The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility should not be accepted for the L4-5 disc herniation and/or condition of adjacent segment disease in relation to the October 9, 2017 accident; and 

2. They are not entitled to wage loss benefits after July 26, 2020.

A videoconference hearing was held on May 15, 2024 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the L4-5 disc herniation and/or condition of adjacent segment disease in relation to the October 9, 2017 accident; and 

2. Whether or not the worker is entitled to wage loss benefits after July 26, 2020.

Decision

1. Responsibility should not be accepted for the L4-5 disc herniation and/or condition of adjacent segment disease in relation to the October 9, 2017 accident; and 

2. The worker is entitled to wage loss benefits after July 26, 2020.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 90/21, dated July 16, 2021. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for a lumbar disc extrusion at L5-S1 with left leg radicular pain as the result of an incident at work on October 9, 2017 when they assisted a resident who had fallen. By January 30, 2018, restrictions were provided to the employer and the worker began a graduated return to work program on February 20, 2018. On May 3, 2018, the WCB advised the worker after review of their file, it had been determined they had recovered from their workplace injury and they were not entitled to benefits after May 14, 2018.

On December 10, 2018, the worker underwent an L5-S1 microdiscectomy. A WCB medical advisor reviewed the surgical report on January 10, 2019 and the WCB placed the worker back on wage loss and medical aid benefits effective to December 10, 2018. A WCB medical advisor reviewed the worker's file on February 13, 2019 and placed a memorandum to file on February 26, 2019 opining the worker was capable of returning to work from May 15, 2018 to the time of their surgery on December 10, 2018 as suitable modified duties were available from their employer and the medical evidence supported the worker was not totally disabled during that time. The WCB advised the worker on May 27, 2019 they were not entitled to wage loss benefits after May 14, 2018 until their surgery on December 10, 2018 as the employer had suitable modified duties available. On July 12, 2019, the worker advised the WCB they had attended their local emergency department on July 11, 2019 due to severe pain and had been transferred to a local trauma centre and scheduled for surgery. On July 18, 2019, the worker underwent a posterior instrumented fusion at L5-S1, with a laminectomy at L5, L5-S1 posterolateral decompression and a disc replacement at L5-S1. The WCB accepted responsibility for the surgery on August 15, 2019.

On January 24, 2020, the worker’s representative requested reconsideration of the WCB’s decision the worker was not entitled to wage loss benefits from May 15, 2018 to December 9, 2018. The representative provided the worker's treating healthcare providers supported the worker was not able to work due to ongoing symptoms which included intense radicular pain and was awaiting surgery. On April 8, 2020, Review Office determined the worker was not entitled to benefits after May 14, 2018, relying on and accepting the opinion of the WCB orthopedic consultant and the evidence on file and found the worker's difficulties could not be accounted for in relation to the mechanism of injury and the compensable injury. As such, Review Office further found the worker was not completely disabled from work and not entitled to benefits after May 14, 2018.

The worker’s representative filed an appeal with the Appeal Commission on September 9, 2020. A teleconference hearing was arranged and held on March 16, 2021. After requesting further medical information, the Appeal Commission determined on July 16, 2021, the worker was entitled to benefits after May 14, 2018.

The WCB spoke with the worker on August 4, 2021 to gather further information on their claim. The worker advised they had not returned to work since May 18, 2021 and was in receipt of disability benefits. They described their current difficulties as significant pain and difficulties with walking/activities. The WCB advised they would be obtaining updated medical information from their treating healthcare providers and wage loss information from the employer. On August 13, 2021, the WCB received copies of chart notes from the worker's treating spine surgeon from April 2020 to February 2021. It was noted that due to ongoing difficulties, the worker underwent a third surgery on July 27, 2020 being an L4-S1 decompression fusion surgery. A September 25, 2020 post-surgery follow-up chart note indicated the worker reported "…complete resolution of the lower extremity pain…" they previously had with occasional back discomfort. Muscle strength testing was noted to be normal in hip flexion, knee extension, ankle dorsi and plantar flexion. A November 27, 2020 chart note indicated the worker reported left lower extremity pain for which the treating surgeon had referred the worker for a CT scan. An MRI study was suggested but the surgeon recommended the worker wait to see if their symptoms continue or worsen. At a further follow-up appointment on January 29, 2021, the worker continued to report ongoing symptoms in their left calf and exacerbation of pain in their left low back/buttock area. The treating surgeon noted the worker reported not using their left ankle and advised the worker that not using that ankle could lead to further pain, providing information on pain sensitization. A pain injection was provided, which the worker advised the surgeon provided relief. Reports related to the worker's third spinal surgery were provided to the WCB on August 25, 2021. A July 2, 2020 report from a local emergency department indicated the worker was admitted to the hospital after attending the emergency department for worsening right leg radicular pain. After being seen by a physician from the chronic pain clinic, further surgery was recommended and the worker was discharged home with pain medication to await surgery. On July 27, 2020, the worker underwent a posterior instrumented fusion from L4-S1, bilateral posterolateral decompression L4-5 and L5-S1, and a disc replacement at L4-5. On September 17, 2021, the worker attended for a one year post-surgery follow-up with the surgeon who noted the worker had been attending physiotherapy regularly, but had "…suffered an acute episode of low back pain which now radiates down to the posteriorlateral left thigh, lateral aspect of the left foot and dorsal aspect of the left foot" the previous day. The worker advised these were all new symptoms and were quite severe. The surgeon indicated an x-ray taken that day found no change in the position of the hardware or alignment of the worker's spine and noted their belief the worker may have suffered another disc herniation. The surgeon discussed the natural history of disc herniations and treatment options with the worker and advised they would request a further MRI if the symptoms continued over a few weeks or if the worker developed lower extremity weakness.

