Decision #01/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 21, 2002, at the request of the claimant. The Panel discussed this appeal on November 21, 2002.

Issue

Whether or not the claimant is entitled to temporary total disability benefits beyond June 1, 2002; and

Whether or not the claimant is entitled to vocational rehabilitation benefits and services beyond June 2, 2002.

Decision

That the claimant is not entitled to temporary total disability benefits beyond June 1, 2002; and

That the claimant is not entitled to vocational rehabilitation benefits and services beyond June 2, 2002.

Decision: Unanimous

Background

During the course of his employment as a truck driver on September 8, 1975, the claimant injured his neck and left shoulder when the semi-trailer tractor unit he was driving left the road and flipped after he tried to negotiate an S-curve.

X-rays of the cervical spine were taken on September 30, 1975. The x-ray results were as follows: "The patient is in an extending collar. The normal lordosis is flattened. The vertebrae 1-6 are in good alignment but there is forward displacement of C-6 and C-7 to the extent of about 8 mm. The C-6, 7 disc space is narrowed. The remaining disc spaces are of normal width. All the neural arches are in good alignment. There is a fracture between the base of the neural arch and the body of C6."

On November 25, 1975, an orthopaedic specialist reported no complaint of pain and no tenderness in the neck region. X-rays showed a slight forward subluxation of C6 on 7, about 3 mm. Flexion-extension films showed that no movement took place between C6 and 7. The specialist felt that it was safe for the claimant to discard his collar and to remobilize his neck. The claimant was advised to return to work as a driver on December 1st. The specialist warned the claimant about the possibility of progression subluxation and that spinal fusion may be necessary.

In 1977 the claimant was assessed by a Workers Compensation Board (WCB) medical advisor and was awarded a 3% permanent partial disability (PPD) award for the residual impairment in his neck.

In 1996, the claimant advised the WCB that he was having further difficulties with his neck. A report prepared by the attending physician dated July 22, 1996, indicated that the claimant was experiencing reduced movement in his neck with increasing pain. The diagnosis rendered was possible degenerative changes of the C5-C6 vertebrae related to previous neck trauma.

On September 20, 1996, a neurologist reported that the claimant had quite marked limited anterior flexion and more marked limitation of extension. Lateral flexion and lateral rotation were also limited. The neurologist could find nothing wrong with the claimant neurologically.

X-rays of the cervical spine taken on July 24, 1996, revealed the following, "…hypertrophic spur formation bridging the C6 and C7 vertebral bodies. There is narrowing of the C6-C7 disc level of a mild nature. There is mild narrowing at the C3-C4 disc level. The rest of the disc levels are normal. The vertebral body heights are generally well maintained. There is also a subsclerosis about the apophyseal joint of C5-C6. The history indicates that the patient had a previous fracture secondary to a motor vehicle accident. I suspect that the trauma is very likely along the C5-C6 level."

On November 19, 1996, a WCB medical advisor reviewed the case at the request of primary adjudication. He did not think there was a causal relationship between the claimant's recent neck problems and the 1975 compensable injury. The medical advisor felt that the claimant had degenerative changes secondary to aging.

An orthopaedic specialist assessed the claimant on October 29, 1996. The specialist felt that the claimant was likely getting some degenerative wear about his previously injured spine. No specific treatment was outlined. If there was some early degenerative wear, the specialist expected it to deteriorate with the passage of time.

On November 25, 1996, the above specialist made reference to x-rays that were taken on October 29, 1996. He stated that the claimant was experiencing mechanical strain in his neck and that a conservative course should be followed.

Following consultation with a WCB medical advisor, primary adjudication concluded on December 10, 1996, that the claimant's degenerative disease was responsible for his present symptoms and disability. It was therefore determined that the claimant had fully recovered from his 1975 compensable injury and that his symptoms were not caused by the past accident. Any treatment received would be due to the pre-existing condition and not to the compensable injury.

On June 18, 1997, the claimant submitted new medical information from his orthopaedic specialist dated December 20, 1996 and May 12, 1997 in addition to a chiropractic report dated May 14, 1997.

The claimant was examined by a WCB impairment awards medicine advisor on October 14, 1997 when it was determined that the claimant had a 22% impairment rating out of a possible 30% for a total fused cervical spine. The medical advisor felt that the claimant was capable of all tasks as long as they did not involve repetitive movements of the cervical spine. Any tasks involving work above shoulder height would also be difficult for the claimant.

