The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

Date of Accident - May 8, 2017: They are not entitled to further benefits in relation to the May 8, 2017 accident;

Date of Accident - August 28, 2017: They are not entitled to further benefits in relation to the August 28, 2017 accident;

Date of August - August 31, 2018: They are not entitled to further benefits in relation to the August 31, 2018 accident; and

All Claims: They are not entitled to further benefits in relation to the cumulative effects of injuries sustained in the May 8, 2017 accident, the August 28, 2017 accident and the August 31, 2018 accident.

A hearing was held on March 20, 2024 to consider the worker's appeal.

Issue

Date of Accident - May 8, 2017: Whether or not the worker is entitled to further benefits in relation to the May 8, 2017 accident;

Date of Accident - August 28, 2017: Whether or not the worker is entitled to further benefits in relation to the August 28, 2017 accident;

Date of Accident - August 31, 2018: Whether or not the worker is entitled to further benefits in relation to the August 31, 2018 accident; and

All Claims: Whether or not the worker is entitled to further benefits in relation to the cumulative effects of injuries sustained in the May 8, 2017 accident, the August 28, 2017 accident and the August 31, 2018 accident.

Decision

Date of Accident - May 8, 2017: The worker is not entitled to further benefits in relation to the May 8, 2017 accident;

Date of Accident - August 28, 2017: The worker is not entitled to further benefits in relation to the August 28, 2017 accident;

Date of Accident - August 31, 2018: The worker is not entitled to further benefits in relation to the August 31, 2018 accident; and

All Claims: The worker is not entitled to further benefits in relation to the cumulative effects of injuries sustained in the May 8, 2017 accident, the August 28, 2017 accident and the August 31, 2018 accident.

Background

Date of Accident – May 8, 2017

On May 9, 2017, the worker reported to the WCB that they injured their arm, back, leg and knee in an incident at work on May 8, 2017 when they slipped and fell onto the pavement floor while carrying boxes of cleaning supplies. The worker sought medical treatment on May 8, 2017 reporting complaints of tingling down the right side of their body from the fall, pain to their left shoulder, right wrist and right knee, numbness in their right hand and right foot, low back pain, neck pain and upper thoracic spine pain but noted they did not lose consciousness and did not have a head injury. After examining the worker, the treating physician noted tenderness in the worker’s spine, left shoulder and right wrist with a normal neurovascular exam and an abrasion with swelling to the worker’s right knee. A diagnosis of multiple soft tissue injuries and a right knee abrasion was provided and it was recommended the worker be off work.

At a follow-up appointment with the physician on May 16, 2017, improvement was noted and restrictions of reduced hours, not kneeling, carrying or bending were recommended. In a discussion with the WCB on May 18, 2017, the worker confirmed improvement in their symptoms and that they returned to work at four hours per day on modified duties. On May 19, 2017, the WCB advised the worker their claim was accepted. On May 30, 2017, the worker’s treating physician noted continued improvement for the worker and recommended an increase in hours with the worker returning to full regular duties within two weeks. The employer confirmed the worker returned to their regular duties on June 12, 2017.

On May 26, 2020, the worker contacted the WCB to advise they had recently undergone emergency surgery on their back on May 23, 2020, which they related to their May 8, 2017 workplace accident. The WCB contacted the worker on May 29, 2020 to discuss the reported recurrence. The worker advised they stopped working for the employer in June 2019 when they relocated to a different city and started a different position. The worker denied any further incidents since the May 8, 2017 workplace accident, with the WCB noting the worker had filed other claims and the worker advising they were relating their difficulties to the May 2017 incident. The worker further advised they had previous incidents of feeling a pinch in their back with related pain and soreness, which they self-treated with over-the-counter pain medication, resting and stretching. The worker reported they started experiencing difficulties with their back on May 10, 2020, that was not improving with their usual self-treatment and gradually worsened to the point, they attended for medical treatment at a walk-in clinic on May 13, 2020 and was prescribed pain killers. On May 21, 2020, they re-attended the clinic as there was no improvement and woke up on May 22, 2020 with leg cramping and spasming and attended a local emergency department. The worker advised an MRI conducted that day indicated their L5/S1 disc “…had deteriorated since MRI after May 2017 workplace injury” and they were scheduled for surgery the following day. The worker further advised the WCB after their WCB claim in 2018, they managed fine and had no ongoing medical treatment since that time. They described their ongoing symptoms as being sore off and on and having continual back pain that could radiate down both legs. The WCB advised the worker that further investigation was required.

