The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 24, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant's treatment and time loss in April 2001 is related to her January 30, 2001 compensable injury.

Decision

That the claimant's treatment and time loss in April 2001 is related to her January 30, 2001 compensable injury.

Decision: Unanimous

Background

During the course of her employment as a childcare worker on January 30, 2001, the worker reported that she was "head butted" in the stomach by a four year old child and that her head struck a wall with a paint easel attached. The worker said she attended a walk-in clinic for treatment and was told to watch for symptoms associated with a concussion. By the end of March 2001, the worker began to experience difficulty with walking and attended a chiropractor on April 23, 2001 for hip pain.

A Chiropractor's First Report showed that the worker sought treatment on April 23, 2001 for complaints of neck, lower back and hip symptoms. The diagnosis rendered was a cervical and lumbosacral sprain/strain type of injury. It was anticipated that the worker would be disabled from work between April 25 and May 1, 2001.

On May 24, 2001, a WCB adjudicator advised the worker that her claim had been accepted as a no time loss claim and that the WCB could not attribute her subsequent time loss and chiropractic treatment to the original workplace injury. The adjudicator reached his decision based on the fact that the worker did not have hip pain after the injury and she did not report her concerns to anyone nor did she seek medical treatment for over 2.5 months after her accident. On June 2, 2001, the worker appealed this decision to Review Office.

Prior to considering the worker's appeal, Review Office contacted the walk-in clinic where the worker indicated she was treated and was told there was no record of the worker being seen since November 2000. Review Office also contacted the treating physician and was advised that the worker was examined twice in June 2001 for her lower spine and that x-rays revealed disc degeneration at L3-4 and L4-5 and facet joint osteoarthritis at L4-5.

On September 14, 2001, Review Office asked a WCB chiropractic advisor to provide an opinion regarding the relationship between the worker's low back and hip symptoms and the compensable injury of January 30, 2001. In a response to Review Office dated September 19, 2001, the chiropractic advisor stated there was no probable cause/effect relationship between the worker's low back and hip problems and the January 30, 2001 work injury.

On October 5, 2001 Review Office determined that the worker's treatment and time loss in April 2001 were not related to the injury at work on January 30, 2001. Review Office outlined its opinion that the weight of evidence did not support that the worker's chiropractic treatment and symptoms in April 2001 were related to her compensable injury.

In May 2003, legal counsel, acting on behalf of the worker, asked the WCB to consider new medical evidence from the worker's treating neurosurgeon dated July 9, 2002. The letter from the neurosurgeon stated,

"The above patient was operated on by myself for the problem of cervical spondylosis with myelomalacia having undergone a laminoplasty on the 24th of April 2002. She has the problem of cervical spondylosis with spinal stenosis and associated myelopathy which was exacerbated by an acute flexion/extension injury which she apparently sustained in the work environment.

The patient's findings on her MRI scan were an area of myelomalacia within the spinal cord, possibly related to central cord contusion.

Relating the current problem to trauma is a difficult one but given the severity of the underlying spinal stenosis, relatively mild flexion extension injuries could have resulted in her problem. This could be investigated in light of the possible injury in the work place."

On August 1, 2003, primary adjudication advised legal counsel that it was still the WCB's position that a relationship could not be established between the compensable accident and the worker's ongoing difficulties because of her delays in seeking medical treatment and the onset of her symptoms. On August 19, 2003, legal counsel appealed this decision to Review Office.

On October 7, 2003, Review Office referred the case to a WCB orthopaedic consultant to obtain his opinion regarding the relationship of the worker's ongoing problems to her compensable injury. In brief, the WCB orthopaedic consultant responded as follows:

"It is not clear in the file reports whether or not the claimant sustained any significant injury to the neck region at time of CI [compensable injury] where there was obviously significant pre-existing degenerative changes at multi-levels; which may have manifested later in spinal cord signs and the expressed difficulty in walking. In my opinion there was no significant injury sustained to the lower spine and/or hip."

Subsequent file records showed that Review Office wrote to the worker's treating neurosurgeon and obtained additional medical information which consisted of operative and laboratory results as well as several consultation reports.

In a decision dated January 30, 2004, Review Office confirmed that the worker's treatment and time loss in April 2001 was not related to her injury at work on January 30, 2001. Review Office concluded that the evidence on file did not support a relationship between the worker's ongoing problems and the minor injury that occurred at work on January 30, 2001. In May 2004, legal counsel appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us was whether the worker's treatment and time loss in April 2001 is related to her January 30, 2001 compensable injury. At the hearing we confirmed that the worker is seeking benefits commencing in April 2001 and continuing.

