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 October 8, 2021. A hearing was held on July 18, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after October 8, 2021.

Decision

The worker is entitled to wage loss and medical aid benefits after October 8, 2021.

Background

The worker submitted a Worker Incident Report to the WCB on February 17, 2021 describing an incident that occurred at work on February 3, 2021 in which they injured their right hip. The worker indicated that while swinging a hammer, they twisted wrong “…and as a result I pulled a muscle and my hip…”. The worker described feeling an immediate sharp pain in their right hip that radiated towards their lower back. The worker noted their hip remained very sore and they couldn’t sit or stand for long periods of time and found walking difficult as they could not put full weight on their right hip.

On February 8, 2021, the worker sought medical treatment reporting injury to their right lateral hip after swinging a sledgehammer and feeling a sharp pain in their hip, down their leg. The treating physician noted the worker’s range of motion was normal, with full strength in their bilateral hips and found a normal neurological examination. The physician diagnosed soft tissue injury to the right hip, and prescribed rest, physiotherapy, and pain medication, indicating the worker could return to work on February 16, 2021.

The employer submitted their Employer’s Accident Report to the WCB on February 11, 2021 indicating the worker reported injury to their right hip on February 5, 2021 after attempting to hit something and twisting wrong. The employer noted the availability of modified duties.

In discussion with the WCB on February 22, 2021, the worker confirmed the mechanism of injury, and advised that afterward, they continued to work but took it easy the following day until returning home. The worker noticed bruising on their right hip over the weekend but did not treat it and just took it easy for the weekend. The worker confirmed seeking medical treatment on February 8, 2021, and that the physician advised them to remain off work for 1 week and provided a referral to physiotherapy. At follow-up on February 16, 2021, the physician advised the worker to remain off work for another week.

The WCB accepted the worker’s claim on February 22, 2021.

On February 24, 2021, at initial physiotherapy assessment, the worker reported constant discomfort in their right hip, with occasional sharp pain with twisting, sitting, or standing greater than 10 minutes. The physiotherapist noted reduced range of motion in right hip abduction, flexion and extension and provided a diagnosis of right glute strain and possible labral tear. At follow-up on March 10, 2021, the physiotherapist noted the worker’s walking and sitting tolerance was increased and recommended additional time off work. The worker continued to seek treatment from the physician who continued to recommend time off work, and from the treating physiotherapist, who noted gradual improvements in functioning, sitting, and standing tolerance and outlined restrictions for the worker.

On May 14, 2021, the treating physician recommended a referral to a sport medicine physician or an orthopedic specialist. The physician noted physiotherapy was not helpful, as reported by both the worker and the physiotherapist, and recommended further investigation in response to the physiotherapist’s concern about a possible right hip labral tear. After the worker’s May 26, 2021 appointment, the physiotherapist provided updated restrictions which the WCB provided to the employer.

An MRI study of the worker’s pelvis and right hip on June 2, 2021 indicated, in part “Anterior superiorly there is focal high signal within the labrum consistent with a tear. No paralabral cyst is identified. There is no evidence of femoral – acetabular impingement.” The reported impression indicated “A focal anterior/superior labral tear on the right is possible”.

On June 18, 2021, the treating physician reviewed the MRI findings with the worker and on June 29, 2021, the physician referred the worker to an orthopedic surgeon. In their referral letter, the treating physician noted ongoing persistent pain in the right hip after a work injury and indicated “Examination of the right hip revealed tenderness along the joint line and positive fitzgerald test indicative of anterior labral tear which was subsequently confirmed on the MRI of the rt (right) hip.”

A WCB medical advisor reviewed the worker’s file on June 29, 2021, including the June 2, 2021 MRI study and concluded the reported mechanism of injury was not typical for a labral tear of the hip. Based on the worker's complaints and functional loss, the medical advisor revised the compensable diagnosis to include a possible right hip labral tear with the initial diagnosis of right hip joint sprain/strain. The WCB medical advisor provided an opinion that recovery from a soft tissue strain/sprain of the right hip would have occurred by this date, four months post-accident, but noted that the referral to an orthopedic surgeon was outstanding. The medical advisor added an additional restriction of avoid continuous walking on rough or uneven ground over 30 minutes to the worker's restrictions.

