Decision #63/24 - Type: Workers Compensation

Preamble

The worker is appealing the decisions of the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the July 22, 2010 accident and that they are not entitled to further benefits in relation to the April 29, 2020 accident.

A hearing was held on June 12, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to further benefits in relation to the July 22, 2010 accident.

2. Whether or not the worker is entitled to further benefits in relation to the April 29, 2020 accident.

Decision

1. The worker is entitled to further benefits in relation to the July 22, 2010 accident.

2. The worker is not entitled to further benefits in relation to the April 29, 2020 accident.

Background

Accident of July 22, 2010

The WCB accepted the worker’s claim for injury to their lower back arising out of an accident at work on July 22, 2010, when they slipped on the step while exiting a vehicle and awkwardly landed on the ground. The worker returned to work on modified duties on August 4, 2010.

An MRI study on August 24, 2010 indicated a “…large broad-based central disc protrusion at the L4-L5 level which compressed the thecal sac resulting in moderate stenosis” and shallow disc protrusions at the L2-L3 and L3-L4 levels. Following a call-in examination with a WCB medical advisor on December 22, 2010, the medical advisor outlined temporary workplace restrictions, noting the worker’s gradual improvement in function and symptoms. A neurosurgeon assessed the worker on June 8, 2011 and ordered an updated MRI study. The July 23, 2011 MRI study noted no changes from the previous study, and the neurosurgeon recommended conservative treatment including physiotherapy. The worker continued with conservative treatment, with periodic functional capacity evaluations (“FCE”) to determine their restrictions. After an April 10, 2015 FCE, a WCB medical advisor provided permanent restrictions. Following discussions with the WCB, the worker and employer, the worker started a new position with the employer on August 21, 2015 within the scope of their permanent restrictions.

On March 13, 2020, the worker contacted the WCB, noting they were feeling “really good” and questioning the ongoing need for their restrictions. The WCB unsuccessfully tried to contact the worker the same day and closed the worker’s file.

On September 29, 2021, the worker advised the WCB that an MRI study took place on August 4, 2021 and surgery was now recommended. A September 20, 2021 report from the treating neurosurgeon outlined their belief that the worker’s symptoms and reported distribution of pain were “…in keeping with the disc herniation at L4-L5…” and recommended “…decompression at L4-L5 and uninstrumented fusion and microdiscectomy…”, which the worker planned to pursue. The August 4, 2021 MRI study indicated “Multilevel degenerative changes as described. Large disc herniation at L4-5 has progressed from the previous MRI and results in severe central canal stenosis.” The treating sports medicine physician reported that on reviewing the MRI findings, they referred the worker for a spinal injection and to an orthopedic surgeon. The worker confirmed to the WCB on October 6, 2021 that they cancelled the appointment for the spine injection due to the planned surgery.

A WCB medical advisor, who reviewed the worker’s file and medical information on October 19, 2021, concluded that while the proposed surgery was appropriate for the worker’s current diagnosis, the need for the surgery related to age-related progression of L4-5 disc degeneration and protrusion, and not to the compensable diagnosis of a left lower lumbar radiculopathy. The WCB therefore determined it would not provide coverage for the proposed surgery.

On October 20, 2021, the WCB advised the worker that it determined that the worker’s ongoing difficulties were not related to the July 22, 2010 workplace accident and they were not entitled to further benefits, including coverage for the proposed surgery. On November 8, 2021, the worker requested Review Office reconsider the WCB’s decision. On November 22, 2021, Review Office determined the worker was not entitled to further benefits, relying upon the opinion of the WCB medical advisor that the worker’s current difficulties and diagnosis were due to age-related progression of the L4-L5 disc degeneration and protrusion and not due to the compensable injury of July 22, 2010.

On May 19, 2023, the worker’s representative submitted additional medical information and requested Review Office reconsider the earlier decision. The representative noted that in March 2020, the employer offered the worker a different position to avoid a layoff due to public health restrictions in place at the time, and the worker accepted that position. Subsequently, the worker noticed a worsening in their symptoms and was removed from work in relation to a new claim. The worker’s symptoms increased to the point where emergency surgery was necessary. The representative further advised that the job description for the position offered by the employer included duties outside of the worker’s permanent restrictions. A March 30, 2023 report from the worker’s treating physiatrist outlined that following the change in the worker’s job duties in March 2020 there was a deterioration in the worker’s condition that led to the need for surgery. The representative argued that due to the increase in symptoms and the requirement for surgery, the worker should be entitled to further benefits.

On June 12, 2023, Review Office again determined the worker was not entitled to further benefits. Review Office considered the report from the worker’s physiatrist but gave more weight to the October 19, 2021 opinion of the WCB medical advisor. Review Office further found the worker did not suffer a recurrence of their injury and did not require further benefits. The worker’s representative filed an appeal of this decision on March 5, 2024.

