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 August 9, 2022. A hearing was held on September 6, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after August 9, 2022.

Decision

The worker is entitled to wage loss and medical aid benefits after August 9, 2022.

Background

In a Worker Incident Report submitted to the WCB on January 11, 2022, the worker reported an injury to their lower back that happened at work while moving a heavy object, then feeling pain in their back. On January 12, 2022, the employer submitted an Employer’s Accident Report confirming the worker injured their lower back after moving a heavy object at work on December 16, 2021. The employer advised that modified duties were available for the worker.

The worker sought medical treatment on January 7, 2022 reporting that a few weeks earlier, when lifting a heavy object, they pulled their lower back on the left side and were now experiencing severe pain and spasms. After examining the worker, the treating physician recorded the worker had an antalgic gait, limited trunk range of motion, and tenderness and tightness in the para-spinal muscles and diagnosed lower back pain. The physician referred the worker for an x-ray and recommended they remain off work for one week to determine work restrictions and seek physiotherapy treatment. The x-ray report of January 8, 2022 indicated mild to moderate osteoarthritic changes in the worker’s lower level facet joints.

On January 10, 2022, the worker attended a physiotherapy assessment, reporting they were not able to walk, sit, stand, or twist without pain, and had a constant ache in the lower back and sharp pain with movement. The physiotherapist noted they could not evaluate the worker’s mobility and strength due to reported pain, that the worker had an antalgic gait and was unable to bear weight through the left side. The physiotherapist provided a diagnosis of left sacroiliac joint and paraspinal/quadratus lumborum strain and recommended the worker remain off work for a further two weeks. On the same date, the worker also attended a follow-up appointment with the treating physician who recommended a further two weeks off work.

In discussion with the WCB on January 12, 2022, the worker confirmed the mechanism of injury and that they reported the accident to their supervisor on the date it occurred. The worker noted they continued to work after the accident, while treating with over-the-counter pain medication, but with no improvement, they sought medical care on January 7, 2022. The worker stated their supervisor was aware of their difficulties and that the employer provided a form for modified duties, but the treating physician advised them not to return to work.

On January 13, 2022, the employer confirmed the worker’s supervisor was aware of the worker’s difficulties, which the worker had mentioned on several occasions. The WCB accepted the worker’s claim on January 14, 2022.

The worker saw a sports medicine physician on January 31, 2022, reporting the onset of left lower back pain on December 16, 2021 after pulling a heavy object and that since then, they participated in physiotherapy but did not note improvement. The sports medicine physician examined the worker and recorded tenderness in the worker’s left sacroiliac (“SI”) joint that increased with extension and flexion to the knee, a straight leg raise test to 45 degrees and a normal neurological examination. On reviewing the x-ray report, the physician noted the worker had degenerative disc disease and diagnosed acute discogenic pain and left SI joint dysfunction, recommending treatment with further physiotherapy and home based exercises, an MRI study and that the worker remain off work. The March 12, 2022 MRI study indicated no evidence of sacroiliitis and “Degenerative changes at the lower lumbar spine as described without significant spinal canal narrowing. Potential for irritation of the S1 nerve roots bilaterally L5-S1.” On March 16, 2022, the sports medicine physician updated the worker’s diagnosis to lumbar facet and SI joint dysfunction, after reviewing the MRI findings and examining the worker, noting a tender left SI joint and pain with tiptoe walking. The physician provided the worker should remain off work to March 30, 2022. At further follow-up on March 30, 2022, the physician placed the worker off work until April 20, 2022 and later provided additional notes placing the worker off work until July 6, 2022.

On June 27, 2022, the worker attended a call-in examination with a WCB medical advisor, who provided an opinion on July 27, 2022. The medical advisor opined the likely diagnosis related to the December 16, 2021 workplace accident was non-radicular low back strain-type injury, and concluded the worker had recovered from the workplace accident by the time of the examination and their ongoing difficulties could not be medically accounted for in relation to the accident. The medical advisor speculated that the mostly likely explanation for the worker’s ongoing difficulties was due to the worker “…being essentially immobile” since the workplace accident occurred, noting the worker was not able to participate in work-related activities due to a non-compensable surgery.

On August 3, 2022, the WCB advised the worker they were not entitled to further benefits after August 9, 2022 as it determined the worker had recovered from the workplace injury.

The treating sports medicine physician submitted a report to the WCB on August 19, 2022, noting that on August 18, 2022, the worker reported ongoing lower back pain, which increased with extension and findings of left L2-5 point tenderness and normal flexion and neurological testing. The physician provided a note for the worker to remain off work for a further 6 weeks. On September 21, 2022, the treating sports medicine physician outlined the following restrictions for the worker due to the December 2021 work injury: unable to lift greater than 15 pounds, or bend repetitively or sit for prolonged periods of time for two weeks.

