Decision #61/23 - Type: Workers Compensation
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 May 8, 2022. A hearing was held on February 15, 2023 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after May 8, 2022.
The worker is not entitled to wage loss and medical aid benefits after May 8, 2022.
On October 26, 2021, the worker reported injury to their right leg and hip in an incident at work on October 22, 2021 when they lost their footing and slipped on "…some kind of spill…". The worker described: "My one foot fell out from underneath me and my other foot slipped. I managed not to fall and maintain my balance but it jarred my leg/hip" and noted symptoms in their leg that began approximately 20 minutes later. The employer noted a similar mechanism of injury in the Employer Incident Report submitted on October 25, 2021, and that they could not accommodate the worker.
The worker obtained medical treatment at a local urgent care centre on October 27, 2021 reporting pain to their right buttock while sitting that radiated down their leg and caused numbness in the sole of their foot. The physician diagnosed right buttock strain with sciatica and noted the worker's report of a prior work injury in a similar area. The physician recommended the worker remain off work until reassessed by their family physician on November 3, 2021.
When the WCB contacted the worker on November 1, 2021, the worker confirmed the mechanism of injury, noting they slipped and “jarred” themselves, and then 20 minutes later, felt a burning sensation and their hip started to lock up. The worker also advised that approximately one year previously, they fell on ice and hit the side of their hip. At that time, a WCB claim was opened, and the worker attended physiotherapy and returned to work. The worker further advised they had been diagnosed with arthritis. The WCB advised the worker the claim was accepted in relation to a right buttock strain and that it would investigate further.
On November 4, 2021, the WCB received an initial report from the treating nurse practitioner, who recorded the worker’s report of pain to the right hip/leg, with shooting pain down their right leg after bending the right knee, sharp pain when moving their feet while driving and numbness from the top of their leg to the bottom of their foot if they sit for too long. The worker described to the nurse practitioner approximately 15 minutes after the accident on October 22, 2021, they felt right hip pain and since that time, continuous pain, with on and off numbness and tingling. On examining the worker, the nurse practitioner noted the worker was sitting with their right leg in front of them as they advised it was more comfortable then flexing their knee, with strength in their right leg against resistance noted as 3/5 compared to 5/5 in their left leg, pain on palpitation to the lumbar spine in the L3-S1 range as well as in the right hip/bursa area, and that the worker was unable to touch their heel to their knee due to pain in their hip. The nurse practitioner queried a diagnosis of radiculopathy of the lumbar spine and hip pain/strain and recommended the worker attend a local sports medicine clinic for further treatment.
The nurse practitioner’s initial report included medical chart notes from the worker’s 2017 injury. A November 27, 2020 chart note indicated the worker’s report of pain in the left lower back area and hip area into the groin for approximately 2 weeks, with prolonged sitting and going up steps, but no report of numbness or tingling. The chart notes indicated a diagnosis of left hip pain, not yet determined, and queried whether the worker had a musculoskeletal strain versus a labral tear to their left hip. A December 2, 2020 chart note indicated a telephone call was made to the worker to discuss the x-ray taken which noted the worker’s hip and sacroiliac joint were fine but osteoarthritis was noted in the L3-L5 area. The December 10, 2020 follow-up chart note indicated the worker’s report their back was starting to feel better and they were returning to work the following day. A November 30, 2020 x-ray report indicated, with respect to the worker’s lumbar spine, that “Alignment is normal. Disc spaces are adequately maintained in height. However, there are secondary signs of degenerative disc space disease. Particularly at L4-5 and to a lesser extent L3-4. Facet OA (osteoarthritis) changes are present in the lower levels. No compression fractures are present.”
On assessment by a sports medicine physician on November 4, 2021, the physician noted tenderness in the right lumbar area, with no midline or percussion pain, limited flexion/extension, positive straight leg raise testing and positive FABER and FADIR testing. The physician queried a diagnosis of a disc herniation with a hip injury/labral tear and referred the worker for a CT scan and physiotherapy.
