The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after February 15, 2022. A hearing was held on October 17, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after February 15, 2022.

Decision

The worker is entitled to wage loss and medical aid benefits after February 15, 2022.

Background

The worker filed a Worker Incident Report with the WCB on November 19, 2021, reporting an injury to their back and neck that occurred at work on November 14, 2021 and was reported to their supervisor on the same date. The worker described stepping off a piece of equipment, losing their footing and falling approximately five feet awkwardly. The worker disclosed a prior injury to their midback that was resolved and described current symptoms including stiffness in their neck and lower back.

On November 18, 2021, the worker attended a walk-in sports medicine clinic reporting a forceful twist injury that resulted in pain all up their spine. The treating physician diagnosed lumbar and mid back strain, noting diffuse tenderness in the worker’s lumbar, thoracic, and left cervical regions with a normal upper and lower neurological exam. The physician recommended the worker remain off work until November 29, 2021 and that they could then return to work with restrictions of no lift/carry/push/pull greater than 15 pounds and no ladder climbing. X-ray imaging of November 18, 2021 indicated mild to moderate disc space narrowing at C3-C4 with anterior end plate spurring, mild disc space narrowing at C6-C7 with anterior end plate spurring, and mild disc space narrowing at L5-S1 with a compression fracture of L1 with approximately 30% to 40% loss of height and shallow retrolisthesis of the worker’s lumbar spine.

At an initial physiotherapy assessment on November 22, 2021, the worker reported stepping out of a piece of equipment, losing their footing, twisting, and catching themselves with their left hand to avoid a fall. They complained of constant neck and back pain, with increased low back pain aggravated by flexing forward, twisting, and sitting for too long, and noted feeling tightness and discomfort in their neck area with occasional numbness and tingling to their right hand. The physiotherapist recorded decreased range of motion and a stiff and apprehensive gait and provided their diagnosis of sacroiliac joint irritation/fixation and cervical spine myofascial restriction, recommending the worker remain off work for 3 weeks.

On November 22, 2021, the worker confirmed the mechanism of injury to the WCB and noted they landed awkwardly on their feet one at a time and felt a shock throughout their back and neck. The worker described stiffness in their lower back and neck, with a burning sensation at times. On November 26, 2021, the WCB spoke with the employer who noted no concerns with the worker’s report of the claim and advised they were waiting for the worker’s restrictions to determine if they had modified duties available. The WCB advised they would accept the worker’s claim. On December 1, 2021, the employer advised the WCB that the worker accepted their offer of modified duties and would be returning to work on December 2, 2021. The worker contacted the WCB on December 2, 2021 to advise that after a full shift on light duties, they experienced shooting pain and numbness down their right leg and stated they were unable to return to work.

At physiotherapy on December 3, 2021, the worker reported a flareup of their symptoms after returning to modified duties and the physiotherapist recommended the worker remain off work for 2 weeks and then be reassessed. On December 17, 2021, the physiotherapist reassessed the worker and outlined restrictions of no repetitive spinal flexion, no lifting greater than 10 pounds and no climbing or crawling, for 4-hour shifts.

On December 20, 2021, the worker attended an appointment with an orthopedic surgeon who noted the worker was “…two years post left posterior labrum repair” and following the November 14, 2021 workplace accident where they reached with their left arm to catch themselves, they reported experiencing significant pain in their left shoulder. On examining the worker, the surgeon noted full and symmetric range of motion but discomfort with terminal forward elevation, pain with cross body adduction and pain with posterior loading. The surgeon opined the worker sustained an injury to their left shoulder and recommended conservative treatment, including physiotherapy.

At follow-up with the treating sports medicine physician on December 21, 2021, the worker reported ongoing back, thoracic and lumbar pain, right leg numbness and noted some general improvement in pain. The physician queried a lumbar disc herniation and referred the worker for an MRI study. The physician also recommended sedentary office duties until January 21, 2022.

At physiotherapy on January 4, 2022, the worker reported continuing symptoms and the physiotherapist confirmed the worker’s restrictions. The WCB provided the restrictions to the employer on January 5, 2022 and the next day, the employer advised they could not accommodate the worker.

The worker attended another appointment with the sports medicine physician on January 18, 2022, reporting back pain more in their lumbar spine, with radiation into their left leg. The physician noted slightly limited range of motion in the worker’s back and diffuse paraspinal tenderness, repeated their concern that the worker had a lumbar disc herniation and indicated the MRI study was pending. The physician recommended light duties of no lift, carry, push, or pull greater than 15 pounds. These restrictions were provided to the employer on January 21, 2022.

