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 June 2, 2022. A hearing was held on November 23, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after June 2, 2022.

Decision

The worker is not entitled to wage loss and medical aid benefits after June 2, 2022.

Background

The Worker Incident Report filed with the WCB on November 18, 2021 noted the worker's report of injury to their lower back after using a pry bar at work on November 15, 2021. The Employer's Accident Report received by the WCB on the same date indicated the worker reported feeling their back was hurt after using a pry bar at work on November 15, 2021.

On initial chiropractor assessment on November 16, 2021, the worker reported sharp, bilateral lumbosacral pain that radiated into their upper thigh, and very disturbed sleep. The chiropractor recorded reduced range of motion and diagnosed lumbosacral facet syndrome sprain/strain, recommending that the worker remain off work until November 29, 2021 and then attempt a return to work on medium level duties.

When the WCB spoke with the worker on November 24, 2021, the worker confirmed the mechanism of injury and advised they currently were experiencing a "Kind of stinging and a numbness, more of a pulling pain." The worker advised they felt their injury was mending and they were attempting to return to work on November 29, 2021. The WCB advised the worker their claim was accepted, and payment of benefits began.

On December 1, 2021, the worker followed up with the treating chiropractor who noted the worker attended work on November 29, 2021 and reported an aggravation in their difficulties. The chiropractor recommended the worker remain off work for a further one to two weeks due to the increase in symptoms. On December 8, 2021, the worker advised the WCB that when they worked on November 29, 2021, they were in a lot of pain, with shooting pain and knots in their back and they did not complete their shift that day. Further, the worker advised they were still experiencing knots and pain from bending over and felt a lot of discomfort. The worker would remain off work for a further two weeks and then be reassessed for capability to perform light duties.

The employer advised the WCB on December 17, 2021 that the worker attempted to return to work on December 15, 2021 for four hours but was unable to do so as they did not tolerate the drive into work. The employer further confirmed one of the conditions of the worker being able to return to work was their ability to shoulder-check when driving and noted the worker’s toolbox weighed approximately 50 to 60 pounds. On December 20, 2021, the worker indicated to the WCB their belief they were approximately 40-50% recovered but noted a high level of pain on shoulder-checking when driving.

The treating chiropractor contacted the WCB on January 14, 2022 to discuss the worker’s treatment. The chiropractor noted the worker was not progressing as hoped and recommended the worker switch to physiotherapy. When the worker attended an initial physiotherapy assessment on January 20, 2022, the physiotherapist diagnosed a sprain/strain and recommended light sedentary duties for the worker. At follow-up on January 27, 2022, the physiotherapist outlined restrictions of lifting five pounds maximum, unable to tolerate twisting (shoulder-checks), avoid bending and 20-minute sitting tolerance followed by 10-minute break for movement/task change. The restrictions were provided to the employer on February 2, 2022, who confirmed on February 7, 2022 that they were unable to accommodate the worker.

At a February 14, 2022 appointment, the treating family physician referred the worker for a CT scan and an MRI study. At follow-up on March 21, 2022, the physician noted the worker’s report of pain in their lower back radiating down their right leg to their knee and indicated there was no change to the worker’s symptoms. The lumbar CT scan conducted on March 31, 2022 indicated “Mild degenerative changes in the lumbar spine…No definite disc herniation or nerve root compression.” The MRI study of April 6, 2022 noted “Mild multilevel degenerative change.”

On May 10, 2022, the worker attended a call-in examination with a WCB medical advisor. Following examination of the worker, the medical advisor concluded the current diagnosis was nonspecific low back pain in the environment of pre-existing degenerative changes. The medical advisor further opined that the diagnosis related to the November 15, 2021 workplace accident was low back strain, with a natural history of recovery being two to six weeks “…without residual/recurrent physical impairment” and that the worker’s current difficulties were not medically accounted for in relation to that event. The WCB medical advisor therefore concluded that the WCB was not responsible for further treatment and there would be no requirement for workplace restrictions in relation to the compensable injury. The medical advisor also noted the absence of evidence of a material change in the pre-existing degenerative spinal condition resulting from the accident.

On May 26, 2022, the WCB advised the worker their entitlement to wage loss and medical aid benefits would end as of June 2, 2022 as the WCB could not establish a relationship between their current difficulties and the workplace accident.

On June 14, 2022, the worker requested Review Office reconsider the WCB’s decision. In their submission, the worker noted their job duties included lots of heavy lifting and required twisting, bending and being in awkward positions for long periods of time, none of which they were able to perform due to their back difficulties. On July 18, 2022, Review Office determined the worker was not entitled to wage loss or medical aid benefits after June 2, 2022. Review Office relied upon the WCB medical advisor’s opinion that the medical evidence did not support the worker’s current back difficulties were related to the November 15, 2021 workplace accident.

The worker filed an appeal with the Appeal Commission on August 15, 2022 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, on March 23, 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, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies 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 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.”

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing 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.

Worker’s Position

The worker appeared in the hearing on their own behalf, assisted and supported by their spouse. The worker provided an oral submission as well as testimony in response to questions posed by members of the appeal panel. The worker’s spouse also provided testimony in response to panel questions.

The worker’s position is that the injury sustained in the workplace accident of November 15, 2021 was not resolved as of June 2, 2022 and as a result, the worker remains unable to return to their pre-accident employment and continues to require medical treatment in relation to that injury.

The worker stated their belief that if the workplace injury was no more severe than a back sprain, they ought to have recovered by this point; however, the worker continues to experience daily and debilitating back pain such that they are not able to return to work. The worker described treating their symptoms with ice packs applied four times daily, anti-inflammatory medications and frequent rest, as well as walking as often as possible. The worker described how their continuing symptoms make their activities of daily life, such as dressing, loading the dishwasher, or walking stairs, difficult, and that they are unable to cut wood, work in the garden, mow their lawn or clear snow from their driveway.

