Decision #99/24 - Type: Workers Compensation

Preamble

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

1. They are not entitled to wage loss benefits after July 18, 2021; and 

2. They are not entitled to further medical aid benefits.

A hearing was held on September 17, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after July 28, 2021; and 

2. Whether or not the worker is entitled to further medical aid benefits.

Decision

1. The worker is entitled to wage loss benefits after July 28, 2021; and 

2. The worker is entitled to further medical aid benefits.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 85/23, dated July 21, 2023. The background will therefore not be repeated in its entirety.

On February 3, 2021, the worker filed a Worker Incident Report with the WCB, reporting an injury to their lower back that occurred at work on January 28, 2021. The worker sought medical treatment from their family physician on February 1, 2021. They reported falling while on a roof carrying heavy objects and experienced pain in their lower back with sitting, standing and walking and limited mobility. On examining the worker, the treating physician found limited mobility and tenderness in the lumbar region but a normal neurologic exam. X-rays taken the same date of the worker’s lumbar spine indicated mild facet arthropathy at L4-5 and L5-S1 with no fractures identified. A diagnosis of a muscular strain was made. The WCB accepted the worker’s claim on February 4, 2021.

After a follow-up appointment with their family physician on February 8, 2021, restrictions of sedentary duties, no lifting, pushing or pulling and no ladders were recommended and provided to the employer on February 9, 2021. The employer provided the Employer’s Accident Report to the WCB on February 9, 2021, indicating the worker had been cleared to return to work on February 8, 2021 however, the employer had advised all workers not to work that day due to extreme cold. On February 23, 2021, the worker contacted the WCB to provide an update and advised they had been off work since February 11, 2021 due to ongoing difficulties and pain. The worker noted they worked for 4 days from February 8 to 11, 2021 performing modified duties while outside in cold weather, which had left them experiencing low back pain and they had been pretty much bedridden since going off work.

The worker underwent a lumbar spine MRI study on March 5, 2021, which showed "Multilevel degenerative changes…No significant spinal canal narrowing. Disc material approaches the bases of the L5 nerve roots bilaterally at L4-L5." The worker was seen for follow-up with their physician on March 8, 2021 and the following updated restrictions were recommended: no standing for long periods in cold weather, less walking, no stairs, no ladders, no kneeling or bending, pushing or pulling or carrying more than 10 pounds. The restrictions were provided to the employer on March 10, 2021 and the worker returned to work on March 24, 2021.

The worker's file was reviewed by a WCB medical advisor on March 29, 2021, who opined that the worker's current diagnosis was a disc protrusion at the L4-L5 level, which was medically accounted for in relation to the workplace accident. The medical advisor further provided the diagnostic imaging including the February 1, 2021 x-ray and March 5, 2021 MRI, indicated multilevel degenerative changes, which contributed to a delay in recovery from the compensable injury. The advisor noted the pre-existing degenerative changes were adjacent to the L4-L5 disc protrusion. Further updated and recommended restrictions, to be reviewed in 2 to 4 weeks, were provided and included: limiting repetitive weighted bending or twisting of the low back; limiting lifting or carrying to 10 pounds; limiting pushing or pulling to 25 pounds; avoiding ladder climbing; and limiting prolonged sitting or standing with the ability to take micro breaks. It was noted that the medical evidence on file did not support a restriction in relation to cold exposure. On March 31, 2021, the updated restrictions were provided to the employer.

On April 22, 2021, the worker contacted the WCB to advise them they had been off work due to ongoing difficulties. Another message from the worker was left with the WCB on April 30, 2021 advising that they had been off work since April 16, 2021 and they were waiting for an appointment with a specialist. The WCB spoke with the worker on May 3, 2021 who advised after the restriction against stair climbing was removed, their back difficulties worsened and after their shift on April 16, 2021, they stopped working. The worker was seen by a sports medicine physician on May 4, 2021 who diagnosed the worker with a lumbar disc protrusion and recommended continued physiotherapy. The physician noted the worker was capable of working modified duties. On May 8, 2021, the worker advised the WCB they would be returning to work on May 10, 2021. On May 14, 2021, the employer advised the WCB by email that the worker had not returned to work and had not contacted them. In a discussion with the WCB on May 25, 2021, the worker advised they had experienced worsening symptoms but had not sought further medical treatment or physiotherapy or been in contact with the employer.

