Decision #52/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to further benefits in relation to the January 6, 2023 accident. A hearing was held on May 8, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the January 6, 2023 accident.

Decision

The worker is entitled to further benefits in relation to the January 6, 2023 accident.

Background

The worker submitted a Worker Incident Report to the WCB on January 19, 2023 reporting an injury to their lower back in an incident at work on January 6, 2023. The worker described that while assisting in the transfer of a very heavy individual from their home, the person lost their balance on stairs and fell heavily onto the worker, who immediately experienced shooting pain from their lower back down into their left leg, spasms through their back and left gluteal area and tingling through their calf and left foot. The worker reported that when the accident occurred, they were participating in a graduated return to work in relation to an earlier compensable injury. The worker described current symptoms of soreness and throbbing, sharp pain in the lumbar area, tingling, pins and needles through their left lateral foot and calf, spasms through their left glute and cramping in their left calf. The worker also noted they could not walk or stand for long. The worker saw a family physician on January 7, 2023 and saw their own family physician on January 9, 2023. The worker advised the WCB that the physician recommended they remain off work until follow-up on January 17, 2023.

On January 16, 2023, the worker attended a physiotherapy assessment, reporting left-sided lower back pain with left lower extremity tingling into left lateral calf and foot, and increased discomfort with sitting, lifting, and rotational movements. The physiotherapist diagnosed mechanical low back pain with exacerbation of left S1 radiculopathy and recommended the worker remain off work until assessed at their January 17, 2023 follow-up with the treating family physician.

On January 17, 2023, the treating family physician recorded the worker's complaints of ongoing persistent pains and difficulty with stamina, noting the worker's rigid posture, and found the worker could extend their active range of motion through flexion, extension and rotation compared to previous but was quite limited due to pain and stiffness. The physician recommended the worker remain off work and continue with physiotherapy for a few weeks.

At physiotherapy on February 6, 2023, the physiotherapist outlined restrictions of no lifting, no pushing, no pulling, no prolonged bending/twisting, and frequent position changes as required. The physiotherapist also noted the worker had an appointment at a pain clinic on February 17, 2023 and queried whether it would be best to wait until after that appointment to return to work. The WCB provided the restrictions to the employer on February 9, 2023. On February 17, 2023, the worker received a pain relief injection. At follow-up with the treating family physician on February 28, 2023, the worker reported increased pain and discomfort for seven to ten days after the injection and slow improvement since then. The physician indicated the worker could return to light work duties and reduced hours but noted this depended on upcoming pain clinic appointments and physiotherapy treatment. By March 28, 2023, the treating physician stated the worker could return to work on light duties with a graduated plan. On March 30, 2023, the treating physiotherapist requested an extension of treatment to monitor the worker’s progress and recommended the worker return to work on a graduated basis, with approval from the treating physician.

On April 18, 2023, the worker advised the WCB that they had better range of motion and ability to sit and walk for longer periods of time but had not yet tried lifting anything heavy. The worker noted a further appointment with the family physician set for April 28, 2023 and that they would discuss a return to work and modified duties then. On April 28, 2023, the treating family physician noted the worker likely plateaued in their recovery and recommended they could return to work on a graduated basis. On May 11, 2023, the treating physiotherapist requested an extension of treatment, but the WCB declined that request, recommending, instead that the worker be assessed for a work conditioning program. In a June 15, 2023 discharge report, the treating physiotherapist noted the worker’s report of typical symptoms of sciatica including tingling down the back side of their leg, down their calf and into their left foot, with occasional spasms in their left calf and a sharp pain in their lower back when twisting and especially when holding a weight.

