The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 31, 2005, at the employer's request.

Issue

Whether or not the worker's C7 disc lesion is a direct result of the compensable injury sustained on September 22, 1999; and

Whether or not the worker is entitled to compensation benefits beyond February 6, 2003.

Decision

That the worker's C7 disc lesion is a direct result of the compensable injury sustained on September 22, 1999; and

That the worker is entitled to compensation benefits beyond February 6, 2003.

Decision: Unanimous

Background

On September 21, 1999, the worker was applying a hand brake on a rail car when he felt numbness in his right arm. On September 22, 1999, the worker stated that he lasted at work until noon but had to discontinue because of pain and continuous muscle spasm in his right shoulder area and numbness in his right arm radiating down to his hand. The worker was wearing a Belt Pac for a robot locomotive at the time.

A Doctor's First Report showed that the worker was treated on September 22, 1999 for "progressive Rt shoulder and upper back pain due to shoulder harness worn at work." The diagnosis reached was "muscular strain scapulothoracic region".

A referral was made for the worker to undergo physiotherapy treatments. The diagnosis rendered by the physiotherapist was "spasm right posterolateral neck with pain and scapulothoracic/rhomboid spasm".

X-rays of the cervical spine were taken on October 20, 1999. The radiologist's report identified seven cervical type vertebrae with intact alignment. The vertebral body heights and disc spaces were maintained.

Following his examination of the worker on January 31, 2000, a WCB medical advisor concluded that the worker had evidence of muscular injury with no evidence of neurovascular components other than intermittent paraesthesia. There was some loss of strength of the right shoulder compared to the left shoulder.

On May 16, 2000, the worker was examined by a WCB physical medicine and rehabilitation consultant (a physiatrist). The clinical examination did not reveal any cervical root irritative symptoms but the worker did have residual neurologic findings. There was some soft tissue symptomatology primarily in the right trapezius. The consultant was of the view that the injury of September 22, 1999 appeared to be a right cervical nerve root injury with an additional possible muscle strain.

The worker underwent a CT scan of the cervical spine on October 10, 2000. The results revealed the suspicion of a small right lateral disc herniation at the C6-C7 level. Degenerative spurring was noted at C3-C4 and C6-C7. An MRI conducted of the cervical spine on December 7, 2000 was considered normal.

In a report to the WCB dated December 4, 2000, the treating neurologist stated, "I am not quite sure how this apparent ongoing, chronic denervation would result from a single isolated stretching incident. I think more than likely that if there is an ongoing process associated with longstanding chronic denervation as Dr. (neurologist) suggests, that this would more likely result from a compressive lesion within the spinal canal, the protruded disc, as described on the CT scan rather than from an isolated episode affecting either the brachial plexus or a peripheral nerve."

Following a further examination by a WCB physiatrist on November 1, 2001, it was felt that the worker's history "suggests an aggravation of soft tissue symptomatology and nerve root symptoms as a result of an increase in the conditioning exercises…". The consultant noted that the worker was being referred to a physiatrist by his attending physician and it was suspected that the worker would be treated with needling treatments. After this treatment along with conditioning exercises, he felt that the worker would be able to progress back to regular duties.

In a report to the family physician dated January 15, 2002, the treating physiatrist commented that the worker's signs and symptoms were characteristic of ligamentous and myofascial pain syndrome. In a follow up report dated June 12, 2002, the specialist noted that the worker had made a major improvement and was capable of participating in programs that lead to strengthening and physical conditioning.

The worker was examined further by a WCB physiatrist and a WCB physiotherapy consultant on November 14, 2002. The results of this examination were reviewed by a WCB orthopaedic consultant on December 19, 2002. The orthopaedic consultant stated, in part, "From all of this information it appears the claimant continues to complain of symptoms in the right upper limb which at one point where (sic) considered related to a radiculopathy caused by a small disc herniation at C6-C7. I agree with the original neurologist who felt that the workplace injury was not responsible for this herniation and may have caused an aggravation. In view of the absence on current assessments of hard neurological signs it can be assumed that that aggravation has ceased to exist. Likewise there is no evidence of enhancement arising out of the workplace injury." The consultant concluded his report by stating that the worker had been adequately treated and no longer demonstrated physical findings resulting from the workplace injury. Recommendations were made for the worker to commence a graduated return to regular duties with the exception of the use of the Belt Pac, starting at four hours and progressing to one hour daily per week until full time.

A report dated January 20, 2003 was received from a regional medical officer employed by the accident employer. He stated that the worker's examination revealed pronounced tenderness and muscle spasm over the right supraspinatous and trapezius muscle fibres.

On January 30, 2003, a WCB case manager discussed the case with the WCB's physiatrist regarding whether wearing a belt pack for 3 years could cause radicular pathology. It was the physiatrist's opinion that on a balance of probabilities, it was unlikely that wearing a belt pack would cause radicular pathology that was demonstrated on the October 2000 CT scan. He agreed that it might have aggravated it. He stated that the pre-existing condition however was not enhanced by the workplace accident or from wearing the belt pack.

On February 5, 2003, the case manager discussed the file with a senior medical advisor. It was agreed that the worker's ongoing symptoms were no longer related to the September 1999 workplace accident or the wearing of the belt pack for three years.

