Decision #34/23 - Type: Workers Compensation
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 left hip condition. A videoconference hearing was held on March 1, 2023 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the left hip condition.
The worker is entitled to further benefits in relation to the left hip condition.
The worker filed a Worker Incident Report with the WCB on May 31, 2021, reporting injury as the result of a physical altercation with a resident on May 14, 2021. The worker reported being “…punched in the chest, shoulder, neck and blocked them with my forearms” and experiencing stress and anxiety after the incident. When the worker sought medical treatment from their family physician by way of a virtual assessment on May 31, 2021, they reported that their chest and shoulder were hit “…but no physical injury remains.” In discussion with the WCB on June 8, 2021, the worker advised that although they didn’t feel like there was a physical injury right after the workplace incident, later they thought they might have pulled their groin/hip area but expected it would just go away. The worker further reported that in the previous week, they felt as if they had pulled or strained their hip area and that it hurt when rotating their hip outwards.
The worker attended for initial physiotherapy assessment on June 11, 2021, reporting “…aching, burning, stiffness in the groin and hip…” on their left side, with a popping pain into the hip. The worker also reported pain with inwards or outwards movement of the hip into the groin when walking, squatting, rolling in bed and pain at night with twisting of the leg. The physiotherapist diagnosed groin strain/sprain and noted the worker was off work due to their psychological injury.
The WCB approved 20 physiotherapy sessions for the worker on June 24, 2021. The treating physiotherapist provided progress reports to the WCB, and on September 22, 2021, requested an extension to the worker’s treatment to help them progress in functional strengthening to assist the worker in returning to work. At that time, the worker reported their groin and hip were “feeling much better”, no longer feeling unstable or twinges that would result in soreness previously. The worker noted they were still experiencing stiffness in their left hip but once they moved around, it improved.
A WCB physiotherapy advisor reviewed the worker’s file and provided an opinion on October 7, 2021 that the evidence did not support the worker required further in clinic treatments and noted their function would continue to improve during a graduated return to work plan and a home based exercise program. The WCB physiotherapy advisor noted the compensable diagnosis of groin strain/sprain would typically resolve in 2 to 8 weeks. The WCB advised the treating physiotherapist and the worker on October 8, 2021 that the extension requested was not approved. The worker began a graduated return to work plan on October 18, 2021.
At follow-up with the treating family physician on November 18, 2021, the worker reported ongoing left hip pain and tightness, despite 20 sessions of physiotherapy and the physician ordered an MRI study to rule out a labral tear. The left hip MRI study of December 6, 2021 indicated “No acute injury identified at the left hip. Borderline cam-type femoral morphology could predispose to impingement symptoms.”
A WCB medical advisor reviewed the file on January 13, 2022 and noted that the worker did not report a groin/hip injury arising out of the May 14, 2021 workplace accident until June 8, 2021, when a diagnosis of a groin strain was provided. The medical advisor concluded the evidence did not support that the worker sustained more than a minor degree of hip area soft tissue sprain/strain that would not have resulted in prolonged symptoms or functional limitations, with recovery expected within 2 to 6 weeks. The WCB medical advisor further noted the MRI study indicated an incidental pre-existing condition, which was not materially affected by the workplace accident.
On January 21, 2022, a second family physician noted the worker’s report of daily pain in their left hip and groin area and that the worker had a “…CAM deformity…” of their left hip with a recent severe flare. The physician diagnosed a CAM impingement and referred the worker to an orthopedic surgeon.
On February 1, 2022, the WCB advised the worker that it would not accept ongoing responsibility for their left hip difficulties as it had been determined those difficulties related to a pre-existing condition.
On May 2, 2022, the worker’s representative submitted a copy of an April 4, 2022 report from the worker’s orthopedic surgeon to the WCB and requested the WCB reconsider the earlier decision. The representative noted the surgeon indicated the worker required arthroscopic surgery for their left hip complaints and submitted the worker should be entitled to further benefits in relation to the left hip injury. A WCB medical advisor reviewed the worker’s file and the new medical on June 1, 2022, and indicated agreement with the January 13, 2022 WCB medical advisor’s opinion. The medical advisor noted the treating orthopedic surgeon’s comments on the MRI of a suspicion of a labral tear, “…can be part of the very early presentation of this specific form of hip dysplasia.” Further, the WCB medical advisor opined the surgeon’s recommended surgery for the worker was “…appropriate for a significant symptomatic presentation of the pre-existing diagnosis.”
