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 benefits after February 10, 2023. A videoconference hearing was held on July 25, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after February 10, 2023.

Decision

The worker is not entitled to wage loss benefits after February 10, 2023.

Background

On September 13, 2022, the worker submitted a Worker Incident Report to the WCB reporting they injured their lower back and right knee at work on September 11, 2022 and reported the injury to the employer on September 12, 2022. The worker described that while helping to lift an individual who had fallen and attempting to attach a sling, they felt “a twinge” in their back and twisted their right knee as they turned to get up. The worker worked to the end of their shift but the following morning, sought medical treatment due to their pain.

The worker saw their family physician on September 12, 2022, reporting lower back pain and right knee pain after attempting to lift a person who had fallen. The physician noted tender paraspinal muscle and right knee pain with flexion and extension, and recommended the worker remain off work, attend physiotherapy, and take non-steroidal anti-inflammatory medication. The physician diagnosed musculoskeletal lower back and right knee sprain. At physiotherapy assessment on September 13, 2022, the physiotherapist noted findings including decreased lumbar spine range of motion and reduced left hip rotation with tightness and diagnosed lumbosacral strain. At follow-up on September 19, 2022, the treating family physician recorded the worker’s complaint of ongoing lower back and right knee pain with difficulty walking as a result, and noted findings of tender paraspinal muscles, right knee tenderness and decreased flexion and extension. The physician recommended two more weeks off work.

When the WCB contacted the worker on September 21, 2022, the worker confirmed the mechanism of injury in the September 11, 2022 workplace accident and provided the name of a coworker who was assisting them when the accident occurred. The worker advised they did not initially think much of the injury and finished their shift by completing paperwork, but the next morning, they could not get out of bed due to pain and they made an appointment to see their family physician. The worker confirmed seeing the family physician on September 12, 2022 and September 19, 2022 and that the physician recommended they remain off work until October 3, 2022. The worker also confirmed attending physiotherapy twice weekly since the accident. The worker advised that the employer had not provided a modified duty form and noted their belief the employer would be unable to accommodate them. The worker further advised that they were having difficulty sleeping and were unable to get comfortable due to pain in their lower back and swelling in their right knee when they stood too long, but noted there was no pain in their knee unless they moved.

On September 22, 2022, the employer advised the WCB of their concerns regarding the worker’s claim. The employer confirmed they contacted the worker on September 19, 2022 to offer modified sedentary duties, but the worker advised they were unable to sit or stand and had been placed off work by their physician for two further weeks.

The WCB requested clarification from the treating physiotherapist of the worker’s ability to perform modified duties and on September 26, 2022, the physiotherapist replied that the worker was capable of sedentary duties for two hours per day with frequent position changes after 20 minutes in a sustained position. On September 27, 2022, the WCB advised the employer of the worker’s restrictions which were in place for two weeks and the next day, the employer advised the WCB the worker returned to modified duties.

At physiotherapy on October 4, 2022, the worker reported increased pain with the return to light duties. The physiotherapist recorded increased pain into extension and left side bending, stiffness and tenderness in the worker’s left sacroiliac joint, and increased tenderness in the L5-S1 segment, and recommended the restrictions continue for two weeks.

On October 6, 2022, the WCB advised the employer that the restrictions were extended for two weeks. On October 11, 2022, the WCB spoke with the coworker who was working with the worker at the time of the accident. The coworker stated the worker did not mention an injury to them, and that the worker finished their shift completing paperwork afterward.

The worker advised the WCB on October 13, 2022 that they continued to work a graduated return to work schedule of two hour shifts and it was “going okay”. The worker noted they felt 30 to 40% recovered, with their lower back still quite painful and their right knee a bit better. The physiotherapist, on October 26, 2022, recommended the worker’s restrictions of light duties for two hour shifts continue, and on October 28, 2022, the WCB advised the employer of a two week extension of restrictions.