The worker’s file was reviewed by a WCB medical advisor on June 2, 2021. The medical advisor opined that the medical information on file did not support a specific worsening of the worker's low back symptoms, and noted that "Individuals with discogenic low back pain will have periods of low back pain with improvement of symptoms." The medical advisor noted that it was anticipated that the symptoms would show improvement over a period of 3 to 6 months. The advisor further provided the worker's treating physiotherapist indicated on May 3, 2021 that recovery was not satisfactory but did not note a clear reason for this, given the symptoms appeared to be following the natural progression of recovery. Restrictions of limiting prolonged sitting or standing with the ability to take breaks and limit lifting or carrying to 5 pounds were provided.

The WCB spoke with the employer on June 3, 2021 who confirmed the modified duties they offered the worker did not involve any lifting other than a possible 5 to 20 pounds, which could be done by another person, if required. The employer advised they had been attempting to contact the worker but had been unable to reach them. On the same date, the WCB advised the worker they were not entitled to wage loss benefits after April 16, 2021 as it had been determined the employer had offered suitable accommodated duties, and the medical evidence on file did not support a deterioration in their condition which would support total disability.

On June 28, 2021, the worker requested that the Review Office reconsider the WCB's decision. In their submission, the worker noted the employer did not follow the restrictions set out by their treating healthcare providers, which led to an increase in low back symptoms. The Review Office determined that the worker was not entitled to further wage loss benefits on August 24, 2021. The Review Office found the worker did not fulfill their responsibilities to mitigate their loss of earning capacity or need for medical treatment. The Review Office further found the medical evidence on file did not support the worker's low back difficulties worsened or that the worker was unable to perform the modified duties offered by the employer.

The worker appealed the Review Office decision to the Appeal Commission on November 29, 2022, and on July 21, 2023, pursuant to Appeal Commission Decision No. 85/23, it was determined the worker was entitled to wage loss benefits after April 16, 2023 and the worker’s file was returned to the WCB for further adjudication.

The WCB contacted the worker on July 31, 2023 to discuss their claim. The worker advised they continued to see their family physician after the WCB ended their entitlement to benefits and discontinued physiotherapy treatment after June 30, 2023. The worker further advised they continued to experience ongoing back difficulties with daily pain, which they self-treated with stretching and exercises recommended by their physiotherapist. The worker noted they had not worked since they worked for the employer until April 2023 and had ended their employment with their second employer in July 2023. The WCB advised the worker they would gather further information.

On August 3, 2023, the WCB received copies of chart notes requested from the worker’s treating family physician from February 2, 2021 to January 10, 2023. In addition, copies of reports from the worker’s treating sports medicine physician were included along with a lumbar spine x-ray from February 1, 2021 and an MRI study from March 5, 2021. On August 8, 2023, the WCB received a Doctor First Report from the worker’s treating family physician noting the worker had ongoing lower back pain that occasionally travels to the worker’s legs when there are long periods of standing or walking. Mild tenderness in the worker’s lower back and negative straight leg raise testing was noted. The physician provided a diagnosis of a disc bulge with L4-5 radiculopathy. Restrictions of office work and no long standing or walking were recommended. On August 14, 2023, the worker attended an initial physiotherapy assessment and was diagnosed with mechanical lower back pain, sacroiliac joint dysfunction and leg instability. The worker spoke with the WCB on August 18, 2023, and 10 physiotherapy sessions were approved.

The WCB advised the worker an initial investigation into their claim was conducted and on September 15, 2023, wage loss benefits from April 17, 2021 to July 28, 2021 were authorized. The worker’s file was reviewed by a WCB medical advisor on October 30, 2023. The advisor opined the diagnosis related to the workplace accident was a disc protrusion at L4-L5 and provided that, with conservative treatment, 3 to 4 months recovery time would be expected. The advisor further noted the September 2022 reports of non-specific, non-radicular low back pain were not medically accounted for in relation to the January 28, 2021 workplace accident. In addition, the WCB medical advisor opined the worker’s current difficulties were not related to the workplace accident and the worker would not require any work restrictions. The WCB provided the worker with a formal decision letter on November 6, 2023 advising it had been determined they were not entitled to further wage loss benefits after July 28, 2021, approximately 6 months after the workplace accident, and was not entitled to medical aid benefits after the 4 physiotherapy session extension granted on October 5, 2023.