Accident of April 29, 2020

On May 7, 2020, the worker submitted a Worker Incident Report to the WCB reporting an injury to their lower back that occurred at work on April 29, 2020 when stacking cases of product and they felt a sharp pain in their lower back. The WCB also received an Employer’s Accident Report, an Occupational Functional Abilities Form, and an Employee Acknowledgement of Modified Work form.

On May 14, 2020, the worker confirmed the mechanism of injury and noted that while lifting the product, they were reaching, bending, and twisting and felt a pull in their lower back. The worker advised they missed work on April 30, 2020, telling the employer it was due to their back and took a vacation day to seek medical treatment. The worker stated they returned to work on their next shift wearing a back brace from a previous back injury. The medical chart note from April 30, 2020 indicated the worker’s report of pain in their lumbar region, after reaching below their waist to lift products, and noted full range of motion, no tenderness in the lumbar region, straight leg raise findings at 90 degrees. The physician diagnosed a lumbar strain and advised the worker to ice their lumbar region and take non-prescription medication for pain.

The employer contacted the WCB on June 15, 2020 noting their view that the April 29, 2020 workplace incident was insignificant and should be treated as a recurrence of the worker’s July 22, 2010 injury. On July 16, 2020, the WCB advised the employer the worker’s file was reviewed and it determined the worker sustained an accident arising out of and in the course of their employment on April 29, 2020 and as such, the WCB did not agree that the claim was a recurrence of the 2010 injury.

The worker’s representative submitted additional medical information on May 23, 2023 and requested Review Office reconsider the worker’s entitlement to further benefits. As this information was not already considered by Compensation Services, Review Office returned the claim to the WCB for further adjudication. On May 29, 2023, the worker confirmed to the WCB that they began a new position with the employer in early 2020 due to the pandemic, which the employer advised was within their permanent restrictions. The worker noted that since taking on the new role, their symptoms worsened to the point they required two surgeries. The worker described current difficulties of nerve damage, inability to walk easily, no balance and need for use of a cane. The WCB advised the worker on July 17, 2023 that it determined the April 29, 2020 incident and the change in work duties in March 2020 did not relate to their increase in symptoms and as such, they were not entitled to further benefits.

On August 25, 2023, the worker's representative requested Review Office reconsider the WCB's decision, submitting the worker's treating surgeon believed the worker developed increased back symptoms and developed cauda equina syndrome due to the cumulative damage from working outside of their permanent restrictions to keep their employment. The representative relied further on the medical evidence submitted with their original request for review on May 19, 2023. On November 2, 2023 Review Office determined the worker was not entitled to further benefits. Review Office found this claim was for a minor back injury that resolved quickly, and as such, the worker was not entitled to further benefits.

The worker's representative filed an appeal in respect of the 2020 claim on March 5, 2024.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of 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 accidents 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 outlines that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

The WCB established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In these cases, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate intervening event.

The WCB has also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury and provides that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing with a worker advisor who made submissions on behalf of the worker. The worker offered testimony through answers to questions posed to them by the worker advisor and by members of the appeal panel.

The worker’s position with respect to the accident of July 22, 2010 is that because of the worker’s change in job duties after March 2020, which, unknown to the worker, required them to undertake tasks outside their permanent restrictions, the worker’s chronic L4-L5 radiculopathy symptoms worsened to the point where the worker required surgery and developed cauda equina syndrome. But for the compensable injury of July 22, 2010 causing permanent L4-L5 radiculopathy, the worker would not have had permanent restrictions, would not have unknowingly worked outside those restrictions, and the initial compensable injury would not have developed into and caused cauda equina syndrome. As such, the worker is entitled to further benefits arising from the 2010 accident claim.

The worker’s position with respect to the accident of April 29, 2020 is that the worker’s cumulative job duties beginning in March 2020, which the worker did not know included tasks outside their restrictions, caused further injury to the worker’s lower back, including the accident that occurred on April 29, 2020. This resulted in and caused development of cauda equina syndrome and as such, the worker is entitled to further benefits in relation to the 2020 accident claim.

The worker advisor submitted that when a worker’s loss of earning capacity is caused in whole or in part by a compensable injury, the WCB is responsible for the full injurious effect. The worker advisor submitted that the evidence supports a finding that the worker developed cauda equina syndrome because of the July 2010 injury, combined with the effects of post-traumatic degeneration and the change in their activities following the change in job duties in April 2020. As such, the WCB is responsible for the worker’s ongoing condition, and the worker is entitled to benefits in relation to either the accident of July 22, 2010 or the accident of April 29, 2020.