On October 1, 2021, the worker's file, including the new medical information, was reviewed by a WCB medical advisor. The advisor provided a detailed review of the worker's treatment, including surgeries, and opined the worker's current diagnoses were lumbar disc extrusion L5-S1 level with left leg radicular pain; post-microdiscectomy left L5-S1 level with disc excision; post- surgical L5-S1 decompression and L5-S1 interbody fusion with cage; and post-surgical L4-S1 decompression and instrumented fusion July 27, 2020. The advisor confirmed the WCB accepted the initial December 10, 2018 surgery and the second surgery on July 18, 2019 as both surgeries were to the worker's L5-S1 region. The advisor further opined the third surgery on July 27, 2020 was related to the "…spontaneous development of a new disc herniation at the L4-5 level…" unrelated to the worker's accepted compensable injuries and recommended the WCB not accept responsibility for this surgery. At the request of the WCB, a June 28, 2020 MRI study of the worker's lumbar spine was placed to the worker's file and a further review was undertaken by a WCB medical advisor on October 21, 2021. The advisor opined the June 28, 2020 MRI provided a new diagnosis of a left L4-5 disc extrusion, which did not specifically relate to the accepted compensable diagnosis related to the October 9, 2017 workplace injury. In addition, the advisor noted the information provided by the worker's treating surgeon on June 12, 2020 that the worker sustained a specific new low back injury while moving a box, with immediate and continuing low back and left lower limb pain reported. The WCB medical advisor provided the information found the worker had been progressing well in their recovery from the July 18, 2019 surgery, as set out in a December 11, 2019 progress report from the spinal surgeon, noting the worker was able to stand and ambulate on both toes and heels, in comparison to a March 27, 2020 report which noted the worker's complaints of pain radiating into their right buttock after a popping sensation.

The WCB provided the worker with a formal decision letter on October 22, 2021, advising of the decision the worker was not entitled to wage loss benefits after April 16, 2020, the date upon which they had been previously paid wage loss benefits by the WCB prior to the April 8, 2020 Review Office decision. The WCB noted the medical information provided supported the worker had been functioning well and exercising until a June 12, 2020 report from their treating surgeon identified a new low back injury, which was not related to the October 9, 2017 workplace injury.

The worker's representative requested reconsideration of the WCB's decision to Review Office on March 8, 2023. The representative submitted the worker's treating healthcare providers, in particular their treating spine surgeon, supported the worker had not recovered from the workplace accident and had not returned to work. In an addition to an October 21, 2022 report from the worker's treating spine surgeon, the representative also submitted a February 22, 2023 report from a physician with an interested in occupational medicine who had examined the worker on December 1, 2022 and February 8, 2023. The physician noted their belief the mechanism of the March 20, 2020 incident, as described to them by the worker, involved an injury to their L4-L5 area as a result of the previous fixation surgeries at L5-S1 and created a condition known as adjacent segment disease. Medical articles in support of the physician's position were provided. Review Office returned the worker's file to the WCB's Compensation Services for further investigation on March 10, 2023. The worker's file was reviewed by a WCB medical advisor on August 25, 2023. The advisor reviewed the information provided by the worker's representative with respect to a diagnosis of adjacent segment disease, which was "…attributed to accelerated degenerative changes resulting from rigid stabilization of spinal fusion." The advisor opined the second surgical procedure by the worker's treating surgeon would have likely resulted in a solid interbody fusion at L5-S1 and that the October 21, 2022 report from the worker's treating surgeon only provided the possibility of adjacent segment disease, without providing actual evidence of same. The WCB medical advisor opined the worker's acute disc herniation at L4-5 can be related with age-related degenerative disc disease and the mechanism of the non-work related injury reported by the worker in March 2020. In addition, the medical advisor provided the July 27, 2020 surgery was undertaken to address an L4-5 disc herniation with no surgical involvement to the prior L5-S1 fusion.

