The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 15, 2000, at the request of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that no responsibility would be accepted for the claimant's neck problems and migraine headaches as they were not considered related to his claim for injuries occurring on June 14, 1985, April 23, 1986 and on April 10, 1987. The Panel discussed the appeal on November 15, 2000 and March 6, 2001.

Issue

Whether or not the claimant's current and ongoing neck problems and migraine headaches are related to the compensable injuries of June 4, 1985, April 23, 1986 or April 10, 1987.

Decision

That the claimant's current and ongoing neck problems and migraine headaches are not related to the compensable injuries of June 4, 1985, April 23, 1986 or April 10, 1987.

Background

While employed as a drywaller on June 14, 1985, the claimant was pulling himself along a 6 foot high scaffold when a wheel caught an obstruction. The claimant reported that he jerked the scaffold over the obstruction and felt a crack in his neck and slight pain in his left shoulder. On his application for compensation, the claimant noted that he had previous trouble with a whiplash injury.

A Doctor's First Report of Injury dated June 19, 1985, noted painful neck movements and extreme stiffness. There was reduced mobility of the neck. There was tenderness in the upper and middle trapezius. The diagnosis rendered was a left upper and middle trapezius strain with right upper trapezius muscle strain. Pre-existing conditions were noted as right sciatica and sacroiliitis dating back to 1982.

Regular progress reports were received from the attending physician concerning the claimant's progress. On July 8, 1985, the physician stated that the whiplash neck injury was resolving. There was a reducing frequency of headaches noted as suboccipital muscle tension. On July 26, 1985, the claimant was diagnosed as sustaining a whiplash injury with mainly right trapezius and sternomastoid components. On August 26, 1985, the diagnosis was whiplash injury with gradual improvement and left arm neuritis. On September 9, 1985 the diagnosis was left trapezius strain with resolving whiplash/ligamentum nuchae sprain and left arm neuritis resolved. On September 23, 1985, the physician stated there was no more muscle tension headaches. The diagnosis was resolving neck muscle strain.

On October 22, 1985, the claimant telephoned the Workers Compensation Board (WCB) offices to advise that he was returning to work.

While walking at a construction site on April 23, 1986, the claimant reported that he slipped on spilled paint, landing with his rear end on the concrete floor jarring his back. The diagnosis rendered by the attending physician was a lumbar muscle strain and minor right sacroiliitis. In a subsequent progress report dated July 18, 1986, the physician noted that the left sacroiliitis had resolved. On July 21, 1986, the claimant advised the WCB that he was returning to work.

On April 10, 1987, the claimant was trying to prevent a sheet of drywall from falling when he wrenched his neck and shoulder and right elbow. The claimant was diagnosed with an acute cervical torticollis and right tennis elbow as a result of the accident.

On November 25, 1987, the claimant was examined by a WCB orthopaedic surgeon. The orthopaedic surgeon noted that the claimant's neck had recovered although he had occasional discomfort when turning to the right. There was full range of rotation on lateral bending to the left, with limitation of rotation on lateral bending to the right. There was a residual swelling and a well-defined trigger point in the trapezius muscle at the base of the neck on the right. On April 11, 1988, the physician reported that the claimant's right neck torticollis condition had resolved.

Subsequent review of medical documentation showed that the claimant was mainly treated for his right elbow and shoulder condition and on a few occasions complained of a recurrence of his right trapezius muscle strain.

In a letter dated November 26, 1992, the claimant's treating physiotherapist reported that the claimant complained of right sided headache, pain at the right side of the neck with radiation to the upper trapezius and right shoulder on March 12, 1992. The therapist indicated that the claimant was prone to headaches and migraines. The headaches were usually located at the temporal and frontal region but at times could be "all over.

