Decision #78/23 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to benefits after December 1, 2020. A hearing was held on May 3, 2023 to consider the employer's appeal.
Whether or not the worker is entitled to benefits after December 1, 2020.
The worker is entitled to benefits after December 1, 2020.
The worker filed a Worker Incident Report with the WCB on September 9, 2020, reporting an injury to her lower back that occurred at work on September 4, 2020. The worker described lifting a resident with a coworker and when "…the resident started to fall, I had to grab him and felt a pain in my left lower back when I did this. I tried to continue to work but I could not." The worker reported she sought medical treatment on September 8, 2020, and the physician recommended she take medication, get x-rays and remain off work from September 8 to 15, 2020.
The Doctor First Report from the worker's attendance for medical treatment on September 4, 2020 was placed to the worker's file on September 8, 2020. The report noted the worker's report of stopping a resident from falling when she felt a pain in her back, with the pain travelling to her right leg when she moved and her left thigh. The worker also noted that when she got home, she had pain in her elbows and both hands. On examination of the worker, the treating physician noted pain in the worker's lower back, bilateral tenderness, restricted range of motion, elbow joint pain and hand stiffness. The physician diagnosed the worker with back pain, and recommended she remain off work.
On September 10, 2020, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and advised she initially self-treated her injuries until she sought medical treatment on September 8, 2020. The worker noted when she got home in the evening on September 4, 2020, she felt pain in her elbows and both of her wrists, which she had not felt immediately after the incident. The worker noted that she was currently having some difficulties with the activities of daily living, but her family was helping her. The WCB advised the worker her claim was accepted. An x-ray taken September 8, 2020 was noted to be normal, with mild osteoarthritic changes noted in the worker's lower level facet joints.
At a follow-up appointment with her treating family physician on September 16, 2020, the worker reported ongoing pain in her lower back and hip area, stiffness and pain, and the physician provided a diagnosis of back pain and soft tissue damage and recommended she remain time off work.
The worker attended an initial physiotherapy assessment on September 21, 2020. The worker reported some improvement since the workplace accident but noted she was still limited in some activities of daily living. Limited and painful range of motion was noted in the worker's lumbar region and wrists, and painful range of motion in the elbows, and the physiotherapist diagnosed the worker with lumbosacral, sacroiliac and left hip musculo-ligamentous injuries, bilateral common flexor/extensor tendon injuries and bilateral wrist strains. The physiotherapist indicated the worker was currently unable to perform tasks and should remain off work for a further 4 weeks.
On September 24, 2020, the worker's file was reviewed by a WCB physiotherapy advisor, who opined that the worker's diagnosis related to the September 4, 2020 workplace injury was non-specific, non-radicular low back pain (lumbar strain), with a natural history of a gradual resumption of activity and recovery over a 6-8 week period. The advisor further opined that "Total disability is no (sic) indicated. Current restrictions would include: no lift/push/pull >10 lbs., no repetitive or sustained bending/twisting, and the ability to change positions as needed."
On September 30, 2020, the worker attended a further follow-up appointment with her treating physician, who recommended continued time off work and physiotherapy for the worker. The WCB provided the employer and the worker with the restrictions on October 2, 2020, and the worker commenced a graduated return to work plan on October 5, 2020.
The worker attended a follow-up appointment with the family physician on October 15, 2020, reporting increased symptoms after attending the graduated return to work plan on modified duties. The physician recorded right elbow tenderness on the medial side and above the elbow, tenderness in both sides of her back, decreased range of motion and stiffness. The physician recommended restrictions of no lifting, no pushing, no repetitive movement like putting things above or down, and only 4 hour shifts. The restrictions were provided to the worker and the employer on October 16, 2020. A further graduated return to work schedule was developed and the worker started on October 19, 2020.
At a further appointment on October 28, 2020, the physician noted the worker had lower back pain, tenderness more on the right side and recommended continued light duties with no heavy lifting and shifts up to 6 hours in length. The worker was referred for an expedited MRI. The lumbar spine MRI was performed on November 10, 2020 and indicated "Very mild multilevel degenerative change."