The worker attended an initial physiotherapy assessment on November 10, 2021. The treating physiotherapist recorded that after the accident, the “Worker was not sore initially but spent about 2 hours driving after the incident in which low back became extremely aggravated”. The physiotherapist also noted the worker’s complaints of “…sharp/stabbing pain in lower back that radiates in both legs/feet R>L. Worker unable tolerate sitting for longer than a few minutes without back becoming aggravated. Worker experiencing R sided numbness from R anterior hip into toes. Sleep has been dramatically affected and finds much more stiff/sore in the mornings.” The physiotherapist noted the worker presented with an antalgic gait, decreased stride length and was weight bearing more through their left side and struggled to perform a sit to stand. They also noted findings of decreased range of flexion and extension and positive straight leg raise testing and queried a diagnosis of L4/L5 L5/S1 disc herniation, recommending as well that the worker be off work for 2 weeks.
A November 26, 2021 lumbosacral spine CT scan indicated disc protrusions at L3-L4 and L4-L5 and noted concern for compression of the left L4 and L5 nerve roots. At follow up with the sports medicine physician on December 1, 2021, it was noted the worker had no left leg issues but had ongoing back and right leg pain and weakness. The physician noted the worker’s symptoms were most consistent with a right disc herniation, but the CT scan did not indicate right sided nerve compression. The physician recommended an MRI study and continued physiotherapy.
At a December 14, 2021 appointment, the treating physiotherapist updated the diagnosis to L3/L4 and L4/L5 disc protrusion with nerve root compression and recommended continued time off work as the worker was not able to tolerate sitting for longer than 15 minutes at a time.
The MRI study was completed on January 10, 2022 and indicated, in part:
L2-L3: Shallow posterior disc bulging and mild bilateral facet arthropathy. No spinal canal stenosis or neural foraminal narrowing.
L3-L4: Disc desiccation and slight disc space height loss. There is a large left paracentral disc protrusion which contacts and compresses the traversing left L4 nerve root within the subarticular recess. There would be a potential for irritation here. There is also mild bilateral facet arthropathy and slight thickening of the ligamentum flavum. There is mild spinal canal stenosis. No significant neural foraminal narrowing on either side.
L4-L5: Large central disc protrusion lateralizing slightly leftward. There is contact and displacement of the traversing left L5 nerve root with potential for irritation here. There is mild to moderate bilateral facet arthropathy. There is at most minor spinal canal stenosis. There is mild left-sided neural foraminal narrowing. The right neural foramen is patent.
L5-S1: Rudimentary disc. No spinal canal stenosis or neural foraminal narrowing.
The MRI report indicated an impression of “Transitional lumbosacral anatomy with partial sacralization of L5.”
At follow up on January 11, 2022, the physiotherapist noted the worker’s complaints of sharp pain with bending/twisting in their lumbosacral area and more pain into their right leg, which shifted into their left side down to their left ankle region at times. The worker noted it was difficult for them to sit longer than 25 minutes, but their pain was decreasing, and their gait was improving. The physiotherapist again noted positive straight leg raise testing and recommended the worker remain off work for a further 3 weeks.
At follow-up with the worker on February 2, 2022, the treating sports medicine physician recommended restrictions of working up to 4 hours per day, with no more than 90 minutes of driving and on February 16, 2022, the WCB noted the employer could not accommodate the worker with those restrictions.
On March 20, 2022, the treating physiotherapist provided a discharge report indicating the worker was capable of light/administrative duties that allowed for sit/standing breaks as needed; limited repetitive bending/twisting of the lumbar spine and capable to lift less than 20 pounds occasionally, starting with 2 hours per day, 5 days per week and increasing hours as tolerated. On March 22, 2022, the treating sports medicine physician noted the worker reported ongoing but settling lower back pain and that the pain into their legs was resolved. The physician recorded a normal neurological examination, with tenderness to the lumbar spine facets and paraspinals, and reported the disc herniation was settling, with a recommendation that the worker continue physiotherapy and limit driving to a maximum of 6 hours per day.