The worker attended initial assessment for a work reconditioning program on July 17, 2023. The program physiotherapist reported to the WCB on July 20, 2023 that the worker was an appropriate candidate for a reconditioning program that would involve a progressive exercise program focusing on “…core stability, low back and lower extremity strengthening, as well as cardiovascular endurance with the goal of facilitating a successful return to work.” The worker participated in the program from July 26, 2023 to September 6, 2023. As noted in the discharge report to the WCB, the worker made “…significant strength and functional gains…” over the course of the program and while they continued to experience low back pain, particularly aggravated by bending movements and lifting from ground level, over the course of the program, the worker had demonstrated an increased tolerance for those movements. As such, the physiotherapist concluded the worker met the minimum physical requirements for the typical demands for their occupation.

In speaking with the worker on September 15, 2023, the WCB confirmed discussions would take place regarding a graduated return to work. On September 25, 2023, the employer provided the WCB with a graduated return to work schedule, to begin on September 25, 2023 and end on October 28, 2023 with the worker returning to full hours and duties at that time. The WCB advised the worker that they were entitled to partial wage loss benefits during the graduated return to work period, with benefits to end as of October 28, 2023.

The worker contacted the WCB on November 1, 2023 and advised they were performing light duties at work; however, the treating physician did not believe the worker would be able to continue in their occupation and that their back would not be able to support the lifting and moving requirements of their job duties. In an October 16, 2023 letter, the treating physician noted that while the worker would be able to return to work at full hours, they were concerned the worker would not be able to work at their best ability during a critical moment and recommended the worker be placed in a position that did not require them to respond directly to critical incidents but rather serve in a supporting role. On request by the worker, the WCB provided a decision letter on November 1, 2023, noting the worker was not entitled to further benefits after October 28, 2023.

On November 17, 2023, the worker requested Review Office reconsider the WCB’s decision, noting they had multiple prior WCB claims involving injury to their lower back and that when the current claim arose, they were engaged in a gradual return-to-work plan. The worker advised they participated in the work reconditioning program and were found to be able to meet the minimum physical requirements of their occupation; however, the worker confirmed they were not able to lift more than 75 pounds from the ground to hip level, and that lifting that weight caused an increase in tingling and spasms in their calf and foot. The worker also noted that during the five week graduated return-to-work program, they found it quite difficult to perform their job duties, which resulted in the letter of advocacy from the family physician. The worker further noted that after WCB provided the decision letter, updated medical information indicated the worker could not return to their pre-accident duties. As such, the worker noted their belief they were entitled to further benefits.

On January 24, 2024, Review Office determined the worker was not entitled to further benefits. Review Office acknowledged the worker continued to experience low back difficulties; however, it found the worker recovered from the January 6, 2023 workplace injury and had returned to their pre-accident baseline condition. Review Office could not establish a relationship between the worker’s current low back difficulties and the workplace accident and found the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on February 7, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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 compensation under s 4(1) of the Act when it is established that they sustained personal injury 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 their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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 to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”

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. The Pre-existing Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. As well, workplace injuries can impact pre-existing conditions. A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of a workplace injury is an enhancement of the pre-existing condition. The Pre-existing Policy provides that wage loss benefits will cease when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.

The WCB also established Policy 43.10.60, Preventative Vocational Rehabilitation (the “Preventative VR Policy”) which permits the WCB to provide preventative VR services when a worker has experienced a compensable injury and it is the opinion of the WCB, after review of all relevant information, that a return to the previous occupation or industrial process is likely to cause a further compensable disability, recurrence, aggravation, or similar injury. Further, there must be a reasonable expectation of success in preparing for alternate employability, savings at least equal to projected costs can be predicted with a cost-benefit analysis, and no comparable service available from some other source at no cost to the WCB.

Worker’s Position

The worker appeared in the hearing with a union representative who made a submission on behalf of the worker and relied upon a written submission provided to the Appeal Commission in advance of the hearing. The worker offered testimony through answers to questions posed by their representative and by members of the appeal panel.

The worker’s position is that they should be entitled to further benefits as they were not recovered from the compensable workplace injury when the WCB determined that there was no entitlement to further benefits. The worker submits that they continued to require medical aid in relation to the compensable injury and continued to sustain a loss of earning capacity because of that injury, and as such were entitled to further benefits.