On November 23, 2020, the worker's file was reviewed by a WCB sports medicine consultant. The consultant opined that the worker's diagnosis with respect to the September 4, 2020 workplace accident was soft tissue injuries to the back, elbow and wrist. The consultant noted the degenerative findings on the MRI were not related to the workplace injury. The consultant further opined that the current clinical findings for the worker were nonspecific in nature and "There are no objective findings that denote an ongoing physical impairment from the workplace injury." On November 24, 2020, the WCB advised the worker they had determined she had recovered from the workplace accident and her entitlement to benefits would end effective December 1, 2020.
On November 26, 2020, the worker's treating family physician provided a letter in support of the worker's continued need for further benefits. The physician indicated they requested a further MRI as the worker continued to report ongoing pain in her lower back, and the worker required further time off from work and medical aid benefits in order to heal. On December 1, 2020, the worker submitted additional medical information from her treating family physician supporting the worker had not recovered from the workplace accident and required further benefits, and requested reconsideration of the WCB's decision to end her entitlement to benefits on December 1, 2020. On January 7, 2021, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on January 18, 2021.
On January 18, 2021, Review Office determined that there was no entitlement to medical aid and wage loss benefits beyond December 1, 2020. Review Office placed weight on and agreed with the opinion of the WCB sports medicine consultant that the worker sustained soft tissue injuries as a result of the September 4, 2020 workplace accident, and found that the diagnostic imaging on the worker's file did not support the worker sustained an acute or traumatic injury as a result of that accident. Review Office further found there was no evidence to support the worker's pre-existing degenerative condition was enhanced by the workplace accident, and the worker therefore did not require further medical aid or have a further loss of earning capacity in relation to the compensable injury.
On June 28, 2022, the worker's representative submitted additional medical evidence and requested Review Office reconsider the previous decision. The representative submitted that on November 1, 2021, the worker's treating physiatrist, reported after examining the worker that the worker's symptoms were "…consistent with left greater trochanteric bursitis, bilateral sacroiliac joint pain and biomechanical low back pain" and found positive piriformis testing on the left. The representative noted the information supported "…a combination of continued soft tissue injuries along with specific pain generators for the very left lower back…" Further, the representative submitted reports from the worker's treating athletic therapist and noted the worker had been provided with ongoing restrictions and recommended a graduated return to work plan. The representative advised the evidence supported the worker had not returned to her pre-accident baseline, and therefore required further medical aid and wage loss benefits. On August 9, 2022, the employer provided a response to the submission from the worker's representative, and on August 16, 2022, the representative provided a rebuttal to that response.
On August 23, 2022, Review Office determined the worker was entitled to benefits after December 1, 2020. Review Office found the medical evidence provided by the worker's representative supported the worker had not recovered from her compensable back injury and required further benefits. The worker's file was returned to the WCB's Compensation Services for further adjudication.
On October 12, 2022, the employer's representative filed an appeal with the Appeal Commission and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
The employer was represented by an advocate, who made a submission at the hearing, and responded to questions from the panel.
The employer's position was that the worker is not entitled to benefits after December 1, 2020 as the totality of the evidence did not support that the worker's ongoing medical issues beyond December 1, 2020 continued to be a consequence of the September 4, 2020 compensable incident.
The employer's advocate submitted that it was apparent that Review Office overturned their previous decision based on the January 22, 2021 report from a treating athletic therapist. The advocate noted that at no time in that report did the athletic therapist attribute the worker's mechanical low back pain to the back strain which occurred some 20 weeks previously, at the time of the accident. The advocate submitted that the term mechanical low back pain does not, in and of itself, establish a relationship to the injuries of September 4, 2020 as it appeared the Review Officer had erroneously concluded.