In an email discussion between the worker and the case manager on November 9, 2022, the worker advised that because their lower back and right knee were not improving with treatment, the treating physician referred them to a sports medicine physician. The worker also noted that the treating physiotherapist recommended the worker increase their shift length to three hours.

The worker attended an appointment with the sports medicine physician on November 15, 2022, reporting that they injured their low back and right knee at work on September 11, 2022 while lifting and twisting at the same time, and felt immediate pain, with worsening back pain with any forward-bending or back extension. The worker also reported their right knee swells with weightbearing since the workplace accident, with “…a lot of medial joint line pain. No clicking, catching or locking.” With respect to their low back, the worker reported pain along their sacroiliac areas, pain in the lumbar area radiating to their left lower limb, and occasional pain radiation to both quadriceps. The worker noted pain relief with rest and aggravation with flexion, extension, and walking. On examination, the sports medicine physician recorded findings of normal back alignment, pain on forward flexion and extension past approximately 30 degrees, pain to palpitation over the lumbar paraspinal muscles and pain over the posterior superior iliac spines of the sacroiliac joint. Regarding the worker’s right knee, the physician noted pain with squatting and inability to come out of a squat, significant medial joint line tenderness, positive meniscal provocation testing, a small effusion indicated on an ultrasound and that the medial meniscus appeared slightly extruded. The physician suspected acute-on-chronic mechanical lumbar back pain with some sacroiliac ligament involvement and as well as a right-sided medial meniscal tear with degenerative changes and recommended active-based physical therapy for the worker’s back pain and right knee, along with prolotherapy of the sacroiliac joints “…to help strengthen and stabilize them and decreased (sic) the pain.”

On November 24, 2022, the treating physiotherapist requested an extension to treatment and noted the worker was tolerating increased work hours and standing time. The physiotherapist recommended the restrictions be amended to increase the shift length to four hours and standing time to 20-25 minutes at one time. The WCB provided these updated restrictions to the employer on the same date.

On December 9, 2022, the worker contacted the WCB case manager to express their concerns about their ongoing symptoms and difficulties. The case manager noted the worker was not recovering within the expected time for a strain/sprain type injury. The worker again contacted the WCB on December 12, 2022 to advise that the treating family physician placed them off work due to ongoing symptoms. At follow-up on December 22, 2022, the physician placed the worker off work for a further two weeks.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on January 24, 2023, who concluded the diagnosis related to the September 11, 2022 workplace injury was lumbar and right knee strain, with a natural history of improvement by two to six weeks. The medical advisor provided an opinion that the current diagnosis was non-specific, non-radicular low back pain and right knee osteoarthritis, and noted that non-specific pain indicated the presence of symptoms “…without evidence of a specific underlying medical disorder and the inability to identify a specific pain generating structure” and that the right knee osteoarthritis was a pre-existing degenerative condition, with no medical evidence to support a finding that the workplace injury materially affected that condition. When asked about ongoing modified duties and restrictions and further treatment, the WCB medical advisor responded that “…further treatment and restrictions do not appear to be an ongoing WCB responsibility.”

On February 3, 2023, the WCB advised the worker it had determined their ongoing difficulties were not related to the September 11, 2022 workplace accident and as such, the entitlement to benefits would end on February 10, 2023. The worker requested reconsideration of the WCB’s decision to Review Office on March 1, 2023. In their submission, the worker noted their treating sports medicine physician recommended treatment, which was not authorized by the WCB, and stated their belief that treatment and ongoing benefits would enable them to recover from the workplace accident.

On March 14, 2023, Review Office determined that the worker was not entitled to benefits after February 10, 2023, relying upon the opinion of the WCB medical advisor based on the January 24, 2023 call-in examination. Review Office found that the workplace accident resulted in sprain/strain type injuries and concluded the worker’s ongoing difficulties were not accounted for in relation to the September 11, 2022 workplace accident.

The worker filed an appeal with the Appeal Commission on April 12, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on October 24, 2023 to discuss the case and render its 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.

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.

