The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 18, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility should be accepted for the worker's neck condition and associated treatment as being related to the May 25, 1990 compensable accident.

Decision

That responsibility should be accepted for the worker's Z joint condition affecting her neck and associated treatment as being related to the May 25, 1990 compensable accident; and

That responsibility should not be accepted for the degenerative condition affecting the worker's neck.

Decision: Unanimous

Background

During the course of her employment as a packer on May 25, 1990, the worker was involved in an accident with injuries to her head, shoulder and lower back. The worker described the accident as follows:

"I was adjusting the ceiling fan, when it fell from the ceiling, landing on my right shoulder; then the conduit struck me on the head."

A Doctor's First Report dated May 25, 1990 indicated that the worker was treated for a small laceration to her left thumb, a large bruise on her right trapezius centrally, no bony injury to clavicle, shoulder joint or scapula. The worker had full range of motion of her right shoulder and paraesthesia in her right arm. There was mild limitation in range of motion of the neck and a small bruise on the top of her skull. The diagnosis rendered was bruising and irritation of the cervical nerve roots.

On June 18, 1990 the treating physician reported that the worker was complaining of continuing headaches and had full range of motion in her neck and shoulder along with muscle stiffness. By July 5, 1990, the worker was still complaining of a painful neck and shoulder and was advised to remain off work for a further two weeks.

The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid to the worker up to July 13, 1990 as the worker terminated her employment with the accident employer and was only claiming benefits from the WCB up to July 13, 1990 inclusive. In addition, based on the report from the treating physician dated July 5, 1990, the WCB determined that the worker had recovered from her injuries and was capable of employment.

In June 1991, a solicitor, acting on the worker's behalf, requested that the WCB reinstate the worker's compensation benefits based on current medical information. On July 31, 1991, the WCB determined that the worker was not entitled to further benefits as there was no medical evidence to substantiate that the continuation of her symptoms were a direct result of the May 25, 1990 compensable injury. The case was then forwarded to Review Office and Review Office accepted responsibility for the worker's right shoulder and arm problems but did not grant the worker benefits as the evidence did not substantiate that the condition was of a disabling nature.

On December 19, 1994, the Review Office considered the case again based on an appeal submission from the worker's legal counsel. The Review Office accepted responsibility for surgery that was carried out on June 11, 1993 to alleviate the worker's right shoulder impingement symptoms and the worker was paid the appropriate benefits resulting from the surgery.

In May 2001, the worker called the WCB to ascertain whether or not it would pay for physiotherapy treatment which she related to a chronic neck problem that she attributed to the 1990 compensable accident. Based on this request, the WCB requested and obtained medical information from the worker's treating physicians and sought the medical advice of a WCB medical advisor on March 2, 2002. The worker also provided the WCB with up-dated information concerning her current symptoms, medical treatment and work history.

In a decision dated June 20, 2002, the worker was advised by the WCB that no further responsibility could be accepted for her claim. The WCB referred to medical information on file dating from October 16, 1990 to October 21, 2001. Based on a review of this information, the WCB determined that the worker had essentially recovered from the May 25, 1990 compensable injury and that she had a pre-existing neck condition. The WCB felt that the worker's ongoing symptoms were likely due to her pre-existing condition(s) which were not caused or enhanced by the compensable injury.

On July 15, 2003, a worker advisor wrote to the WCB asking it to reconsider its decision to deny responsibility for the worker's z-joint pain and associated treatment which was outlined in a report from a physical medicine and rehabilitation specialist (physiatrist) dated October 22, 2002.

On January 2, 2004, a WCB case manager determined that no change would be made to the WCB's earlier decision. The case manager stated she was unable to establish a cause and effect relationship between the worker's neck condition and the compensable injury of May 25, 1990. On February 26, 2004, the worker advisor appealed this decision to Review Office. The worker advisor referred to various medical reports on file and asked the WCB to approve the "percutaneous radiofrequency neuropathy". The worker advisor argued that the treating doctors all agree that the worker suffered neck symptoms since the date of the workplace accident.