Medical reports were requested by the WCB and received on June 1, 2020. A May 13, 2020 chart note from the walk-in clinic indicated the worker’s reporting of long standing back pain for over 4 years, with pain now radiating to their legs. Sensitivity was noted in the L4-L5 area and the worker was diagnosed with sciatica. Pain medication and a topical ointment was provided. A further chart note from the clinic for an appointment on May 21, 2020 was also submitted. The worker reported a fall with resulting pins and needles in their foot and pain to the back of their calf. Some decreased range of motion and pain on flexion, extension and rotation was noted by the treating physician with the worker indicating pain in the right sciatic joint area and buttock. The worker was diagnosed with lower back pain/sciatica and it was recommended they continue the pain medication and consider attending for physiotherapy. A copy of the report from the emergency department from May 2, 2020 was also received. The report noted the worker’s reporting of increasing lower back pain for the previous week, with the pain radiating down the worker’s left leg, with their whole leg feeling numb. Tenderness in the L5-S1 area was noted along with decreased sensation to the left leg and no sensation to the worker’s lateral foot region. An MRI taken that day indicated a “Large disc extrusion with superior migration at L5-S1 level, impinging on the right and left L5 and S1 traversing nerve roots.” Emergency spine surgical consultation was recommended. A May 23, 2020 surgical report was included noting the worker underwent an L5-S1 laminectomy and discectomy after a pre-operative diagnosis of a sequestered disc herniation L5-S1 with cauda equina symptoms. A copy of the October 29, 2017 MRI was also provided which found a “Small to moderate disc protrusion at L5-S1…”

Additional information was obtained from the worker, the employer and the WCB requested a review of the worker’s file by a WCB medical advisor on September 3, 2020. The advisor opined at the time of the May 2017 workplace accident, the medical evidence did not support the worker sustained a disc injury, with the worker returning to work within a month. It was noted the worker had reported recurrent episodes of recurrent radicular pain over the past three years and the WCB medical advisor provided that had the worker suffered “…a disc injury significant enough to eventually cause sequestration, there would not have been evidence of recovery. There would have been persistent and progressive symptoms.” The advisor noted the worker did not present with cauda equina and disc sequestered symptoms until May 2020 and found that if the worker’s May 2017 or later 2018 workplace injuries had caused the sequestration or aggravated a pre-existing condition, the worker would have experienced significant symptoms in closer proximity to those workplace incidents. The WCB medical advisor further opined there was no scientific evidence to support repetitive or cumulative trauma in the development of disc pathology and noted the other WCB claims filed by the worker were not accepted as disc injuries. The reports from the worker’s treating spine surgeon also did not note the worker was being treated for a workplace injury or related the diagnosis of a sequestered disc to a workplace accident. On September 9, 2020, the WCB advised the worker they were not entitled to further benefits in relation to the May 8, 2017 workplace accident as a relationship between their current difficulties and that workplace accident could not be established.

On October 28, 2020, the worker submitted a report from their treating family physician. The physician reported they had been treating the worker since December 2019, who had a long standing history of low back pain, which they related to a workplace accident in 2017. It was noted the worker had “…episodes of recurrent low back pain…” since the accident, with the most recent episode resulting in an emergent laminectomy and discectomy on May 23, 2020. The treating physician reported the worker continued to struggle with ongoing daily low back pain, which worsens with prolonged sitting or standing, ongoing numbness to the lateral aspect of their left foot, a constant cold feeling in their left foot and intermittent shooting pains into their legs. The physician noted their belief the worker’s ongoing difficulties were related to their 2017 workplace accident and the worker required further benefits. Included with the report was a copy of a November 17, 2017 lumbar spine x-ray for the worker which was noted to be normal. The physician’s report and x-ray, along with the worker’s file was reviewed at the request of the WCB by a WCB medical advisor on October 29, 2020. The advisor opined there was no change to the earlier medical opinion a relationship could not be established between the worker’s current difficulties and the May 9, 2017 workplace accident. The WCB advised the worker on October 30, 2020, the information was reviewed but there would be no change to the earlier decisions.

Date of Accident – August 28, 2017

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 79/22, dated July 8, 2022. The background will therefore not be repeated in its entirety.