On November 28, 1997, the section head of healthcare reviewed the file information and was of the opinion that the increase in the claimant's impairment was due to two factors, i.e. the effects of the compensable injury and to progressive degenerative disease. The claimant was then placed on temporary total disability benefits effective April 13, 1997 and in March 1998 he was referred to a Vocational Rehabilitation Consultant (VRC) to assist in his finding suitable work, which would respect his permanent restrictions. On August 11, 1999, the claimant signed an Individualized Written Rehabilitation Plan with the occupational goal of becoming a computer analyst programmer.

In a report dated March 9, 1999, a neurologist indicated that the claimant continued to demonstrate the same symptoms including numbness in the left arm and hand as well as considerable discomfort in his neck. The claimant's computer courses were taking its toll, because of the relatively static position of the claimant's neck for hours at a time. The neurologist made reference to a February 18, 1999 MRI examination which he felt did not show any obvious structural abnormality or at least nothing that would necessarily be regarded as a surgical lesion. A recommendation was made for a review by a physiatrist.

The claimant was assessed by a physiatrist in June 1999. The physiatrist was of the impression that the claimant had significant degenerative changes related to his old injury. A referral was made to a physiotherapist. The physiatrist also felt that the claimant needed counseling with respect to depression.

On July 27, 1999, a neurologist commented that the claimant's neurological difficulty was finger tingling in his left hand. The claimant also had significant limitation in his range of motion. He had some significant limitation of the range of motion of both arms at the shoulders. Neurological examination demonstrated no abnormality.

In a memo dated February 4, 2000, a VRC noted that the claimant had completed his first term of his computer analyst programmer course and had just missed being on the honor list. The claimant reported, however, that he was having a lot of difficulty handling the course load and that he was experiencing increasing headaches, which he attributed to sitting in front of the computer all day and evening which in turn created problems with his neck. In January 2001, the VRC documented that the claimant was still experiencing daily headaches which were getting worse.

On March 5, 2001, the attending physician reported that the claimant had been seen on February 22, 2001. His complaints included daily moderate severe headaches, neck pain, associated head movements due to neck pain. The physician indicated that the claimant's symptoms were interfering with his computer course. He concluded that there was progression and exacerbation of the claimant's symptoms and headaches and fatigue, related to the 1975 injuries.

On November 5, 2001, the claimant commenced a work experience program at the WCB's Information Technology Department. In a memo dated January 11, 2002, the VRC documented that the claimant was enjoying his work experience, however, he was experiencing difficulty with prolonged sitting, headaches and pain in his neck and upper back.

In a "Certificate of Illness" dated March 19, 2002, the attending physician diagnosed the claimant with major depression and adjustment disorder. In a memo dated April 5, 2002, a WCB adjudicator noted that she advised the claimant that his depression was not considered to be related to the compensable incident but that the WCB could offer him some time limited therapy to help him deal with his depression. The claimant also voiced concerns that his occupational goal was not a realistic one as sitting in front of a computer all day aggravated his neck pain and headaches.

In a report dated May 13, 2002, the attending physician noted that the claimant had been seen on April 29, 2002 with exacerbation of symptoms related to his pre-accident injuries and new injuries related to an April 28, 2002 motor vehicle accident. The claimant complained of severe headaches, severe neck pain, shooting pain into his right arm on any head movements, back pain and episodes of pain shooting into his left leg. When examined, the claimant was found to be anxious, irritable and distressed. He held his head in one position and any attempt of head movements precipitated severe neck pain and pain shooting into his right arm. He had acute muscle spasms of his neck muscles and upper trapezius, lumbar spine movements exacerbated neck pain. The physician concluded that the claimant was totally disabled from any type of employment.

A WCB physical medicine consultant and a WCB physiotherapy consultant assessed the claimant on May 7, 2002. The consultant indicated there was little in the way of findings on clinical examination, especially on the musculoskeletal exam. "There was stiffness of the neck, but with some difficulty with accurate examination of this. There was no evidence that any specific cervical articular structure could be mechanically irritated on the examination. There was no evidence of any definite ligamentous symptoms or muscular symptoms on the current exam, or of any soft tissue involvement contributing to his symptoms. There is no evidence, as well, for any significant neurologic involvement. His paraesthesiae complaints are intermittent and there was no evidence on the most recent radiologic investigation, including an MRI of the cervical spine, for cause of the nerve irritation symptoms."