On June 7, 2022, the WCB advised the worker that the new information was reviewed and there would be no change to the prior decision that the worker was not entitled to further benefits in relation to their left hip.
On June 9, 2022, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. The representative submitted the evidence on file indicated that the worker’s pre-existing left hip condition became symptomatic as a result of the May 14, 2021 workplace accident and as such, they should be entitled to further benefits. On July 26, 2022, the employer provided a submission to Review Office in support of the WCB’s decision, and the worker’s representative provided a response on July 28, 2022.
On August 11, 2022, Review Office determined the worker was not entitled to further benefits in relation to their left hip condition, relying on the opinions provided by the WCB medical advisor that the proposed surgery and ongoing treatment related to the worker’s pre-existing hip condition and that a causal relationship between those difficulties and the May 14, 2021 workplace accident could not be established.
The worker’s representative filed an appeal with the Appeal Commission on October 11, 2022 and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.
The WCB has established WCB Policy 184.108.40.206, Pre-existing Conditions (the "Pre-ex Policy") to address 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 Pre-ex 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 Pre- ex Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The worker appeared in the hearing with a union representative who made submissions to the appeal panel on behalf of the worker. The worker offered testimony through answers to questions posed to them by the union representative and by members of the appeal panel.
The worker’s position, as set out in the submissions of their union representative, is that the left hip injury sustained by the worker in the workplace accident of May 14, 2021 was more significant than a sprain/strain which the WCB accepted, and that the workplace accident caused aggravation or enhancement to the worker’s pre-existing left hip condition. As such, the worker’s left hip condition is compensable in relation to the workplace accident and the appeal should be granted.
The worker’s representative submitted that the worker’s delay in reporting a hip injury was not significant, noting that it was reported during the first substantive communication with the WCB adjudicator, just over three weeks after the assault took place. The representative argued that the severity of the worker's psychological reaction to the assault reasonably took precedence over the worker’s concerns with any physical injury. Further, the worker initially expected that the hip discomfort would resolve with time, and reasonably reported the problem and sought treatment when it persisted.
The worker’s representative submitted that the treating physiotherapist’s September 22, 2021 report is not evidence of recovery but rather documents the worker’s ongoing symptoms and asks the WCB for ongoing support treatment. Further, the reports of the treating family physician and treating sport medicine physician support that the worker had experienced persistent left hip difficulties since the accident, which improved but never completely resolved. The representative also noted that the opinion of the treating orthopedic surgeon that the assault likely caused the worker’s pre-existing hip condition to become symptomatic is consistent with the evidence on file and counters the opinions of the WCB healthcare consultants. The representative urged the panel to give greater weight to the opinions of the treating sport medicine physician and treating orthopedic surgeon, and to accept the worker’s evidence that they had no issues with their hip prior to the assault but have had persistent problems since then.
The worker testified that they had no issues in either hip until after the workplace accident took place. The worker described the mechanism of injury in detail, noting that although they were sitting when first assaulted in the neck, chest and right side, they got up and began to push away the person assaulting them, and with the assistance of coworkers, wrestled the perpetrator to the ground, and held them there using their own body weight with legs outstretched, one on each side of the perpetrator’s torso. The worker noted that afterward, they initially felt fine, and were in a “heightened state”, including when they filled out reports for the employer. The worker recalled being off work as scheduled the next day or days and then returning to work on schedule, but only for one day. The worker stated that during the week following the accident, they began to “feel off” with a bit of tightness in their hip and groin area, “like I had overdone it”.
The worker confirmed that while they were off work due to the compensable psychological injury, they were not very active, remaining mostly at home except for attending physiotherapy or other medical appointments. The worker confirmed that they sought physiotherapy of their own accord and without a referral from their physician. They stated that the treatment helped them to feel good for a few days but would recur with certain activities, such as stepping side to side. The worker explained that when seeking treatment from their family physician after the accident, the focus was on the worker’s psychological symptoms. The worker described their symptoms in this period as stable, neither improving nor worsening, but with intermittent periods of flare and recovery. The worker noted they did not recall a popping sensation in their hip at the time of the assault but did note this about 1-2 months later during the time they were also seeking physiotherapy.