The WCB accepted the worker’s claim for an injury to their lower back that occurred at work on August 28, 2017, when they were pushing a heavy object. The worker sought medical treatment on August 31, 2017, reporting initially they felt their injury was related to a previous WCB claim in May 2017 as the pain was in the same area. The WCB determined that this was a new injury on a specific date and established a new claim. On the recommendation of the treating physician, the worker returned to work on September 13, 2017 on light duties and by September 26, 2017, the physician reported improvement and recommended the worker could return to their full regular duties.

An October 29, 2017 MRI study of the worker’s lumbar spine indicated a "Small to moderate disc protrusion at L5-S1…" A WCB medical advisor reviewed the worker’s file on November 15, 2017 and opined the worker's presentation of right low back radicular pain but noted in the absence of neurological findings, a true radiculopathy was not confirmed. The medical advisor noted the mechanism of injury and the worker reporting symptoms within a few days and found the diagnosis was medically accounted for in relation to the workplace accident. The medical advisor provided that episodes of radicular pain typically resolve within a few weeks to 3 months and as the worker had improved and was cleared for their full regular duties by September 26, 2017, it was within the normal recovery period. The medical advisor also provided that continued improvement with some episodes of pain would be consistent for the natural history of the worker's diagnosis, and the worker's radicular pain may resolve but the disc pathology indicated on the imaging may remain. On December 7, 2017, the WCB advised the worker they were not entitled to further benefits as it determined the worker had recovered from the August 28, 2017 workplace accident.

The worker's representative contacted the WCB on December 18, 2020, and asked the WCB review the December 7, 2017 decision the worker was not entitled to further benefits. In their submission, the representative asked the WCB to review medical information provided on the worker's other WCB claims and queried whether the worker's compensable L5-S1 disc protrusion continued after the worker's claim was ended in November 2017. The representative noted a WCB medical advisor's opinion on another of the worker's other WCB claims the worker had presented with recurrent episodes of radicular pain and indicated those episodes would be compensable and accepted by the WCB if caused by the ongoing L5-S1 disc protrusion.

The worker's WCB claim files were reviewed by a WCB medical advisor on January 5, 2021. The medical advisor noted the treating specialist's reporting at an April 8, 2019 initial assessment of some restriction of right straight leg raise testing and no mention of a workplace accident. The orthopedic specialist found there was evidence of mechanical instability of L5-S1, with the WCB medical advisor providing the use of the term mechanical suggested non-radicular symptoms and were related to progressive degenerative disc disease, supported by the diagnostic imaging and the worker's reported symptoms. Typical waxing and waning of symptoms was noted to be part of the natural progression of that diagnosis. Further, the advisor noted "…the development of a large disc sequestration would not relate directly to the workplace injuries, and could have resulted in a similar emergent situation as has now occurred…"

On January 6, 2021, the WCB medical advisor who provided the November 15, 2017 opinion provided a further opinion in response to a request from the worker’s WCB case manager to respond to queries from the worker's representative. The medical advisor disagreed with the conclusion reached by the representative the November 15, 2017 opinion confirmed the August 2017 workplace accident caused the disc protrusion found on the MRI study. The advisor provided the earlier opinion did not state the August 2017 workplace accident caused the disc protrusion but that an episode of radicular pain arising from protrusion was medically accounted for. In other words, the accident caused the disc pathology to become symptomatic. The medical advisor went on to note the January 5, 2021 opinion of the WCB orthopedic consultant indicated the disc changes noted on the MRI are degenerative in nature and supported the conclusion that the August 28, 2017 workplace accident caused an aggravation of the pre-existing degenerative disc. They further noted an aggravation is temporary and once resolved, any further symptoms from the pre-existing condition would relate to the natural history of the degenerative condition. The WCB advised the worker and their representative on January 11, 2021 after a review of the new medical information, there would be no change to the earlier decision the worker was not entitled to further benefits.

On February 8, 2021, the worker's representative requested reconsideration of the WCB's decision. The employer provided a submission in support of the WCB’s decision on February 15, 2021. Review Office upheld the WCB's decision on April 7, 2021. The representative submitted a June 24, 2021 opinion by the worker’s treating orthopedic specialist on July 20, 2021 and again requested Review Office reconsider the earlier decision. The employer provided information in support of the previous decisions on August 25, 2021, and on September 7, 2021 the worker’s representative provided a further submission. On September 8, 2021 Review Office upheld the decision the worker was not entitled to further benefits.