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This Policy sets out that:

A pre-existing condition is any medical condition the worker had prior to their workplace injury. Pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can also have an effect on pre-existing conditions. When a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.

In respect of the entitlement to wage loss benefits, the Pre-existing Policy sets out that wage loss benefits are payable to a worker when the WCB determines that they have a loss of earning capacity resulting in part from a workplace injury and in part from a non-compensable pre-existing condition or the relationship between them; however, entitlement to wage loss benefits will end when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to their loss of earning capacity, and the pre-existing condition is not a compensable condition.

Worker’s Position

The worker appeared in the hearing represented and supported by their spouse. The worker’s spouse made an oral submission on behalf of the worker. The worker provided testimony in support of their appeal, and in response to questions posed by the members of the appeal panel. The worker also provided a written submission to the appeal panel in response to the additional information obtained by the appeal panel following the hearing.

The worker’s position is that they should be entitled to wage loss benefits beyond February 10, 2023 as they continue to experience symptoms arising from the compensable workplace accident of September 11, 2022 which make it impossible for them to return to their pre-accident job duties.

The worker described how the injury at work occurred on September 11, 2022 and noted that the treatment they received since that date has not been effective or sufficient to enable them to recover and return to work. The worker noted that they were referred to a sports medicine physician who recommended certain treatment which the WCB refused to fund, but that the WCB did agree to fund four additional physiotherapy conditioning sessions. The worker noted they nonetheless proceeded with the recommended treatments, which were determined to be unsuccessful after three rounds.

The worker stated that they led an active life before the accident, and practiced yoga daily, but now cannot walk without pain and rely on an electric cart for shopping. The worker described waking in “excruciating pain”. The worker noted they recently saw an orthopedic surgeon who was recommending a knee replacement.

The worker confirmed that they returned to work on a limited basis with restrictions until mid-December 2022 and that they did not continue because they could not manage their pain.

The worker noted that despite the WCB’s determination that the ongoing symptoms are related to a pre-existing condition of osteoarthritis, they were fully able to do their job duties before the workplace accident and have only had problems since the accident. The worker accepts that they have a pre-existing condition but note that they nonetheless sustained injuries in the workplace accident and had not recovered from those injuries by February 10, 2023. For these reasons, the worker believes that they should be entitled to wage loss benefits beyond February 10, 2023.

Employer’s Position

The employer participated in the appeal, with representation by an advocate. The employer’s advocate provided an oral submission in the hearing and a further written submission in response to the additional information obtained by the appeal panel following the hearing.

The employer’s position is that the worker is not entitled to wage loss benefits after February 10 2023 as the evidence confirms that the worker’s ongoing symptoms in their lower back and right knee are attributable to their documented pre-existing conditions, including the ongoing effects of the worker’s 2010 low back injury from a motor vehicle accident and their right knee osteoarthritis as demonstrated by the diagnostic imaging.

The employer’s advocate noted the worker was discharged from physiotherapy on December 29, 2022 and that the WCB medical advisor concluded, after examining the worker on January 24, 2023, that the worker’s current diagnosis of nonspecific non-radicular low back pain and right knee osteoarthritis cannot be linked to the compensable workplace injury. The advocate further noted that the medical advisor found there is no medical evidence to support any enhancement of the worker’s pre-existing right knee degenerative condition because of the accident.

The employer’s advocate confirmed that the employer would have been able to accommodate the worker with modified duties after February 10, 2023.

The employer’s advocate submitted that the worker’s appeal should not be granted as the evidence does not support a finding that the worker’s current symptoms and disability are causally related to the workplace injury sustained on September 11, 2022.