On March 22, 2022, the worker advised the WCB that the employer was unable to accommodate them. The worker attended a call-in examination with a WCB medical advisor on April 19, 2022. The medical advisor stated the diagnosis related to the October 22, 2021 workplace accident was a low back and hip strain with radiculopathy, with a natural history of recovery over the course of 4 to 6 weeks; however, the November 26, 2021 CT scan and the January 10, 2022 MRI study both indicated the worker had degenerative changes in their lumbosacral spine that would delay recovery. The medical advisor concluded the degenerative changes were not aggravated by the workplace accident and provided a current diagnosis of non-specific, non-radiculopathic low back pain. The WCB medical advisor was of the view that the medical evidence did not account for the worker’s current symptoms. On the same date, the treating sports medicine physician saw the worker and noted their report of ongoing but settling lower back pain, and that they were able to tolerate walking and standing well but still not able to sit for a prolonged time. The physician noted a normal neurological examination, with the worker’s disc herniation settling and recommended the worker allow time for their injury to “settle” and follow-up in 6 weeks. Continued restrictions of a maximum of 6 hours of driving per day were recommended.
On May 2, 2022, the WCB advised the worker it had determined they had recovered from the October 22, 2021 workplace accident and were not entitled to further benefits after May 8, 2022.
The worker requested reconsideration of the WCB’s decision to Review Office on May 8, 2022. In their submission, the worker noted their treating sports medicine physician had advised the recovery time for their type of injury was 5 - 9 months and recommended follow-up on June 22, 2022 to discuss further treatment options. The worker argued their treating healthcare providers supported their continued need for further time off and medical aid benefits, in addition to not being accommodated by the employer.
On June 16, 2022, Review Office determined the worker was not entitled to wage loss and medical aid benefits after May 8, 2022, relying upon the opinion of the WCB medical advisor after examining the worker on April 19, 2022 that the worker’s recovery would have been delayed due to the degenerative condition in their lumbosacral area, with material recovery expected within several months. Review Office noted the worker had received over 6 months’ of benefits, which was considered an appropriate amount of time for recovery based on the medical evidence.
The worker filed an appeal with the Appeal Commission on June 28, 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 May 10, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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 126.96.36.199, 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.
The 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 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.
The worker appeared in the hearing on their own behalf, providing an oral submission in support of their appeal and offering testimony in response to questions posed to them by members of the appeal panel.
The worker’s position is that they are entitled to wage loss and medical aid benefits after May 8, 2022 as they continued to experience symptoms and required further treatment of those symptoms in relation to the workplace injury of October 22, 2021, and further that they remained unable to return to work at that time as a result of the workplace injury.
The worker stated that at that time their “back hurt all the time” and they were unable to continue with physiotherapy as the WCB terminated those benefits. The worker noted that their physician stated recovery from their injury would generally occur in 3-5 months, and even up to a year and a half, depending on the individual. The worker noted that as of May 8, 2022, they were “…left without any benefits, no nothing and no employment” until they returned to working in early August 2021. The worker stated that their pre-accident job is hard on the back and that they needed more time to recover and rest following the injury.
In answer to questions posed by members of the appeal panel, the worker confirmed that the treating physiotherapist provided them with a home program and that they continue to try to do those exercises. The worker further noted that in August 2022 they began another job in the same industry but with job requirements that accommodate their inability to sit for as long as they did before the workplace accident. The worker described that their back seizes up after about 2.5 hours of sitting and driving and noted they experienced a flareup in August just before returning to work, while reaching under a table.
The worker confirmed that they followed up with the treating sports medicine physician in June 2022 and again just before their return to work. The worker also noted being assessed by a spine specialist in January 2023 at which time they were advised that injections were not an option and that they should keep up their diet and exercise. The worker stated that this specialist suggested that the worker’s continuing right hip difficulties are the result of a hip, not a spine, problem.
The worker stated that they treat their ongoing symptoms with stretches and walking but no medications.
The employer did not participate in the appeal.
The issue in this appeal is whether the worker is entitled to wage loss and medical aid benefits after May 8, 2022 in relation to the October 22, 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 injury sustained in that workplace accident beyond May 8, 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 not able to make such findings and therefore the worker’s appeal is denied.
