WCB benefits discontinued for back injury; back pain not considered
Entitlement to ongoing workers’ compensation benefits should not have been cut off without a broader consideration of whether a workplace accident aggravated a worker’s chronic back pain rather than a specific degenerative condition, the British Columbia Supreme Court has ruled.
The worker had a history of back pain that affected his ability to function at work. His first back injury was in 1989, resulting in him taking four years off work. He sustained a work-related injury in 2004 that kept him off work for seven months. At that time, scans of his spin showed degenerative changes in the lumbar and lumbosacral levels along with a chronic condition.
When the worker returned to work, he was accommodated with limited work hours and minimal use of ladders. The back pain continued, but the worker tried to mitigate it with exercises and reduced activities.
On Feb. 8, 2017, the worker slipped on some ice while working and fell backwards, hitting his hand and shoulder against a house. He then fell to the ground on top of his toolbox, immediately causing pain in his back.
Pre-existing condition predisposed worker to injury
The worker’s family doctor, who had treated the worker’s chronic back pain since 2000, reported that the worker’s condition had worsened since the workplace accident. An MRI led to a diagnosis of “acute lumbosacral sprain” that was a pre-existing condition that predisposed the worker to further injury, according to a WCB medical advisor.
The worker was unable to return to work and his back pain increased to a chronic state with restricted activity. He successfully applied to the BC Workers’ Compensation Board (WCB) for benefits for a back strain injury.
In June 2017, the WCB terminated the worker’s benefits, determining that the February accident did not cause an aggravation of his pre-existing degenerative back conditions. The decision was backed by another WCB medical advisor who found that there was “no objective evidence of aggravation” and the worker’s symptoms and slow recovery were due to his reaction to the injury rather than “the physical changes pre-dating this claim.”
The worker appealed to the review division, but the WCB’s ruling was upheld. The review division sought the opinion of another medical advisor, who said that the spreading of the worker’s symptoms was “not consistent with the normal healing of an acute lumbar strain injury,” which was two-to-six weeks. The advisor felt that the injury had resolved and the ongoing diagnosis was chronic back pain.
Policy required medical evidence of aggravation
The review officer considered the WCB policy manual that stipulated that ongoing benefits when there was a pre-existing condition must be supported by evidence that the pre-existing condition was accelerated more quickly than it would have without the employment activity that aggravated it.
The review officer emphasized that they only made findings in relation to the resolution of the back strain injury and not whether the chronic pain was causally related to the workplace injury.
The worker appealed to the Workers’ Compensation Appeal tribunal. An August 2018 medical report from the worker’s family doctor stated that the worker “significantly aggravated his pre-existing chronic back pain and related chronic pain syndrome,” the February 2017 injury “caused significant deterioration in his level of function,” the worker’s condition had not reached the point of maximal medical recovery, and the worker continued to be functionally disabled by chronic back pain and unable to return to work.
The tribunal found that the August 2018 medical report didn’t sufficiently address the WCB medical advisor’s opinion on the nature of the pre-existing degenerative changes. It relied on the medical advisor’s opinion that there was no aggravation of the pre-existing condition. However, it found that the worker’s back strain injury had not resolved or stabilized and it continued to cause temporary disability. As a result, the tribunal found that the worker’s wage loss benefits should be extended. It also noted that it was too soon to determine if the worker had an actual or potential permanent partial disability – if he did, he would be entitled to chronic pain benefits once his strain injury stabilized, said the tribunal.
The worker appealed to the court, contending that the tribunal’s decision was patently unreasonable in that it failed to consider whether the workplace accident aggravated his pre-existing back condition. If it was found that the accident did aggravate his condition, he would be entitled to new WCB decisions pertaining to wage loss, vocational, and pension benefits, he argued.
Definition of pre-existing condition too narrow: court
The court found that both the review division and the tribunal narrowly defined the worker’s pre-existing condition to the degenerative disc changes and chronic spinal condition. This led to a failure to consider the worker’s chronic back pain as a pre-existing condition and a failure to weigh competing evidence from the worker’s doctor and the initial WCB medical advisor against the later advisor’s opinion that there was no evidence of aggravation of the pre-existing condition, said the court.
“The [tribunal] provided no explanation for having interpreted the policy so narrowly, nor for having failed to consider whether there were alternative characterizations of [the worker’s] pre-existing condition supported by the medical evidence” such as that the pre-existing condition could have been “a level of functionally significant, but not disabling” chronic back pain,” the court said.
The court noted that “a notorious feature of back pain” was that symptoms and functionality can worsen without changes in MRIs or other scans. Requiring objective evidence of accelerated degeneration as a precondition to benefits for aggravating a pre-existing condition was creating “an impossibly high standard” for the worker to be eligible for ongoing WCB benefits, said the court.
The court found that the tribunal should have treated the lack of objective medical evidence of physical changes to the worker’s degenerative conditions “not as conclusory, but at best as only one piece of the puzzle.” The worker’s appeal was granted and the matter was remitted to the tribunal for reconsideration. See Edwards v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCSC 1277.