On September 13, 2023, the WCB provided the worker with a further decision letter indicating it had been determined the disc herniation at L4-L5 was not a secondary injury and there was no evidence to support the worker's diagnosis of adjacent segment disorder was related to the accepted compensable injury. On September 25, 2023, a further decision letter was sent to the worker setting out the evidence supported the worker would have been capable of returning to work with no further loss of earning capacity by July 15, 2020 and as such, their entitlement to wage loss benefits ended as of that date. On October 26, 2023, the worker's representative requested reconsideration of both WCB decisions to Review Office. The representative presented the argument that had it not been for the worker's L5-S1 fusion surgery, the worker's back would not have degenerated in an accelerated manner and caused a disc herniation at L4-5 merely by the worker bending over. In addition, the representative argued the worker's treating healthcare providers supported the worker had not recovered and would not have been capable of returning to work and therefore, required further wage loss benefits.

Review Office determined on January 31, 2024, the L4-L5 disc herniation and/or a condition of adjacent segment disease were not compensable and the worker was entitled to wage loss benefits to July 26, 2020. Review Office found the medical evidence supports the worker had a solid L5-S1 fusion and a causal link between an incident in March 2020 and the October 9, 2017 workplace accident could not be established. Further, Review Office could not establish a relationship between the worker's L4-L5 disc herniation or the diagnosis of adjacent segment disease and the workplace accident. With respect to entitlement to wage loss benefits, Review Office accepted the evidence the worker was likely capable of returning to their job duties approximately one year after the July 18, 2019 surgery if it was not for the non-compensable injury that occurred in March 2020 and the subsequent need for surgery on July 27, 2020. As such, Review Office determined the worker was entitled to wage loss benefits to July 26, 2020.

The worker's representative filed an appeal with the Appeal Commission on February 5, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. The term “accident” is a defined word under the Act.

Section 37 of the Act outlines the compensation, which is payable to workers, as follows:

Compensation payable

Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

The WCB's Board of Directors has established WCB Policy 44.10.80.40, Secondary Injury (the "Policy"). The Policy applies to circumstances where a worker suffers a secondary injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides, in part, that:

The WCB determines that an injury is a secondary injury where:

• it is caused to the worker by an intervening incident, event or exposure ("intervening event"); 

• the intervening event is not work related; and, 

• there is a causal link or relationship between the intervening event and the previous workplace accident.

Worker’s Position

The worker was represented by a worker advisor. The worker relied on a written submission and an oral presentation made by the worker advisor. The worker provided evidence at the hearing by way of responding to questions posed by the worker advisor and the panel members.

Issue 1:

The evidence of the worker is that they sustained a L4-5 disc herniation from bending over to put on pants. The position of the worker is that, but for the compensable injury and two compensable fusion surgeries, the worker would not have suffered an L4-5 disc herniation from simply bending over.

The worker’s evidence is that the imaging shows that the degeneration at the L4-5 level of their spine was mild at the time of the workplace accident. An MRI completed 2.5 years later, in June 2020, shows extensive degeneration and full disc extrusion. The evidence of the worker is that they were sedentary in the 2.5 years following their workplace accident and states that the progression of the osteoarthritis is not typical. The worker submits that the fusion surgeries compromised the adjacent vertebrae, causing additional stress at that level. The worker’s position is that the additional force accelerated the degeneration and caused the L4-5 disc herniation. The worker provided medical articles in their submission relating to Adjacent Segment Disease and argues that this condition is the cause of the L4-5 disc herniation.

The worker also argues that the remainder of the lumbar spine does not show any degeneration and states that this is proof that the accelerated degeneration at L4-L5 is related to the fusion surgeries.

Therefore, the worker is seeking that the WCB accept responsibility and provide compensation for the L4-5 disc herniation and state that it was a secondary injury causally related to the surgeries the worker underwent in relation to the October 9, 2017 workplace accident.

