer. The worker could not describe a specific incident that occurred, only a gradual onset due to the repetitive nature of their job duties and noted their employer was aware of their difficulties. On August 31, 2021, the employer advised the WCB they were not aware the worker was experiencing any ongoing difficulties and had not made any complaints until recently, reporting they had “tweaked” it.

A WCB medical advisor reviewed the worker’s file on September 9, 2021 and noted the previous review on December 3, 2020 concluded the worker’s compensable injury was materially resolved, and concluded that without a new injury or incident, a relationship between the worker’s current difficulties and the January 10, 2020 workplace accident could not be established. The medical advisor further provided that given the age-related disc degeneration noted on the diagnostic imaging, waxing and waning of symptoms in the worker’s back would be expected.

On the same date, the WCB advised the worker that their current back difficulties were not accepted as a recurrence of the January 10, 2020 accident. On September 20, 2021, the worker’s treating physician provided a letter to the WCB noting the worker suffered an exacerbation of their workplace accident in August 2021 and while they had not sustained a specific injury, the physician opined the exacerbation should be considered as part of the worker’s initial claim. The worker requested reconsideration of the WCB’s decision to Review Office on November 9, 2021, noting in their submission that their job duties were modified so they no longer performed the heavier job duties and that the treating healthcare providers believed the worker had exacerbated their initial injury and that their current difficulties were related.

On December 13, 2021, Review Office determined the worker’s recurrent low back problems were not acceptable. Review Office found the evidence on file supported the worker had materially recovered from their compensable injury in October 2020 and returned to their baseline functioning with respect to a pre-existing condition. Further, Review Office found the worker had an increase in their low back symptoms in July 2021, eight months after the material recovery and as such, the medical evidence did not support a relationship to the workplace accident. Review Office accepted the opinion of the WCB medical advisor that the worker’s current low back difficulties were related to their pre-existing low back degenerative condition.

The worker’s representative, on June 1, 2022, submitted a letter dated April 25, 2022 from the employer, along with chart notes from the worker’s physiotherapist from April 2, 2020 to September 9, 2021 and chart notes from the worker’s treating chiropractor, and requested Review Office reconsider the previous decision. The representative submitted that the information confirmed the worker had not returned to their full regular duties and the chart notes from their healthcare providers indicated that the worker continued to experience low back difficulties and suffered an exacerbation of those difficulties in July 2021. As such, the worker’s current back difficulties should be accepted as a recurrence by the WCB.

On July 7, 2022 Review Office determined that the worker’s recurrent low back injury was not compensable, as the information provided by the worker’s representative supported the worker’s material recovery from their workplace injury in October 2020 and the symptoms the worker reported in July 2021 were not as severe or the same as previously reported. Review Office further found that the evidence indicated the worker’s difficulties were related to their pre-existing degenerative condition and not the workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on July 20, 2022 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 21, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 established Policy 44.10.20.50.10, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness. A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

Worker’s Position

The worker appeared in the hearing, represented by a worker advisor who made oral and written submissions on behalf of the worker and in support of the appeal. The worker provided testimony through answers to questions posed by their representative and by members of the appeal panel.

The worker’s position is that the workplace accident caused the worker’s L4-5 disc herniation or extrusion which resulted in the worker’s right-sided lumbar radiculopathy. This condition persisted beyond October 2020 when the WCB discontinued benefits, leaving the worker with an at-risk back, susceptible to symptomatic and functional deterioration, such as the worker experienced in July and August 2021. Therefore, the worker’s recurrence of symptoms resulting in their current loss of earning capacity can be directly related to the compensable workplace injury of January 10, 2020.

The worker advisor submitted that the worker’s functional improvements by late October 2020 allowed them to return to work, but in a different job with less physically taxing job duties, and that the worker remained unable to return to their pre-accident employment at that time, as a result of the injuries sustained in the workplace accident. Further, there is evidence that the worker continued to make adaptations to accommodate their injury, including taking on a less strenuous job, engaging in regular self-treatment, taking occasional time off to rest and recover when symptoms flared, and returning to physiotherapy. Ultimately, the worker only reached out to the WCB when they could no longer manage their symptoms on their own.

The worker advisor argued that the worker’s compensable injury was not resolved by October 2020, in that their symptoms continued beyond that time and the worker remained susceptible to relapse and flareups which resulted in a loss of earning capacity and a requirement for further medical aid. By October 29, 2020 the worker was feeling better but was not pain free.

The worker testified that they continued to rely upon over-the-counter back pain relief medication to go to work at a job that was not their pre-accident employment but was a lighter duty position. Further, the worker continued to experience pain at their right hip area from above the belt line to their right side, that radiated down their right leg to their big toe especially with sitting too long. The worker described that in late October 2020 they were mostly just experiencing low back pain. In a virtual appointment with their treating family physician on October 29, 2020, they also described numbness that begins after sitting for 5-10 minutes. The worker did not recall any discussion of return to work restrictions but did recall their physician suggesting that they find a different kind of work so as to avoid future similar injury. The worker confirmed they did not seek any physiotherapy treatment from October 2020 until June 2021 but managed their symptoms on their own by daily use of a back brace, applying heat packs, using an inversion table 1-2 times weekly, and laying on the floor for relief. Throughout this time, the worker testified, sitting would aggravate their symptoms. Occasionally the worker took a few days off due to increasing low back pain and tightness in their leg, which they reported to their supervisor. The worker noted this would happen approximately 2-3 times each month.

The worker described their reason for returning to physiotherapy in June 2021 as being because self-treatment was no longer effective, and they were unable to alleviate their symptoms using the strategies that had worked to that point in time. The worker confirmed there was no intervening accident or injury or event that caused their symptoms to increase. The worker confirmed that they called the WCB when they were feeling fully incapacitated and could no longer sleep except on the floor.