The worker’s representative submitted that the worker’s ongoing lower back complaints are the result of the workplace injury, which caused an exacerbation of the worker’s pre-existing compensable lower back condition. At the time that benefits were discontinued and the WCB determined the worker could return to work without restrictions in place, the worker could not meet all the physical requirements of their occupation as outlined in the physical demands analysis provided by the employer and reported by the reconditioning program. The worker’s representative submitted that the information provided by the WCB to the reconditioning physiotherapy program did not fully capture the nature of the worker’s injury, which was more severe than just a back strain, as demonstrated by the medical reporting.

The worker’s representative submitted that the evidence confirms the worker cooperated fully with the WCB in their recovery and made every effort in relation to the treatment offered but continued to experience symptoms arising from the compensable injury that prevent their return to their full job duties. The representative further noted the worker requested vocational rehabilitation support from the WCB to prevent further injury to their back, but the WCB did not provide such assistance, noting the need for permanent restrictions to be established before that could occur.

In sum, the worker’s position is that the evidence does not demonstrate that the worker was recovered from the compensable injury to their pre-accident baseline condition, but that they continued to require treatment and experience a loss of earning capacity in relation to that injury. As such, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the appeal by an advocate who made an oral submission on behalf of the employer and responded to questions posed to them by the members of the appeal panel.

The employer’s position is that the worker is entitled to further benefits, but not in relation to this claim; rather, the worker’s entitlement arises from a prior compensable injury from which they did not recover.

The employer’s representative confirmed the employer’s view that the worker did all they could to recover from the compensable low back injury sustained on January 6, 2023 and that the WCB erred in failing to assist and support the worker in terms of preventing further injury to their back, which was at risk of further injury arising out of the prior accidents.

The employer’s representative set out that the employer agrees that the worker recovered to their pre-injury baseline condition by the time the WCB determined the worker was no longer entitled to benefits, relying on the report from the physiotherapy reconditioning program that the worker could meet the minimum requirements of their position as of September 6, 2023. The employer’s representative submitted that the worker’s continuing symptoms relate to their chronic back condition, which was present before January 6, 2023 and was the result of their prior compensable injuries.

The employer’s representative noted the employer supported a gradual return to work and that the graduated schedule established occurred over just four weeks, and submitted the WCB ought to have provided more support to the worker in relation to their return to work.

The employer’s representative submitted that the evidence does not support the finding that the worker has a non-compensable pre-existing condition but rather that the worker has a prior compensable back condition. Further, the representative submitted that the WCB erred in advising the worker that vocational rehabilitation could not be offered until permanent restrictions were placed, noting that the Preventative VR Policy would apply, and that the worker meets the criteria for preventative VR services under that Policy.

In sum, the employer’s position is that the evidence supports the WCB’s decision that the worker is not entitled to further benefits in relation to the accident of January 6, 2023 and the worker’s appeal should therefore be denied.

Analysis

This appeal is about whether the worker is entitled to further benefits in relation to the accident of January 6, 2023. For the appeal to succeed, the panel would have to determine that as a result of the injury sustained in the workplace accident of January 6, 2023, the worker continued to experience a loss of earning capacity or require medical aid beyond the date when the WCB determined they were not entitled to further benefits. As set out in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The panel reviewed the file information relating to the accident and considered that at the time it occurred, the worker was participating in a graduated return-to-work plan arising from a previous compensable workplace injury in the same region of their lower back. The file information indicates the accident occurred on the first day of the worker’s return to their regular duties, while on reduced 10-hour shifts, with the worker scheduled to return to full 12-hour shifts the following week. The panel accepts this as evidence that before the accident occurred, the worker was sufficiently recovered from their prior compensable accident to be able to return to their regular job duties when they went to work on January 6, 2023.