Analysis

The question for the panel to determine is whether the worker is entitled to wage loss benefits beyond February 10, 2023. For the worker’s appeal to succeed, the panel would have to determine that the worker’s continuing difficulties beyond that date are causally related to the injury sustained in the compensable workplace accident of September 11, 2022. 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 worker’s claim arising from the workplace accident of September 11, 2022 arises from an injury that occurred when the worker attempted to lift an individual using a sling while rising from a crouched position, causing twisting in the worker’s right knee and a twinge in the worker’s low back region. The WCB initially accepted the worker’s claim based on a diagnosis of lower back and right knee strain injuries and authorized various treatment on that basis. The panel noted the WCB medical advisor’s comment, in their January 24, 2023 examination notes, that such injuries typically resolve within two to six weeks, and the panel noted that just over six weeks after the workplace accident, on November 7, 2022, the treating family physician referred the worker to a sports medicine physician for assessment, noting the worker had by that time “shown little improvement”. The sports medicine physician assessed the worker on November 15, 2022 and recorded findings of suspected “acute on chronic mechanical lumbar back pain with some sacroiliac ligament involvement” as well as a possible right medial meniscus tear “+/- degenerative changes”. Subsequent x-ray imaging revealed right knee osteoarthritis and the August 7, 2023 MRI study confirmed degenerative horizontal tearing of the right medial meniscus and severe chondromalacia in the medial tibiofemoral and patellofemoral compartments, as well as a large Baker cyst. The panel noted that the sports medicine physician treated the worker’s right knee and sacroiliac joint symptoms with various injections over the course of December 2022 through March 2023, and the chart notes indicate they treated both the worker’s sacroiliac joint dysfunction and bilateral knee osteoarthritis.

When the WCB sports medicine advisor examined and assessed the worker on January 24, 2023, they concluded that:

“Based on today’s examination findings of pain limited lumbar and right knee mobility without neurological deficits, lumbar dural tension findings or acute inflammation/instability of the knee, the probable current diagnosis includes: 

• Nonspecific non-radicular low back pain. 

• Right knee osteoarthritis.

Nonspecific pain implies the presence of symptoms at the axial skeleton without evidence of a serious underlying medical disorder and the inability to identify a specific pain generating structure.…There is no current diagnosis to account for [the worker’s] right knee issues beyond this same, based on the medical information on file and on today’s examination. There is no medical evidence to support a material influence of the workplace injury on the pre-existing degenerative changes at the right knee.”

The panel also considered the chart notes provided by the orthopedic surgeon who first saw the worker on May 25, 2023 and first assessed the worker on July 5, 2023. Based on that assessment, the orthopedic surgeon recorded their impressions that the worker was presenting with chronic mechanical lower back pain and sacroiliac dysfunction complicated by fibromyalgia and advance knee osteoarthritis. The surgeon referred the worker for a lumbar spine MRI study, which indicated “Multilevel degenerative changes…without specific spinal canal stenosis or nerve root compression” and outlined in their September 6, 2023 chart note that the worker was presenting with “Chronic mechanical lumbar pain with nonspecific leg radiation not…thought to be neurological” as well as the previously confirmed right knee osteoarthritis. The panel noted that the clinical and diagnostic findings from the treating orthopedic surgeon align with the probable current diagnosis outlined by the WCB sports medicine advisor some 8 months earlier.

Considering the mechanism of injury and the medical reporting, including the diagnostic imaging and clinical findings, the panel finds that the worker’s continuing lower back and right knee symptoms and presentation after January 24, 2023 is not causally linked to the right knee and lower back strain injuries sustained at work on September 11, 2022. The evidence before the panel confirms on a balance of probabilities that the worker had pre-existing multilevel lower back degeneration and right knee osteoarthritis. While it is possible that these conditions may have been temporarily worsened by the workplace injuries, there is a lack of evidence before the panel to indicate any permanent impact of the workplace injuries on either condition. This is supported by the opinion of the WCB sports medicine advisor, as well as by the subsequent opinion of the treating orthopedic surgeon.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker was recovered from the effects of the compensable workplace injuries by February 10, 2023 and that as a result, any continuing disability beyond that date is not related to the workplace accident. Therefore, the worker is not entitled to wage loss benefits after February 10, 2023 and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of November, 2023