The worker stated that by the time of their gradual return to work in October 2021 there were no restrictions in place in relation to their hip, noting that the physiotherapist had requested approval for additional treatment in September 2021 to help maintain the worker’s status. The worker described a cycle of feeling better for a couple of days or a week, after physiotherapy and then worsening symptoms of discomfort. In November 2021, the worker went to see the treating family physician in relation to their hip, noting that “something felt wrong” and that “Whenever I’d step, it would – I’d feel a ‘Pop’ or there’d be pain….I felt like I was walking differently and trying to kind of overcompensate with the other side….” The worker noted that their family physician requested an MRI and referred the worker to the sport medicine physician and that the sport medicine physician referred them to the orthopedic surgeon.
The worker noted that by approximately June 2022, their hip “progressively kind of got worse and more painful and I became a little bit less mobile. I started…walking with a bit of a limp at times...” As a result, the worker was placed on light duties leading up to their surgery in August 2022. The worker further described their post-surgical recovery process and noted that they made a gradual return to light duties in November 2022 and were awaiting clearance from the treating orthopedic surgeon to return to normal job duties. The worker noted that they were appealing in order to recover wage loss not covered by employment insurance benefits as well as sick time used, and to recover physiotherapy costs paid out of pocket.
In sum, the worker’s position is that the workplace accident caused the worker to sustain more than a simple hip strain, and impacted a pre-existing condition, such that, it required surgery, and impacted the worker’s ability to function at home and in the workplace for an extended period of time. The surgical procedure in August 2022 has resolved that issue and as such, the worker is seeking to have the WCB accept responsibility for that surgery, required as a direct result of the compensable injury sustained due to the assault at work.
The employer was represented in the hearing by its WCB coordinator who made submissions to the appeal panel on behalf of the employer.
The employer’s position is that the evidence does not support a finding that the worker’s pre-existing hip condition was aggravated or enhanced as a result of the compensable workplace injury. The employer accepts and relies upon the opinions of the WCB medical advisors that the worker’s pre-existing hip condition is unlikely to have been affected by the compensable injury and therefore, submits that the worker should not be entitled to further benefits in relation to their left hip condition.
The employer’s representative presented a chronological overview of the claim file history. The representative noted the opinion of the treating orthopedic surgeon that, based on the mechanism of injury described by the worker and degree of force likely applied to the worker’s hip in that event, it “certainly would be possible that it would have been aggravated in an existing hip condition." The employer’s position is that this opinion does not satisfy the test of balance of probabilities in relation to the possibility that the worker’s pre-existing condition was aggravated as a result of the workplace accident.
Further, the employer noted that the medical reporting supports a finding that the worker recovered from the compensable left hip and groin strain/sprain injury by late September 2021 and as such no further treatment for that injury was warranted beyond that date. The employer’s representative relied upon the January 13, 2022 opinion of the WCB medical advisor that "The presence of any degree of cam type femoral morphology as noted on the MRI would represent a pre existing condition unaffected by the reported compensable injury. Acute injuries to major joints such as a hip are typically associated with immediate symptoms and associated impairments of function." As this was not reported in the worker’s case, it is more probable that some minor degree of hip area soft tissue sprain or strain may have occurred, and such an injury would not be expected to result in prolonged symptoms or functional limitations. The employer’s position is that the MRI findings represent an incidental pre-existing condition that is unlikely to have been materially affected by the compensable soft tissue injury to the worker’s hip region, which is consistent with the May 31, 2022 opinion of the WCB orthopedic consultant.
With respect to the worker’s request for approval of the surgical procedure in relation to the compensable accident, the employer’s representative noted that for the WCB to authorize surgery, the information on file must support the pre-existing condition was enhanced by the compensable injury, which means that the compensable injury permanently, and adversely affected the pre-existing condition. In this case, a finding of enhancement is not supported by the evidence on file.