On September 23, 2022, the WCB advised the worker there was no change to the decision they were not entitled to benefits after August 9, 2022. On September 27, 2022, the worker contacted the WCB to advise of a worsening of their symptoms and their treatment at a local emergency department. The worker noted the treating emergency department physician advised them a back strain could heal quickly but may take longer in other cases. On September 29, 2022, the worker provided a note from the treating sports medicine physician setting out restrictions of unable to lift greater than 15 pounds, bend repetitively or sit for prolonged periods of time until reassessed by the physician on October 20, 2022. The worker confirmed that they provided the note to the employer who advised they could not accommodate the worker. On October 4, 2022, the WCB advised the worker the latest information was reviewed but there was no change to the earlier decision they were not entitled to further benefits after August 9, 2022.

On October 13, 2022, the worker requested Review Office reconsider the WCB’s decisions, noting their treating healthcare providers believed their ongoing difficulties were a result of the workplace accident and that the worker required further time off work and medical aid benefits. On October 21, 2022, the worker provided Review Office with additional notes from the treating physician setting out the worker’s restrictions.

Review Office determined on November 15, 2022 that the worker was not entitled to wage loss or medical aid benefits after August 9, 2022, relying upon the WCB medical advisor’s opinion that the worker sustained a low back strain/sprain in the environment of pre-existing degenerative changes as a result of the December 16, 2021 workplace accident. Review Office found the worker’s ongoing complaints and level of disability were not supported by the medical evidence, including the diagnostic findings.

The worker’s representative filed an appeal with the Appeal Commission on March 27, 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 January 31, 2024 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.

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. The worker advisor made an oral submission in the hearing and relied upon a written submission provided to the panel and shared with the employer prior to the hearing. The worker offered testimony through answers to questions posed by the appeal panel.

The worker’s position is that by August 9, 2022 they were not sufficiently recovered from the injury sustained in the workplace accident such that there was no need for work restrictions or further medical treatment, which is supported by the evidence contained in the medical reporting and the opinion of the WCB medical advisor.

The worker advisor reviewed the medical reporting on file and noted that there is evidence that the worker sustained injury to their low back region including the left SI joint from the beginning of the claim. Both the treating physiotherapist and sports medicine physician identified left SI joint issues on initial assessment of the worker in January 2022, with SI joint symptoms noted as ongoing by the sports medicine physician beyond August 2022, and treated by injections in November 2022 and February 2023. The worker advisor submitted that as the post-injection reports indicate the worker obtained a positive outcome after each injection procedure, those procedures provided therapeutic benefit to the worker and further, served to confirm the diagnosis.

The worker advisor reviewed the findings of the WCB call-in examination report of July 27, 2022 and noted that the WCB medical advisor found the worker was experiencing post-accident deconditioning and noted the need for the worker to modify their activities with a gradual progression toward full activity over several weeks to months. The medical advisor also indicated that a trial of injections, as proposed by the treating sports medicine physician, would be appropriate, with pre- and post-injection reporting to allow for assessment of their impact on the worker’s function. The medical advisor further indicated that the question of the worker’s return to work capabilities could be assessed after the upcoming non-compensable surgery. The worker advisor noted the WCB case manager failed to follow up on these recommendations and submitted that the case manager misinterpreted the report findings in stating that the worker’s ongoing symptoms were related to lower back degenerative changes. Rather, the worker advisor submitted that the WCB medical advisor attributed the worker’s ongoing symptoms in part to the compensable post-accident deconditioning and potentially to the worker’s degenerative low back condition.

The worker advisor noted the evidence indicates the worker’s surgery was successful and that by September 12, 2022 there were no related restrictions imposed on the worker, but that soon thereafter, the treating sports medicine physician outlined further restrictions in relation to the workplace injury.

The worker advisor further noted the evidence that the employer was not able to accommodate the worker’s restrictions.

The worker advisor submitted that regardless of the specific diagnosis arising from the workplace accident, the evidence confirms that the worker was not fully capable of a return to work without restrictions and required further medical treatment after August 9, 2022. As such, the worker is entitled to wage loss and medical aid benefits after August 9, 2022.

Employer’s Position

The employer was represented in the hearing by a project manager who made a brief submission on behalf of the employer. The employer’s representative indicated that it took no position in respect of the issues on appeal but noted that the employer has a long history of working with the WCB to provide appropriate modified duties and get injured workers back to work.

