The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 21, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on January 21, 2002.

Issue

Whether or not the worker's headaches and neck problems are related to the workplace injury of June 30, 1998;

Whether or not the worker is entitled to compensation benefits beyond February 29, 2000; and

Whether or not a Medical Review Panel should be convened.

Decision

That the worker's headaches and neck problems are not related to the workplace injury of June 30, 1998;

That the worker is entitled to compensation benefits beyond February 29, 2000; and

That a Medical Review Panel not be convened.

Decision: Unanimous

Background

On June 30, 1998, the claimant was cleaning a shade and a 4 foot florescent bulb when the bulb exploded causing injuries to her left eye and arm. On the day of accident, the claimant attended a local hospital for treatment and was diagnosed with a left corneal abrasion and multiple abrasions/lacerations of the left arm. The Workers Compensation Board (WCB) accepted responsibility for the claim and wage loss benefits commenced on July 3, 1998. On July 17, 1998, the attending physician noted that the claimant was referred to an eye specialist and was complaining of headaches.

In an August 11, 1998 report, the treating ophthalmologist reported that the claimant complained about not seeing well out of her left eye and that she started getting bilateral headaches daily. Following assessment, the specialist advised the claimant to get a pair of glasses, which may alleviate the problem with her vision and headaches.

On September 15, 1998, the attending physician noted that the claimant complained of continual headaches and left eye discharge. There was tenderness noted in the cervical paraspinal neck area. The diagnoses recorded were chronic conjunctivitis and muscular contraction headaches. On September 22, 1998, the physician diagnosed the claimant with cervical paraspinal strain and the claimant was referred for physiotherapy treatments.

The claimant was in contact with a WCB adjudicator on October 23, 1998. The claimant advised that at the time of her accident the light exploded she abruptly jumped back. The claimant indicated that her neck was sore and that her doctor thought her headaches stemmed from her neck.

A WCB medical advisor reviewed the case on November 9, 1998 and provided the opinion that the claimant’s neck complaints were not related to the compensable accident based on the fact that there was no reporting of same until September 1998.

In a November 10, 1998 report, a neurologist commented that the claimant had never been prone to headaches, but was now quite troubled with constant waxing and waning discomfort, which had come on since the June 30^th accident. He also stated that the claimant presumably injured her neck at the time of the accident and that it has been sore ever since. The neurologist concluded his report by saying that the claimant suffered from cervicogenic headaches.

A WCB medical advisor reviewed the case again on January 13, 1999. The medical advisor felt that the claimant’s neck and cervicogenic headaches were not related to the initial incident based on the absence of any reporting of same for more than 2 months afterwards.

On January 20, 1999, the claimant was informed by Claims Services that a relationship could not be established between the compensable injury of June 29, 1998 and her ongoing neck difficulties. Responsibility for any neck treatment would therefore not be the WCB’s responsibility. On February 5, 1999, Review Office confirmed this decision following review of the case which included a January 22, 1999 report from the attending physician.

On March 10, 1999, a WCB case management supervisor denied the claimant’s request for a Medical Review Panel (MRP). Reference was made to Review Office’s decision that the claimant’s neck injury was never reported and no complaints were made about her neck until September 10, 1998 several weeks after the accident. As a neck injury was not reported, there was no way to establish that it was related to an accident at work.

In a letter by a worker advisor dated December 16, 1999, Review Office was asked to reconsider its February 5, 1999 decision. This request was based on additional medical information received from the treating neurologist dated August 4, 1999 and November 23, 1999. He was of the view that there was a relationship between the claimant’s headaches and neck symptoms and the compensable injury.

Following a consultation with a WCB orthopaedic consultant on January 6, 2000, Review Office confirmed that no responsibility would be accepted for the claimant’s headaches/neck problems as being related to the June 30, 1998 accident and that no responsibility would be accepted for treatment to the neck. Review Office made reference to comments expressed by the orthopaedic consultant that the claimant, at the very most, could have sustained a mild strain of the neck muscles on June 30, 1998. However, there was no mention of a neck problem until 2 ½ months post accident, i.e. September 15, 1998. There was, therefore, no evidence to support the claimant’s neck was injured in June of 1998.

Review Office questioned the cause of the claimant’s headache complaints. Review Office noted that the claimant still experienced headaches approximately 20 months post accident despite receiving physiotherapy treatments to the cervical area and treatment to her eye. After considering the whole of the evidence, Review Office was of the view that the headaches and neck symptomatology were not as a result of the workplace accident of June 1998.

On March 1, 2000 primary adjudication advised the claimant that after review of her case by the WCB’s medical department, it was determined that she had recovered from the effects of her 1998 workplace injury and that benefits would conclude as of February 29, 2000. Primary adjudication stated, in part, “….based on a review of the comments from our physician, as well as the specialist, whose opinion was recently sought, that the difficulties you are experiencing with your eye are no longer related to the workplace injury. The specialist who reviewed your file indicated he could not find anything that was related to your work injury. The opinion was offered that should you experience some difficulties because of dust and smoke, protective eyewear could be worn, otherwise you were capable of returning to work.”

On November 9, 2000 a worker advisor acting on behalf of the claimant, asked primary adjudication to consider two new issues. Namely, whether the claimant experienced a full recovery from the effects of her workplace injury of June 30, 1998 and whether or not the claimant was entitled to an MRP to clarify whether her cervicogenic headaches and neck pain were the direct result of her compensable injuries. In a response dated January 26, 2001, primary adjudication found no basis on which to relate the claimant’s current symptoms to the accident at work and that it did not see a difference in medical opinion warranting an MRP.

