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 benefits after February 15, 2023. A hearing was held on February 7, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 15, 2023.

Decision

The worker is not entitled to benefits after February 15, 2023.

Background

On September 14, 2022, the worker filed a Worker Incident Report with the WCB reporting a lower back injury that occurred at work on September 11, 2022 when they were assisting a resident onto a bed. The worker noted they reported the incident to the employer on September 12, 2022. The worker attended for medical treatment with their family physician on September 13, 2022 reporting pain in their lower back, worse with movement. The physician examined the worker and found decreased range of motion but that the worker was neurovascularly intact. The physician diagnosed the worker with musculoskeletal lower back pain, referred the worker for x-rays and recommended one week off work. The lumbosacral spine x-ray taken on September 14, 2022 indicated “There is very minimal curvature convex right. Disc calcification is noted at T12-L1. Spina bifida occulta is noted at S1. Vertebral heights are well-maintained with no further abnormalities demonstrated.”

The worker attended for an initial physiotherapy assessment on September 16, 2022 reporting pain to their low back, inability to bend/twist/lift, with the pain occasionally radiating down into their right leg. Upon examining the worker, the treating physiotherapist noted the worker had very limited range of motion in their back with pain noted during active range of motion testing, a lateral shift to the left, lots of pain moving around the examination room and a positive straight leg raise test for back pain. The physiotherapist diagnosed the worker with a back sprain/strain and queried a disc irritation. It was recommended the worker remain off work for two weeks.

The WCB accepted the worker’s claim on September 23, 2022 and the payment of various benefits started. On September 29, 2022, the worker attended for a follow-up appointment with their treating physiotherapist, reporting they were still in lots of constant pain, with bending, lifting, and twisting causing pain. The treating physiotherapist noted the worker was unable to lift much without pain, and lots of tension in their glute and back area. The physiotherapist recommended restrictions which included take breaks as needed and unable to sit/stand in one position for too long. The WCB discussed the worker’s restrictions with the employer on October 17, 2022 and advised on October 19, 2022, they could not accommodate the worker. The worker continued to attend for physiotherapy treatment and on November 16, 2022, their treating physiotherapist requested an extension to treatment. The physiotherapist indicated the worker’s reporting of ongoing pain to their right low back, down into their right leg, with forward bending causing a lot of pain. When examining the worker, the treating physiotherapist noted numbness to the worker’s right leg on testing and provided a diagnosis of a lumbar spine injury, queried a disc injury, with right radicular pain. The physiotherapist recommended the worker speak to their family physician to be referred for an MRI study. A copy of the physiotherapist’s November 21, 2022 letter requesting the worker be referred for the MRI from their family physician was provided to the WCB.

The worker attended for an appointment with a sports medicine physician on January 5, 2023. On examining the worker, the physician noted the worker had a slow gait, was able to toe and heel walk, was tender to palpitation at L5, limited range of motion, pain with left lateral flexion. Straight leg raise testing was positive on the right with full hip range of motion. The sports medicine physician opined the worker had a disc herniation with a natural history of recovery with physiotherapy. The physician also referred the worker for an MRI study. At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on January 10, 2023. The advisor opined the worker’s diagnosis in relation to the September 11, 2022 workplace accident was a right low back strain and the findings from the call-in examination did not support a lumbar radiculopathy. It was further noted the natural history for recovery from a lumbar strain is over the course of four to eight weeks, with longer durations noted in the presence of pre-existing degenerative condition. The advisor further opined the September 14, 2022 x-ray indicated a very minimal curvature convex right, which was noted to not be a condition that would cause the worker difficulty. Further, calcification was noted at T12-L1, and was found to be in concordance with osteoarthritis of the lumbar spine and would take months to years to become apparent on an x-ray. The WCB medical advisor further opined a final opinion would be made upon review of the pending MRI study. The lumbar spine MRI was conducted on January 21, 2023 and indicated “Disc protrusion at L5-S1 which contacts and posteriorly displaces the left S1 nerve root. No significant spinal canal narrowing.” The MRI was reviewed by a WCB medical advisor on January 30, 2023 who provided the study indicated the worker’s left S1 nerve root was displaced however, the worker’s complaints related to their right lower limb. As such, the medical advisor opined the L5-S1 disc protrusion found on the MRI was not medically accounted for in relation to the September 11, 2022 workplace accident.

The worker was advised by the WCB on February 9, 2023, it had been determined their current low back difficulties were not related to the September 11, 2022 workplace accident and their entitlement to benefits would end on February 15, 2023. The worker requested reconsideration of the WCB’s decision to Review Office on April 20, 2023. In their submission, the worker noted the MRI found a disc herniation related to their workplace accident. The worker also provided a February 9, 2023 letter from their treating sports medicine physician indicating the worker’s pain and disc protrusion occurred at the time of the accident. On June 20, 2023, Review Office determined the worker was not entitled to benefits after February 15, 2023. Review Office accepted and agreed with the opinion of the WCB medical advisor after the call-in examination and review of the MRI, and was unable to accounted for the worker’s increase in difficulties five months after the workplace accident. Further, Review Office was unable to account for the worker’s reported difficulties in their right leg given the disc protrusion contacting the worker’s left S1 nerve root or the worker’s now reported left lower leg symptoms.