The medical reporting following this injury indicates a diagnosis of mechanical low back pain with exacerbation of left S1 radiculopathy, in the context of the worker’s history of lumbar disc herniation with left S1 radiculopathy. The treating family physician described the injury as an acute exacerbation. The panel accepts and relies upon these opinions as to the worker’s diagnosis arising from the accident of January 6, 2023, and notes that the diagnosis indicates both a new mechanical low back injury and a worsening of the worker’s pre-existing compensable left S1 radiculopathy.

The WCB determined that the worker was sufficiently recovered from their injury by September 28, 2023 to begin a return to work process over the subsequent four weeks. The panel considered whether the evidence before us supports that conclusion.

In reviewing whether the worker was recovered to their pre-accident baseline condition, the panel noted the findings from the September 6 physiotherapy conditioning program discharge report and compared those findings to the worker’s pre-accident job duties as described in the Physical Demands Analysis provided by the employer to the WCB. We noted that the worker’s occupation is classified as Very Heavy in terms of exertion levels required, with the worker to be capable of occasionally lifting over 100 pounds. This is described as an essential job duty. The panel noted that the physiotherapy reconditioning report of September 6, 2023 outlines that the worker continued to experience “intermittent sharp pains and tightness centrally over the lower lumbar spine” with tingling on the left lateral left from knee to foot, and occasionally in the left posterior thigh and that the functional testing indicated the worker’s ability to occasionally lift 75 pounds floor to waist. Further, the panel noted the testing results do not indicate that the worker lifted over 100 pounds at any point during the program.

The panel also considered that although the conditioning program physiotherapist concluded the worker could meet the minimum demand of their occupation by September 6, 2023 on conclusion of that program, the Physical Demands Analysis does not indicate that the role can be safely performed with only minimal capabilities. Rather, the document sets out that “Due to the nature of the position the employee must be 100% physically fit to manage all aspects to safely perform their duties…. No accommodations or modifications would be acceptable for this position due to risk to the employee, their partner and the [persons served].” As such, the minimum demands of the position require full physical capacity and the panel does not agree that the evidence supports a conclusion that the worker was “100% physically fit to manage all aspects to safely perform their duties” without restrictions or accommodations in place.

This view is further supported by the worker’s treating physician who wrote in an October 16, 2023 narrative report that:

“…job-specific concerns remain, specifically with regard to the ability to function at full capacity, without risk of re-injury, in situations of a more extreme and unpredictable nature. Unfortunately, due to persistent considerations as they relate to [the worker’s] health, and more importantly, these very specific requirements of [their] occupation we do not feel confident [the worker] would be able to continue with [their] current position in a reliable way at all potential calls/scenarios.”

While the worker’s treating physician supported the worker’s ability to return to work in some capacity, the evidence before the panel does not support a finding that the worker could perform all the essential job duties as of September 2023, and as such we are not satisfied that the worker had returned to their baseline, pre-accident condition by that time.

The Pre-existing Policy outlines that wage loss benefits will cease when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition. That is not the case here, where the worker’s pre-existing back condition is compensable in relation to a different claim, and the evidence does not support a finding that the worker recovered from the workplace injury to the point that it was no longer contributing to, to a material degree, to the worker’s loss of earning capacity. At the time of the accident, the worker was working 10-hour days in their full job duties and the evidence before us does not indicate the worker could resume those job duties without any restrictions in place when the graduated return-to-work program began in late September 2023 nor upon its conclusion at the end of October 2023. In fact, the evidence confirms the employer placed the worker on light duties upon the return to work.

The employer’s representative submitted that the Preventative VR Policy applies in this case. The panel noted that while it appears the Preventative VR Policy may have application to the worker’s circumstances, the WCB has not decided the question of whether the worker is entitled to vocational rehabilitation services in this claim and as such we make no findings in this regard.

Based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that as a result of the injury sustained in the workplace accident of January 6, 2023, the worker continued to experience a loss of earning capacity or require medical aid beyond the date when the WCB determined they were not entitled to further benefits. The worker is therefore entitled to further benefits in relation to the January 6, 2023 accident and the appeal is 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 30th day of May, 2024

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