In a decision dated April 30, 2004, Review Office confirmed that no responsibility would be accepted for the worker's neck condition or for any related treatment, i.e. physiotherapy, neurotomy, etc. Review Office noted evidence that the worker had degenerative changes in the neck and had no evidence of neurological dysfunction. On February 15, 2005, a worker advisor filed an Application to Appeal the Review Office's decision of April 30, 2004 and an oral hearing was later arranged.

Reasons

The Panel was asked to determine whether responsibility will be accepted for the worker's neck condition or associated treatment as being related to the May 25, 1990 compensable accident. For the appeal to succeed the Panel must find that a relationship exists between the worker's neck condition and her workplace injury. The Panel was able to find that the worker's z-joint condition is related to the worker's May 25, 1990 workplace accident.

Argument and Evidence at Hearing

The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by her representative and the Panel.

The worker advisor noted there are numerous reports on file that support that the worker continued to suffer from ongoing right-sided neck pain and continued to seek medical treatment for her neck from the time of the accident to the current time. She placed significant weight on the opinion of a physical medicine specialist who treated the worker's z-joint condition and stated that it was causally connected to the workplace accident.

The worker provided a detailed description of the accident. She also provided details of her symptoms including symptoms related to her neck. She advised that her neck pain has continued since her workplace accident. She recently underwent treatment for a z-joint condition in her neck. She advised that this treatment was successful and has resolved her condition. She notes that since 1996 she has had a clicking sound when she turns her neck a certain way. This can result in pain and headaches. She advised that she has arthritis in her neck and is being treated by her family physician. She asked for reimbursement for the costs of the z-joint treatment and related expenses which she paid.

Analysis

Having considered all the evidence on the file, we find on a balance of probabilities that the worker suffered an injury to her neck on May 25, 1990. We find that the z-joint condition which was recently treated by the physical medicine specialist is related to the May 25, 1990 workplace accident. We also find that the worker's other neck symptoms including clicking and headaches are not related to her workplace accident but are due to her pre-existing degenerative changes.

We are satisfied that the worker injured her neck in the workplace accident of May 25, 1990. Her description of the accident at the hearing confirmed that her neck was injured. We find that the description provided by the worker is not inconsistent with the description provided at the time of the accident.

We note an early reference to the worker's neck in the Doctor's First Report dated May 25, 1990. This report refers to "mild limitation" in range of motion of the neck and diagnosed bruising - irritation of the cervical nerve roots. There are other references to neck problems throughout the file. We also accept the worker's evidence that she has continued to have neck pain since the workplace injury.

As noted above we find that the worker's z-joint condition is related to her workplace injury. We rely upon the opinion of the physical medicine specialist in this regard which is set out in his report of October 22, 2002:

"…The causal link between this patient's neck and peri-scapular pain and a work-related injury stems from the mechanism of injury, an axial blow to the neck (probable cause). The documentation of C5-6 mediated pain (probable effect) and the appropriate temporal relationship with the onset of pain after the event of an appropriate magnitude. The presence of normal nerve conduction studies following the motor vehicle collision is irrelevant as the nerves evaluated by this study technique are typically not affected by such a condition."

We note that he performed a percutaneous radiofrequency neurotomy for the diagnosis of z -joint pain arising at C5-6. We accept the worker's advice that this treatment resolved the problem with her nerves. We note the physician's opinion that "…there is no anticipated physical restriction to accommodate this condition effectively. Accordingly, workplace restrictions are not indicated on the basis of this diagnosis."

We also find on a balance of probabilities, that the worker has degenerative changes which are not related to the workplace accident. The worker described her condition as arthritis of the neck. We find that the worker's current complaint of clicking upon movement of her neck is not related to her workplace injury. This condition was not treated by the physical medicine specialist nor does he specifically relate this condition to the workplace accident.

The worker's appeal is allowed in part.

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 31st day of May, 2005