The worker requested reconsideration of the WCB’s decision to Review Office on January 22, 2024. On January 23, 2024, Review Office spoke with the worker to clarify the issues to be reviewed and it was determined the worker wished to have their entitlement to wage loss benefits after July 28, 2021 and further medical aid benefits reviewed. Review Office determined on March 5, 2024, the worker was not entitled to wage loss benefits after July 28, 2021 and was not entitled to further medical aid benefits. Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker’s current back difficulties were not related to the January 28, 2021 workplace accident and that the worker would have recovered from the compensable injury when wage loss benefits were paid to July 28, 2021, representing 6 months. In addition, Review Office found that the decision to approve additional medical aid in the form of physiotherapy treatment for the worker was appropriate to allow for a reassessment of the worker’s condition as the worker had not continued or sought treatment for a long period of time. However, Review Office further found the worker was not entitled to ongoing medical aid as it had been determined the worker had recovered and their ongoing difficulties were as a result of a pre-existing back condition.

The worker filed an appeal with the Appeal Commission on June 6, 2024 and a hearing was arranged.

Reasons

Applicable legislation and policy

The Appeal Commission is 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 and WCB policies in effect as of the date of the worker’s accident are applicable.

Section 4(1) of the Act sets out that a worker is entitled to benefits when it is established that a worker has been injured as a result of an accident at 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 pursuant to Section 37 of the Act. Section 39(2) of the Act states that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker was present for the hearing. The worker made an oral submission during the hearing. The worker provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that the evidence confirms that by July 28, 2021 the worker was not recovered from the injury sustained in the workplace accident of January 28, 2021. Therefore, the worker should be entitled to wage loss benefits after July 28, 2021 and further medical aid benefits.

The worker states that they have been steadfast in stating that they are still injured and have not recovered.

Employer’s Position

The employer was represented in the hearing by a representative who made an oral submission on behalf of the employer.

The position of the employer was that the worker’s injuries may be related to current degenerative issues and states that the component of the worker’s injury that was related to work would have cleared up and resolved by July 28, 2021. The employer’s position is that there is no entitlement to wage loss benefits after July 28, 2021, nor is there entitlement to further medical aid benefits.

The employer is in agreement with the findings of the WCB and the Review Office and is seeking that the decision be upheld.

Analysis

The panel must consider two issues. Firstly, whether the worker is entitled to wage loss benefits after July 28, 2021 and secondly, whether the worker is entitled to further medical aid benefits. For the worker’s appeal to succeed the panel would have to determine that as a result of the compensable injury sustained in the accident of January 28, 2021, the worker continued to experience a loss of earning capacity beyond July 28, 2021 and continued to require further medical aid. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The evidence before the panel was that the worker continued to experience symptoms as a result of their compensable injury, including pain in their lower back and an inability to work.

The worker has degeneration in their spine which was confirmed by imaging following the workplace accident. The opinion of the WCB medical consultant provided on March 29, 2021 was that the presence of multilevel degenerative changes is likely to contribute to a delay in recovery from the compensable injury.

The panel acknowledges that the worker’s treating physiotherapist opined on May 3, 2021 that the worker’s recovery had not been satisfactory. Furthermore, the WCB medical consultant indicated in his report dated June 2, 2021 that the worker should have restrictions in place for 2 to 4 weeks and if there was no improvement of the worker’s low back symptoms then an in person assessment is suggested. Despite this assessment by the WCB’s own specialist, the evidence before the panel is that the WCB did not contact the worker or the worker’s physiotherapist to determine why the worker was not attending physiotherapy. The last physiotherapy report prior to the worker’s benefits being terminated was dated May 3, 2021 and noted that the worker's pain rating was a 9 and indicated that it was unknown when the worker could return to regular duties. The panel notes that the WCB did not conduct an in-person assessment between June 2, 2021 and the date that the worker’s benefits were terminated as was suggested by their medical consultant.

The notes from the treating physiotherapist did show some improvement in the worker’s straight leg raise testing. However, evidence of improvement does not equate to recovery. The panel notes restrictions were still in place for the worker as of the last physiotherapy appointment. The panel is of the view that there was a lack of medical evidence to support the termination of the worker’s benefits.

In the circumstances, and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of the compensable injury, and suffered a loss of earning capacity after July 28, 2021 and requires further medical aid as a result of their January 28, 2021 workplace accident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after July 28, 2021 and is entitled to further medical aid benefits, and returns the file to the WCB for further adjudication.

The worker's appeal on both issues is allowed.

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 8th day of November, 2024

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