The worker filed an appeal with the Appeal Commission on August 2, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 19, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the 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.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of their work. Under Section 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 Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. The Act also allows the WCB to provide a worker with any medical aid the board considers necessary or advisable to cure or provide relief to the worker from the injury resulting from the workplace accident. 

The WCB has established a policy to address eligibility for compensation in circumstances where a worker has a pre-existing condition. A pre-existing condition is any medical condition the worker had prior to their workplace injury. Policy 44.10.20.10, Pre-existing Conditions, (the "Pre-existing Policy") advises that the fact that a worker has a pre-existing condition does not disentitle them to compensation for their workplace injury. However, the WCB only provides compensation for workplace injuries, not all injuries and therefore, it is important to determine the role the pre-existing condition plays on the workplace injury or vice versa. 

Worker's Position

The worker was present at the hearing and provided an oral submission to the appeal panel. The worker also offered testimony through answers to questions posed by members of the panel.

The worker’s position is that the evidence confirms they continued to experience a loss of earning capacity and to require medical aid in relation to the compensable workplace injury of September 11, 2022 beyond February 15, 2023 when the WCB terminated their benefit entitlements, and therefore, they are entitled to benefits after February 15, 2023.

The worker states that their lower back injury occurred at the workplace and states that they have no history of back pain. The worker also states that they have not recovered from their injury. The worker believes that the WCB denied them benefits due to an alleged discrepancy in the medical reports regarding their left and right leg pain. However, it is the worker's position that an S1 nerve root injury can affect both left and right legs.

The worker asks that the panel accept the treating sport medicine physician's opinion, which states that the injury was work related. The worker states that the MRI imaging proves that their injury is work related and as a result, their position is that they are entitled to benefits after February 15, 2023.

Employer's Position

The employer did not participate in the hearing of the worker’s appeal.

Analysis

The worker's appeal arises from the WCB’s decision that the worker is not entitled to benefits after February 15, 2023. For the appeal to succeed, the panel would have to find that the worker continued to experience wage loss and/or require treatment because of the compensable injury beyond that date. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel accepts the mechanism of the injury as described by the worker and accepts that the worker was injured while working on September 11, 2022.

The evidence of the worker at the hearing was that they would have radicular pain in both legs and that it would vary from left leg to right leg. The worker states that this was due to their injury affecting the L5-S1 joints in the lumbar spine.

The panel notes that the medical information from the treating physicians and physiotherapist reference pain radiating down the worker's right leg. For example, the Physiotherapy Initial Report (September 16, 2022), the Physiotherapy Progress Reports (October 10, 2022 and October 28, 2022), the Physiotherapy Application for Additional Treatment and related cover letter to the worker's doctor (November 21, 2022), and the Doctor first report from the treating sport medicine physician (January 5, 2023).

Of particular note to the panel, is the report from the treating sport medicine physician of January 5, 2023, which states that the worker has pain starting in the low back and radiating to the right leg and dorsum of the foot. The report also notes that "Slump and straight leg raise are positive on the right (predominantly for low back pain, but also some lower leg and thigh pain."

The worker attended a call-in examination on January 10, 2022 and reference is made to symptoms to the right lower limb. The physician opines that the examination is not concordant with lumbar radiculopathy. 

The panel considered the MRI report from January 21, 2023 of the lumbar spine and notes that the imaging revealed a disc protrusion at L5-S1 which contracts and posteriorly displaces the left S1 nerve root.

The panel notes that the January MRI or subsequent Healthcare Services Request did not mention any displacement of the right nerve root.

The panel also notes that the first reports of left lower limb pain are in a Doctor Progress Report from an examination on February 9, 2023. This report also notes that the straight leg raise test is positive on the left side. No mention is made of the right side.

The panel acknowledges that the sport medicine physician stated on May 9, 2024 that the worker’s symptoms migrated from the right to the left and gave possibilities as to why this may have occurred. The panel is however required to consider what is probable and not what is possible.

The panel places greater weight on the opinion of the consulting WCB physician who reviewed the January 2023 MRI and notes, , in a Healthcare Service Request, that the MRI documents a "left paracentral disc protrusion at L5-S1 that contacts and displaces the left S1 nerve root." The physician concludes that as the worker's reported low back symptoms refer to his right lower limb, it is not probable that the L5-S1 disc protrusion is related to the September 11, 2022 workplace incident.

The panel accepts and relies upon the opinion WCB medical advisor that there is no evidence to relate the worker’s symptoms to the accepted compensable injury.

Based on the evidence and on the standard of a balance of probabilities, we find that the worker is not entitled to medical aid benefits after February 15, 2023. The worker’s appeal is denied.

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 13th day of August, 2024