In sum, the worker’s position is that their increase of lower back symptoms is a recurrence of the L4-5 disc injury that occurred on January 10, 2020 and as such, should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker’s back difficulties should be accepted as a recurrence of the January 10, 2020 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker’s back difficulties are directly related to their previous compensable injury. As detailed in the reasons that follow, the panel was able to make such a determination and therefore the worker’s appeal is granted.

The concept of recurrence is defined in the WCB’s Recurrence Policy as “a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.” The Policy states that when such a loss of earning capacity is not the result of a new and separate accident, the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness. The worker’s position is that their increase in symptoms caused an increase in impairment and a resultant loss of earning capacity, and that the medical evidence confirms that this increase in impairment is directly related to the compensable injury sustained in the January 10, 2020 workplace accident. In other words, the worker submits that in July 2021, they experienced a recurrence of symptoms of the injury sustained in the workplace accident of January 10, 2020.

The panel considered whether the evidence supports the worker’s position, noting that the WCB determined that the worker’s increase in symptoms in the summer of 2021 did not relate to the initial compensable injury but instead were the result of a flareup of the worker’s pre-existing degenerative lower back condition. The panel noted that the July 6, 2020 MRI findings indicate a right paracentral disc herniation at L4-5 that impinges upon the right L5 nerve root, and that this was still the case as at October 15, 2020 when the CT scan indicated evidence of “persistent right paracentral disc extrusion at L4-5, likely still compressing the right L5 nerve root.” The panel also considered that the December 3, 2020 opinion of the WCB medical advisor indicated that:

“The diagnosis of right lumbar radiculopathy was based on reported altered sensation at the right leg and foot in addition to an initial report of myotomal weakness….The results of the MRI (July 6, 2020) demonstrating a “new” (since 2014) L4-5 disc extrusion with associated right L5 nerve root impingement provides a radiologic correlate for the reported symptoms. The more recent Oct 15 20 CT scan was similar…. The reported work duties involving heavy lifting could account for a disc injury and associated development of radiculopathy.”

The WCB medical advisor determined that by October 29, 2020, “Material recovery appears to have occurred”, but the panel noted the absence of any clinical findings on that date as the physician saw the worker by a virtual appointment. The treating physician noted only the worker’s report of “no pain at this time” and “toe numbness” when sitting for too long. The panel noted that the medical advisor based their opinion that the worker was recovered on this medical report and the fact that the worker “had resumed working five days per week.” It does not appear, however, that the medical advisor considered that the worker had returned to modified duties at reduced hours, nor that the worker had returned to another less physically demanding role than they held prior to the accident.

The panel is not persuaded that the injuries sustained in the workplace accident of January 10, 2020 were resolved by October 29, 2020 although the worker was able to return to employment in another less physically demanding role with the same employer, as confirmed by their testimony. In fact, the October 15, 2020 diagnostic CT study indicated otherwise, as noted by the WCB medical advisor, with findings much the same as those from the July 6, 2020 MRI study.

The WCB medical advisor also concluded that the mechanism of injury “could account for” the worker’s disc injury and subsequent radiculopathy; however, the WCB determined that this diagnosis was not the result of the workplace injury. The panel accepts the opinion of the WCB medical advisor that the mechanism of injury could account for the L4-5 disc extrusion and related radiculopathy. We are satisfied on the basis of the totality of the medical evidence that the worker, more likely than not, sustained the L4-5 disc injury at the time of the workplace accident.

When the worker sought further physiotherapy treatment in late June 2021, they reported a gradually increasing tightness in their lower back and hip region, with occasional numbness in the back of their leg and into the arch, focused on the right side. The physiotherapist provided an initial diagnosis on June 29, 2021 of “mild sciatica (suspect mild discogenic inflammation) and mechanical SI pain.” The worker explained that they returned to physiotherapy because they were having difficulty in managing their symptoms using the strategies employed since their return to work. By July 27, 2021, the physiotherapist offered a diagnosis of mild disc irritation vs mechanical low back pain and on August 10, 2021, the physiotherapist queried a diagnosis of L4 nerve root impingement from disc prolapse. At that time, they recorded clinical findings that included increased tingling in hamstring with flexion and positive L4 myotome and dermatome testing. The panel also noted the August 19, 2021 chart notes from the treating family physician noted the worker’s report of worsening back pain and an inability to sit or stand for too long. The physician remarked that “Other than [the worker’s] chronic back pain, was feeling very good until this flare up.” The panel finds that the reported symptoms in August 2021 relate to this same body region that was injured in the workplace accident of January 10, 2020, and further, finds that both the symptoms and clinical findings outlined in the medical reporting from summer 2021 are consistent with the initial compensable injury.

The panel also considered whether there is any evidence of a new and separate event to account for the worker’s increase in symptoms beginning in late June 2021 and continuing thereafter. The worker’s testimony in the hearing aligns with their report to the WCB in August 2021 that nothing changed in terms of their job duties and that there was no event or incident that occurred prior to the increase in symptoms. We also note that there is no indication in the reports from the treating physiotherapist or treating physician to suggest any new and separate injury occurred. We note that the treating physician described the worker’s condition in August 2021 as a “flare up” suggesting instead that this was an ongoing condition. The panel therefore is satisfied that there is no evidence of any new and separate event to account for the worker’s increase in symptoms leading up to their report to the WCB in August 2021.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker experienced a recurrence of symptoms related to the compensable L4-5 disc injury that occurred on January 10, 2020. Therefore, the worker’s back difficulties should be accepted as a recurrence of the January 10, 2020 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of April, 2023