The orthopedic surgeon assessed the worker on July 9, 2021, and recorded the worker's report of injury when swinging a sledgehammer, twisting on their right hip then feeling the onset of pain. The surgeon noted the worker was treated with physiotherapy, which ended as the worker was not making any gains. They noted the worker's pain as localized to "…the lateral aspect of the right hip up in the abductor musculature region" and that the worker advised they had pain with different activities but most notably when squatting. The orthopedic surgeon reviewed the diagnostic imaging and noted "…some moderate arthritic degenerative features…" in the worker’s left hip, with "…some very mild arthritic change on the right hip with a tiny bit of sclerosis and osteophyte and slight narrowing to the joint space medially." They also noted the suspected tiny labral tear that "…if anything is more likely degenerative in nature." The surgeon did not offer any specific diagnosis but recommended an intra-articular injection, which was provided on July 16, 2021. 

The worker's file was again reviewed by a WCB medical advisor on July 23, 2021, after receipt of the orthopedic surgeon's report. The medical advisor noted the report identified a pre-existing degenerative condition, noted to be "…right hip joint dysplasia arising out of FAI (femoral-acetabular impingement)."

At follow-up on September 3, 2021, the orthopedic surgeon noted the worker reported "…a little bit of relief…" of their symptoms after the injection but confirmed at the appointment, they "…didn't really notice any difference with the shot." The surgeon opined the worker had "…some early arthritic type symptoms…" and found there was nothing surgically that could be done for the worker, recommending conservative management with physiotherapy and medication.

On September 27, 2021, the worker's file was again reviewed by a WCB medical advisor who concluded the current diagnosis was a sprain/strain of the right hip joint and based on the information from the treating orthopedic surgeon, aggravation of pre-existing early arthritic symptoms in the right hip joint. The medical advisor further noted the medical information on file supported the diagnosis of a sprain/strain injury, and that a reasonable functional recovery from such an injury would have taken place in three to four months. The medical advisor further noted the medical information did not indicate the worker was totally disabled and the current restrictions were to be reviewed in six weeks.

On October 4, 2021, the WCB advised the worker that they were not entitled to benefits after October 8, 2021 as it had determined they were recovered from the workplace accident and that their ongoing difficulties were related to a pre-existing condition.

On October 27, 2021, the worker requested Review Office reconsider the WCB's decision, submitting they did not experience any difficulties with their right hip until the February 3, 2021 workplace accident, after which they experienced constant soreness, pain, and discomfort. The worker also noted that the treating family physician supported they could not return to work due to the pain and discomfort in their hip.

Review Office determined on November 30, 2021 that the worker was not entitled to medical aid or wage loss benefits after October 8, 2021. Review Office accepted the WCB medical advisor’s opinion that functional recovery from a right hip sprain/strain injury would typically take place in three to four months' time, and noted the physiotherapy discharge report noted normal strength and range of motion and did not support the worker's ongoing complaints of pain and loss of function. Review Office found the evidence indicated the worker was recovered from the workplace accident and the ongoing difficulties were a result of the pre-existing degenerative changes.

On February 28, 2022, the worker requested Review Office reconsider its November 30, 2021 decision, based on a February 22, 2022 report from the treating family physician, reviewing the reported mechanism of injury and medical evidence, and concluding the injury resulting from the February 3, 2021 workplace accident was consistent with a soft tissue injury as indicated on a January 30, 2022 MRI study. A WCB medical advisor reviewed the additional medical information and the worker's file on March 17, 2022, and provided an opinion that the recent MRI study indicated "…partial tearing of the hip adductor tendon insertions" which pre-dated the workplace accident. Further, the WCB medical advisor provided the treating family physician's opinion relating the MRI findings to the compensable injury was not supported by the evidence on file. The WCB provided a copy of the WCB medical advisor's opinion to the worker on March 18, 2022, and the worker provided a further response on April 12, 2022. On April 22, 2022, Review Office determined the worker was not entitled to wage loss or medical aid benefits after October 8, 2021.

