The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file Review was held on November 6, 2000, at the request of the claimant.

Issue

Whether or not responsibility can be accepted for the claimant's ongoing neck problems;

Whether or not responsibility can be accepted for the claimant's low back problems; and

Whether or not the claimant is entitled to payment of further wage loss benefits.

Decision

That responsibility can not be accepted for the claimant's ongoing neck problems;

That responsibility can not be accepted for the claimant's low back problems; and

That the claimant is not entitled to payment of further wage loss benefits.

Background

During the course of his employment as a truck driver on March 17, 1998, the claimant was involved in a motor vehicle accident when a tractor trailer unit struck the claimant's tractor trailer unit. As a result of the accident, the claimant sustained a compensable whiplash injury and a sprained right thumb. The claimant received compensation benefits between March 18, 1998 and April 13, 1998, and then returned to work as a truck driver on April 14, 1998.

On December 2, 1998, the claimant's wife contacted the Workers Compensation Board (WCB) indicating that her husband was off work again at the advice of his attending physician.

In a further memo dated December 16, 1998, the claimant advised a WCB adjudicator that when he returned to regular full time duties as a truck driver in April 1998 he was not 100% but was able to perform his job. He stated that his neck pain became progressively worse to the point where he sought medical attention. The first appointment was on December 1, 1998. The claimant stated his initial injury was to both the right and left side of his neck but after a couple of weeks of work the left side felt better and the right side became worse. The claimant stated he had increased headaches and had to start taking Tylenol for the pain.

On January 4, 1999, a WCB medical advisor reviewed the file documentation and noted that the claimant was able to work for seven months and that a whiplash injury was expected to heal in 3-6 weeks. It was noted in the progress report of April 9, 1998, that the attending physician reported that the claimant had good range of motion and no problems. The medical advisor was therefore of the opinion that on balance, the claimant's current problems were not directly related to the compensable injury. Based on this opinion, the claimant was informed on January 7, 1999, that the WCB was unable to accept responsibility for his recent neck difficulties.

In a February 5, 1999, submission to case management, a worker advisor referred to a February 4, 1999 report from the claimant's attending physician. In this report, the physician stated there was a direct relationship between the claimant's present symptoms and the compensable injury of March 17, 1998. The case was referred to the WCB's healthcare branch for review of the report.

On February 16, 1999, a WCB medical advisor stated, in part, the following:

"Even with the new narrative there is no objective evidence that claimant continued to suffer ongoing symptoms from early August until early November and on balance, I cannot agree that present problems are a direct result of the March 17, 1998, compensable accident."

Subsequently, a medical report was received from an orthopaedic specialist dated March 11, 1999. The orthopaedic specialist concluded the following based on his examination findings:

"This 53 year old gentleman has neck pain, mostly on the right side that was triggered by a MVA almost a year ago. On clinical exam most of the findings are mechanical. Radiologically he has some narrowing of the C3 and C4 foramina and probably some osteoarthritis of the facets at this level. It is hard to say whether the x-ray findings are secondary to his accident or just degenerative in nature. According to the history, it would appear that if he has some degree of osteoarthritis at that level that the accident basically tipped him over and decompensated something that he had been somehow well tolerated up to that point."

On July 9, 1999, the case was considered by Review Office at the request of a worker advisor. Review Office determined that the claimant's neck problems were, on a balance of probabilities, related to the March 17, 1998, compensable accident. Review Office concluded that the severe degenerative changes in the claimant's cervical spine and the nature of his work, would in all likelihood serve to prolong his recovery beyond the 6 to 8 weeks norm expected of most strain injuries. The claimant's benefits were reinstated effective November 29, 1998 and were paid to May 24, 1999, when the claimant returned to work.

On September 22, 1999, the claimant's wife advised a WCB adjudicator that her husband was still missing time from work. The claimant had been working for a resort but was now doing odd jobs including pouring cement and some manual labour. The claimant was unable to continue with his driving as he had a hard time with neck movements. On September 28, 1999, a WCB orthopaedic consultant concluded the following after review of the medical reports:

• "The degenerative changes noted throughout this file are pre-existing and not the result of the work related injury.
• The work related injury could have caused an aggravation of pre-existing asymptomatic degenerative changes and that aggravation would not persist beyond 6 months.
• There is no evidence that the claimant is unable to return to his pre-accident duties as a truck driver apart from his statements. Please note there is no medical information on file to confirm that he had ongoing difficulties when he returned to work, in fact Dr. [attending physician], whose reports have been generally very advocative noted in a Doctor's First Report of December 1, 1998 'patient was fine until approximately one month ago'."

In a decision dated November 30, 1999, the claimant was advised that there was no objective medical evidence to support that he was unable to return to his pre-accident duties as a truck driver. The evidence indicated that his current disability was the result of an underlying or pre-existing condition. It was the opinion of the adjudicator that any aggravation of the pre-existing condition, which was a result of the compensable injury, had resolved.