In sum, the worker’s position is that they developed cauda equina syndrome as a consequence of the injury sustained in the accident of July 22, 2010, combined with post-traumatic degeneration in the intervening years and the change in job duties that began in spring 2020, and that as a result, the worker sustained a loss of earning capacity and required medical aid to address the effects of this condition. The worker is therefore entitled to further benefits in relation to the accident of July 22, 2010 and entitled to further benefits in relation to the accident of April 29, 2020.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In this appeal, the issues for determination require the panel to consider whether the evidence supports a finding that the worker continues to sustain a loss of earning capacity or to require medical treatment in relation to the injury sustained in relation to either accident. For the worker’s appeal to succeed, the panel would have to determine that the worker’s ongoing loss of earning capacity and need for medical aid is the result of the July 22, 2010 accident or the April 29, 2020 accident, or both. As outlined in the reasons that follow, the panel was able to make such a finding in relation to the July 22, 2010 accident, but not in relation to the April 29, 2020 accident, and therefore the worker’s appeal succeeds in part.

The panel considered that the medical reporting leading up to the April 29, 2020 claim indicated that the worker’s L4-L5 radiculopathy was a continuing and chronic condition, as demonstrated by the 2015 assessment of the worker for a permanent partial impairment rating in relation to the 2010 injury. This is the injury that the WCB accepted as compensable in relation to the July 22, 2010 accident. We also noted that the WCB determined in relation to the 2010 accident that the worker’s injury occurred in the context of multilevel degenerative disc disease, which the WCB determined was a pre-existing condition.

From 2015 to 2021, the evidence before the panel indicates that the worker continued working with the employer, with permanent restrictions in place, until December 2021, when the worker underwent the emergency surgeries related to the diagnosis of cauda equina syndrome. In the intervening period, the worker sustained a lower back strain injury in 2019 and another in 2020, which is the subject of this appeal. Other than those two injuries, there is no evidence that the worker experienced any significant difficulties in relation their L4-L5 radiculopathy from 2015 to 2020. The panel accepts the worker’s testimony that they were able to manage their symptoms while working within their permanent restrictions during this period.

The evidence before the panel in relation to the injury sustained on April 29, 2020 indicates that this injury occurred within weeks of the worker taking a new role with the employer, which they believed to be within their restrictions, based on the representations of the employer to the worker. There is evidence that the worker missed just one day of work because of the incident on April 29, 2020, which the reports describe as occurring when the worker was loading items onto a wheeler cart and felt a sharp pain in their lower back. The medical reporting from April 30, 2020 indicates no concerning findings and outlines a diagnosis of lumbar strain. The panel noted that the WCB accepted the worker’s claim on this basis and determined that it arose as a result of a new accident and was not a recurrence of the worker's compensable injury from July 2010.

The panel considered the worker advisor’s submission that the worker’s ongoing symptoms into 2021, including the worsening of their chronic L4-L5 radiculopathy, was the result of the worker’s ongoing work in this new role that, despite the employer’s statements to the worker, was not within the worker’s permanent restrictions. In other words, the worker’s advocate submitted that the worker’s 2020 claim related to a cumulative injury to the worker’s L4-L5 disc resulting from their ongoing work activities that exceeded their capabilities. The panel finds that there is a lack of evidence to support the worker’s submission in this regard.

In respect of the injury sustained on April 29, 2020, the panel noted the worker did not attend work on April 30, 2020 and sought medical attention that day, but returned to work on May 4, 2020 as scheduled and advised the WCB ten days later that their back was “fine” at the beginning of the workday on April 29, 2020 and that their current status of back was “good, still stiff and sore”. We are satisfied that the evidence supports a finding that the injury of April 29, 2020 was a back strain, which quickly resolved to the worker’s pre-accident condition. We are further satisfied that the mechanism of injury on April 29, 2020 would not have caused an increase in the herniation of the L4-L5 disc, as identified in the MRI study in July 2021 and which resulted in the surgeries in late 2021.

The panel further finds that the evidence, including the medical reporting and the worker’s testimony, confirms that the worker’s compensable L4-L5 radiculopathy did not resolve at any point in time after 2010, and further, that the worker has experienced ongoing symptoms of L4-L5 radiculopathy since the injury in 2010, which the worker was able to manage sufficiently to continue with their employment, with restrictions in place, until December 2021.