For the worker to be successful, we must find a causal link between the workplace incident and the worker's condition. We were able to find such a link. We find that the worker's pre-existing condition was enhanced by the workplace incident.

At the hearing the worker was represented by legal counsel. Her parents attended the hearing as observers. The employer did not attend nor participate in the hearing.

The worker's legal counsel submitted that the worker's work injury of January 30, 2001 did result in the severe myelopathy, which has prevented her from working. While acknowledging that the worker has a severe pre-existing condition, it was noted that the pre-existing condition was not symptomatic until after the workplace incident. The worker stated that she was not aware that she had a pre-existing condition.

The worker described the workplace incident. She noted that she hit her head and hip against a wall as a result of a child head butting her in the abdomen area. She described the onset of symptoms and the treatments which she received. She also contrasted her life before the workplace injury with her life after she became symptomatic. She provided a detailed description of her pre-accident job duties. She indicated that she can no longer perform such duties.

The worker called the treating neurosurgeon as a witness. He gave evidence about the worker's diagnosis and its relationship to the workplace incident. He confirmed that the worker suffers from "…spastic myelopathy, in other words spastic legs, inability to walk, difficulty with her hands."

At the hearing the neurosurgeon provided this testimony:

"And radiology showed that she had spinal stenosis and spondylosis, which are conditions where the spinal canal is narrowed, narrowed down from birth, but also from basically life, an acquired form, but in addition had an area in the spinal cord where there was, on the MRI scan, what we call a signal change, which indicates edema or swelling of the spinal cord. And I've held the opinion that this young lady has an injury to the spinal cord in the form of a central spinal cord injury. If one considers the preexisting (sic) issues, certainly they were there. One would not doubt that she did have problems in terms of a radiological appearance, but she was totally asymptomatic prior to this incident. So I think there's a time line which would indicate that a central cord injury is a precipitant in this issue. There also is MRI evidence of that, of a central spinal cord injury. So my opinion is that this young lady does have a congenital and acquired spinal stenosis and a spinal cord injury as a consequence of a central spinal cord injury. They usually receive this with flexion/extension injuries of the neck. We usually see it in older people who have developed spondylosis, where they have a relatively trivial injury, they extend their necks, and then develop quadriplegia as a consequence of that. She has the problem of having the congenital or, in other words, a birth defect, and so she experienced this at a young age, instead of at an older age. I hope that clarifies what I think, that the trauma precipitated the problem that she came to me with."

The neurosurgeon also testified that in his opinion there is a relationship between the workplace accident and the worker's pre-existing condition. When asked what factors caused him to come to this conclusion he stated:

"I think there's three things. The one is the nature of the injury, which is, I think, reasonably a flexion/extension kind of injury to the cervical spine. Two is the temporal relationship and three is the MRI appearance, which, although can occur in other conditions, I think is entirely compatible if you put the picture together as one. If you look at it in isolation it may not mean anything, but in relation to all three, I don't think it's unreasonable to put the trauma as an inciting event. And she may well have presented exactly like this without any trauma at some point, but I don't have a crystal ball to know that, I don't. But if I put the three things together, well, in fact four, she has a congenital narrowing; she has a flexion/extension injury; soon after she develops symptoms; and the MRI features are compatible with that. To me that paints a picture."

We accept the neurosurgeon's comments that many of the worker's early complaints following the work incident regarding her hip and gait are consistent with early symptoms of spastic myelopathy. In this regard, we note that early medical reports tended to explore local causes for those symptoms, rather than the possibility of a spinal cord injury at a more distant site.

We find the treating neurosurgeon's opinion compelling. We have placed significant weight on this testimony in arriving at our decision. Our decision must be made on the balance of probabilities, and we find it more probable that the workplace incident caused the edema or swelling of the spinal cord in a pre-existing narrowed spinal canal. We note that the WCB's Review Office did not have the benefit of the expert testimony of the worker's treating neurosurgeon.

We note that Board Policy 44.10.20.10 Pre-Existing Conditions defines enhancement as: "where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition."

We find on a balance of probabilities that the workplace incident caused the worker's spastic myelopathy condition. The workplace incident expedited the onset of the worker's spastic myelopathy symptoms. Treatment of this condition required surgical intervention aimed at the pre-existing spinal condition in order to reduce the symptoms associated with the spinal myelopathy. We therefore find that the claimant's time loss from April 2001 and forward were caused by a compensable workplace injury, and accordingly she is entitled to wage loss benefits from that date.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of October, 2004