In a report dated January 30, 2003, the treating physiotherapist was of the opinion that the worker had permanent restrictions with regard to his C7 nerve root irritation.

On March 25, 2003, the WCB's senior medical advisor reviewed the file and commented that the worker's restrictions were related to chronic cervical radiculopathy which was pre-existing.

On February 3, 2003, the case manager informed the worker that it was the WCB's position that he likely suffered an aggravation of his pre-existing condition at the time of his accident and that the aggravation had now resolved. There was no evidence of an enhancement of his pre-existing condition arising out of his workplace injury or prior workplace activities that would warrant permanent restrictions. This included wearing the belt pack prior to his September 1999 work injury. It was the case manager's opinion that the worker's ongoing difficulties with his neck and shoulder were no longer related to his compensable injury and that wage loss benefits would be paid to February 6, 2003 inclusive and final.

In a decision dated April 26, 2003, the WCB advised the worker that he did not qualify for preventive vocational rehabilitation as he was not returning to his employment and therefore was no longer a risk for re-injury.

On September 1, 2004, a worker advisor, acting on the worker's behalf, wrote to Review Office outlining the position that the worker was entitled to wage loss benefits beyond February 6, 2003, that the WCB was responsible for ongoing physiotherapy treatments, and that the worker should be provided with vocational rehabilitation services.

Prior to its considering the appeal, Review Office referred the case to a WCB orthopaedic consultant for an opinion. On January 11, 2005, the orthopaedic consultant opined that the diagnosis of the worker's right shoulder, neck and hand condition was cervical radiculopathy due to C6 to C7 disc protrusion historically and on CT scan.

In a decision dated January 28, 2005, Review Office determined that the worker's C7 disc lesion was a direct result of the September 22, 1999 compensable injury and that he was entitled to wage loss benefits beyond February 6, 2003. It also determined that there was no requirement for preventive vocational rehabilitation services. Review Office stated that the mechanism of injury and the worker's ongoing difficulties were discussed with a WCB orthopaedic consultant. The consultant advised that he was personally familiar with the mechanics required in applying the hand brake and that this method of injury could have caused the worker's C7 disc protrusion. On a balance of probabilities, Review Office believed that the worker's disc protrusion was directly related to the mechanics involved in applying the hand brake as described on the worker's accident report.

Review Office also determined that the worker's permanent restrictions were directly related to his compensable injury and that the worker should be considered for regular vocational rehabilitation services as opposed to preventive vocational rehabilitation services.

In February 2005, the employer disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

In 2001, a WCB medical advisor referred the worker for an examination by a neurology specialist. The neurologist in his June 13, 2001 report alluded to the fact that the worker's cervical spine difficulties could possibly have pre-existed September 1999.

"…In the EMG report, mild EMG abnormalities are recorded that contextually could be the consequence of a mild previous/chronic C7 radicular pathology. This would incidentally be most consistent with cervical spine CT scan findings that Dr. [treating neurologist] reports, and would also be consistent with the impression on clinical grounds that a mild previous/chronic radicular pathology is more likely to have been present in this patient than a plexus injury. Indeed there is no convincing evidence of any previous plexus pathology. Whether or not the occurrence of the patient's radicular pathology, that was apparently demonstrated on the CT scan of his neck, and is implied in a limited, circumstantial fashion by the EMG findings was actually on onset in September 1999, as the patient suggests, is evidently an imponderable that can only be speculated on, however, as the patient does report some neck/trapezius border pain of onset a number of months prior to his developing his right upper extremity symptoms, it would be a reasonable conclusion that radicular pathology was potentially present for at least a number of months prior to the onset of the symptoms in September 1999."

Notwithstanding the foregoing, the neurology specialist concluded his examination report by stating the following:

"On the balance, I must concur with Dr. [treating neurologist] that there is a reasonable possibility that this patient may have suffered a mild C7 radicular impingement attributable to disc material in September of 1999, and as I have indicated, while there is there is (sic) no necessary basis for presuming that this was actually caused by the patient's occupational activities, it is certainly possible that it was aggravated/accentuated by them."

Review Office, in its decision of January 28, 2005, made mention of a discussion with a WCB orthopaedic consultant concerning the worker's mechanism of injury together with his ongoing difficulties since the September 1999 incident. In particular, we note that the consultant advised "that he was personally familiar with the mechanics required in applying the hand brake and that this method of injury could have caused the worker's C7 disc protrusion."

The orthopaedic consultant had been specifically asked, "Could the diagnosis above [i.e., cervical radiculopathy due to C6-7 disc protrusion] have been caused by the mechanics involved in applying a hand brake as described on the worker's report of injury?" His response was "Yes or may have been aggravated as there is a history of RT [right] shoulder girdle symptoms prior to CI [compensable injury]."

There is no question that the medical evidence confirms a continuity of symptoms since the compensable accident. We find that the worker's increased symptomology including the consequences of the disc lesion is consistent with the mechanism of injury as recorded. We further find based on the weight of the medical evidence cited above that the worker's C7 disc lesion is, on a balance of probabilities, a direct result of (causally related to) the compensable injury sustained on September 22, 1999.

Given our decision with respect to the first issue, it necessarily follows that the worker is entitled to compensation benefits beyond February 6, 2003.

Accordingly, the employer's appeal is hereby dismissed.

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 8th day of July, 2005