In sum, the employer’s position is that a significant groin and hip injury is not apparent as a result of the May 14, 2021 accident, as the worker did not seek treatment, nor report immediate symptoms or impairment in function at close proximity to the accident and the evidence does not support that the accident resulted in any enhancement or aggravation of the worker’s pre-existing condition. Therefore, the worker’s appeal should be denied.
The question for the panel to determine in this appeal is whether the worker is entitled to further benefits in relation to the left hip condition. For the worker’s appeal to succeed the panel would have to determine that the worker was not recovered from the compensable left hip injury sustained in the workplace accident, which required further treatment or resulted in a further loss of earning capacity beyond the date that the WCB discontinued benefits for that 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 panel noted that although the worker’s initial accident report and the initial medical reporting does not reference any injury to the worker’s left hip, the WCB did accept that the worker sustained an injury in that region. Based on the file information including the Physiotherapy Initial Report of June 21, 2021 that noted the worker sustained a groin strain/sprain injury in the workplace accident, the WCB authorized a total of 21 physiotherapy treatments, including the initial assessment. When the WCB physiotherapy advisor reviewed the physiotherapist’s September 22, 2021 request for additional treatment, they noted that the worker was 5 months post injury and that a groin strain/sprain would be expected to resolve in 2 – 8 weeks and stated that there were no objective findings to warrant ongoing physiotherapy. The physiotherapy advisor recommended a gradual return to work plan and continuing home based exercises, and on this basis, the WCB determined to discontinue funding for the worker’s physiotherapy, as outlined in their letter of October 8, 2021.
Noting the Review Office comments in respect of the delay in the worker’s report of left hip symptoms and inconsistencies in reporting of the mechanism of injury and symptom presentation, the panel accepts that the initial priority of both the worker and the treating professionals, post-accident, was to address the psychological injury resulting from that event. The panel further noted that the worker did address left hip symptomology in their very first conversation with the WCB adjudicator on June 8, 2021. With respect to the suggestion that there were inconsistencies in the worker’s description of the mechanism of injury, the panel is satisfied that as the claim progressed and more pointed questions were asked of the worker, the details of that incident were fleshed out. Further investigations frequently lead to further information, but this is not the same as inconsistencies in the information provided. We further note that the WCB did accept that injury to the worker’s hip and groin area arose from the workplace assault and that the delayed focus on this aspect of the worker’s injuries did not impact the acceptance of the worker’s claim.
The worker’s representative submitted that the evidence provided by the treating medical professionals supports a finding that the worker’s pre-existing and previously non-symptomatic left hip condition was aggravated or enhanced by the injury sustained in the workplace accident. The employer’s representative argued that the evidence does not support this position and that the worker’s injury was no more significant than a groin strain/sprain injury.
The panel considered that the August 15, 2022 left hip MRI imaging indicated “moderate osseous prominence identified involving the anterosuperior femoral head/neck offset consistent with cam type femoroacetabular morphology.” The December 8, 2021 MRI imaging indicated “osseous prominence of the femoral head neck junction anterolaterally” and described that “Borderline cam-type morphology could predispose to impingement symptoms.” The WCB medical advisor, in a January 13, 2022 opinion, explained that:
“Cam type femoral morphology refers to the shape of the femoral head seen on MRI (not being completely round). This reflects how the bone was formed during growth and development and in most cases is not associated with any symptoms or functional limitations. The presence of any degree of “cam-type femoral morphology” as noted on MRI would represent a pre-existing condition, unaffected by the reported compensable incident.”
Both the worker’s representative and the employer’s representative agreed that the findings of “cam-type femoral morphology” represent a pre-existing condition. The panel is satisfied that the evidence supports that conclusion.
There is however disagreement between the worker and the WCB as to whether the pre-existing condition was affected by the compensable injury, whether as an aggravation or an enhancement. The WCB medical advisor concluded that there was no evidence to support any relationship between the injury sustained in the workplace accident and the worker’s pre-existing condition, and the employer’s position is that this is correct; however, the panel noted that the treating sports medicine physician, in their initial report to the WCB of January 21, 2022 stated that given the worker did not have symptoms prior to this workplace incident, the worker’s “current symptoms are likely due to this incident. [They have] underlying CAM deformity that was likely there previously but there are signs of synovial herniation which may be from the injury.” Further, the treating orthopedic surgeon, on April 4, 2022, noted that the worker attributed their symptoms in the left hip joint and anterior groin to the workplace injury and that they had no prior hip pain or discomfort despite being very active.