The worker's representative wrote to the WCB on November 9, 2021 and requested that a Medical Review Panel (“MRP”) be convened in accordance with the WCB policy as there was a difference in medical opinion between the worker's treating orthopedic specialists and the WCB medical advisors who reviewed the worker's file. The representative noted this difference of opinion affected the worker's entitlement to further WCB benefits. On December 21, 2021, the WCB advised the worker's representative their request for a MRP was denied as the opinion by the worker's treating orthopedic specialist did not meet the criteria for providing a full statement of the facts and reasons supporting a medical conclusion.

On December 31, 2021, the worker's representative requested Review Office reconsider the WCB's decision not to convene a MRP. The representative noted in their submission, the WCB appeared to have adjudicated the weight of the opposing medical opinions rather than whether or not the treating orthopedic specialist's comments represented an opposing opinion to that of the WCB medical advisors. On February 14, 2022, the employer provided a submission in support of the WCB's decision. Review Office determined on March 1, 2022, based on the information on the worker's file, the treating orthopedic specialist and the WCB medical advisors were in general agreement on the basic facts of the worker's claim and as such, the criteria to convene a MRP had not been met.

The worker's representative filed an appeal with the Appeal Commission on March 7, 2022. In Decision No. 79/22, the Appeal Commission found on July 8, 2022, a MRP should not be convened.

Date of Accident – August 31, 2018

The worker submitted a Worker Incident Report to the WCB on September 18, 2018 reporting an injury to their back after two hours of lifting wood onto machinery on August 31, 2018. The worker reported their back felt sore after they were done and worsened over the weekend to the point they “…could hardly get out of bed.” The worker sought medical treatment on September 4, 2018 reporting back pain after lifting heavy objects. The treating physician found tenderness in the worker’s lower back and limited range of motion. A diagnosis of an L5-S1 disc protrusion was provided and it was recommended the worker remain off work. A progress report for an appointment on September 14, 2018 was received and noted the worker had improved tenderness and range of motion and noted the worker had been referred to a spine surgeon. It was recommended the worker could return to work with restrictions of limiting lifting to less than 10 kilograms. The worker returned to modified duties on September 10, 2018. In a discussion with the WCB on September 24, 2018, the worker confirmed the mechanism of injury noted on their Report and advised prior to the workplace accident, while they experienced on and off back pain from their previous workplace accident, prior to August 31, 2018 their back was fine.

The worker’s file was reviewed by a WCB medical advisor on September 26, 2018. It was noted the worker reported pain, painful range of motion with tenderness and later reports noted improvement in range of motion. The advisor found the reports did not mention pain in the worker’s legs, neurological symptoms, dural tension signs or neurological impairment consistent with radiculopathy and opined the presentation was consistent with non-specific back pain, with a clinical equivalency to a strain/sprain injury, with a normal recovery period within six weeks. It was further noted the worker had a pre-existing L5-S1 disc protrusion with a possible nerve root compression, supported by diagnostic imaging and opined the worker’s current presentation did not suggest any evidence of an aggravation or enhancement of the pre-existing condition.

The worker was approved for physiotherapy treatment and attended for an initial assessment on September 27, 2018. By November 30, 2018, the worker’s restrictions were updated to floor to waist lifting limited to 35 pounds and waist to shoulder lifting limited to 25 pounds. During a status update with the WCB on December 18, 2018, the worker advised they had attended for their final physiotherapy appointment and their back was doing “much better”. On January 23, 2019, the worker was discharged from physiotherapy, noting the worker did not require any work restrictions.

On May 9, 2019, the worker contacted the WCB to advise they experienced a recurrence of their injury. The worker noted they had constant waxing and waning pain but it was manageable and they had been able to self-treat. The worker noted they had seen a spine surgeon in April 2019 and their treating family physician had prescribed pain medication to help with the symptoms. The worker noted they were a seasonal worker and had started their seasonal work on April 29, 2019. The employer had been provided with modified duties from their treating physician and they started those modified duties on May 9, 2019. The worker described their current symptoms as pain down their butt cheeks and right leg and pain while getting into and out of vehicles. Additional information was gathered from the worker’s treating healthcare providers, the employer and the worker and on October 9, 2019, the worker’s file was reviewed by a WCB medical advisor. The advisor noted the worker sustained a strain/sprain injury in August 2018, and was expected to recover within six weeks. Further, it was noted the worker had a pre-existing disc pathology at L5-S1, with the treating spine surgeon indicating that was the cause of the worker’s pain and as such, as it was not caused by the workplace accident, the worker’s current difficulties were not medically accounted for in relation to that workplace accident. On November 14, 2019, the worker was advised they were not entitled to further benefits as it had been determined they had recovered from the August 31, 2018 workplace accident.

