The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 13, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on September 14, 1999.

Issue

Whether or not responsibility should be accepted for the claimant's ongoing head and neck problems.

Decision

That responsibility should not be accepted for the claimant's ongoing head and neck problems.

Background

While working with a jig on October 5, 1995, the claimant attempted to pry open a clamp with a 48" bar when the bar slipped and hit him on the forehead. As a result of the compensable accident, the claimant was diagnosed with post concussion syndrome and muscle spasm in the cervical spine.

X-rays of the cervical spine, dated October 5, 1995 revealed C6-7 disc space narrowing which had been present on a previous radiographic exam taken in April 1995. A CT scan of the cervical spine, dated November 3, 1995, disclosed the following: "No disc protrusion has been demonstrated. There are degenerative changes involving the C6-7 disc space with small posterior ridge ostophytes which are slightly more pronounced on the left. These changes are resulting in a mild degree of secondary stenosis of the central canal more pronounced on the left. A mild degree of exit foramen stenosis is also present on the left at this level."

On February 28, 1996, a rehabilitation psychology & neuropsychology specialist noted that the claimant had been experiencing vertigo, tinnitis, occasional memory difficulties, sleep disturbance, and reductions in the acuity of smell since the compensable accident. Examination results indicated that the claimant's neuropsychological and emotional status were completely within normal limits. With regard to functional status, the specialist was concerned over the claimant's vertigo and tinnitis and consequently a referral was made to an otolaryngologist for an opinion as to etiology and prognosis.

In April 1996, the claimant's benefits were suspended as he had moved to Calgary, Alberta and failed to attend two Manitoba WCB medical examinations.

A medical report was next received from an Alberta neurologist, dated March 27, 1997. The report stated that the claimant had suffered occasional bad headaches since his early teens and twenties which occurred about once per year. In 1993 there was an abrupt increase in his headache frequency (i.e. occurring on a near daily basis) although his headaches did not change in character. After the 1995 accident, the headaches became quite frequent and there was a predominant neck pain component to his headaches. The specialist indicated that the neck pain would often precede and precipitate a headache. The neurologist believed the claimant suffered from chronic daily headaches which fit the headache diagnostic criteria for transformed migraine with medication overuse and cervicogenic headache. He considered the claimant's neck pain was an important precipitant for his headaches. The specialist later clarified his opinion for an insurance company that the cause for the claimant's headaches had not yet been determined.

On June 30, 1997, the claimant was seen in consultation at an Alberta Pain Clinic. The diagnosis was cervicogenic headaches, possibly from upper cervical facet problems or arthritis, low back pain, and an old T4 compression fracture.

In August 1997, a cervical spine MRI was performed which revealed degenerative C5-6 disc change and degenerative right C4-5 uncovertebral joint and degenerative left C3-4 facet change. On September 26, 1997, the claimant underwent a C5-6 and C6-7 provacative discography. The post-operative diagnosis was discogenic cervicogenic headaches.

On November 24, 1997, another neurologist provided an outline of the claimant's injury, personal history and physical examination. Under the "Diagnosis" reading of this report, the neurologist indicated the following:

• diagnosis was an aggravation of chronic daily headaches with migraine. The current headaches were more typical of a mixed vascular tension-type headache. There was mention of cervicogenic headaches which came from the higher facet joints and now a lot of emphasis was placed upon a positive discogram at C5/6 which would not be related to cervicogenic headaches.
• there was some evidence of functional overlay.
• the claimant's pain behavior was now entrenched and the prognosis was poor. At this time the claimant was considered unfit for employment in his previous occupation. It was recommended that the claimant get involved in a chronic pain management program.
• the claimant had what would be considered a mild head injury based upon a loss of consciousness of 30 minutes maximum and a modest anterograde amnesia. "He has very little in the way of post-concussion symptoms most of which have resolved."

