Decision #144/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 9, 2004, at the claimant's request. The Panel discussed this appeal on the same day.
Issue
Whether or not the worker is entitled to wage loss benefits beyond February 4, 2003.
Decision
That the worker is entitled to wage loss benefits beyond February 4, 2003.
Background
This worker has a prior claim with the Workers Compensation Board (WCB) for a right shoulder and mid back injury that occurred in the workplace on December 8, 1998. Reports on file show that the claimant was treated by a physical medicine and rehabilitation specialist (physiatrist) and was diagnosed with mechanical neck pain syndrome and regional myofascial trigger points on February 9, 2001.
In March 2001, the worker aggravated his neck and shoulder condition when he slipped at work while carrying 40 kg of weights. In a report to the family physician dated April 8, 2001, the physiatrist diagnosed the claimant with a neck strain with mechanical and regional myofascial pain syndrome.
The claimant underwent a CT scan of his cervical and thoracic spine on July 3, 2001. On August 1, 2001, a WCB medical advisor expressed his opinion that the CT scan results revealed degenerative changes and that the claimant had an aggravation of a pre-existing condition.
On September 12, 2001, the claimant underwent a Functional Capacity Evaluation (FCE) in order to determine his physical capabilities. The report revealed that the claimant’s participation during the FCE showed “full voluntary effort passing 5 of 5 validity checks.” The claimant reported symptoms in his left posterior shoulder, his deltoid and triceps area, his left paraspinal neck and central upper thoracic area, and his left scapula. He noted that his whole left arm felt numb and by the end of the FCE he reported numbness in the right arm and that he would be very sore the day after due to his symptoms.
In a discharge report dated November 10, 2001, a physiotherapist reported that the claimant attended 16 treatment sessions commencing October 1, 2001 and had made good progress in the program. Although the pain in his left shoulder was reduced, it had not completely subsided. The therapist was doubtful that the claimant was capable of full duties.
On February 17, 2002, the treating physiatrist advised the WCB that he saw the claimant on February 15, 2002. His impression was as follows, “Mechanical neck pain. There has been no further improvement in his pain and in functional level…. I would like to order a follow-up CT scan to make sure that there is no (sic) any disc herniation. If his CT scan is not indicative of any significant spinal pathology I think he should be encouraged to return to a modified work. ”
The claimant was next examined by a WCB physiatrist consultant on February 19, 2002. The consultant outlined his examination findings/treatment recommendations with respect to the claimant’s cervical mechanical symptoms and mid-back soft tissue symptomatology. The consultant concluded his report by stating, “I would expect he should be able to have resolution of his symptomatic complaints and progress to return to work at his prior work duties. This would likely be best facilitated through a graduated return to work process.”
A second CT scan was carried out on March 21, 2002. The impression read, “the most significant level appears to be C5-6 with a moderate sized posterolateral osteophyte. No definite associated disc lesion is seen and the appearances are similar to that of the scan from July 3, 2001.”
On April 15, 2002, a specialist from the Pain and Injury Clinic advised the WCB of his findings with respect to the claimant’s neck, shoulder and thoracic spine. The claimant was referred for screening blood work to rule out any metabolic causes of his pain and delayed recovery. In a subsequent report dated April 29, 2002, the specialist commented that the claimant’s vitamin B12 was quite low.
The case was reviewed by the WCB’s physiatrist consultant on May 30, 2002. He commented that there were significant pre-existing degenerative changes in the cervical spine shown on the CT scan and that the vitamin B-12 deficiency could delay the claimant’s recovery.
In a report to the family physician dated August 17, 2002, the physiatrist stated, in part, the following, “Clinically and neuroradiologically Mr. [the claimant] has significant osteophyte formation at C5-C6 level which is contacting the thecal sac on the left side and also at the C3-C4 level he has right sided posterolateral osteophyte narrowing of exit foramen. At this point he does not have significant signs of cord compression, but this should be further observed and any heavy work may aggravate his symptoms and may cause cord or nerve root compression.”
The case was reviewed again by the WCB’s physiatrist on November 19, 2002. The consultant, stated, in part, the following,
“As prior notes suggest, the primary ongoing problems on a balance of medical probabilities are related to the pre-existing problems of the spine.
We had offered a brief course of treatment to facilitate progress about 8 months ago. Resolution of any soft tissue aggravation that was not related to the pre-existing problems would have been expected to have occurred to date without specific treatment. I would note that some soft tissue symptoms related to the pre-existing involvement of the spine would be expected.”
On December 23, 2002, an advocate, acting on behalf of the claimant, outlined her position that the claimant’s condition had plateaued and that re-training was in order to facilitate a return to employment.
