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 further benefits after November 20, 2019 in relation to the January 4, 2019 accident. A hearing was held on February 8, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after November 20, 2019 in relation to the January 4, 2019 accident.

Decision

The worker is not entitled to further benefits after November 20, 2019 in relation to the January 4, 2019 accident.

Background

On January 7, 2019, the worker filed a Worker Incident Report with the WCB reporting injury to their right neck, left knee and head in an incident at work on January 4, 2019. The worker described stepping out from the worker’s premises into the parking lot and slipping on ice, landing on their right shoulder and back, with their head snapping back and hitting the ground. The worker noted the employer owns the parking lot and confirmed that they did not finish their shift that day.

The worker sought medical treatment from their chiropractor on the same day, reporting headache, neck pain focused on the right, soreness to the back of their head and left knee and muscle soreness in their stomach. The chiropractor provided diagnoses of concussion, neck sprain/strain, left knee sprain and abdominal hernia, and recommended the worker see a physician regarding the hernia and seek further physiotherapy with the physiotherapist who had treated the worker for an earlier knee injury. An x-ray of the worker’s cervical spine taken the same date noted normal findings, with minor degenerative changes recorded posteriorly from C5 to C7. The treating chiropractor placed the worker off work until January 14, 2019.

On January 8, 2019, the WCB received an initial report from the treating family physician which recorded the worker’s report of falling on ice, landing on their back with a sudden pain in their abdomen, and left knee pain. The physician noted the worker could reduce the bulging lump caused by the sudden abdominal pain and that the worker reported the pain in their left knee when bending and walking. On examination, the physician found a normal range of motion in the worker’s left knee and a soft abdomen with no tenderness. The physician diagnosed musculoskeletal pain and exacerbation of a hernia and referred the worker for an ultrasound. The physician noted the worker reported a concussion and would see their chiropractor for further assessment. The physician recommended the worker remain off work until cleared from the concussion.

When the WCB contacted the worker to discuss the claim on January 10, 2019, the worker confirmed the mechanism of injury and noted they had a previous left knee injury, which was approximately 80% recovered at the time of the January 4, 2019 workplace accident. The worker advised that their symptoms included a bad headache, dizziness, a very stiff neck with tissue and joint damage and noted they were awaiting an ultrasound on their abdomen to rule out a hernia. The worker reported time loss from January 7, 2019 to January 11, 2019.

On January 14, 2019, the WCB accepted the worker’s claim and approved wage loss benefits from January 7, 2019 to January 11, 2019.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on January 21, 2019. On examining the worker, the medical advisor provided an opinion that the compensable diagnoses were a cervical strain/sprain, occipital contusion, left knee sprain and abdominal wall strain without compelling evidence of a new hernia. The WCB medical advisor provided that the findings did not support the diagnosis of concussion and therefore, the worker did not require a referral to a concussion clinic. The medical advisor noted that symptoms from the occipital contusion and cervical strain/sprain were resolving and concluded the mechanism of injury may have caused a minor sprain of the worker's left knee ligaments, but that injury also appeared to have materially resolved, with "…no examination evidence today of persisting left knee pathology." With respect to the umbilical hernia, the WCB medical advisor found no evidence of a hernia on examination and noted the worker did not require a referral to a surgeon. Further, the medical advisor found the worker was significantly improved since the January 4, 2019 workplace accident and the only restrictions related to that accident were to avoid heavy lifting greater than ten pounds and avoid sustained or repetitive awkward neck postures for 10 to 14 days.

The employer advised the WCB on January 24, 2019 that they terminated the worker's employment due to performance issues as of January 23, 2019. On January 29, 2019, the WCB advised the worker that wage loss would not be paid for January 18, 2019 when the worker had called in to work sick but had not attended for medical treatment, and they were not entitled to further wage loss after January 23, 2019 as their employment was terminated unrelated to the compensable injury. In a decision letter dated April 11, 2019, the WCB confirmed that the worker was recovered from the workplace accident, and they were not entitled to further benefits after April 11, 2019.

On May 13, 2019, the worker requested reconsideration of the WCB's decision to Review Office. In their submission, the worker indicated they missed work on January 18, 2019 due to increased symptoms after chiropractic treatment the previous day and noted they required further physiotherapy treatment for their abdominal injury sustained due to the workplace accident. On June 25, 2019, the employer provided a submission in support of the WCB's decision.