In early June 2002, the claimant met with his WCB case manager and a case management representative for an up-date on the status of his claim. Details of this discussion can be found in a memo to file dated June 4, 2002. In the interim, a surveillance videotape was taken of the claimant's activities on the following dates: May 10, May 11, May 12, May 30, May 31 and June 1, 2002.

On June 6, 2002, a bone scan was performed. The impression revealed, "Abnormal uptake is seen in the lower cervical spine, affecting the disc space as well as the lateral aspect. The significance is uncertain, possibly related to post traumatic degenerative changes."

X-rays of the cervical spine dated June 6, 2002 revealed, "Anterior spurring is noted in the lower cervical spine and there is anterior bony bridging noted at the C6.7 level. Minor degenerative changes in the C7/T1 level are present and there is a very minimal spondylolisthesis likely degenerative in nature of C5 on C6. There is virtually no change in vertebral body alignment with flexion and extension in the neutral position. The vertebral body heights are intact."

On June 13, 2002, the WCB physical medicine consultant reviewed the bone scan and x-ray results along with the video tape surveillance, at the request of primary adjudication. Based on the video tape surveillance, the consultant was of the opinion that the claimant had good function range of motion of his neck with fluid movements and no apparent discomfort suggesting no apparent need for any past restrictions.

On June 17, 2002, the claimant was informed in writing that the WCB was ending responsibility for his claim effective May 11, 2002. It was the opinion of Rehabilitation and Compensation Services, following discussion and review of the surveillance videos with a WCB physical medicine consultant, that the claimant was no longer suffering from the effects of his compensable injury. The claimant was also advised that effective May 11, 2002, he would no longer be entitled to any ongoing benefits with respect to his 22% PPI award (this decision was overturned on July 23, 2002, when it was determined that the claimant should be provided a PPI rating of 3%, effective May 11, 2002, for a small loss of range of motion).

On August 9, 2002, Review Office considered the case after receipt of an appeal by the claimant. Prior to rendering its decision, Review Office obtained the opinion of a WCB orthopaedic consultant on August 8, 2002. Ultimately, Review Office determined that the claimant was not entitled to payment of temporary total disability benefits (wage loss benefits) beyond June 1, 2002.

Review Office was of the opinion that the major emphasis of the surveillance took place on June 1, 2002 which was the date that the claimant assisted a family member to move and that the termination date for the worker's benefits should correspond to this particular date.

Review Office noted that it had concerns with the re-opening of the claim in 1997. At this time the claimant was developing different symptomatology as reported by his attending physician. Review Office and the WCB orthopaedic consultant were of the opinion that not all of these symptoms were reasonably attributable to the compensable injury in the claimant's cervical spine. Reference was made to an opinion expressed by the claimant's treating orthopaedic specialist who saw him 1996 and 1997 and who stated that it would be very hard to prove the claimant's present symptomatology was related to the 1975 accident. Review Office and the WCB orthopaedic consultant did not believe that the claimant's injury to his cervical spine required restrictions that would have forced the claimant out of the trucking industry where he had previously worked from 1975 to 1996/97. Review Office felt that the WCB should not have entered into a rehabilitation program taking this worker out of the truck driving industry. It therefore concluded that the claimant was not entitled to further vocational rehabilitation benefits and services beyond June 2, 2002. On August 27, 2002, the claimant appealed Review Office's decisions and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant was injured when the semi-trailer tractor unit that he was driving left the road and rolled over resulting in a fracture to the C6-7 portion of his cervical spine. He brings forward this appeal claiming entitlement to temporary total disability benefits and/or vocational rehabilitation benefits and services beyond June of 2002. In arriving at our decisions with respect to the issues under appeal, we carefully considered the evidence on file in conjunction with the claimant's formal written presentation, his oral evidence and the video surveillance.

