Decision #102/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to benefits after October 22, 2023 in relation to the June 12, 2023 accident. A hearing was held on September 23, 2024 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after October 22, 2023 in relation to the June 12, 2023 accident.
Decision
The worker is entitled to benefits after October 22, 2023 in relation to the June 12, 2023 accident.
Background
On June 30, 2023, the WCB received a copy of a Doctor First Report from the worker’s treating physician, reporting an injury to the worker’s low back and right medial and lateral epicondylitis. The physician noted the worker’s complaints of pain with gripping, medial and lateral elbow pain and low back pain, which the worker related to their chronic gripping as part of their job duties. The physician recorded the worker had reduced range of motion in their back and noted a back x-ray taken that day was normal.
The worker provided a Worker Incident Report to the WCB on July 4, 2023. The worker indicated they injured their low back and right elbow at work on June 12, 2023 when they fell backwards after walking backwards and tripping on some tools, twisting their back awkwardly. The worker noted approximately 30 minutes later, they couldn’t move and their elbow was hurting. Further, the worker described pain on the left side of their lower back and numbness in their right buttock that travelled down their right leg. The worker noted they could not finish their shift that day but returned to work the following day and worked the remainder of their shifts that week. The worker also described worsening pain, with difficulty moving and sleeping. The worker reported the delay in seeking medical treatment was due to believing the symptoms would improve but as they continued working, the symptoms got worse. The WCB spoke with the worker on July 6, 2023, who confirmed on June 12, 2023, they tripped on some tools but caught themselves from falling, twisted and felt instant pain from their lower back/left hip into their foot. The worker noted they advised their foreman of the incident on the same date. The worker advised they continued to work from June 12, 2023 to June 16, 2023 but by the end of that week, they could not move and sought medical treatment where they were referred for physiotherapy and placed off work. The worker further confirmed the injury to their right elbow was from June 1, 2023 and not part of this workplace incident. The WCB also spoke with the employer on July 6, 2023, who advised a workplace incident was not reported to them or the worker's foreman on June 12, 2023 but the worker advised on the weekend, possibly June 18, 2023, they were not doing well and would be seeking medical treatment. The employer further advised on June 19, 2023 and June 30, 2023, they received medical notes to be off work and confirmed they had duties available for the worker if they were capable of returning to work. On the same date, the WCB spoke with the worker's foreman who confirmed the worker did not report an incident to them on June 12, 2023 but on June 15, 2023, advised the foreman their knee was sore but continued to work until contacting the foreman on June 18, 2023 to advise they could barely walk and would be going to the doctor. The foreman advised the worker indicated it was their knee that was bothering them and no mention was made of a back injury.
The worker contacted the WCB on July 7, 2023 to advise they had spoken with the employer and wanted to provide clarification on reporting the injury. The worker noted the employer was advising they had not received notification of the worker's injury and advised the WCB their foreman had not written anything down as they believed the worker's injury was not work-related. Further, the worker advised when they contacted the foreman on June 18, 2023, they advised the foreman of their belief their difficulties were from their back and were going to seek medical the following the day. The worker provided the WCB with the names of the coworkers they were working on June 12, 2023, with the WCB advising the worker they would be contacting the coworkers for further information. On the same date, the employer provided the WCB with the contact information for the coworkers.
The WCB received an initial physiotherapy assessment on July 10, 2023. The worker reported they had low back pain, aggravated by any movement in their lumbar spine, a limping gait, was unable to sleep more than 20 minutes at a time and pain down their right posterior thigh and lateral lower leg with transient numbness down their left leg. The treating physiotherapist found the worker was unable to do a straight leg heel raise on the left and could only do a weak raise on the right, had a slightly diminished left S1 reflex and an antalgic gait. The worker was diagnosed with a lumbar disc herniation with radiculopathy.