Review Office considered the case again on July 6, 2001 based on a further submission received from the Worker Advisor Office dated May 22, 2001. In part, Review Office rendered the following decisions:

That the worker’s headaches and neck problems are not considered related to the workplace injury of June 30, 1998.

Review Office stated the claimant made no complaints relating to the neck until approximately 2 ½ months post accident and no evidence to support a neck injury at the time of the accident. It was also pointed out that there was no clear etiology to account for the worker’s headaches. Review Office noted the comments expressed by the attending anesthetist (report of August 1, 2000) and the comments made by the treating neurologist (report of August 4, 1999). Review Office concluded that the weight of evidence did not establish a relationship to the compensable event.

That there was no entitlement to compensation benefits after February 29, 2000.

Review Office concluded that the claimant had recovered from the effects of her compensable left eye injury by February 29, 2000 and that no responsibility would be accepted for her headaches or neck complaints as they were not considered to be related to the workplace injury. Accordingly, there was no entitlement to compensation benefits of any kind after February 29, 2000.

That a Medical Review Panel should not be convened under Section 67(4) of the Workers Compensation Act (the Act).

Review Office took into consideration the submitted medical reports of April 2, 2001, October 25, August 1 and May 1, 2000 and the opinion expressed by the WCB’s orthopaedic consultant dated January 6, 2000. Review Office believed that the elements of Sections 67(1) and 67(4) had not been met and therefore an MRP was not warranted.

On November 1, 2001 the worker advisor appealed the decisions reached by Review Office and an oral hearing was arranged.

Reasons

The evidence submitted at the time of the compensable injury and over the following several weeks does not support the claimant's contention that her neck and headache problems are causally related to the June 30th, 1998 accident. Several different practitioners conducted numerous examinations of the claimant during the months of July and August 1998. However, these physicians recorded no clinical findings or subjective complaints with respect to any neck difficulties.

With regard to the claimant's headaches, these have been diagnosed cervicogenic in nature. Cervicogenic is defined in the medical dictionary as "relating to, or beginning in, the upper segments of the cervical spine or neighbouring soft tissues." It should also be noted that the claimant has been involved in 2 motor vehicle accidents since the compensable injury.

We find based on the weight of evidence that the worker's headaches and neck problems are not, on a balance of probabilities, related to her June 30th, 1998 workplace injury.

The claimant testified at the hearing that ever since the termination of her Workers Compensation benefits she has not incurred a further loss of earning capacity. Notwithstanding this fact, however, she nevertheless was seeking continuation of compensation benefits in the form of medical assistance, which included cost of eye medication, travel expenses and periodic wage loss in connection with her eye appointments with her treating specialist. The following is a portion of her testimony:

Q. What is the current status with your eye? I know you are taking some drops and some ointments to relieve the discomfort on a daily basis?

A. Yes.

Q. Are things the same, getting better there?

A. My eye has always been the same since the accident.

Q. And you indicated that you were not always able to do everything and that is progressing so that you are able to do all the work that's required?

A. Oh, yes, yes. Like with my shoulder, I had some difficulty there, but with my neck and my headaches and my eye, I can do my job. Like I said, sometimes I'm a little dizzy, I have to sit down. Like if I bend too much, if I have to clean too much in a row there, I have to have a little rest.

The treating eye specialist has diagnosed the claimant's ongoing ocular difficulties as chronic conjunctivitis, which was possibly caused from the powder substance contained in fluorescent light tubes. According to the claimant, she has had continual problems with tearing and crusting around her left eye as well as varying degrees of pain ever since the tube exploded.

We are satisfied based on the weight of evidence that the claimant's ongoing left eye difficulties are, on a balance of probabilities, causally related to her compensable injury and that she has not yet fully recovered. Accordingly, we find that the worker is entitled to compensation benefits beyond February 29th, 2000 for her left eye difficulties.

Section 67(4) of the Workers Compensation Act (the Act) provides, where a WCB medical officer's opinion "in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter" with the worker's physician as expressed in a written certificate, a worker can then request the WCB to refer the matter to an MRP for its opinion in respect of that matter. The worker advisor acting on behalf of the claimant advances the argument that the requirements of this section have been satisfied. He points to the fact that the treating physicians have expressed the opinion that the mechanism of injury accounts for the claimant's neck muscle spasm and cervicogenic headaches since the time of the accident. Whereas in contrast, he notes that a WCB medical advisor states: "It is unlikely for the claimant to sustain any severe injury to the cervical spine by a reflex maneuver in pulling away from an exploding fluorescent tube." There being a difference of opinion, the claimant is therefore entitled to request an MRP.

In our view, the WCB medical advisor is not saying that the incident could not cause the claimant's symptoms, but rather, it would be "unlikely". In fact, he goes on to say, "At most, one might sustain a mild strain of the neck muscles". We do not agree with the worker advisor that there is a difference of opinion with respect to a medical matter concerning the claimant's neck and headache difficulties. It could also be argued that the mechanism of injury is a question of fact and not necessarily a medical matter. In any event, we find that the requirements of section 67(4) have not been satisfied and therefore there is no basis to refer the matter to an MRP.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of February, 2002