The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the right side L4-5 spinal surgery and associated costs. A hearing was held on July 9, 2024 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the right side L4-5 spinal surgery and associated costs.

Decision

Responsibility should be accepted for the right side L4-5 spinal surgery and associated costs.

Background

The worker has an accepted WCB claim for acute thoracic and lumbar strains and an aggravation of a pre-existing condition as the result of an incident at work on October 9, 2020 when the resident they were assisting sat down roughly onto their wheelchair, causing the wheelchair to jump, injuring the worker’s arm and back. The worker sought medical treatment with a sports medicine physician on October 11, 2020, who noted tenderness in the worker’s right rhomboid, L4/L5 area and right sacroiliac joint and diagnosed the worker with an acute thoracic and lumbar strain. Physiotherapy, light duties and modifying activities were recommended.

The worker attended for an initial physiotherapy assessment on October 14, 2020, reporting pain to their upper and lower back, radiating into their right arm and leg. The treating physiotherapist diagnosed the worker with a lumbar sprain/strain with radicular symptoms. The worker attended for a follow-up appointment with the sports medicine physician on October 21, 2020 and underwent x-rays of their cervical and lumbosacral spine. The cervical spine x-ray indicated “Mild anterolisthesis is noted at C5-6. Alignment is otherwise normal. Vertebral heights are normal. The prevertebral soft tissues are normal in thickness. There are multilevel endplate osteophytes”. The lumbosacral spine x-ray indicated “Mild anterolisthesis is present at L4-5. There is mild to moderate disc and end plate degenerative change at L5-S1. L4-5 and L5-S1 facet arthropathy is suspected. Otherwise, no significant bone abnormality is visible.” The Progress Report from the treating sports medicine physician noted increased arm and radicular symptoms and the worker was referred for an MRI study to rule out a disc injury in their neck or spine. The MRI study was conducted on November 8, 2020 and found “…compression on the right L5 nerve root related to an extruded disc cephalad at L4-5” and “…no nerve root compression on the right in the cervical region.”

On November 30, 2020, the worker’s file was reviewed by a WCB medical advisor. The advisor provided the worker’s diagnosis with respect to the October 9, 2020 workplace accident was an upper and lower back strain, consistent with the reported mechanism of injury and the findings on the October 11, 2020 report from the sports medicine physician. Further, the WCB medical advisor provided the natural history for improvement of a strain was over a few days to a few weeks. The advisor reviewed the November 8, 2020 MRI and provided that based on the findings, the worker's current diagnosis was a possible right L5 radiculopathy and non-specific neck pain. It was further opined the worker's current difficulties were not medically accounted for in relation to the October 9, 2020 workplace accident based on the relatively minor mechanism of injury that would not account for a disc herniation or extrusion. On January 4, 2021, the WCB advised the worker their current difficulties could not be medically accounted for in relation to the workplace accident and their entitlement to benefits would end on January 11, 2021. The worker requested reconsideration of the WCB's decision to end entitlement to benefits to Review Office on January 20, 2021 and on March 5, 2021, Review Office determined the worker had not recovered and was entitled to benefits after January 11, 2021 and returned the file to the WCB's Compensation Services for further adjudication.

The worker continued to receive various treatments and on March 26, 2021, attended for a follow-up physiotherapy appointment, reporting ongoing numbness and radicular pain with walking and lifting. Restrictions of lifting/pushing/pulling to 20 pounds, frequent position changes and 4-hour shifts for the first week for 3 days, the second week for 4 days and 5 days by week 3 were recommended. On April 27, 2021, the worker advised the WCB they had returned to work on modified duties and noted they were sore, tender and tired by the end of a shift. The worker was seen for a virtual follow-up appointment with their treating physiatrist on May 19, 2021. The worker reported undergoing an injection on May 4, 2021, with lessened numbness and improved pain relief for one day. The physiatrist noted the worker had a “…classic clinical presentation of right L5 radicular pain due to disc herniation with a normal spinal and neurological examination.” It was further noted that the worker had increased their exercise and was managing well. At a follow-up appointment with the sports medicine physician on August 25, 2021, the physician noted the worker was working up to 6 hours per day, with twisting activities aggravating their pain. The physician recorded the worker’s reporting of back pain with right radicular pain to their lateral foot and updated the worker’s diagnosis to persisting disc and right dural tension. A repeat MRI was recommended. The MRI was conducted on September 8, 2021 and indicated “Slight anterolisthesis of L4 on L5 and slight enlargement of right paracentral disc extrusion.” At a further follow-up with the sports medicine physician on December 31, 2021, the physician noted the worker now experienced foot drop when walking distances and recommended a splint.