On July 12, 2023 the WCB contacted the worker's coworkers. They spoke with the worker's lead hand who advised they had not witnessed the worker fall but was aware the worker had hurt their leg. The lead hand confirmed they were not aware of the worker having difficulties prior to June 12, 2023 or at the start of their shift that day. The WCB also spoke with the worker's foreman again who advised they did not see the worker trip or fall but other coworkers had mentioned the worker tripped on some tools. A coworker advised they saw the worker trip over some tools, stumble but manage to stop themselves from falling. The coworker confirmed they did not see the worker having any difficulties prior to the incident on June 12, 2023. On July 13, 2023, the WCB contacted the worker and advised they were accepting their claim and the payments of various benefits commenced.
The worker's treating physician referred the worker for an MRI study on July 21, 2023 to check for a possible L4/L5 disc herniation. The lumbar spine MRI took place on August 25, 2023 and indicated degenerative changes, not significantly changed from a previous MRI study and no significant spinal canal narrowing.
The worker attended for a follow-up physiotherapy appointment on September 15, 2023, reporting improvement but indicating they still had pain to their left lower back area aggravated with sitting and bending forward or backwards. The treating physiotherapist noted the worker was still in quite a bit of pain and had not attended for physiotherapy treatment since the initial assessment. The worker was also seen by their treating physician on September 16, 2023 and reported low back pain which radiated down their left leg to their knee, inability to sit for long periods of time and difficulties with the activities of daily living. The physician recorded the worker's neurological strength was difficult to assess due to pain and as the worker was having difficulties with the activities of daily living, indicated the worker did not have the capacity or tolerance to return to work at that time. The physician further noted the worker's range of motion had improved and the pain no longer radiated past their knee however, the treating physiotherapist had recommended the worker not sit longer for longer than 15 minutes, which would make them unfit for sedentary duties. The physician also noted the MRI study had found an L4/L5 disc bulge, which was consistent with the worker's subjective and objective findings. The employer was advised by the WCB on September 19, 2023, the worker was currently not capable of returning to work.
The worker's file was reviewed by a WCB medical advisor on October 14, 2023. After summarizing the worker's treating healthcare providers' findings, the advisor opined the worker's diagnosis in relation to the June 12, 2023 workplace accident was a low back strain, with a natural history of improvement/resolution of symptoms over a course of several weeks. The worker's current diagnosis was noted to be non-specific, non-radiculopathic low back pain. The advisor went on to provide the medical evidence on file did not medically account for the worker's current difficulties being related to the June 12, 2023 accident. In reviewing the diagnostic imaging, the WCB medical advisor provided the worker's pre-existing degenerative conditions indicated on the March 24, 2020 and August 25, 2023 MRI studies were not enhanced or aggravated by the workplace accident but that the worker's recovery was prolonged. It was noted that other than a gradual resumption of activities, no other specific treatment was recommended for the worker and the worker was not totally disabled from working. On October 16, 2023, the WCB advised the worker in a formal decision letter it had been determined their ongoing difficulties were related to a pre-existing condition and as such, they would not be entitled to further benefits after October 22, 2023.
The worker requested reconsideration of the WCB's decision to Review Office on November 23, 2023. In their submission, the worker noted their treating healthcare providers supported their ongoing difficulties were related to the workplace accident and as such, they were entitled to further benefits. On December 15, 2023, the employer's representative submitted a response in support of the WCB's decision, with the worker providing a further response on January 2, 2024 and January 5, 2024. Review Office determined on February 12, 2024, the worker was not entitled to benefits after October 22, 2023. Review Office accepted and agreed with the opinion of the WCB medical advisor the worker's current difficulties were related to their pre-existing degenerative changes and not the June 12, 2023 workplace accident. Review Office found the worker sustained a low back strain as a result of that accident, which strain had recovered by October 22, 2023.
The worker filed an appeal with the Appeal Commission on May 22, 2024 and a hearing was arranged.
Reasons
Applicable Legislation
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 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 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. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.
Worker’s Position
The worker was present at the hearing, with their sibling as a support person. The worker’s sibling provided an oral submission, and the worker answered questions posed by the members of the panel.
The worker states that the medical evidence supports that they were not recovered from their injury at the time the benefits were discontinued.
The worker’s sibling provided evidence that the worker was in a significant amount of pain and unable to work from the date of the injury in June 2023 until approximately June 2024. The worker indicated that in March 2024 they had their nerves cauterized which helped with the pain, but it was still a couple months after that before the worker was able to get back to their normal activities of daily living and assisting with chores around their home.