Following assessment of the claimant on June 8, 1993, a WCB medical advisor noted that it was over six years since the claimant sustained an injury which was diagnosed as a torticollis with residual left greater than right trapezius muscle strain and right elbow lateral epicondylitis. The claimant continued to experience intermittent headaches and right posterior neck and upper extremity symptoms. With respect to the headaches, the medical advisor noted that the claimant's aura and visual symptoms suggested he suffered from classic migraines, however such headaches usually began in childhood, adolescence or early adult life and recur in diminishing number and intensity during advancing years. "Given the development of his headaches since 1987, it was more probable his headaches were muscular in nature. However, it would be unusual for muscular headaches to be accompanied by the type of symptoms [the claimant] describes. For this reason, I believe the claimant should be evaluated by a neurologist as to the basis and treatment options for his recurrent headaches."

In a report by the family physician dated July 30, 1993, he noted that palpation of the trapezius muscles showed no local tenderness, which re-affirmed that the recurrent right trapezius muscle strain (initial) had resolved, and showed a full range of motion in the neck.

On September 1, 1993, a neurologist reported that it was the claimant's view that his headaches had never been serious prior to the 1987 accident. Prior to this, the claimant would have mild headache once every three months which did not require any treatment and the headache would last one to two hours. Neurological examination was completely normal. The neurologist concluded that the claimant had recurrent headaches which occur fairly frequently. He considered these to be migraine but he could not make a direct association to the injury of the spring of 1987. "One could stretch it and state that the stress of the injury triggered the onset of migraine headaches that might otherwise have occurred as well but this is purely hypothetical."

In a letter from the family physician dated April 28, 1998, he reported that the claimant complained of a stiff and painful neck with gross restriction in neck movements and referred pain to the right shoulder, and occasional left arm neuritis since January 1998. There was minimal active range of motion of the neck into flexion and extension, one-quarter to one-third of range of motion on right lateral rotation and three-quarters of range of motion on left lateral rotation. There was ++ tenderness in the paravertebral region from C8 to T6, +++ tenderness from C8 to T1 and +++ tenderness of the left upper fibers of the trapezius at the shoulder level.

On June 1, 1998, a WCB medical advisor was asked to review the case and provide an opinion as to whether there was an ongoing cause and effect relationship between the claimant's neck complaints and the compensable injury. In response, the medical advisor noted that the claimant sustained a trapezius muscle strain as a result of the April 10, 1987 work place event. "The claimant's current cervical condition, including the limited cervical range of motion findings of September 4, 1997 and the findings at the cervical spine reported by the family physician in the letter of April 28, 1998 is not likely a consequence of a trapezius strain sustained on April 10, 1987."

On July 7, 1998, primary adjudication advised the claimant that in its opinion, his current neck complaints were not related to the April 10, 1987 accident. It was noted that the claimant sustained a trapezius muscle strain as a result of the accident. The current cervical condition, including the limited cervical range of motion, would not be a consequence of the trapezius strains sustained on April 10, 1987.

In a letter dated April 15, 1999, the claimant referred to the July 7, 1998 letter from primary adjudication. The claimant agreed that the muscle strain in his neck had resolved but the main problem was within the joints of the neck. He stated that he had a whiplash injury while attending physiotherapy while on compensation in 1984 and again while working in 1986. Since the last injury he had been getting migraines on a regular basis. The claimant advised that a specialist determined that his migraines were not food or allergy related.

Prior to considering the appeal, primary adjudication sought the opinion of a WCB medical advisor on June 29, 1999. The medical advisor reviewed the 1985, 1986 and 1987 claims and provided an opinion as to the cause of the claimant's current neck complaints. On July 15, 1999, the claimant was notified that it was the opinion of the WCB that his current neck complaints were not related to the 1987 work injury or the injuries sustained prior to that date. On July 25, 1999 and January 2, 2000, the claimant appealed the decision to Review Office.

On May 19, 2000, Review Office determined that no responsibility would be accepted for the claimant's neck problems and migraine headaches as they were not considered related to his claim for injuries occurring on June 14, 1985, April 23, 1986 and April 10, 1987.

With respect to the 1985 claim, Review Office stated that the claimant was diagnosed with a left upper and middle trapezius strain and by September 1985 the attending physician reported residual findings related to this and a resolving whiplash. The claimant's time loss from this injury between June 1985 and October 1985, was consistent with a strain and nothing more of any permanent nature.