Due to ongoing complaints, the worker attended a call-in examination with a WCB medical advisor on May 3, 2022. After examining the worker, the advisor opined that the worker’s reported right-sided numbness “…is in keeping with features of an S1 radiculopathy” and that the worker’s pre-existing degenerative conditions noted on the MRIs and the mechanism of the October 9, 2020 workplace accident were medically accounted for in relation to the worker’s delay in recovery. The advisor also provided that as the worker was showing steady improvement in symptoms, it was recommended the worker continue with the graduated return to work plan until they were able to reach full hours. At the request of the WCB medical advisor, the diagnostic imaging on the worker’s file was reviewed by a WCB neuroradiology consultant on May 10, 2022. The consultant noted the November 8, 2020 MRI indicated a “…broad, shallow small central and right posterolateral disc protrusion…and minimal compression of the right L5 nerve root” and the September 8, 2021 MRI had found “…mild grade 1 degenerative spondylolisthesis…” which had developed or progressed since the previous MRI. It was noted the disc protrusion noted on the November 8, 2020 MRI was “…largely unchanged in size” and opined the slightly worsening nerve root compression was related to the spondylolisthesis and not any enlargement of the disc protrusion.

The worker continued to receive treatment from their various healthcare providers and to work modified duties on reduced hours due to their reported symptoms. On December 21, 2022, the worker was seen by the treating sports medicine physician and reported unchanged right L5 and lumbar pain. It was recommended a further MRI be conducted and the worker be referred for a surgical opinion. The MRI took place on January 9, 2023 and noted a similar study from the September 2021 MRI but with multilevel degenerative changes. At a further follow-up appointment on January 11, 2023, the sports medicine physician recommended the worker slowly increase their hours at work.

On March 16, 2023, the worker was seen for an assessment at a spine clinic. The report from the clinic noted the worker’s reporting of “…back pain radiating to the right leg in the L5 distribution.” The diagnostic imaging indicated a L4-L5 disc herniation approaching the L5 root, which was noted to correlate to the worker’s reporting of right L5 pain. A spine surgical consultation was recommended for the worker as “Imaging does correlate with her symptoms, the patient has maximized conservative treatment, the patient continues to have significant pain which affects her ability to walk and work.” The worker met with the orthopedic surgeon on June 3, 2023, who noted the worker’s described symptoms were “…an L5 radiculopathy with associated numbness.” It was further noted the MRI did not indicate a large disc herniation but did show a “…disc protrusion in combination with spondylolisthesis potentially irritating the L5 nerve root.” The surgeon opined that as the compression was “subtle”, they were not sure of the amount of pain relief the worker would experience after a “minimally invasive operation concentrating on a microdiscectomy and partial facet resection to free up the L5 nerve root.” On June 15, 2023, the worker advised the surgeon they would like to proceed with the proposed surgery. The surgeon advised the worker at the time that even with a successful surgery, a recurrence was possible. The worker’s file was reviewed by a WCB orthopedic consultant on June 26, 2023, who opined the proposed surgery would not likely provide the worker with a sustained improvement in their function and may lead to additional difficulties. In a telephone conversation with the worker on the same date, the WCB advised the worker responsibility for the proposed surgery would not be accepted by the WCB and the worker would only be provided with wage loss benefits based on their current graduated return to work schedule for the time loss related to the surgery. A formal decision letter was sent to the worker by the WCB on August 18, 2023.

The worker requested reconsideration of the WCB’s decision to Review Office on September 14, 2023. In their submission, the worker noted their belief the surgery was their last choice for treatment after receiving conservative treatment for 3 years and not experiencing recovery and further noted the surgery appeared to have been successful and they were healing well. As such, the worker believed they should have been entitled to full wage loss benefits since the surgery and for the related recovery period. Review Office determined on November 6, 2023, the worker was not entitled for coverage for the right side L4-L5 spinal surgery and associated costs. Review Office accepted and agreed with the opinions of the WCB medical advisors the worker’s pre-existing degenerative conditions developed or progressed during the interval between the October 9, 2020 workplace accident to the latest MRI study on January 9, 2023, which conditions were not the result of the workplace accident. Review Office agreed with the WCB orthopedic consultant’s opinion that the surgery was performed to treat the worker’s pre-existing degenerative conditions and not the accepted compensable injuries of strain/sprains.

The worker’s representative filed an appeal with the Appeal Commission on March 12, 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 (the “Act”), the 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 by accident arising out of and in the course of the employment. 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.

Compensation is payable under Section 37 of the Act when the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident. 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(1) 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.”