The worker's representative provided Review Office with a September 14, 2022 report from the treating family physician and asked Review Office to again reconsider its decision. The physician noted the worker reported immediate pain and bruising in their right groin area on seeking medical treatment on February 8, 2021. The treating family physician provided that the reported mechanism of injury could result in the difficulties reported by the worker and the findings indicated on the MRI study. On November 2, 2022, Review Office again determined the worker was not entitled to wage loss or medical aid benefits after October 8, 2021. Review Office preferred the opinion of the WCB medical advisor and found the medical evidence supported the worker sustained a right hip joint soft tissue injury that resolved and the mechanism of injury was not consistent with a possible labral tear identified on the MRI studies on the worker's file.

The worker's representative filed an appeal with the Appeal Commission on March 15, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

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 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 represented by a worker advisor and supported by their spouse. The worker advisor made an oral submission during the hearing and relied upon a written submission provided to the panel, and shared with the employer, in advance of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the evidence confirms the worker was not recovered from the injury sustained in the workplace accident of February 3, 2021 but continued to sustain a loss of earning capacity and to require medical aid in relation to that injury beyond October 8, 2021. Therefore, the worker should be entitled to wage loss and medical aid benefits beyond that date.

The worker advisor submitted that the WCB decision that the worker was not entitled to further benefits was based on a finding that functional recovery should have occurred by that time, but that there was no actual evidence that the worker was recovered. Furthermore, subsequent medical imaging revealed a new diagnosis that has been accepted by the worker’s treating medical providers, including two specialists. The treating orthopedic surgeon provided that the new findings on the MRI indicated “prepubic aponeurosis complex tearing” which was “potentially akin to a sports hernia. In addition, there is the possibility of a small left inaugural hernia. The finding of tendinosis of the right hamstring origin, again, does not fit at all clinically…and is not a concern.” The general surgery specialist, on reviewing the MRI findings, reported that the imaging revealed partial tearing of the proximal adductors, low-grade partial tearing of the right common hamstring, and a small left inguinal hernia.

The worker advisor noted that diagnosis of the worker’s injury has been very challenging and was complicated by the fact the first MRI showed the prepubic aponeurosis complex tearing, but the radiologist did not note this in their report. It was later confirmed that the condition was actually evident on the first MRI, but because it was not reported initially, the worker's injury was thought to be a labral tear. The WCB medical advisor offered various diagnoses, none of which were borne out. The worker advisor submitted that the opinions of the WCB medical advisor in this case are speculative and noted that the worker was never examined by a WCB physician. Further, the worker advisor noted that the WCB medical advisor stated that there would have been severe symptoms and bruising if the worker had suffered prepubic aponeurosis complex tearing, and because these symptoms were not noted, it was not an acceptable diagnosis; however, the initial medical reporting does note the worker's swelling and bruising in their hip and groin, with the worker’s symptoms being so severe that the worker's leg gave out during the accident. Further, some 14 days after the accident, the worker remained unable to bear weight on the leg and was still having difficulty walking or sitting for very long.

The worker advisor further noted that contrary to the opinion of the WCB medical advisor that the worker’s pre-existing conditions were responsible for the worker’s continuing symptoms as of October 2021, the worker did not have any such symptoms prior to the accident and has had no relief from their symptoms since the accident. The worker advisor submitted that fact that the worker did not recover in the textbook timeframe could be due to their pre-existing, very mild degenerative changes, but it could also be because the diagnosis the worker received was incorrect and therefore, the treatment received would not have been directed to the actual injury. The worker advisor argued that in either case, the continuation of the same symptoms from the time of injury to beyond October 2021 indicates the worker had not recovered.