The panel considered whether the evidence supports the worker’s position that they were not recovered from the workplace accident by May 8, 2022 but continued to experience the effects of that injury beyond that date. The panel noted that the medical reporting does not indicate that the worker was fully disabled from all employment at that time. As early as February 2, 2022, the treating sports medicine physician was recommending a graduated return to work beginning with a 4-hour day; however, the file evidence indicates that the employer could not accommodate the worker. On March 20, 2022, the treating physiotherapist also provided recommendations for a graduated return to work, and on March 22, 2022, the sports medicine physician recorded that the worker was capable of sitting as tolerated up to 6 hours per day, 2 hours at a time for the next 6 weeks. These recommendations support that the worker was moving toward a recovery from the compensable injury.
The panel noted the report of the treating sports medicine physician to the worker’s insurance provider dated March 22, 2022 sets out that the worker’s symptoms after November 24, 2021 began:
“…to become more focal over time with lower back pain and right leg parasthesia weakness and pain. Progressively over time [their] symptoms have been very slowly improving with a progressive improvement to [their] pain and parasthesia in the right leg as well as improvement of [their] lower back pain. Upon my last assessment on March 22, 2022 [the worker] states that the pain into the back of [their] legs has totally resolved.”
The sports medicine physician went on to note that the MRI study “…reveals mild multilevel degenerative changes with focal disc herniations at the L3/4 and L4/5 levels with the possibility of nerve root irritation of both the L4 and L5 nerves. Fortunately however [their] radicular symptoms have been improving nicely.” On the next follow-up on April 19, 2022, the physician noted “Ongoing but settling lower back pain” and that the pain into the worker’s legs was gone and not recurring, indicating that the disc herniation was “settling”.
The panel further considered the findings from the April 19, 2022 call-in examination with the WCB medical advisor who concluded based on their examination findings that “…there is currently no neurological or dural tension sign supportive of lower extremity radiculopathy.” The panel noted that these findings are consistent with the findings of the treating sports medicine physician of the same date and of June 22, 2022. The WCB medical advisor further noted that in the environment of the documented degenerative changes in the worker’s lumbosacral spine, a delayed recovery was anticipated beyond the usual recovery period of 4-6 weeks for a low back strain/hip strain. The medical advisor went on to state their opinion that it was unlikely that the worker’s pre-existing degenerative processes were aggravated by the workplace accident, noting the documented improvements in the signs of radiculopathy and concluding that “There is currently no objective indication of structural pathology stemming from the October 23, 2021 low back strain on which to account for [the worker’s] current symptoms.”
Following the WCB’s determination that the worker was not entitled to further benefits, on June 22, 2022, the sports medicine physician noted a normal lumbar neurological examination and diffuse tenderness to the worker’s lumbar spine. They suggested increased exercise and arranged a referral to a physiatrist for possible injections. The panel also noted that the June 22, 2022 reporting from the treating sports medicine physician indicates the worker was dismissed from their employment for a cause unrelated to the workplace accident at some point prior to that date.
The panel also considered that the physiatrist who assessed the worker on January 16, 2023 noted the worker:
“…has a clinical presentation most compatible currently with right hip degenerative arthropathy. While [they] previously had bilateral lower limb symptoms, currently [their] symptoms are localized to the low back and right groin. It is likely that [their] imaging-document disc herniations have settled, consistent with their natural history. Currently there is no evidence of dural tension, blocked range of motion or radicular symptoms….”
Although more than six months later, the panel noted that the physiatrist’s January 2023 findings are consistent with the WCB medical advisor’s April 2022 findings in that there is no evidence of dural tension or radicular signs in either examination and in their conclusion that the worker’s continuing symptoms are not related to the low back injury. The panel accepts and relies upon these findings and opinions.
While we acknowledge that the worker continued to experience symptoms in their low back and hip regions beyond April 2022, we are satisfied based upon the medical findings and opinions that these continuing low back and hip symptoms are not causally related to the compensable workplace low back and hip strain injuries but are more likely than not the result of the worker’s pre-existing degenerative conditions in those regions as identified by the diagnostic imaging findings.
On the basis of the totality of the evidence before us, and on the standard of a balance of probabilities, the panel determines that the worker was recovered from the effects of the compensable workplace injury by early May 2022. Therefore, the worker is not entitled to wage loss and medical aid benefits after May 8, 2022.
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 26th day of May, 2023