A WCB medical advisor reviewed the findings from the March 17, 2019 abdominal and pelvic CT scan and provided an opinion on July 24, 2019 that the CT scan indicated the worker had an "…incisional hernia at the para-umbilical region" which was likely a pre-existing condition that was altered by the January 4, 2019 workplace accident as it became symptomatic after the accident. The WCB medical advisor outlined that restrictions related to that condition would be "…avoidance of lifting of objects greater than 25lbs, or equivalent activities such as pulling and pushing of similarly weighted objects. Avoidance of forceful twisting and bending at the waist is also reasonable." 

On August 8, 2019, Review Office determined the worker was not entitled to wage loss benefits for January 18, 2019 but found the worker was entitled to further benefits related to the change in their pre-existing incisional para-umbilical hernia and returned the file to Compensation Services for further adjudication.

When the WCB contacted the employer on August 13, 2019, the employer advised that they could have accommodated the restrictions set out by the WCB medical advisor if the worker was not terminated for performance issues, and provided details of the modified duties that would have been available for the worker.

On November 5, 2019, the WCB received a copy of a July 18, 2019 report from a consulting surgeon, that reviewed the worker's past surgical history, and noted that on examination, the reducible hernia noted by the worker was palpable and “…protruding outwards but it is staying in the subcutaneous tissues and is not quite noticeable from the skin level without deep palpitation." The surgeon discussed treatment options with the worker but reported that the hernia was reducible and not symptomatic or protruding at that time, and the worker declined surgery to let the hernia heal itself.

A WCB medical advisor reviewed the report and the worker's file on November 20, 2019, noting the treatment options would either be surgical or non-surgical, and that based on the surgeon's findings that the worker's hernia was asymptomatic and reducible without surgery, the worker opted for non-surgical treatment. The WCB medical advisor concluded that given the worker's hernia was asymptomatic, reducible, and non-tender on examination, the worker was at their functional baseline with respect to the hernia.

On November 20, 2019, the WCB advised the worker they were not entitled to further benefits as restrictions were no longer required and based on the medical evidence on file, they had returned to their pre-accident status.

The worker requested reconsideration of the WCB's decision to Review Office on January 5, 2022, noting ongoing difficulties due to the January 4, 2019 workplace accident. On January 6, 2022, Review Office returned the worker's file to the WCB's Compensation Services for further investigation. On February 9, 2022, the worker's treating family physician provided the WCB with medical reports for the worker from March 2019 through to February 8, 2022, including reports from a sports medicine physician, two neurologists and copies of various diagnostic imaging reports.

On March 15, 2022, the WCB advised the worker that on review of the new medical information, it determined the evidence did not support a recurrence of their neck/cervical spine and left knee difficulties related to the January 4, 2019 workplace accident and as such, there would be no change to the previous decision that the worker was not entitled to further benefits.

On June 1, 2022, the worker renewed their request for reconsideration by Review Office. Review Office determined on June 28, 2022 that the worker was not entitled to further benefits, relying upon the opinions of the WCB medical advisor to find that the worker was recovered and returned to their pre-accident baseline and further, that a causal connection between their current difficulties and the January 4, 2019 workplace accident could not be established.

The worker filed an appeal with the Appeal Commission on August 11, 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 was forwarded to the interested parties for comment, the appeal panel met on June 13, 2023 to discuss the case and render a final decision on the issue under appeal.

Reasons

Applicable Legislation

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.”

Worker’s Position

The worker appeared in the hearing on their own behalf and made an oral submission to the panel in support of the appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel. The worker was accompanied and supported in the hearing by a friend.

The worker’s position is that they were not recovered from all of the effects of the injuries sustained on January 4, 2019 by November 20, 2019 and continued to experience the effects of those injuries beyond that date, even to the present. Therefore, the worker believes they should be entitled to further benefits after November 20, 2019.

The worker described that at the time of the injury they had been employed with the employer for 8 years and were working light duties due to an unrelated thumb injury, which is the subject of a different WCB claim. The worker noted that the employer terminated their employment on the day after the worker attended the WCB call-in examination.