The worker advisor noted that the mechanism of injury with the twisting and large force of the swing of the sledgehammer is consistent with the tearing of the worker’s proximal adductors. The pre-existing mild degeneration in their hip would make the worker vulnerable to injury with less force than a worker without any such degeneration, and the worker’s lack of recovery is explained by the new diagnosis which aligns with the mechanism of injury and the worker’s continued symptoms.

The worker testified to their job duties with the employer at the time of their injury. They described how the injury occurred, while the worker and two other colleagues worked to replace a heavy metal pin using a sledgehammer to knock it into place. The worker described swinging the hammer “sideways over my shoulder-height” bit by bit, in turn with each person swinging until they were tired. The worker stated that they were swinging the hammer sideways, rotating on their hips, like swinging a bat, from the left to the right. The worker stated that the injury occurred on their second or third turn, after about 15 minutes or more, of working on this task. The worker recalled that their legs gave out and they dropped to the deck immediately when the injury occurred, with pain in the right hip below the belt line and across their back. The worker described the pain as intense and instant, such that they couldn’t do anything for the rest of the day. The worker confirmed that the injury occurred at a site away from their home and they spent the night there, returning home the next day. Soon thereafter, they noticed the bruising on their hip and sought medical care.

The worker described their ongoing symptoms since that time as a burning, radiating pain that never relieved but continued since the injury. The worker noted that certain activities cause a sharp shooting pain into their hip, such as twisting or putting too much weight on their right side. The worker stated that the pain is no longer quite as severe as initially but continues. The worker stated that “I can still do quite a bit with no extended lengthy of time…. I can’t walk for very far. Can’t sit for too long, can’t stand for too long…. It’s just – the pain starts getting more intense.” In response to questions posed by the appeal panel, the worker confirmed they continue to see their family physician regularly, but that they understand there is no treatment available for the tearing identified in the January 30, 2022 MRI study. The worker further confirmed that the employer did not offer them any modified duties after the injury but required them to be capable of their full regular job duties to return to work.

In sum, the worker’s position is that they continued to require medical treatment and to sustain a loss of earning capacity beyond October 8, 2021 as a result of the compensable workplace accident of February 3, 2021; therefore, they should be entitled to further wage loss and medical aid benefits after October 8, 2021.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer. A representative of the employer also attended the hearing as an observer.

The employer’s position is that the evidence confirms the worker was not totally disabled from all employment as of October 8, 2021 and further, that the worker had recovered from the compensable right hip soft tissue injury as of that date, such that the worker is not entitled to further wage loss and medical aid benefits after October 8, 2021.

The employer’s representative outlined that the medical reporting indicates the worker had full passive range of motion as of June 2021 and noted that the July 2021 report from the treating orthopedic surgeon noted some degenerative changes. The representative also noted that the WCB medical advisor concluded in September 2021 that, based on the physiotherapy discharge report, the worker was not totally disabled.

The employer’s representative indicated as well that there is no evidence to support a finding that the worker’s pre-existing degenerative changes in their right hip were aggravated or worsened by the workplace accident.

The employer’s representative noted that the MRI studies provide conflicting findings and that the new medical opinions of the treating orthopedic surgeon and general surgery specialist have not been reviewed by the WCB medical advisor. The employer’s representative acknowledged that the medical reporting has indicated consistency in the worker’s reported symptoms from the time of the injury.

In sum, the employer’s position is that the evidence supports a finding that the worker sustained only a soft tissue injury to their right hip as a result of the workplace accident, and that this was resolved by October 8, 2021. As such, the decision of Review Office to deny ongoing responsibility for the worker’s wage loss and medical treatment should be upheld.