The worker states that they disagree with the findings of WCB that the injury is a result of a pre-existing degenerative condition. The worker states that the degenerative aspect is in relation to their lower back but that the pain they are experiencing from the workplace injury was from a disc herniation at the L4-L5 level of the spine. The worker’s position is that they had no back pain prior to their workplace injury. The worker referenced having injuries in the past but being able to recover and get back to work. The worker said that this was unlike any past injury and that they were physically unable to work through the pain.
The worker is seeking benefits after October 22, 2023 and argue that they had not recovered from the June 12, 2023 accident at that time.
Employer’s Position
The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer.
The advocate outlined the employer’s position, which is that the evidence supports that the worker recovered from the work injury and any ongoing disability would be related to a pre-existing condition, and not due to the acute effects of the work injury.
The employer’s representative states that the claim was accepted as a straightforward strain injury and the expected recovery period was six to ten weeks. It was noted by the employer’s representative that the WCB paid benefits for approximately four months, despite the expected recovery period being less.
The WCB medical advisor provided an opinion on October 14, 2023 that the worker had recovered from the acute effects of the work injury, and the employer’s position is that there is no reason to disagree with that opinion.
The employer agrees with the decision made by the WCB to end benefit entitlement and is seeking that the decision made by the Review Office remain in place.
Analysis
The question for the panel to determine is whether the worker is entitled to benefits after October 22, 2023. For the worker’s appeal to succeed, the panel would have to determine that the worker’s continuing difficulties beyond that date are causally related to the injury sustained in the compensable workplace accident of June 12, 2023. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.
The panel reviewed the notes from the treating physiotherapist and physician. The physiotherapist’s diagnosis on the initial assessment in July 2023 was a lumbar disc herniation with radiculopathy. The worker’s pain score was high and they received opioid treatment.
The worker’s treating physician indicated in a Doctor Progress Report dated September 16, 2023 that the expected healing times for herniated discs can be upwards of 6 months.
The panel reviewed the diagnostic imaging reports from March 24, 2020 and August 25, 2023. It is noted that the 2020 MRI report indicates that there were mild degenerative changes. There was minimal posterior disc bulging at L3-4 and mild to moderate nerve root narrowing at L5-S1. The 2023 MRI report references the radiculopathy the worker is experiencing and that the degenerative changes had not significantly changed since the previous MRI.
The evidence from the worker and contained in the medical reports was that the worker was suffering from radiculopathy. Despite this, the WCB medical consultant indicated in the October 14, 2023 Healthcare Service Request that “the current diagnosis is best described as non-specific, non-radiculopathic low back pain.” This does not accurately reflect the symptoms described by the worker and indicated in the reports from the treating physician and physiotherapist. The worker described numbness to their left leg following the workplace injury. Furthermore, the panel has a lack of evidence before it to confirm whether the WCB medical consultant reviewed the imaging scans themselves. The evidence suggests that the WCB medical consultant reviewed the imaging reports.
The worker indicates to WCB on October 6, 2023 that he is “always in pain” and “cannot do anything longer than 30 minutes”. The Physiotherapy Progress Report dated October 10, 2023 notes that the worker has positive Straight Leg Raise tests on both legs and weak heel raise tests. The report further notes that the worker is in “persistent pain” and lists “total disability” in regards to the worker’s work capabilities.
The file indicates that the worker was to have a follow-up appointment with their physician on October 25, 2023 and despite this, and the clear indication that the worker was not recovered from the Physiotherapy Progress Report dated October 10, 2023, the WCB terminated the worker’s benefits on October 22, 2023.
In addition, the treating physician noted on November 14, 2023 that the worker has had minimal improvement over the past few months, is currently unable to sit or walk for an extended period of time without pain and is unable to work for the time being.
The panel relies on the evidence provided by the treating physiotherapist and physician, which demonstrates that the worker was in a significant amount of pain and still unable to return work after October 22, 2023. Therefore, the panel finds that that the worker had not recovered by October 22, 2023.
Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to benefits after October 22, 2023. The worker’s appeal is granted.
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 20th day of November, 2024