In the hearing, the worker described a “domino effect” in that the initial injuries resulted in further injuries, including disc injury and left knee and right hip symptoms that were not fully resolved by November 20, 2019. The worker stated their belief that the loss of muscle in their left thigh caused them to shift their weight to the right which has resulted in right hip pain. The worker noted that their concussion symptoms resolved quickly after the accident, but their left knee symptoms were not resolved by November 20, 2019 and even to the present, their left knee “gives out” when squatting. The worker stated their belief that their prior knee injury made this injury worse than it would have been if their knee was previously in good shape. With respect to the inguinal hernia, the worker noted they can lift weight, but still with care. The worker also noted that they experienced three herniation injuries after the accident and that they dispute the WCB’s view that only one hernia is related to the workplace accident.

The worker stated that they were diagnosed with septic arthritis in their left knee which affected the muscle in their left thigh. The worker stated that their knee “is better now” and that “it’s the thigh that’s giving me problems.” The worker noted they were unable to continue with treatment of their injuries because they were terminated by the employer.

The worker testified that they began new employment in October 2022 on a full-time basis without any medical restrictions in place.

In sum, the worker’s position is that they continued to experience the effects of the injuries sustained in the January 4, 2019 workplace accident beyond November 20, 2019, which resulted in both a loss of earning capacity and a requirement for treatment, and therefore, they should be entitled to further benefits beyond that date.

Employer’s Position

The employer was represented in the hearing by a human resources representative who made an oral submission on behalf of the employer.

The employer’s representative stated that they became involved in the claim in March 2021 and understand that the worker was terminated by the employer in January 2019 on a disciplinary basis in relation to violation of an employer policy, which was not related to the present claim.

The employer’s representative clarified that the employer understands the present appeal to be focused on the question of whether the worker is entitled to further benefits in relation to their left leg muscle atrophy and whether that condition arose out of the knee sprain injury incurred in the compensable accident of January 4, 2019.

The representative confirmed that the employer was able to accommodate the worker’s restrictions and noted that the worker was cleared for a return to regular duties at two weeks following the accident.

Analysis

The question for the panel to determine in this appeal is whether the worker is entitled to further benefits after November 20, 2019 in relation to the January 4, 2019 accident. For the worker’s appeal to succeed, the panel would have to determine that as a result of the injuries sustained in the workplace accident of January 4, 2019, the worker sustained an injury that necessitated medical aid or as a result of which the worker continued to experience a loss of earning capacity beyond November 20, 2019. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel reviewed the medical evidence in relation to the injuries the worker sustained in the accident of January 4, 2019. The panel noted that the WCB initially accepted the diagnoses of cervical strain/sprain, occipital contusion, left knee sprain and abdominal wall strain as arising out of the compensable accident. This is confirmed by the call-in examination notes of January 21, 2019. The panel also noted that by the time of that examination, just over two weeks following the accident, the WCB medical advisor found that:

“…symptoms related to the…occipital contusion and cervical strain/sprain appear to be resolving. No specific treatment of the neck injury appears to be required…. While some degree of minor sprain of the knee ligaments may have occurred in relation to the compensable injury, any such injury appears to have materially resolved. There was no examination evidence today of persisting left knee pathology. In regard to the reported umbilical hernia, there was no compelling evidence of hernia at exam today.”

The evidence indicates that the worker still was having issues with their upper back and cervical spine and some headache in March 2019 but that this resolved by later that month. The panel also considered the evidence relating to the worker’s abdominal hernia and note that as indicated by the worker in their submission, the March 17, 2019 MRI study indicated “Three small intra-abdominal wall hernias”; however, we also noted the July 24, 2019 opinion of the WCB medical advisor that the mechanism of injury on January 4, 2019 “…medically accounts for an alteration to a pre-existing small, asymptomatic incisional hernia such that it became symptomatic and clinically appreciable on examination by the chiropractor on January 4, 2019.” The panel noted the evidence indicates that the worker declined surgical treatment and that on July 18, 2019, the treating surgeon advised that this was reasonable given the worker was not symptomatic and the hernia was not protruding at that time, but also stated that the hernia was “highly unlikely” to heal on its own “…as once you have an incisional ventral hernia, it is likely to stay there for years until surgical repair is done.” In a further opinion provided November 20, 2019, the same WCB medical advisor noted that it was “…reasonable to conclude that [the worker’s] functional status has returned to a baseline with respect to the…hernia.” The panel accepts and relies on the opinions of the treating surgeon and the WCB medical advisor and finds that the worker was functionally recovered from the compensable change to the pre-existing incisional para-umbilical hernia by November 2019.