All Claims

On May 19, 2023, the worker’s representative submitted a March 23, 2023 report from a physician with an interest in occupational medicine, along with a copy of their October 21, 2022 letter to the physician and requested the WCB review the letter and report in relation to all the worker’s WCB claims. The October 21, 2022 letter from the worker’s representative to the physician enclosed copies of relevant information from the worker’s WCB claims and requested the physician’s opinion on the worker’s workplace accidents, their May 2020 surgery and relation to their L5-S1 disc protrusion. The physician's response noted that prior to the May 8, 2017 workplace accident, the worker did not have a history of symptoms, injury events or impairments regarding their low back and following that accident, the worker’s back did not return to baseline. The physician noted “It was frequently reaggravated with physical work and everyday activities that placed load and strain onto her low back, particularly bending to lift. The pattern of back aggravations varied, with both left and right sided mechanical back symptoms.” The physician opined “This is consistent with L5-S1 disc protrusion without direct pressure on the existing nerve roots, i.e., non-radicular.” It was the opinion of the physician, the first injury of May 8, 2017 was “…the substantial cause of the disc protrusion…”. The physician went on to note that the MRI of October 2017 showed a disc protrusion but found little to no evidence of degeneration or a long-standing pre-existing changes. The physician concluded “In my medical opinion the effects of the worker’s workplace accidents dating back to the initial one of May 2017 is the substantial cause for the protrusion of L5-S1 disc and its further degeneration with extruded materials that necessitated emergency spinal surgery; elective surgery had been in the plans.” On June 8, 2023, the WCB advised the worker’s representative the information had been reviewed but there would be no change to the decisions on each of the worker’s WCB’s claims the worker was not entitled to further benefits.

The worker’s representative requested reconsideration of the WCB’s decisions to Review Office on June 20, 2023. The representative relied on the medical evidence included in the May 23, 2023 report from the physician with an interest in occupational medicine and noted their belief the physician had drawn a connection between the worker’s workplace accidents and their L5-S1 disc protrusion and related May 2020 back surgery. On June 26, 2023, the representative confirmed to Review Office the worker was seeking further benefits for all three of their WCB claims. On August 4, 2023, the employer provided a submission in support of the WCB’s decisions, with the worker’s representative providing a response on August 16, 2023.

Review Office determined on August 17, 2023, the worker was not entitled to further benefits with respect to their WCB claims for accidents that occurred on May 8, 2017, August 28, 2017 and August 31, 2018.

With respect to the May 8, 2017 accident, Review Office relied on and accepted the opinions of the WCB medical advisors the worker sustained soft tissue injuries as a result of the accident and as such, no relationship to the worker’s current back difficulties and a disc protrusion was found.

For the August 28, 2017 accident, Review Office found the worker sustained a minor back injury as a result of that accident and returned to work within two weeks and to their full duties in approximately a month. Further, based on the worker not reporting any further difficulties until September 2018, Review Office accepted the worker had a full recovery from the accident. Review Office also concluded, based on the worker’s full recovery, a connection between the worker’s current difficulties and the August 2017 workplace accident could not be established.

On August 31, 2018, the worker reported another workplace accident, which was accepted as a back strain/sprain with Review Office unable to find a more significant injury occurred. Review Office found the worker attended for physiotherapy treatment and was discharged in December 2018 and it was determined the worker could return to their full regular duties at that time which demonstrated the worker functionally recovered from the injury. Review Office again could not find a relationship between the worker’s current difficulties and the August 2018 workplace accident.

Regarding the cumulative effects of all three of the worker’s workplace accidents and the worker’s May 2020 back surgery, Review Office accepted the September 3, 2020 opinion of the WCB medical advisor that the evidence did not support the worker’s accidents resulted in the need for the worker to have back surgery. Given this, the worker was not entitled to further benefits.

The worker’s representative filed an appeal on each of the worker’s WCB claims with the Appeal Commission on August 28, 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 July 25, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission 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 Act in effect on the date of the worker's claim of accidents is applicable.

Section 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. Section 4(2) provides that an injured worker 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 the 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.

