The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An oral hearing was held on March 22, 2005, at the request of a union representative, acting on behalf of the worker.

Issue

Whether or not the compensable injury of July 12, 1999 caused an exacerbation of the worker's pre-existing medical condition of multiple sclerosis; and

Whether or not responsibility should be accepted for wage loss benefits and medical treatment beyond November 9, 2000.

Decision

That the compensable injury of July 12, 1999 did not cause an exacerbation of the worker's pre-existing medical condition of multiple sclerosis; and

That responsibility should not be accepted for wage loss benefits and medical treatment beyond November 9, 2000.

Decision: Unanimous

Background

On July 12, 1999, the worker was thrown from a tractor he was operating when it rolled onto its side into a ditch. Initial medical reports diagnosed the worker with a strain of the neck and back along with various contusions and lacerations. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker.

Subsequently, the worker continued to seek treatment from his attending physician and underwent various laboratory investigations. In August 1999, a WCB medical advisor stated that the worker showed evidence of injury to the sacroiliac joint and associated musculature. Examination of the shoulder revealed some evidence of a rotator cuff injury with perhaps a tear.

On August 24, 1999 a CT scan of the lumbar spine was carried out. In a memo to file dated September 16, 1999, a WCB medical advisor stated that the worker had significant degenerative disc disease which included osteophytes at L5-S1 and significant degenerative disease at L5-S1 with definite facet arthropathy at all levels. The worker had a diffuse bulging of L4-5. The medical advisor stated that based on this examination, it was clear that the worker had a significant back injury which was aggravating the extensive pre-existing degenerative disease annotated in the lumbar spine x-rays. The clinical examination did not indicate any radiculopathy, although there was perhaps a suggestion of an S1 nerve root involvement on the CT scan.

A CT arthrogram of the right shoulder was taken on September 24, 1999. The results revealed no evidence of rotator cuff tear, OA (osteoarthritis) of the shoulder and a superior/posterior labral tear.

In a report to the family physician dated February 3, 2000, an orthopaedic specialist suggested conservative treatment for the worker's multi-level degenerative changes. With regard to the worker's left shoulder complaints, the specialist recommended an arthroscopic debridement or arthroplasty.

On August 8, 2000, the worker was examined by a WCB orthopaedic consultant. In a subsequent memo to file dated November 9, 2000, the consultant stated that he did not find any orthopaedic evidence of a continuing back disability arising out of the workplace injury, that the worker's shoulder complaints/difficulties were not a WCB responsibility and that no work restrictions were warranted as there was no evidence of a disability.

In a decision dated November 14, 2000, primary adjudication determined that the worker had recovered from the effects of his compensable low back injury and that no benefits and services were payable beyond November 10, 2000. It was also the WCB's position that the worker's ongoing problems were likely related to pre-existing degenerative changes in his lower back and shoulder.

On January 24, 2002, a union representative provided the WCB with medical information received from a neurologist which suggested that the worker suffered a closed head injury as a result of the original compensable event of July 1999. Based on this information, the WCB met with the union representative and the worker to gather additional information concerning the mechanism of injury and aspects of the worker's medical condition prior to and subsequent to the July 1999 accident. The WCB also obtained medical and laboratory test results from the worker's treating physician, a second neurologist and a psychological assessment report outlining the worker's current level of cognitive functioning. On May 2, 2002, the worker was interviewed by a WCB psychological advisor and a WCB rehabilitation nurse.

In a decision dated August 29, 2002, primary adjudication stated, in part, the following:

"…It was the opinion of the advisor that due to the diagnostic uncertainty between the neurologists on file, the absence of historical documentation of a head injury, and the history you presented, he was unable to relate your current symptoms to a head injury resulting from the compensable accident.

You were evaluated on July 11, 2002 by Dr. [neurologist], with respect to the MRI findings of July 2, 2002. Dr. [neurologist] has offered that the results of the MRI are consistent with multiple sclerosis and the evoked potential studies showed bilateral optic pathway disease, which would also fit with a diagnosis of multiple sclerosis.

...based on the accident mechanics, the absence of historical documentation of a head injury, medical information prior to the compensable accident and the current diagnosis, that there is no evidence that you sustained a head injury on July 12, 1999. In addition, we are of the opinion that the compensable accident has not in any way enhanced your pre-existing medical condition.

Given the above, we find no basis to extend wage loss benefits or responsibility for medical treatment (including prescription medications) beyond November 10, 2000."

On February 2, 2004, the union representative outlined his position that on a balance of probabilities, the motor vehicle accident caused an exacerbation of the worker's pre-existing medical condition, i.e. multiple sclerosis. In support of his position, the union representative provided the WCB with new medical information from the Multiple Sclerosis Clinic along with medical literature pertaining to multiple sclerosis and the role of trauma.

In a response to the union representative primary adjudication stated on May 27, 2004 that additional information was obtained from the worker's treating physician who stated that the worker had no other medical conditions which were contributing to his multiple sclerosis type symptoms. Primary adjudication then indicated that the issue was discussed with a WCB medical advisor and a WCB senior medical advisor. Based on this discussion, the following decision was reached,

"It was there (sic) opinion that certain types of trauma could exacerbate (sic) Multiple Sclerosis was a very contentious issue and there does not seem to be a clear consensual decision on this in the medical community. For every article that was found in support, one could be found with a differing opinion.