On January 29, 2003, a WCB case manager wrote to the claimant to advise that wage loss benefits would be paid to February 4, 2003 inclusive. It was the case manager’s opinion that the claimant no longer had a loss of earning capacity as his compensable injuries had now resolved. Any ongoing problems experienced by the claimant were considered to be directly related to his pre-existing medical condition as noted in the CT scan results.
Subsequent file records contained a report from an occupational health physician dated January 15, 2003 which was reviewed by the WCB’s physiatry consultant on May 15, 2003.
On May 28, 2003, the claimant was advised by his case manager that the new information did not alter the WCB’s previous decision that his present medical difficulties were directly related to his pre-existing medical condition. The case was then referred to Review Office for consideration.
In a decision dated July 4, 2003, Review Office confirmed that wage loss benefits were not payable to the claimant beyond February 4, 2003. Review Office agreed with the WCB physiatrist that any soft tissue aggravation incurred on March 28, 2001 would have resolved by February 4, 2003 and that the claimant’s ongoing subjective complaints of pain were due to the findings found at the time of the two CT scans. Review Office felt the claimant was adequately compensated for the soft tissue type injury he incurred on March 28, 2001. On May 28, 2004, the claimant disagreed with Review Office’s decision and an oral hearing was arranged for September 9, 2004.
Reasons
Chairperson Walsh and Commissioner Day:
The issue before the Panel was whether the claimant was entitled to wage loss benefits beyond February 4, 2003.
The claimant was injured in March 2001, during the course of his employment. He filed a claim with the Workers Compensation Board, which was accepted. Wage loss benefits were paid to him as a result, until February of 2003 when it was determined that his loss of earning capacity had ended. A majority of the Panel has determined, however, having reviewed the totality of the evidence including medical reports and oral testimony that the symptoms suffered by the claimant as the result of his original compensable injury have not yet resolved, for the following reasons.
At primary adjudication, it was determined that the claimant "no longer had a loss of earning capacity as his compensable injury had resolved." In so finding, primary adjudication relied on the evidence of the Board physiatrist. That physician, in a report dated February 19, 2002 commented that he felt much of the claimant's symptoms were related to a pre-existing degenerative condition. He made suggestions for brief courses of treatment including chiropractic treatment to deal with the claimant's pain and soft tissue symptomatology. The physiatrist concluded that after these treatments he expected the claimant should be able to have resolution of his symptomatic complaints and progress to return to work at his prior work duties.
The chiropractic treatment was never in fact arranged for the claimant. The WCB physiatrist reviewed the claimant's file again, on November 20, 2002 and was of the opinion that since eight to nine months had elapsed since his last review this would be sufficient time for resolution of any soft tissue aggravation that was not related to the claimant's pre-existing medical problems. On that basis, primary adjudication determined that the claimant's compensable injuries had in fact resolved.
Similarly, when the Review Office considered the claimant's appeal, it relied on the same comments made by the WCB physiatrist and agreed that any soft tissue aggravation incurred as the result of the compensable injury of March 28, 2001 would have resolved by February 4, 2003.
The Panel is aware that the claimant has a pre-existing cervical condition but finds that the symptoms he is currently experiencing do arise out of the compensable injury. Although the WCB physiatrist felt that the claimant's symptoms should have resolved sooner we find that they have not resolved in fact.
At the hearing of this appeal the claimant testified that ever since the accident his right arm has constantly had a tingling effect. He said he continues to have pain in his neck which is aggravated by sudden movement or by lifting. He has also developed headaches which he never had before the accident and which, he testified, his physician has advised him, are related to what is happening in his neck.
A variety of physicians who saw the claimant post-accident, have reported and continue to report that the claimant is not fit to return to heavy work and should return to a modified job or be re-trained for light work which does not require any heavy lifting, repetitive bending or twisting activities of the neck and torso. This is set out, for example, in a report dated August 17, 2002 by a specialist from the St. Boniface Hospital.
In a report dated January 15, 2003 a specialist from the MFL Occupational Health Centre who examined the claimant on that same date, stated that the claimant's condition is work-related. He went on to describe that the claimant had developed significant postural and muscle imbalances from repetitive heavy lifting and from overloading his upper limbs and back that were not likely to fully reverse. The specialist found that there were no significant non-occupational contributors to the claimant's condition. He stated that the development of degenerative spinal changes in the claimant has been accelerated by his work and injury conditions, given their location and the biomechanical loading involved.