There is, however, evidence before the panel of a worsening in the worker’s symptoms after March 2020, when the worker advised the WCB that they were feeling better. The reports of worsening symptoms follow the change in the worker’s job duties in April 2020. While we are satisfied based on the evidence that the worker’s compensable low back strain of April 29, 2020 resolved soon afterward, the evidence also indicates that the worker began to experience more difficulties in 2021, which resulted in referral to a sports medicine physician in mid-2021 and a further MRI study on August 4, 2021 which indicated an increase in the size of the L4-L5 disc protrusion from the previous study in 2011. The treating sports medicine physician referred the worker to an orthopedic surgeon, who recommended surgical repair and noted the worker’s recent MRI study indicated “…disc herniation at L4-L5 with complete occlusion of the central canal at this level” and that the worker’s “…distribution of pain is in keeping with the disc herniation at L4-L5”. The panel also noted that the WCB medical advisor agreed that the proposed surgery was “appropriate for the current diagnosis.”

The panel also reviewed the reports from the treating physiatrist, of July 8, 2022 and March 30, 2023. In the 2022 report, the physiatrist outlined that:

…radiculopathy is a clinical diagnosis, not an imaging-related one. A radiculopathy can be from a tumor, infection, or any other space occupying mass which is compromising the nerve root. All of the MRIs have confirmed that the most likely cause for this for [the worker] with the large L5-L5 disc protrusion/herniation in 2010, 2011, with mild changes on the MRI in April (sic) 2021. However, after worsening into bilateral leg symptoms and severe worsening December 2, 2021 at work while lifting boxes, the December 2021 first MRI was clearly similar but worse.

“Age-related progression of L4-L5 disc degeneration” …does not produce cauda equina syndrome. …[T]here changes are probably more reflective of early post-traumatic degenerative changes seen after damage from disc herniation and/or protrusions.

…In terms of relationship to the current cauda equina syndrome, there is no question that there was worsening of the L4-L5 disc herniation; progressing from a massively large but stable one over those ten years, to, in December, 2021, one with essentially complete occlusion of the spinal canal, with severe compression of multiple nerve roots.

…Clear interval progression over the intervening years is noted. The previous disc protrusion/herniation in 2010 and confirmed in 2011, presumably is the primary reason for you to develop the current herniation at the same level. …Unfortunately, the progression to complete occlusion of all nerve roots in the spinal canal occurred before the surgery; otherwise, I believed you would never have been in this situation, had surgery proceeded then.”

In the 2023 report, the physiatrist further commented that the initial mechanism of injury in 2010 “…seems unlikely to have produced multi-level disc herniations, but would be consistent with producing one. …Most herniations, especially small ones, often are not resorbed over time…. However, unless complete excision occurs, recurrence/worsening is always a potentiality.” The physiatrist went on to outline that most individuals they treated with significant cauda equina syndrome “…have had pre-existing disc herniations that had rapidly deteriorated, often with only minor changes in activity precipitating the sudden, severe losses of neurological function.” Referring again to post-traumatic degenerative changes, the physiatrist concluded that had the worker not sustained the original injury, they would not have had the subsequent changes a decade later.

In contrast, the panel noted the WCB medical advisor concluded, as outlined in their October 15, 2021 opinion, that the worker’s condition “no longer relates directly to the compensable injury”. The panel noted the medical advisor’s opinion was based, at least in part, on information that was not accurate, namely that the worker had not worked outside their workplace restrictions. The panel accepts the worker’s evidence that their job duties after March 2020 included tasks outside the scope of their permanent restrictions, although the worker was not aware of that at the time they took the job and was assured by the employer that the job duties were within their restrictions. Further, the panel noted that the medical advisor’s opinion was provided prior to the two emergency surgeries in December 2021, and the subsequent treatment by the physiatrist, and the medical advisor did not have opportunity to examine the worker. In this case, the panel prefers and gives greater weight to the opinion of the treating physiatrist, where there is a conflict with the opinion of the WCB medical advisor.

The panel is satisfied based on our consideration and weighing of the evidence before us that the worsening in the condition of the worker’s L4-L5 disc protrusion from 2010 to 2021 is in part accounted for by the worker’s change in job activities beginning in 2020, by the passage of time, and by multiple low back injuries sustained during that period. Furthermore, we are satisfied that, but for the compensable injury of July 22, 2010, the worker’s condition would not have deteriorated to the point of development of cauda equina syndrome and the resulting surgeries. The panel is further satisfied that the worker experienced and continues to experience significant impairment of function arising out of the injury sustained on July 22, 2010 with the result that they have sustained a loss of earning capacity and required additional medical treatment to address the effects of the injury.

Based on the evidence before the panel and on the standard of a balance of probabilities, the appeal panel finds that the worker is entitled to further benefits in relation to the accident of July 22, 2010, and is not entitled to further benefits in relation to the accident of April 29, 2020. The worker’s appeal is therefore allowed in part.

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 20th day of June, 2024

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