The initial WCB decision of August 29, 2002 was based on medical information supplied by a neurologist, WCB psychological advisor, and the opinion from the WCB senior medical advisor. It was the opinion that you did not suffer a head injury and that your Multiple Sclerosis condition was a pre-existing condition to the work place accident. As indicated, the issue at hand seems to be a very contentious one in the medical community and unfortunately I find no reason to change the initial decision made by the WCB."

On June 25, 2004, the union representative disagreed with the WCB's decision of May 27, 2004 and the case was forwarded to Review Office for consideration.

On October 18, 2004, Review Office considered all the file information including a submission by the employer's representative dated October 4, 2004 which contained medical information from an Alberta neurologist. Review Office concluded that there was overwhelming evidence of significant neurological problems being evident prior to July 12, 1999 and that there was no cause and effect relationship between the signs and symptoms the worker incurred beyond November 9, 2000 and the accident. Based on this and other evidence, Review Office concurred with primary adjudication that the accident of July 12, 1999 did not cause an exacerbation of the worker's pre-existing medical condition of multiple sclerosis and that responsibility should not be accepted for wage loss benefits and medical treatment beyond November 9, 2000. On November 29, 2004, the union representative appealed Review Office's decision of October 18, 2004 and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant was injured when the tractor that he was driving in a ditch rolled over on its side and as a result he was then propelled off the tractor. The claimant picked himself up and attended the emergency department of a local hospital. The initial diagnosis was “strain neck/back” and this was later expanded to include “muscle contusions/strain multiple sites.”

The worker’s union representative advanced the argument that the worker sustained “a whiplash type injury when he was thrown from the tractor on July 12, 1999” and that this event caused an exacerbation of his pre-existing multiple sclerosis.

An MRI of the claimant’s brain and cervical spine was conducted on or about June 5, 2001. The attending radiologist recorded the following comments:

“While the findings are not entirely specific regarding etiology the distribution of the lesions is most consistent with multiple areas of demyelination and would be most consistent with the clinical diagnosis of multiple sclerosis. The distribution of the lesions would be atypical for post-traumatic brain and spinal cord injuries.”

It is common knowledge that a typical whiplash injury characteristically involves rapid acceleration and deceleration of the neck and head. In the case at hand, there is no corroborative medical evidence confirming the allegation that the worker had in fact sustained a whiplash injury. It is also important to note that there was no mention of a head injury when the claimant attended at the emergency department of the local hospital on the day of the compensable incident and that there was no mention of a head injury three days post injury when the claimant was examined by his treating physician.

The claimant’s union representative during the course of his presentation referred to extracts from various medical literature sources suggesting that trauma can play a significant role in the pathogenisis of multiple sclerosis. In response, the employer’s representative countered by consulting a neurologist from another province. The neurologist provided the following opinion:

“My first point of reference is to the textbook Principles of Neurology by Victor and Ropper, Edition 2001 published by McGraw-Hill. This is the most widely used general neurology text in North America and is considered the gold standard on which other general neurology texts are judged. The issue of precipitating factors in multiple sclerosis is addressed on page 961 and the conclusion was ‘there was no significant correlation between traumatic episodes and exacerbations.’

My next point of reference was to the monograph on multiple sclerosis edited by Dr. D. W. Paty and Dr. G. Ebers published by F. A. Davis and Company, 1998 edition. Drs. Paty and Ebers are Canada’s most eminent authorities on multiple sclerosis and considered as experts in their field world wide. In addressing the issue of physical trauma and relapses in multiple sclerosis on page 147, they concluded ‘there are few data to substantiate this and the weight of the evidence is against it.’

I would also like to refer to the article by Silva and others published in Neurology Volume 43. page 1878, 1993. In this report 819 brain injured individuals were followed for an average of 10 years and no relationship between head trauma and multiple sclerosis was seen.

In 1991 W. A. Sibley and others published a prospective study of physical trauma and multiple sclerosis published in the Journal of Neurology, Neurosurgery and Psychiatry, volume 54, page 584, 1991. This is one of the few good prospective studies done in which 170 multiple sclerosis patients and 134 controls were followed for an average of five years and no significant correlation was seen between traumatic episodes and exacerbations.

The report that Dr. [worker’s consulting neurologist] mentions in her letter of January 6, 2004 published in Clinical Neurology and Neurosurgery, May 1994 and which I have also reviewed, can only be considered speculative at this time.

In conclusion, it is my opinion based on the information presented above, there is no firm evidence at this time to suggest that trauma either to the head or elsewhere in the body results in an exacerbation of multiple sclerosis.”

We prefer to attach greater weight on the medical literature review provided by the employer’s consulting neurologist and based on this and other evidence on file, we find that the compensable injury of July 12, 1999 did not, on a balance of probabilities, cause an exacerbation of the worker’s pre-existing medical condition of multiple sclerosis. In light of the finding with respect to the first issue, we further find that responsibility should not, therefore, be accepted for wage loss benefits and medical treatment beyond November 9, 2000 as such wage loss and medical treatment were consequences of the worker’s non-compensable multiple sclerosis and not the July 12, 1999 injury.

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 2nd day of May, 2005