The advocate noted that trauma can produce mechanical low back pain, but there is a myriad of other non-compensable causes as well, including osteoarthritic changes such as were noted on the worker's September 8, 2020 x-ray. The advocate submitted that the radiological evidence in this case, relative to degenerative changes, would account for the prolongation of the symptomatology exhibited by the worker rather that the soft tissue injury of September 4, 2020.
The advocate noted that the claim file was reviewed on November 23, 2020 by the WCB sports medicine consultant, who opined that the worker had recovered from the effects of her compensable injury which were identified as soft tissue injuries of the back, elbow and wrist. The advocate stated that he could not understand how Review Office could render their decision, overturning the previous decision, based on the additional medical information they had received, notably the athletic therapist's conclusion of mechanical low back pain, without consulting the WCB sports medicine advisor.
The advocate noted that the attending physicians referred to different anatomical sites in the various medical reports, and submitted that what he described as this "nomadic nature" of the worker's symptoms led to them to believe that factors which were unrelated to the September 4, 2020 soft tissue injury were involved.
The advocate submitted that they were not questioning the validity of the reported symptoms, but rather pointing out that the nexus between them and the compensable incident had clearly not been established.
In addition, the advocate noted that despite numerous physiotherapy treatments between September 21, 2020 and November 29, 2021, the worker continued to be subjectively symptomatic. The advocate submitted that this too would tend to indicate that factors other than the soft tissue injuries of September 4, 2020 were responsible for the worker's ongoing difficulties.
Finally, the advocate submitted that the suggestion that a soft tissue injury which is still a factor two and one half years post-incident and ongoing is medically unsupported.
The worker was represented by a worker advisor, and accompanied by a family member and provided with the services of an interpreter at the hearing. The worker's representative made a submission at the hearing, and the worker and her representative responded to questions from the panel.
The worker's representative advised that the evidence supports that the worker continued to have a loss of earning capacity and require medical aid beyond December 1, 2020, and the Review Office decision should be maintained.
The representative submitted that the worker's claim was accepted for soft tissue injuries, and the report from the worker's physiatrist dated September 21, 2021 confirmed and continued to support soft tissue injuries. The representative noted that a definite diagnosis is not required for continued benefits, but that these are the same areas of injury as those with respect to which the claim was accepted and continue to be major factors in the worker's ongoing difficulties.
In response to questions from her representative, the worker described what happened on the day of the incident. The representative submitted that there was an inciting event and injury in this case, as described, where the resident suddenly shifted his weight while she was assisting him and she awkwardly grabbed him to keep him from falling.
The representative submitted that while the worker is petite, the worker was able to perform her physically demanding job without difficulty prior to the accident. The claim was accepted for soft tissue injuries to her bilateral wrists, elbows and back, and while there was diagnostic imaging, it did not show any significant pre-existing pathology, and any pre-existing condition that may have been present was asymptomatic.
The representative submitted that the ongoing symptoms to the left-side lower back are directly related to the September 4, 2020 workplace incident. The representative stated that some of the subsequent medical reports show that there is an improvement in the worker's symptoms, but noted that improvement is not recovery. The medical evidence shows a continuity of symptoms with reduced range of motion and tenderness in the same area, and there is no evidence of recovery and no return to pre-accident baseline. Accordingly, the representative submitted that the worker is entitled to further medical aid and wage loss benefits beyond December 1, 2020.
The issue before the panel is whether or not the worker is entitled to benefits after December 1, 2020. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity and/or require medical aid beyond December 1, 2020 as a result of her September 4, 2020 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The panel is satisfied that the medical information on file did not and does not support that the worker had recovered from her compensable injury as of December 1, 2020.
The panel is satisfied that the evidence shows the worker returned to work prematurely, based on the return to work schedule and restrictions which the WCB had identified. The panel further notes that the return to work was not consistent with the advice of the treating physiotherapist who had recommended she remain off work, and the worker had to be taken off work again when she was not able to continue with the return to work program.
The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid beyond December 1, 2020 as a result of her September 4, 2020 workplace incident. The panel therefore finds that the worker is entitled to benefits after December 1, 2020.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2023