Review Office referred to the April 23, 1996, accident, stating that it dealt with the lower back and was unrelated to any neck problem experienced by the claimant. With respect to the 1987 compensable injury, Review Office considered the WCB's orthopaedic surgeon's findings of November 25, 1987. Review Office noted as well that diagnostic investigations and negative neurological examinations failed to show that the claimant had any longstanding injury to the neck arising out of the 1987 claim.

In August 2000, the claimant appealed Review Office's decision and an oral hearing took place on November 15, 2000. Prior to rendering a decision, the Appeal Panel requested that additional information be obtained from the claimant's treating neurologist.

On January 9, 2001, the treating neurologist responded to the Panel's request for additional information. In summary, the neurologist stated, "his current symptoms which relate to his headaches and neck pains are not causally related to his previous compensable injuries which are documented in your correspondence. As indicated the only relationship that one could speculate is that ongoing stress can aggravate headaches, but the time that has passed since the injury is far too long to continue to make a causal relationship. One would have expected aggravation of pre-existing headaches to be temporary in nature, lasting only a matter of weeks or months at most."

On January 15, 2001, the neurologist's report was forwarded to the claimant for comment. On January 24, 2001, the claimant requested additional time to prepare his final arguments to the Panel as he was scheduled to see his physician on February 15, 2001. The claimant's request for additional time was granted. On March 6, 2001, the Panel met to discuss the case further and took into consideration a letter from the claimant dated February 23, 2001.

Reasons

The Appeal Panel is of the unanimous opinion that on a balance of probabilities, the claimant's current and ongoing neck problems are not related to his compensable injuries of June 4, 1985, April 23, 1986 or April 10, 1987. We have arrived at this conclusion after a review of all of the evidence on the claimant's WCB files and after taking into account both the verbal and written evidence and statements of the claimant.

We note that with respect to the June 14, 1985 injury, the claimant's injury appeared to have resolved and the claimant returned to work on October 22, 1985. With regard to the April 23, 1986 injury, the claimant was advised by his physician that his injury had resolved and he returned to work on June 21, 1986. Finally, with regard to the November 25, 1987 injury, the claimant returned to work after his physician reported on April 11, 1988 that his condition had resolved. Since that time the vast majority of the medical personnel that have either seen or reviewed the claimant's file have been of the opinion that there is no causal relationship between the sustained injuries and the neck problems and headaches that the claimant began to complain about several years later.

Of particular note is the very thorough review of the claimant's file undertaken by the WCB's medical advisor and documented in a memo to file dated June 29, 1999. With respect to the June 14, 1985 injury this doctor was of the opinion that the "mechanism of injury was not likely that of a "whiplash injury." He found that given the nature of the injury and the "natural history of a trapezius muscle strain" injured in the manner reported by that claimant, that there would not have been any long term difficulties.

With respect to the April 23, 1986 injury he found that none of the medical reports submitted surrounding that claim, provided any reference to cervical symptomatology. Accordingly, no connection could be made to the current difficulties complained of by the claimant.

Lastly, he found that with regard to the April 10, 1987 injury that the diagnosis was multi factorial after reviewing the existing medical reports of April 1, 1988 and July 30, 1993, which indicated a resolution of the right neck strain. He found that the current neck symptoms were not likely a direct consequence of the injury.

We have also given a great deal of weight to the opinion of the claimant's current treating specialist. In his report dated January 9, 2001, the specialist noted firstly that he had a full history of the injuries sustained by the claimant and secondly that all tests that he had ordered to be done on the claimant had been returned normal. He was of the view that the claimant's headaches and neck pains were not causally related to his previous compensable injuries. He also felt that ongoing stress from the injuries would not be a factor in causing the headaches as far too much time had passed since the injuries.

In conclusion, this Panel is not able to find in the evidence a causal relationship between the current difficulties complained of and the compensable injuries. Accordingly, the claimant's appeal is denied.

Panel Members

K. Dunlop, Q.C., Presiding Officer
R. Brazzell, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of April, 2001