As to the first issue, we find the preponderance of evidence does not support the claimant's contention that he is temporarily totally disabled. We attached considerable weight to the following body of evidence in coming to this conclusion.
  • November 25th, 1996 treating orthopaedic surgeon's chart notes: - "Manitoba X-ray Clinic x-rays of October 29,1996. The previously anterior sublux of C6 on C7 is again noted. It has healed anteriorly. With lateral flexion extension views there is no abnormal movement at this level. It looks very solid. There is no abnormal movement above. There is some disc space narrowing at C3/4. There is nothing on x-ray that suggests other specific treatment is needed or available."

  • December 20th, 1996 treating orthopaedic surgeon's chart notes: - "The previously injured level at C6/7 is solid and not unstable. Again, remember Dr. [name], the Neurologist did not find any underlying neurological condition that would explain your symptoms. Without other specific measurable findings on testing or x-ray, it would be very hard to prove that your present symptomatology was related to your accident of 1975."

  • May 12th, 1997 treating orthopaedic surgeon's chart notes: - "Mr. [the claimant's] injury was at the C6/7 level only. There was never any involvement of the C5/6 area. Now x-rays show some narrowing of C6/7 and C3/4. When examined October 29, 1996 there was no evidence of neurological compromise. Compensation has not accepted present symptomatology is related to the 1975 vehicle accident. As mentioned previously it would be extremely difficult to prove what is the cause of the present symptomatology."

  • February 18th, 1999 MRI Cervical Spine: - "At the C6-C7 level, mild facet joint degenerative changes are identified resulting in a Grade I spondylolisthesis. No disc herniation, central spinal canal stenosis, or spinal cord compression is identified. The signal intensity within the cervical spinal cord appears unremarkable and no other abnormalities are noted within the remaining cervical vertebral bodies or the intervertebral disc spaces."

  • May 7th, 2002 WCB medical examiner examination notes: - "There was no tenderness on palpating along the cervical spinous processes or interspinous ligaments or cervical articular pillar areas. There was minor tenderness of the proximal neck soft tissues posteriorly. There was no referral of pain induced on palpating over any areas of tenderness. There was no tenderness of the lateral neck muscles, including the sternocleidomastoid. The neck was held stiffly with attempts at mobilization testing of the cervical segments. There was no apparent symptom aggravation with mild cervical traction. There was no tenderness on palpating along the thoracic spinous processes or interspinous ligaments, and lumbosacral spinous processes and interspinous ligaments.
    On the current clinical examination, there was little to find, specifically on the musculoskeletal examination. There was stiffness of the neck, but with some difficulty with accurate examination of this. There was no evidence that any specific cervical articular structure could be mechanically irritated on the examination. There was no evidence of any definite ligamentous symptoms or muscular symptoms on the current exam, or of any soft tissue involvement contributing to his symptoms. There is no evidence, as well, for any significant neurologic involvement. His paraesthesiae complaints are intermittent and there was no evidence on the most recent radiologic investigation, including an MRI of the cervical spine, for cause of the nerve irritative symptoms."

  • June 6th, 2002 X-rays Cervical Spine with Flexion/Extension Views: - "Anterior spurring is noted in the lower cervical spine and there is anterior bony bridging noted at the C6/7 level. Minor degenerative changes in the C7/T1 level are present and there is a very minimal spondylolisthesis likely degenerative in nature of C5 on C6. There is virtually no change in vertebral body alignment with flexion and extension in the neutral position. The vertebral body heights are intact."

  • August 8th, 2002 WCB orthopaedic consultant's memorandum to file: - "The noted changes in the C-spine do not preclude driving. He has a stable C-spine & in my opinion there is no necessity for the imposition of restrictions at this late date as a result of the old C.I."

  • A review of the video surveillance evidence certainly demonstrated that the claimant had good function range of motion of his neck together with fluid movements. In addition, there was no apparent discomfort that was evident at all.
We find that the claimant is not, on a balance of probabilities, temporarily totally disabled and therefore he is not entitled to temporary total disability benefits beyond June 1, 2002. It is apparent that a substantial portion of the claimant's current complaints are headaches and bouts of major depression, neither of which have been accepted by the WCB as being related to his compensable injury. In our view, there are no ongoing compensable restrictions, which would prevent the claimant from returning to long distance truck driving.

As to the second issue, in the absence of ongoing restrictions with respect to the claimant's pre-accident job duties, we find there is no loss of earning capacity. Accordingly, the claimant is not entitled to vocational rehabilitation benefits and services beyond June 2, 2002.

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 January, 2003

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