On April 6, 2000, a worker advisor submitted additional medical information from a neurosurgeon dated March 20, 2000 which she felt supported her position that the claimant's ongoing neck problems were a result of his compensable injury and that benefits and services should be continued beyond May 23, 1999. The neurosurgeon indicated that if it was accurate that the claimant did not have much neck symptoms before the traffic accident and the symptoms started shortly after the March 17, 1998, accident, then the traffic accident had contributed significantly to his ongoing neck problems. The specialist further stated that even if the pre-accident cervical spine x-rays showed moderate degenerative changes but they were not causing symptoms then it took the traffic accident to turn the preexisting asymptomatic degenerative changes into a symptomatic one, then the traffic accident should still be held as being significantly contributory to the problem. On April 12, 2000, Rehabilitation & Compensation Services informed the worker advisor that no change would be made to its previous decision based on the new medical evidence. The case was referred to Review Office for consideration.

On June 23, 2000, Review Office determined that no responsibility could be accepted for the claimant's ongoing neck complaints, that the claimant was not entitled to further wage loss benefits and that no responsibility could be accepted for low back problems. Review Office noted that a WCB orthopaedic consultant found no appreciable interval change when he compared two x-ray examinations of the claimant's cervical spine taken on April 6, 1998 and March 10, 1999. In Review Office's opinion, this negated the neurosurgeon's comments that the accident enhanced the claimant's pre-existing cervical disc degeneration.

Review Office further noted that when the claimant was examined by the neurosurgeon on November 24, 1999, the specialist had not been informed that the claimant was at the time performing work as a construction labourer for a bridge repair firm. It seemed to Review Office that this work would be more physically demanding than driving a semi-trailer truck. This called into question the neurosurgeon's comments with respect to the claimant's ability to perform his pre-accident work as a truck driver.

Review Office noted that the claimant left the Province of Manitoba on December 17, 1999 due to the fact that his son-in-law came to take him to Alberta for the Christmas season, not because the claimant was unable to fulfil the requirements of his employment obligations. The work he was performing ended shortly thereafter in January because of seasonal layoff. There was no indication that the claimant was unable to perform his work or that he reported any injuries to the bridge repair company.

Finally, Review Office concluded that any problems experienced by the claimant with regard to his lower back were not a consequence of the compensable accident. On July 7, 2000, the claimant appealed Review Office's decision and a non-oral file review was held. A report dated October 1, 2000, was taken into consideration from a clinical neuropsychologist.

Reasons

As the background notes indicate, the claimant was involved in a motor vehicle accident on March 17th, 1998 while in the course of his employment. According to the physician's first report of injury the claimant suffered a soft tissue injury to the cervical spine referred to as a whiplash and a sprain of his left thumb.

An orthopaedic specialist examined the claimant in early March 1999. We note in particular several of his findings and conclusions:

"Clinically he has a normal stance. Range of motion of his neck is good. He is able to bring his chin down to the chest and also he looks up to the ceiling with ease. Rotation is also full. Lateral bending is limited on the left because of a pulling sensation on the right. Also, when asked to rotate the head towards the right side against resistance that causes a lot of discomfort.

There is (sic) no objective signs of nerve root irritation. X-rays of the cervical spine show some spondylosis of the C3 and C4. There may be some narrowing of the foramina at this level.

On clinical exam most of the findings are mechanical. Radiologically he has some narrowing of the C3 and C4 foramina and probably some osteoarthritis of the facets at this level. It is hard to say whether the x-ray findings are secondary to his accident or just degenerative in nature. According to the history, it would appear that if he has some degree of osteoarthritis at that level that the accident basically tipped him over and decompensated (sic) something that had been somehow well tolerated up to that point."

On September 28th, 1999 a WCB orthopaedic consultant at the request of a case manager was asked to review the file. In a memorandum bearing the same date, the consultant provided the following opinion:

"The degenerative changes noted throughout this file are pre-existing and not the result of the work related injury.

The work related injury could have caused an aggravation of pre-existing asymptomatic degenerative changes and that aggravation would not persist beyond 6 months.

There is no evidence that the claimant is unable to return to his pre-accident duties as a truck driver apart from his statements. Please note that there is no medical information on file to confirm that he had ongoing difficulties when he returned to work, in fact Dr. [treating physician], whose reports have been generally very advocative (sic) noted in a Doctor's First Report of December 1, 1998 'patient was fine until approximately one month ago'."

The evidence confirms that the claimant worked during the spring and summer of 1999 at a resort performing general handyman duties. Later in the fall of that same year he went to work for a construction firm for whom he mainly drove a truck. These facts clearly demonstrate to us that the claimant's neck difficulties did not present a barrier to his performing employment duties. Finally, there is a letter on file dated June 13th, 2000 from the claimant's physiotherapist, in which he states, "Past medical history was reported as previous (now resolved) hypertension and motor vehicle accident 2 years ago with crush injury to fifth cervical vertebra".

We find based on the preponderance of evidence that the claimant's neck difficulties have, on a balance of probabilities, long since resolved and therefore no further responsibility can be accepted by the WCB.

There is no evidence to suggest that the claimant's back problems are in any way related to the compensable injury of March 17th, 1998. According to a June 13th, 2000 Health Authority report to Review Office, the claimant, when initially assessed on April 20, 2000, advised of "a 6-8 month history of lower back pain with referral to the left groin which began for no apparent reason". In addition, he denied any previous history of lower back pain. We find based on the weight of evidence that no responsibility can be accepted for the claimant's low back problems. Given our findings with respect to the first two issues, it necessarily follows that the claimant is not entitled to payment of further wage loss benefits.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of December, 2000