Analysis

The question on appeal is whether the worker is entitled to wage loss and medical aid benefits beyond October 8, 2021. For the worker’s appeal to succeed the panel would have to determine that as a result of the compensable injury sustained in the accident of February 3, 2021, the worker continued to experience a loss of earning capacity and to require medical aid beyond October 8, 2021. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

In considering the worker’s appeal, the panel carefully reviewed the medical information on file and submitted to the panel in advance of the hearing. The panel noted that evidence indicates continuity in the worker’s reported symptoms and clinical findings from the date of accident to beyond October 8, 2021, and that although the WCB considered the worker to have recovered from the compensable workplace injury as of early October 2021, the worker’s treating medical providers continued in their investigation of the worker’s symptoms beyond that time. The panel also noted that the WCB medical advisor indicated that the restrictions placed on September 24, 2021 were to be in effect for 6 weeks and then reviewed, although there is no evidence that such a review occurred. The panel noted that the WCB determined the worker was not “totally disabled”, having reference to the near full range of motion identified in the June 9, 2021 physiotherapy discharge report. Of note, that report outlined that the worker was awaiting a surgical consultation in relation to a suspected right labrum tear and experienced pain with hip flexion, abduction, and internal rotation, among other findings. Further, although the physiotherapist indicated that the worker was capable of alternate or modified work with restrictions, there is no evidence that such work was available to the worker. When the worker was assessed by the orthopedic surgeon in July 2021, intra-articular injections were recommended as a trial before surgery was considered. That injection was provided on July 16, 2021 and further follow up was scheduled. On follow up in September 2021, surgery was ruled out based on the results of that trial, the imaging and the surgeon’s “suspicion” that they were dealing with “early arthritic-type symptoms”.

The panel also noted that the treating family physician did not accept the WCB view that the worker’s continuing symptoms related to their pre-existing arthritic condition but ordered a further MRI to include both the worker’s right hip and groin. The January 30, 2022 MRI study outlined new findings that the family physician stated were “highly concordant” with the worker’s reported mechanism of injury, “…hence the persistent pain reported by the patient. In retrospect, [the worker’s] symptoms were not really attributable to the torn labrum or arthritis of the right hip joint.” The panel noted that the WCB medical advisor, on reviewing the family physician’s opinions and the January 2022 MRI findings also found that “The second MRI study has suggested that the findings were present in the initial imaging study, carried out three months after the compensable injury” but then concluded these findings were not concordant with the reported mechanism of injury.

While there are differing diagnoses outlined in the medical reporting, the panel is satisfied based upon the evidence of the continuity of the worker’s right hip area symptoms since that event, and the ongoing investigation of those symptoms by the worker’s treating medical providers into early 2022 at least, that the worker was not recovered and fully able to resume their pre-accident duties by October 8, 2021, despite the WCB determination to the contrary. The evidence simply does not bear that out here. The panel also noted that while recovery norms may be useful as guideposts in claim management, reliance upon those norms to determine a specific worker’s entitlement to further benefits, absent evidence to indicate that recovery has in fact occurred, is not helpful. Here, none of the medical reporting from the worker’s treating healthcare providers indicated that this worker was recovered from the workplace injury by October 8, 2021, nor that they were capable of a full return to work without restrictions or accommodation and did not require additional treatment beyond that date. Even the WCB medical advisor had recommended restrictions remain in place for several weeks beyond that point in time and be reviewed then.

The panel further noted the absence of any evidence contrary to the worker’s assertion that the employer did not have appropriate modified duties available but required that the worker be fully capable of returning to their regular duties before returning to work. Notably, the employer’s representative did not dispute this evidence in the hearing. As such, the panel accepts that appropriate modified duties were not available to the worker as of October 8, 2021.

Based on the evidence before us, and on the standard of a balance of probabilities, the panel is satisfied that the worker continued to sustain a loss of earning capacity as of October 8, 2021 and required additional medical aid, in relation to and as a result of the compensable workplace injury of February 3, 2021. Therefore, the worker is entitled to wage loss and medical aid benefits after October 8, 2021. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of August, 2023