Focusing on the worker’s left knee injury, the panel noted that various treating medical specialists have been unable to explain the worker’s ongoing symptoms of left thigh atrophy. We noted the October 15, 2019 x-ray imaging indicated “minimal medial compartmental narrowing” with no acute bone or joint abnormalities identified, and that the January 15, 2020 MRI imaging indicated “Focal chondral fissuring within the medial compartment. No other internal derangement is identified.” Of note, there is no indication that these findings are inconsistent with the previous diagnostic imaging from before this accident in 2018. The panel also noted the June 2018 diagnosis of left inferior patella tendinitis. In reference to the worker’s ongoing left lower limb symptoms, the evidence includes a December 1, 2020 opinion from a consulting orthopedic surgeon that the worker’s “MRI findings are not consistent with ongoing symptoms”. The surgeon noted the atrophy of the worker’s quadriceps “by about 30%” but no other findings of concern and referred the worker to a neurologist for further investigation. The January 21, 2021 examination report from the consulting neurologist also noted the worker’s “isolated wasting of the left quadriceps muscle” and queried an injury to the femoral nerve as the cause of that weakness, referring the worker for further diagnostic testing. Further, a July 22, 2021 electrodiagnostic study report indicated the worker’s left leg weakness is associated with atrophy in the muscle and noted right gluteal region pain in the previous month that “is unrelated to [the] left leg issues”. Those study findings revealed left “quadriceps muscle weakness and atrophy – unclear etiology” with a reported history of onset of symptoms about 3 years prior with associated swelling in the left knee. The assessing neurologist noted “I am having difficulty connecting the two problems (left knee swelling and left quadriceps muscle atrophy).”

The panel further considered that only the consulting physician with an interest in occupational health identified a causal relationship between the worker’s continuing symptomatic presentation (left thigh atrophy) and the compensable workplace injury, but the panel also noted the physician little evidence in support of such a causal relationship, other than that it arose after the workplace injury. The physician noted in their January 12, 2023 opinion that “Leg muscle atrophy is a common result of a knee injury and its pain, as a result of bed rest or casting and pain avoidance, from offloading body weight in standing away from the injured side, and changing lower body exertions to rely on the uninjured leg for strength and stamina” and went on to conclude that the pattern of the worker’s left low back and hip pain from the previous year was “musculoskeletal in order and a consequence of the quadriceps atrophy and weakness.” The panel does not find that the evidence supports this opinion, in that there is no evidence that the worker was at any time incapacitated because of the compensable injury and in fact, the evidence indicates that the worker was approved to return to work, with restrictions in place, within less than three weeks of the date of injury. Further, while the worker’s low back and hip pain may be accounted for in relation to the left quadricep atrophy, that relationship does not indicate or support a causal relationship between the compensable left knee strain and the subsequent left leg muscle atrophy. This opinion also is not supported by the opinions of the assessing neurologists or orthopedic surgeon, who were unable to determine any cause for the worker’s left quadricep atrophy, as well as the WCB medical advisor who found that “…the current left thigh atrophy cannot be medically accounted for in relation to the January 4, 2019 workplace incident.” The panel therefore gives little weight to the January 12, 2023 opinion of the physician with an interest in occupational medicine. We find that on the balance of probabilities, the evidence before us does not support a finding that the worker’s left quadricep atrophy is the result of the left knee sprain/strain injury sustained in the workplace accident of January 4, 2019; rather, the evidence supports a finding that the compensable left knee strain injury resolved soon after the injury was sustained and that the worker’s left quadricep atrophy that developed at some point after that injury is not causally related to the compensable left knee injury.

On the basis of the totality of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker was recovered from the compensable workplace injuries sustained on January 4, 2019 by November 2019, and therefore the worker is not entitled to further benefits after November 20, 2019. The worker’s appeal is denied.

Panel Members

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 14th day of July, 2023