The panel also considered the May 31, 2022 opinion of the WCB orthopedic advisor, who agreed with the prior opinion of the WCB medical advisor, that the MRI findings “represented an incidental pre-existing condition, unlikely to have been materially affected by the compensable injury” and went on to comment that the proposed surgical treatment was appropriate for “a significant symptomatic presentation of the pre-existing diagnosis” which the WCB should not accept responsibility for. In contrast, the September 28, 2022 report from the treating orthopedic surgeon to the worker’s representative noted that femoral acetabular impingement is common among adults and explained that this condition is:
“…characterized by contact of both the femur and pelvis repeatedly over time causing injury to the labrum of the hip joint. Most commonly femoral acetabular impingement leads to insidious onset of pain in the hip joint. It is not always associated with a traumatic event. However, there is always potential for traumatic mechanisms to induce worsening hip symptoms or causing the onset of new hip symptoms with either aggravating or worsening of a labrum tear. Based on the mechanism of injury that [the worker] described to me in clinic, as well as the amount of force that likely went through [their] hip with this injury, this certainly would be possible that it would have been aggravated in an existing hip condition.”
The orthopedic surgeon went on to state their opinion that given the worker’s symptoms before injury and after injury, the assault “did cause an aggravation or enhancement” of the pre-existing condition.
The panel noted that although the WCB orthopedic consultant and the treating orthopedic surgeon came to differing conclusions about the possibility that the worker’s accident could have aggravated or enhanced the worker’s pre-existing condition, both allow for the possibility that this could occur. While the WCB orthopedic consultant stated that this was “unlikely” they did not state it was not possible, and the treating surgeon stated that it “certainly would be possible” to have aggravated the worker’s pre-existing condition. We also note the treating surgeon’s comment that although a traumatic mechanism of injury is not the most common reason for onset of pain in the hip joint associated with femoral acetabular impingement, a traumatic mechanism can induce worsening of or cause new hip symptoms.
The panel also considered the worker’s evidence that they had no pre-accident left hip symptoms but that after the accident, there was a progressive worsening of left hip symptoms. We note the evidence that the worker did not return to their pre-accident baseline symptomatic condition until after they recovered from the surgical repair. The panel accepts that while the worker likely had a pre-existing left hip condition, there is no evidence that it was symptomatic prior to the workplace accident. We also accept and rely upon the opinion of the treating orthopedic surgeon that the mechanism of injury as described to them, could have aggravated the worker’s pre-existing condition. This is supported by the worker’s testimony which outlined, in some detail, how they believe the injury occurred while attempting to fend off and then restrain the individual who attacked them. The panel is further satisfied that but for the assault on the worker of May 14, 2021 and resultant injury to the worker’s left hip, the worker would not have continued to experience left hip dysfunction or required treatment beyond the initial course of physiotherapy. Although the course of treatment provided would likely have been sufficient for recovery from a groin strain/sprain injury, the evidence here supports that it was not sufficient to allow the worker to recover to their baseline, pre-accident status. Taking into consideration the medical opinions that indicate the workplace injury could have caused a worsening of the worker’s pre-existing left hip condition, and the orthopedic surgeon’s opinion that this was likely the case, supported by the opinion of the treating sports medicine physician, the panel is satisfied that the worker’s continuing left hip symptoms beyond the termination of physiotherapy benefits in October 2021 were a continuing result of aggravation or enhancement of their pre-existing cam-type femoral morphology and are therefore a result of the injury sustained in the compensable workplace accident of May 14, 2021.
On the basis of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker’s left hip condition was not resolved when the WCB discontinued benefits for that injury and as such, the worker is entitled to further benefits in relation to their left hip condition. The WCB will determine the nature and extent of the worker’s further entitlement to benefits through the adjudicative process. The worker’s appeal is granted.
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 5th day of April, 2023