The Act allows the WCB to provide a worker with medical aid that is considered necessary or advisable to cure or give relief to the worker or for the rehabilitation of a worker.

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 WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy explains what a pre-existing condition is, and acknowledges that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can also have an effect on pre-existing conditions. When a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.

The WCB has also established a policy respecting recurring injuries. WCB Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrences Policy”) explains how the WCB determines if the worker has experienced a recurrence. Many workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. 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 Recurrences Policy sets out that the WCB will determine the worker’s current condition to be a recurrence if the previous workplace accident is the dominant cause of the renewed symptoms or increase in permanent impairment. Several questions to consider in making this determination are set out within the Recurrences Policy.

Worker’s Position

The worker was represented by an advisor at the hearing and was supported by their mother. The worker’s representative provided a written submission in advance of the hearing and made an oral presentation to the panel in support of their position at the hearing. The worker provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position was that they had not recovered from the workplace accident. It was argued that while the worker was cleared to resume regular duties this did not, in and of itself, mean that they have recovered from the effects of their accident. It was submitted that one can be cleared to work and yet not be recovered, still requiring medication, medical treatment and experiencing limitations. The worker states that they remained injured and relied on the assistance of co-workers to complete regular work duties and medication and exercises recommended by the treating physiotherapist. The worker argues that this speaks to non recovery.

The worker submits that the WCB did not conduct a quality investigation and stated that the WCB did not contact the worker regularly and they did not follow up on medical information.

The worker shared that they had not recovered from the first accident when the second accident occurred and says that the WCB did not follow up with or indicate that they expected to receive regular updates from the worker.

The worker submitted that they did not have these issues prior to the accident and that they are therefore entitled to further benefits.

Employer’s Position

The employer had a representative present at the hearing. They relied on their past written submission and their oral presentation at the hearing. The employer’s representative answered questions posed by members of the appeal panel.

The employer’s position is that the worker is not entitled to further benefits in relation to the May 8, 2017 accident as the information in the file does not establish a causal connection between the May 8 workplace injury and the need for further treatment or time loss.

The employer notes that following the worker’s injury on May 8, 2017 the worker returned to regular work on June 12, 2017, and continued to perform the regular duties until the worker sustained another workplace injury on August 28, 2017.

With respect to the August 28, 2017 claim, it is the employer’s opinion, based on the information on file that the worker is not entitled to further benefits in relation to her August 20, 2017 accident, as the information on file does not establish a causal connection between that injury and the need for further treatment or time loss.

In relation to the August 31, 2018 accident, the employer states that the worker is not entitled to further benefits as the information on file does not establish a causal connection between that injury and need for further treatment or time loss. The employer states that there is evidence that the worker recovered from this injury and specifically states that the worker was discharged from physiotherapy, without any work restrictions, in January 2019.

The employer is relying on the medical opinion of September 3, 2020 which states that if the accident of May 17, 2017 or any of the worker’s compensable injuries since that time “had caused a disc injury significant enough to eventually cause sequestration, there would have been" would not have been evidence of recovery. There would have been persistent, progressive symptoms.” The employer submits that there has been evidence of recovery.

The position of the employer is that the worker is not entitled to further benefits in relation to the cumulative effects of the injuries sustained on May 8, 2017, August 28, 2017 and August 31, 2018, as the information on file does not support a causal connection between the surgery that was performed in May 2020 and the cumulative effects of the injuries sustained on those dates.

The employer submits that the clinical imaging information relates to the typical presentation of progressive lumbar disc degeneration, in this case an L5-S1 with typical remission and relapse pattern as part of the natural progression of the diagnosis.

The employer states that the evidence does not support providing the worker with further benefits and requests that the Appeal Commission uphold the Review Office's August 17, 2023 decisions.

Analysis

Firstly, this appeal is in respect of the question of whether the worker is entitled to further benefits in relation to the May 8, 2017 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continues to experience the effects of the compensable workplace accident such that the worker either requires further medical aid or continues to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was not able to make such findings.

Secondly, this appeal is also in respect of the question of whether the worker is entitled to further benefits in relation to the August 28, 2017 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continues to experience the effects of the compensable workplace accident such that the worker either requires further medical aid or continues to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was not able to make such findings.

Third, this appeal is in respect of the question of whether the worker is entitled to further benefits in relation to the August 31, 2018 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continues to experience the effects of the compensable workplace accident such that the worker either requires further medical aid or continues to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was not able to make such findings.