The January 24, 2022 MRI study indicated “Remote fracture of the L1 vertebral body with 30% height loss anteriorly” and noted multilevel degenerative changes. The worker’s file, including the MRI study, was reviewed by a WCB medical advisor on February 1, 2022 who stated the initial diagnosis was a back strain, with a natural history of improvement in 2 to 6 weeks and noted that while the worker’s treating sports medicine physician indicated a concern that the worker had a lumbar disc herniation, the clinical findings did not support that diagnosis. The medical advisor went on to provide that the current diagnosis was nonspecific back pain, which required no further treatment or work restrictions. The WCB medical advisor also concluded the information on file did not support a left shoulder injury occurring in relation to the workplace accident and further, noted that although the worker reported neck difficulties to the treating physiotherapist on November 22, 2021, a December 17, 2021 physiotherapy report indicated full neck range of motion. As such, there was no further physical impairment of the neck.

On February 9, 2022, the WCB advised the worker that it determined they had recovered from the November 14, 2021 workplace accident and their entitlement to benefits would end as of February 15, 2022.

On February 25, 2022, the worker requested Review Office reconsider the WCB’s decision to Review Office. The worker stated that the treating sports medicine physician believed the workplace accident caused a disc herniation, as indicated on the MRI study. Further, the worker noted their treating physiotherapist was aware of the mechanism of injury of the November 14, 2021 workplace accident and the effect of the jerking of their left arm to try to break their fall, which resulted in difficulties with their left shoulder. As such, the worker submitted they should be entitled to further benefits.

On April 20, 2022, Review Office found the worker was not entitled to wage loss or medical aid benefits after February 15, 2022. Review Office determined the medical evidence on file supported a finding of recovery from the workplace accident. Review Office relied on the MRI findings which did not indicate any new structural changes to the worker’s low back and the WCB medical advisor’s opinion that the worker’s diagnosis was a strain type injury and found the medical information on file did not support ongoing disability.

The worker submitted a September 28, 2022 report from their treating chiropractor to the WCB on October 25, 2022, in addition to a September 27, 2022 x-ray. The chiropractor outlined their opinion that the forceful twisting motion and the awkward landing of the November 14, 2021 workplace accident was sufficient to cause the low back difficulties reported by the worker, which required further treatment and specific exercises to relieve.

A WCB medical advisor reviewed the new medical information on December 4, 2022 and advised there would be no change to the previous medical opinion placed to file. The medical advisor noted that although the treating chiropractor indicated the retrolisthesis at L5 was very unstable and serious, the grade 1 rating implied it was mild. Further, the medical advisor noted the September 27, 2022 x-ray findings were similar to the pre-accident findings on a May 18, 2018 x-ray.

On December 16, 2022, the WCB advised the worker that on review of the medical information provided, the decision they were not entitled to benefits after February 15, 2022 was unchanged.

The WCB received a December 16, 2022 report from a physiatrist on January 1, 2023. The physiatrist noted their clinical findings indicated the worker had normal range of motion in their lumbosacral spine, negative bilateral straight leg raise testing, and normal reflex testing and outlined their opinion that the worker had left L5 or S1 radicular pain with a normal spinal and neurological examination.

A WCB medical advisor reviewed this new medical information on February 14, 2023. The medical advisor noted the physiatrist’s findings of right leg pain, which “…probably pertains to MRI noted neuroforaminal narrowing” and found it was related to the worker’s pre-existing degenerative condition. The medical advisor concluded the worker’s current difficulties related to their pre-existing condition as the worker was recovered from the compensable lumbar strain.

On February 15, 2023, the WCB advised the worker that there would be no change to the earlier decision they were not entitled to wage loss and medical aid benefits after February 15, 2022.

On April 18, 2023, the worker’s representative requested Review Office reconsider the WCB’s decision, providing two new opinions from the worker’s treating sports medicine physician dated September 27, 2022 and December 14, 2022. The representative submitted that the evidence indicated the worker sustained an injury more significant than a strain on November 14, 2021. In the alternative, the representative submitted that if the WCB found the worker had a pre-existing disc herniation, the workplace accident aggravated that pre-existing condition and as such, the worker required further treatment.

On May 17, 2023 Review Office upheld the previous decision the worker was not entitled to wage loss or medical aid benefits after February 15, 2022. Review Office found the medical evidence on file did not support a finding that the worker’s pre-existing degenerative changes were aggravated or enhanced by the November 14, 2021 workplace accident, noting the worker’s current back difficulties, including radicular symptoms, did not start for several weeks after the workplace accident. Review Office also found that if the worker aggravated or enhanced the degenerative changes, there would not have been a delay in symptom presentation.

The worker’s representative filed an appeal with the Appeal Commission on June 1, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and was forwarded to the interested parties for comment, the appeal panel met on March 6, 2024 to render a final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, 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.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 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 s 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 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 WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy outlines that when a loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker’s Position

The worker appeared in the hearing and was represented by a worker advisor, who provided an oral submission and relied upon their prior submission in writing to Review Office, dated April 17, 2023. The worker provided testimony in the hearing through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that as a result of the compensable workplace accident of November 14, 2021, the worker sustained injury to their back and neck, and that as a result of that injury, the worker continued to experience symptoms and to require treatment and was not able to return to their pre-accident job duties without restrictions. As the employer could not accommodate the worker’s restrictions and as the evidence confirms a need for ongoing treatment beyond February 15, 2022, the worker is entitled to further wage loss and medical aid benefits after that date.