Based on the above evidence, we find on a balance of probabilities that the claimant's ongoing problems have not resolved, and are related to the compensable injury of March 2001 rather than to his pre-existing condition. We find, therefore, that he is entitled to ongoing wage loss benefits past February 4, 2003.
Panel Members
S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
S. Walsh - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of November, 2004
Commissioner's Dissent
Commissioner Finkel’s dissent:
The claimant is seeking the continuation of wage loss benefits beyond February 4, 2003, when his benefits were terminated by the Workers Compensation Board (WCB). From the arguments and evidence presented, this case turns on whether the claimant’s continued symptoms from that date and forward are still causally related to his compensable injury on March 28, 2001, or to the noted pre-existing degenerative disease in his cervical spine.
After my review of all the information on the file and the evidence at the hearing, I have concluded that the claimant suffered an aggravation of his pre-existing medical condition, but that the acute effects of his injury were no longer in play at the time his benefits were terminated in February 2003.
In coming to this conclusion, I note that the radiological evidence on the file clearly establishes the presence of a pre-existing medical condition. In particular, a CT scan dated March 21, 2002 notes a right posterolateral osteophyte narrowing the exit foramen, and at C5-6, a left posterolateral osteophyte narrowing the exit foramen and compressing the left side of the thecal sac. Given that similar findings were noted in an earlier CT scan dated July 3, 2001, which is close to the time of the 2001 compensable accident, I find that these medical conditions would have preceded the claimant’s 2001 injury.
The nature of those CT findings suggests that the claimant may be susceptible to ongoing problems from those pre-existing medical conditions. These could potentially be neurological in nature (such as nerve root irritation) symptoms or more local to the neck area. The Act and WCB Policies do, however, allow for the acceptance of an aggravation or enhancement of a pre-existing medical condition.
In this case, early medical reports on the file indicate that the claimant had been demonstrating reduced range of motion in his neck of 25% in February 2001, one month prior to the claimant’s compensable injury in March 2001. On April 6, 2001, one month after the compensable injury, the claimant’s treating physiatrist reported that his range of motion in his neck had worsened and was reduced by 40%. The claimant then continued with treatments by a physiatrist for neck strain and a regional myofascial pain syndrome. The claimant received ongoing treatment after that date.
On February 12, 2002, the claimant was examined by a WCB physiatrist, who noted normal lordosis, mild spasm of the paracervical muscles, and normal range of motion. The only remaining symptoms were “residual mechanical neck pain.” Under “Impression” he notes:
“There is a history suggesting a number of what appears to have been muscle strains of the scapular muscles since 1993, with symptoms in the mid-back likely related to muscle involvement of the medial scapula, of the rhomboid muscle. There is a more recent incident of some neck onset of symptoms, with the early file suggestive of some cervical nerve root irritation on the left. However, the current clinical examination did not suggest any cervical nerve root involvement. I was unable to induce any cervical nerve irritation with mechanical stresses….”
The WCB physiatrist indicated his suspicions that the cervical mechanical symptoms were related to the degenerative involvement at the mid cervical spine levels, but did authorize a brief trial of chiropractic manipulation and mobilization of those areas. He also authorized some needling of the soft tissue symptoms, and expected a resolution of those symptomatic complaints and a return to work.
I note that an April 15, 2002 medical report by a pain clinic physician also noted good range of motion of the neck, shoulders, and rotation of the thoracic spine. Later medical reports, however, note the return of left arm symptoms such as tingling. These symptoms arose at a time when the claimant was not working.
After reviewing the medical evidence, I find that the claimant did suffer an acute aggravation of his pre-existing medical condition. These are evidenced by the neurological findings and the reduced range of motion in the cervical spine noted in early medical reports. However, by February 2002 and in the months following, medical reports note normal neurological findings and good range of motion of the cervical spine. These reports lead me to conclude that the claimant had recovered from the acute effects of his compensable injury by the time his benefits were terminated on February 4, 2003. In this regard, I adopt similar conclusions reached by the WCB physiatrist in his May 20, 2002 and May 15, 2003 reviews of the file.
I note that many physicians on the file have commented on the claimant’s significant pre-existing neck condition, and have recommended that the claimant receive retraining because of their concern over his risk of re-injury. Recent reports do in fact suggest that the claimant has a neck at risk. However, given my findings that the claimant had recovered from the effects of his 2001 injury, these ongoing restrictions would be preventive in nature, and thus not a WCB responsibility. The claimant’s inability to return to his pre-accident job duties are, on a balance of probabilities, related to his pre-existing neck problems, and not to the acute effects of his 2001 injury.
Accordingly, the claimant would not be entitled to further wage loss benefits and I would deny his appeal.
A. Finkel, Commissioner