Finally, this appeal is in respect of the question of whether the worker is entitled to further benefits in relation to the cumulative effects of injuries sustained in all three aforementioned accidents. For the worker’s appeal to succeed, the panel would have to determine that the worker continues to experience cumulative effects of their injuries and either requires further medical aid or continues to sustain a loss of earning capacity in relation to their injuries. As detailed in the reasons that follow, the panel was not able to make such findings.

The panel finds, on a balance of probabilities, that the medical information on the file does not substantiate further benefits to the worker. Based on our review of all of the information that is before us, on file and as presented at the hearing, and the submissions of the parties, the panel is satisfied that the worker had recovered from the effects of each of the compensable injuries and was cleared by their treating health care providers to return to full regular work duties following each workplace injury. Therefore, the panel finds there is no causal relationship between the injuries and the surgery that the worker underwent.

With respect to the initial injury, following the May 8, 2017 accident, the worker was off work for a few days, then returned to gradual light duties at four hours daily, minimizing kneeling, carrying and bending, until approximately June 12, 2017 when she returned to regular duties. The worker was diagnosed with soft tissue injuries. The panel notes that the mechanism of injury (falling down stairs) is not typical of a disc protrusion. The panel also agrees with the WCB medical advisor that being able to return to work within a month or so is not typical following a significant disc injury.

With respect to the second injury, following the August 28, 2017 accident, the worker returned to work less than one month later (September 26, 2017) without restrictions. The MRI imaging from October 2017 showed a small to moderate disc protrusion. There is evidence on the file of improvement with the worker feeling “fairly well” and having the “odd bad day with back pain”.

With respect to the August 2018 injury, the worker was lifting wood and felt pain in their back afterwards. The diagnosis was back strain/sprain. The assessment by the treating physician confirmed a minor injury. The evidence following the August 2018 injury also shows signs of improvement. The physician noted painful range of motion, but this then improved. In October 2018 the worker was continuing physiotherapy but had full range of motion and no tenderness. There was no mention of neurological symptoms. The worker returned to modified duties on September 10, 2018. The worker was cleared for work, without restrictions, by December 31, 2018. The worker advised the WCB in December 2018 that her “back was doing much better” and discontinued attending physiotherapy by mid-January 2019.

There is evidence throughout the file to support the recovery of the worker after each of the injuries. For example, the physician chart notes that state that the symptoms had resolved and the worker is feeling back to baseline, the lack of neurological findings, the treating physician’s examination showing a negative straight leg raise test, the imaging results indicated that there was mechanical instability and, as set out above, the worker’s return to work without restrictions.

The panel finds that there would not be evidence of improvement of symptoms and recovery with an injury such as disc sequestration.

The worker underwent emergency surgery on their back on May 23, 2020. The worker was off work due to an unrelated matter when the symptoms arose to necessitate surgery. The panel agrees with the WCB medical advisor who indicated that “this timing does not support a relationship between workplace injury and disc issue."

The panel accepts the opinion of the treating health care provider who stated that if any of these injuries caused this disc sequestration or aggravated a pre-existing disc condition to result in this condition, there would have been evidence of the condition in much closer proximity to the workplace accidents. The symptoms of the sequestered disc injury did not present until almost two years after the worker’s most recent back injury.

The panel finds that there is not sufficient evidence to support the rationale of the treating orthopedic surgeon that a “cascade of degeneration” can occur once a disc is injured. The panel relies instead on the evidence of recovery that occurred in these circumstances. The panel is unable to find that there is a causal connection between the need for surgery in 2020 and the injuries that occurred in May 2017, August 2017 and August 2018.

The medical evidence on file suggests that that disc protrusion may have been a pre-existing degenerative injury. The WCB orthopedic consultant has said that the MRI supports that conclusion. However, the worker’s representative argues that there is nothing in the MRI report that supports that the disc protrusion was there before the accident. The panel does not have the evidence before it to make a determination that the disc protrusion was a pre-existing injury. Nor was this the issue before the panel.

The panel does however have the evidence to support the finding that the worker is not entitled to further benefits in relation to the May 8, 2017 accident, the August 28, 2017 accident, and the August 31, 2018 accident. The panel also finds that the worker is not entitled to further benefits in relation to the cumulative effects of injuries sustained in the May 8, 2017 accident, the August 28, 2017 accident and the August 31, 2018 accident.

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 6th day of September, 2024