The worker advisor submitted that the worker’s ongoing symptoms indicated the worker sustained more than just a sprain/strain injury to their back and that the medical reporting supports a finding that the worker also sustained injury to the L5-S1 disc as confirmed by the diagnostic imaging and the clinical findings of neurological symptoms.

The worker advisor submitted the evidence confirms the worker was not fully recovered from the workplace injuries as of February 15, 2022 but continued to demonstrate ongoing lower back pain with associated radicular pain and paresthesia, and as a result required workplace restrictions which the employer confirmed it could not accommodate.

The worker provided testimony confirming that they did not have lower back pain prior to the workplace accident, and that after the accident, they experienced sharp stabbing pain that radiated down their left leg. The worker described that their attempt to return to work in December 2021 was difficult and that even undertaking the modified duties offered was painful. The worker confirmed that before the accident they had no difficulty in completing their job duties, which are physically demanding.

As a result, the worker continued to sustain a loss of earning capacity in relation to the compensable workplace lower back injury beyond February 15, 2022 and further, required medical aid beyond that date in relation to that injury. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by a staff member who made an oral submission on behalf of the employer and relied upon the written submission provided in advance of the hearing.

The employer’s position is that the worker had a pre-existing shoulder and back condition when they were first hired by the employer, and that the worker would regularly miss work due to back pain before the accident occurred.

The representative confirmed that the employer initially offered modified duties to the worker after the accident but that with the restrictions provided in February 2022, the employer was not able to continue to do so due to the nature of their business.

Analysis

The issue in this appeal is whether the worker is entitled to further wage loss and medical aid benefits after February 15, 2022. For the worker’s appeal to succeed the panel would have to determine that the worker continued to sustain a loss of earning capacity or to require medical treatment after February 15, 2022, in relation to the compensable workplace injury of November 16, 2021. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel confirms that although the information contained in the worker’s claim files relates to both back and shoulder injuries, the worker’s representative stated in the hearing that the worker’s appeal is in relation only to their low back injury, and as such, the panel focused its review of the evidence on that specific injury.

The panel noted the basis for the decision appealed from was an opinion provided by the WCB medical advisor on February 1, 2022 that the worker likely sustained a back strain injury as a result of the workplace accident. The medical advisor concluded that although there was concern noted by the treating physician that the worker may have herniated a lumbar disc, this was not supported by the clinical findings at that time. The medical advisor further noted the expected time for recovery from a back strain was within 2-6 weeks and concluded that the worker’s diagnosis at that time was of nonspecific back pain, noting the absence of any “objective physical impairments of the back in relation to the workplace injury” and no acute findings evident in the January 24, 2022 MRI study. The panel noted that when the WCB medical advisor provided this opinion, they had not reviewed the February 1, 2022 physiotherapy findings in relation to the request for further treatment of the worker’s back and shoulder issues.

The panel considered whether the evidence from the treating medical providers supports a finding that the worker was not recovered from the workplace injury by February 15, 2022. We noted that the WCB relied upon the WCB medical advisor’s opinion and their comments as to recovery norms for such a lower back strain/sprain injury; however, the panel finds that such recovery norms are a guidepost only and may not be appropriate to rely upon where there is evidence of ongoing concerns or a pre-existing condition that may delay recovery.

Here, there is evidence before the panel of recommendations for further treatment and follow-up beyond February 15, 2022. The treating sports medicine physician planned for follow-up with the worker on or after February 23, 2022 and the treating physiotherapist requested an extension of treatment beyond February 1, 2022 in relation to the injuries sustained in the workplace accident, including the worker’s low back injury, noting that the worker’s recovery may be impacted by the worker’s pre-existing left shoulder and low back injuries.

While we accept the WCB medical advisor’s conclusion that the worker sustained a lower back sprain/strain injury as a result of the workplace accident, we also accept that this injury occurred in the environment of the worker’s multi-level degenerative back condition, as confirmed by the diagnostic imaging. We are satisfied that this degenerative condition was pre-existing and was not the result of the workplace accident, but also accept that this condition may have contributed to a delay in the worker’s recovery, as indicated by the treating physiotherapist.

The panel further noted that the treating medical providers agreed that the worker could continue to work within the restrictions outlined by them; however, the evidence confirms that the employer was not able to accommodate the worker’s restrictions after January 2022, and this was confirmed by the employer’s representative in the hearing. Further, we noted that both the treating sports medicine physician and the treating physiotherapist recommended continuing restrictions beyond the date of the WCB decision and neither indicated that the worker was ready for a return to work without restrictions. As such, we find that there is evidence that the worker’s continuing loss of earning capacity beyond February 15, 2022 is related to the workplace accident.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker is entitled to wage loss and medical aid benefits after February 15, 2022. This is a point in time decision and the panel makes no determination as to the duration or extent of the worker’s ongoing entitlement to wage loss or medical aid benefits, which will be decided by the WCB. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of April, 2024