Analysis

The question on appeal relates to the worker’s entitlement to further wage loss and medical aid benefits after August 9, 2022. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to sustain a loss of earning capacity as a result of the compensable workplace injury of December 16, 2021, or that the worker continued to require medical aid as a result of that injury beyond August 9, 2022. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The worker’s position is that the injuries sustained in the workplace accident caused their subsequently diagnosed left SI joint dysfunction, the symptoms of which persisted well beyond August 9, 2022. The panel noted that the initial physiotherapy assessment of January 10, 2021 indicated a diagnosis of left SI joint sprain and paraspinal/quadrilateral strain. On first assessment by the sports medicine physician on January 31, 2021, the physician noted the worker’s tender left SI joint, along with other findings and provided a diagnosis of acute discogenic pain and left SI dysfunction and requested an MRI study. The panel noted that the MRI study of March 12, 2022 did not indicate any evidence of sacroiliitis and did indicate some lower lumbar spine degenerative changes, with potential irritation of the S1 nerve roots bilaterally at L5-S1. On review of the findings and further assessment of the worker, the treating sports medicine physician provided their diagnosis of lumbar facet and SI joint dysfunction, noting clinical findings of a tender left SI joint and L4/5 facet joint. The physician continued to follow the worker and report findings including a tender left SI joint, repeatedly requested that the WCB expedite a pain clinic referral for the worker. The WCB physiotherapy advisor reviewed the file in relation to this request on May 12, 2022, noting that the WCB accepted a diagnosis of back strain in relation to the worker’s accident, and the MRI findings. The physiotherapy advisor went on to state that “At 21 weeks post workplace injury, there is no evidence of sustained improvement in pain or function. A pain clinic referral is requested. Both the physiotherapist and attending physician support total disability. On the most recent application for additional treatments the pain rating was 8/10. The back pain questionnaire was 23/24.” Nonetheless, the physiotherapy advisor did not recommend funding additional treatment.

The panel also considered the WCB call-in examination findings of June 27, 2022. At that time, the worker confirmed continuing left low back pain symptoms that occasionally radiated into their left buttock and noted their reliance upon pain relief medications and physiotherapy for symptom relief. The medical advisor outlined their opinion that the examination findings and diagnostic imaging did not support any diagnosis of radiculopathy and that the likely diagnosis related to the workplace injury was non-radicular low back injury, which would typically resolve within a few weeks. The medical advisor noted the worker’s deconditioning since the accident and concluded this was accounted for in relation to the workplace injury. The medical advisor further noted that the requested injections could be trialed and the worker’s functional gains, if any, evaluated afterward; however, given the worker’s impending non-compensable right hip surgery, the medical advisor questioned the utility of expediting a pain clinic referral. The panel noted that despite the numerous reports of SI joint dysfunction in the treating sports medicine physician’s reporting to the WCB, the WCB medical advisor did not address or consider the possibility of a relationship between that diagnosis and the workplace injury in their report.

The evidence indicates that the sports medicine physician reported on July 6, 2022 that the worker had the planned surgery and was off work related to that, and further noted continuing findings of tender L5 and left SI joint, and that the worker was awaiting a pain clinic appointment to consider diagnostic injection. The panel also noted the September 12, 2022 report from the treating orthopedic surgeon who undertook the worker’s non-compensable surgery, indicated that surgery was successful, but the worker continued to have back issues. On September 29, 2022 and in further reports and notes thereafter, the sports medicine physician outlined the worker’s restrictions, and confirmed that the worker had not recovered from the workplace injury, with ongoing findings of tender left SI joint, and that the worker was referred for a left SI joint injection.

The panel noted that the worker was not assessed for an SI joint injection until November 28, 2022, and that the treating physician reported on the same date that the worker “was feeling better a few minutes after the injection” and “no longer had to slouch forward due to the pain” but noted that the effects would likely wear off after 2 or 3 hours. The treating sports medicine physician, on December 2, 2022 noted “Some early improvement in L SI joint injection” and on January 6, 2023 noted “L SI joint injection very helpful for SI joint pain. Lumbar pain still present, no radiation.”

The panel also considered the further opinion provided by the sports medicine physician in response to the panel’s request. The physician confirmed their belief that the worker’s left SI joint and lumbar pain was the result of the workplace injury of December 16, 2021. The physician confirmed their opinion that the initial diagnosis, provided January 31, 2023, of acute discogenic pain and left SI joint dysfunction was correct, noting that despite extensive therapy, the worker did not find relief from their pain symptoms until the injections in the left SI joint, which is consistent with the original diagnosis. The sports medicine physician also noted that other potential non-compensable causes for the worker’s continuing symptoms were ruled out.

The panel accepts and relies upon the evidence from the worker’s treating medical providers, which confirms not only that the worker’s SI joint symptoms were identified soon after the compensable workplace injury but continued throughout the history of the worker’s claim and beyond the termination of the worker’s benefits in August 2022, until symptomatic relief was provided through the injections in late 2022 and early 2023. We are satisfied that the evidence confirms a causal relationship between the workplace injury and the worker’s left SI joint dysfunction and further that the worker required continuing medical treatment in relation to that condition after August 9, 2022. The panel also noted that the medical reporting supports a need for workplace restrictions related to the worker’s continuing injury beyond August 2022, and further, that the employer was unable to accommodate those restrictions. As such, we are satisfied that the worker sustained a loss of earning capacity after August 9, 2022 as a result of the workplace injury.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker is entitled to wage loss and medical aid benefits after August 9, 2022. The worker’s appeal is therefore granted.

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 8th day of March, 2024