The WCB has established Policy 44.120.10, Medical Aid, which describes key terms and sets out general principles regarding a worker’s entitlement to medical aid (the “Medical Aid Policy”). The Medical Aid Policy for decisions after July 1, 2024 was reviewed. The Medical Aid Policy sets out that the board’s objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker’s injuries. Further, the Medical Aid Policy states the board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful. Schedule F to the Medical Aid Policy specifically references elective surgeries and the principles related to funding those procedures.

The WCB has also established Policy 44.10.20.10, Pre Existing Conditions, which explains what a pre-existing condition is. It also explains the principles governing payment of compensation for workplace injuries when a worker's pre-existing condition impacts the severity of the workplace injury experienced by the worker or increases their recovery time, or alternatively, when the workplace injury worsens the worker's pre-existing condition.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission and relied upon their written submission to the Appeal Commission of July 2, 2024, and the worker’s written submission to Review Office of September 11, 2023. The worker provided testimony through answers to questions posed by the worker advisor and in response to questions posed by the appeal panel.

The worker’s position is that the WCB should accept responsibility for the surgery they underwent as it was recommended by the worker’s treating health care provider. The worker states that the need for the surgery did result, at least in part, from the compensable injury. The worker’s position is that the disc protrusion and radiculopathy was part of the compensable injury, and that the WCB has accepted responsibility for this injury. The worker states that the surgical operative report sets out that the purpose of the surgery was to address the right L5 radiculopathy.

The worker submits that the surgery provided relief. The worker describes dealing with back and leg pain, numbness to the right leg and foot, functional limitations (specifically related to sitting, standing and walking) and trying various options to address her symptoms without surgery, such as physiotherapy, medications and epidural steroid injections. The worker’s position is that they had exhausted all available options prior to undergoing surgery.

The worker submits that the evidence supports that responsibility should be accepted for the June 28th, 2023 surgery and they are seeking that the decision of the Review Office be overturned.

Employer’s Position

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

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's right side L4-L5 spinal surgery, and associated costs as being a consequence of the October 9, 2020 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker’s right side L4-L5 spinal surgery is causally related to the October 9, 2020 workplace accident.

Based on our review of all the evidence before us, on file and as presented at the hearing, the panel is able to make that finding.

The panel has reviewed the Medical Aid Policy and, specifically, Schedule F thereto and finds that there is no basis for which to deny the worker’s surgery. Schedule F provides that the WCB will pay for the costs associated with all, or portions of, an elective surgical procedure if:

1) the procedure is recommended by a recognized health care provider;

In this case, the procedure was recommended by the worker’s surgeon. The panel relies upon the opinion of the treating orthopedic surgeon with respect to the necessity and appropriateness of the surgery. Furthermore, the panel relies on the report from the Spine Assessment Clinic consult, wherein the orthopedic surgeon stated that the worker has maximized conservative treatment and continues to have significant pain which affects their ability to walk and work.

2) the need for the procedure results, in whole or in part, from the worker's compensable injury; and

The panel is unable, with the evidence before it, to determine if it was the disc protrusion (which the panel accepts was a result of the compensable injury) or the spondylolisthesis that was causing the worker’s symptoms. The panel finds that it was not solely one or the other. The panel places weight on the treating orthopedic surgeon report of June 3, 2023, wherein they stated that the MRI “appears to show a disc protrusion in combination with spondylolisthesis potentially irritating the L5 nerve root.” [emphasis added]

3) the WCB determines the procedure will cure, or provide relief from, a compensable injury.

The panel finds that the portion of the surgery that dealt with the disc protrusion provided relief from the compensable injury.

The panel acknowledges that all surgical procedures have inherent risks, however the evidence before the panel does not point to any undue risks or hazards. Therefore, the panel is of the view that the surgical procedure was not unduly hazardous. Furthermore, the panel disagrees that the surgery was unlikely to promote recovery or unnecessary. In fact, the evidence from the worker is that the surgery has improved their symptoms.

Finally, the panel is satisfied that the worker attempted to obtain relief with less invasive measures and did so for approximately 2.5 years, before opting for surgery. The panel finds the worker’s decision to be reasonable in the circumstances.

Schedule F also provides that the WCB will not pay for costs associated with any portion of an elective surgical procedure that is unrelated to the worker's compensable injury. The panel finds that the portion of the surgery that dealt with the disc protrusion was related to the compensable injury. However, the panel finds that the laminectomy of the spondylolisthesis was a in relation to a pre-existing condition that was neither related to the compensable injury nor enhanced or aggravated by the compensable injury.

Based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the surgery provided some relief to the worker. Therefore, the WCB should accept responsibility for the worker's right side L4-L5 spinal surgery as it relates to the disc protrusion and the associated costs. The worker’s appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of September, 2024