The worker described their basic job duties, noting that they need to be able to carry and work with heavy tools which they have been unable to do since this accident. They confirmed that they like their work and want to return to it.

The worker described continuing swelling and bruising on their back, since the injury occurred. On questioning by panel members, the worker described swelling around a bruise measuring approximately 2 inches by 3 inches, reduced from 4 inches by 5 inches, located on their lower back, above belt level on the right side.

The worker confirmed seeking treatment at first from a chiropractor, and then a physiotherapist, until their progress plateaued, noting that the MRI study showed a disc problem which they believe is the result of the workplace accident. The worker confirmed that they did not previously have any back related complaints or symptoms. The worker noted they were assessed for functional capacity by a physiotherapist in September 2022 at the request of their disability insurance provider and that their physician recommends they remain mobile and use stretching to assist with mobility. The worker confirmed they see their physician monthly for monitoring of symptoms and that the possibility of surgery is being considered.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal is in respect of the question of whether the worker is entitled to wage loss and medical aid benefits after June 2, 2022 in relation to the November 15, 2021 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the compensable workplace accident beyond June 2, 2022 such that the worker either required further medical aid or continued to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.

The panel considered whether the evidence supports the worker’s position that their ongoing symptoms, beyond June 2, 2022 are causally related to the workplace accident of November 15, 2021. The worker described ongoing and daily lower back pain that is always present, and that is irritated with activity. The worker noted using ice to ease their pain as well as frequent rests and anti-inflammatory medications. In the hearing, the worker also referenced swelling and bruising on their lower back that was always present since the injury; however, in reviewing the medical reporting the panel noted that this was reported following the worker’s functional capacity assessment in September 2022 and as such, we find that this bruising is more likely than not unrelated to the compensable workplace injury of November 15, 2021.

The panel noted the medical reporting supports the worker’s testimony that their symptoms are easily and frequently exacerbated. The physiotherapy chart notes indicate the worker’s symptoms will often flare up after treatment or periods of activity and confirm a waxing and waning of symptoms, with little improvement over time. The January 15, 2022 referral letter from the treating chiropractor to the physiotherapist confirms this same pattern: “The patient has had a definite pattern of improving with care, but then flaring up and having complete regression”, as does the May 18, 2022 report from the treating physician to the WCB, which describes the worker’s “….slow recovery clinically this is still sciatica on the right-hand side” and noting the worker’s report that their “back flares up often on bad days”. The panel also noted the treating physician’s June 8, 2022 report of “painful back not settling clinically sciatica” and that the worker “…has essentially not improved since injuring [their] back and had no prior problems with [their] back before this workplace injury.” The treating physiotherapist also set out in their July 19, 2022 letter to the disability insurance provider that “At the time of the last session, [the worker’s] symptoms were quite easily exacerbated with light activities of daily living… [The worker] did well with in clinic treatments, however the treatment affect would not last for a prolonged time as [they] would easily get exacerbated, and [their] symptoms would come back shortly afterward.”

The worker’s position is that their ongoing symptoms and flareups are due to a disc injury they believe they sustained at the time of the workplace accident. The panel noted that this view is supported by the opinion of the treating physiotherapist, who set out on November 8, 2022 that “Initially…it was thought [the worker’s] injury was a muscle tear and sprain. However, [their] response to treatment was inconsistent, recovery has been prolonged, and [their] symptoms were/are easily exacerbated…. [I]t is not surprising that the MRI also indicated there was ALSO in fact a disc injury that has delayed [their] progress to date.” The panel considered, however, that this position is not supported by the May 10, 2022 call-in examination findings. The WCB sports medicine advisor outlined in their report that based upon the worker’s reported symptoms and the recent diagnostic imaging findings, the “…probable diagnosis at this juncture is nonspecific low back pain occurring in the environment of pre-existing degenerative changes…The current reported symptoms and degree of disability in the context of an examination that does not reveal any neurological abnormalities, does not appear to medically relate to a low back strain from November 15, 2021….”

The panel further noted the March 31, 2022 lumbar spine CT indicated “Mild degenerative changes” and “No definite disc herniation or nerve root compression” and the April 6, 2022 lumbar spine MRI revealed “Mild multilevel degenerative change” with shallow disc protrusions noted at L2-3 and L4-5 and a mild diffuse disc bulge at L5-S1. In addressing these findings, the WCB sports medicine advisor noted that “While recovery from a [strain] was beyond the natural history of same, there is no medical evidence that the pre-existing degenerative changes noted on spinal CT and MRI prolonged recovery from same. Additionally, there is no medical evidence to support a material change in the pre-existing degenerative spinal changes as a result of the workplace injury.” The panel accepts the opinion of the WCB sports medicine advisor that the diagnostic imaging findings indicate a degenerative condition that was pre-existing, and further, that the evidence does not support that the worker’s pre-existing lumbar back condition was materially impacted by the workplace injury to the worker’s lower back. Although the treating physician indicated the worker had no prior back difficulties, the evidence does not support a finding that the various degenerative changes noted in the worker’s lumbar spine region are the result of the mechanism of injury in the workplace accident of November 15, 2021.

The panel accepts that the worker’s recovery from their compensable lower back strain injury may have been prolonged due to the pre-existing degenerative changes in the same region of the worker’s back; however, we also accept that the clinical findings from the call-in examination do not support that the worker’s ongoing symptoms at that time were related to the workplace injury.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, we find that the worker did not continue to experience the effects of the compensable workplace accident beyond June 2, 2022. Therefore, the worker is not entitled to wage loss and medical aid benefits after June 2, 2022 and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of May, 2023