Issue 2:

The worker’s position is that the evidence shows that the worker was incapable of returning to their health care aide position or that occupation at the time their benefits were terminated. The worker submits that they had not recovered from their compensable injury when benefits were terminated.

The evidence is that at the time of the L4-5 disc herniation the worker’s status with the WCB was “totally disabled” from the compensable injuries. This status was to be reviewed at the end of May 2020. The worker states that as of March 2020 the worker was still getting independent living allowance and personal care allowance. The worker was getting assistance with activities of daily living, such as washing, grocery shopping, housekeeping, and snow removal.

The worker also provided evidence of the duties of their employment as a health care aide, and stated that the duties were physically demanding.

It is submitted that the worker’s status was listed as totally disabled prior to their third surgery. Therefore, the worker argues that determining the worker’s return to work capabilities is not possible and any decision on when the worker may have been capable to return to regular work duties is entirely speculative.

The worker states that the evidence before the panel is that the worker could not have returned to regular work duties and would have required restrictions. The worker also states that they continued to suffer from compensable injuries after July 26, 2020 and submits that they are therefore entitled to wage loss benefits after July 26, 2020.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There were two issues before the panel. The findings of the panel respecting each issue are set out separately below.

Issue 1: Whether or not responsibility should be accepted for the L4-5 disc herniation and/or a condition of adjacent segment disease in relation to the October 9, 2017 accident

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the L4-5 disc herniation and/or condition of adjacent segment disease was causally related to the October 9, 2017 workplace accident. The panel is unable to make that finding.

The panel finds that the osteoarthritis in the worker’s spine caused the L4-5 disc herniation. Based on the medical evidence before it, the panel is unable to make a causal connection between the degeneration and the workplace accident in 2017.

The panel is of the view that the degeneration in the worker’s spine could have resulted in a disc herniation from a simple everyday task such as bending to put on pants. The panel also does not accept the argument that since the worker was essentially sedentary for 2.5 years that degeneration could not have progressed so drastically in that timeframe. The evidence from the MRIs confirms that the degeneration did progress over that period of time regardless of the worker being sedentary.

There is a lack of medical evidence before the panel to find, on a balance of probabilities, that the worker is suffering from Adjacent Segment Disease. The treating orthopedic surgeon does not provide an opinion that the worker has Adjacent Segment Disease. The evidence is that the treating orthopedic surgeon stated that the fusion could “in theory” accelerate degenerative changes. This is not an opinion given by the treating surgeon relating to the worker specifically. Furthermore, the panel does not accept that a reference by the treating surgeon to the fusion placing more strain on the rest of the mobile spine during day to day activities means that the worker has Adjacent Segment Disease. The panel cannot make that connection.

The panel finds that responsibility should not be accepted for the L4-5 disc herniation or a condition of Adjacent Segment Disease as being related to the 2017 workplace accident. The worker's appeal on this issue is therefore dismissed.

Issue 2: Whether or not the worker is entitled to wage loss benefits after July 26, 2020

For the worker’s appeal on this issue to be successful, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond July 26, 2020 as a result of the workplace accident. As detailed in the reasons that follow, the panel was able to make such finding, and therefore the worker’s appeal is granted with respect to the second issue.

The worker has undergone extensive spine surgeries, and the panel accepts the worker’s evidence of the difficulties they suffered following their surgeries. The evidence before the panel is that the worker was unable to do many activities of daily living on their own and that, as a result, the worker led a sedentary life following the surgeries. The panel also accepts the evidence that the worker was in pain and had continued symptoms as a result of the spine surgeries required following the workplace accident.

The panel relies heavily on the evidence from the treating surgeon, which indicated that the worker had made average progress in recovery from the surgical procedure. The panel notes that the treating surgeon did not state that the worker had recovered from the effects of the compensable injury.

The panel also accepts the evidence of the worker on the physicality of the duties of a healthcare aide and does not find it reasonable that the worker, who had been sedentary for approximately 2.5 years and who underwent extensive back surgeries, would have been capable of returning to the full duties of a healthcare aide at the time their benefits were terminated.

The evidence is that the WCB had not contacted the medical professionals to discuss restrictions or the employer to discuss accommodations prior to the L4-5 disc herniation, and therefore there is no way to know whether any restrictions or accommodations would have been successful to allow the worker to return to work.

The panel relies on the evidence of the treating physiotherapist, who opined that the worker would have only been capable of sedentary duties and would not have been able to return to full-time work initially.

The panel has also taken in account the pain the worker described they were experiencing and finds, on a balance of probabilities, that the worker is entitled to wage loss benefits after July 26, 2020.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of July, 2024