The claimant was also examined by an orthopaedic specialist on December 22, 1997 who noted pain at the midline from C5-C7 and into the left paravertebral musculature. On February 2, 1998 a neurosurgeon stated that he was uncertain as to the nature of the claimant's pain and that he would review the CT brain imaging study. On April 27, 1998, the specialist indicated that the CT brain imaging study was unremarkable and that the claimant continued to suffer from intractable pain. "In view of the intractable/progressive nature of [claimant's] problem, I suspect that he is a candidate for deep brain stimulation."

On September 24, 1998, the claimant was examined by a WCB medical advisor and a physical medicine and rehabilitation consultant who reported that the claimant developed a radial nerve palsy on the right side, likely due to falling asleep in a chair. It was felt that this lesion did not relate to the compensable incident. Examination of the claimant's back revealed tenderness at the T4-T5 level as was the lower cervical region from C3 to C7-T1. No spasm of the neck was palpated.

The claimant was also assessed at the WCB's Pain Unit on September 22, 1998. The medical advisor was of the opinion that the claimant was suffering from an undifferentiated somatoform disorder together with some symptoms suggesting a situational depression. He noted that the use of substantial amounts of narcotic medications may be contributing to the current symptomatology. The medical advisor believed that the right radial palsy was likely due to pressure on the right radial nerve after ingestion of certain night time medication. Significant pre-existing cervical degenerative disc disease was also noted which the medical advisor felt was not related to the October 5, 1995 work place injury.

In a report, dated December 3, 1998, the treating neurosurgeon indicated that the precise mechanism resulting in the claimant's disabling discomfort was not readily apparent. In a later report, dated January 19, 1999, the specialist stated that following review of the MRI and EMG study results, that the claimant's ongoing problems in the nerves innervating his arm suggested these problems would be permanent. He felt, however, the area may respond satisfactorily to deep brain stimulation.

On February 4, 1999, the claimant was advised by WCB Claims Services that a cause and effect relationship could not be established between the compensable injury and his current medical condition. Thus, no further responsibility would be accepted for the claim. On April 6, 1999, this decision was appealed. An advocate presented additional medical information from the treating neurosurgeon, dated March 9, 1999 which indicated that the claimant was a candidate for deep brain stimulation. The advocate requested that the WCB accept responsibility for this treatment and to re-instate benefits retroactive to May 1997 when the claimant became unemployable as a consequence of his October 5, 1995, compensable injury.

On May 14, 1999, Review Office determined that no responsibility could be accepted for the ongoing head and neck problems experienced by the claimant. Review Office acknowledged that the claimant sustained a work related head injury on October 5, 1995. The claimant, however, had had longstanding pre-existing difficulties with headaches and had a positive family history for migraine headaches. Review Office noted that it was readily apparent the claimant, throughout the many examinations, had embellished his symptoms and his complaints were described as non- anatomic sensations in his neck, shoulder and arms. It was noted that the right radial nerve palsy was a recent development and that there was no support from any of the attending physicians relating this particular problem to the 1995 accident. Review Office believed that the claimant's ongoing head and neck complaints were not related to the 1995 accident and that responsibility would not be accepted for the claimed time loss or for any medical investigations. The advocate representing the claimant appealed this decision and an oral hearing was convened.

Reasons

The claimant brings this appeal seeking acceptance for his ongoing head and neck difficulties. He contends that these current problems are related to his compensable injury of October 5th, 1995. The preponderance of evidence does not, however, support this contention. We find that the degenerative changes in the claimant's cervical spine are not causally related to the specific trauma suffered at the time of the compensable accident. In particular, we note the claimant's pre-existing cervical degenerative disc disease as revealed in X-rays taken in April 1995 prior to the compensable accident as well as in a CT scan conducted subsequently on November 3rd, 1995.

In addition, the claimant's medical history also chronicles his frequent episodes of severe headaches prior to the compensable accident. Specifically, we refer to a specialist's report, dated March 27th, 1997, in which he records the following commentary:

"Since his early teens and twenties, he has had occasional bad headaches. He describes them as left frontal temporal in location, associated with nausea, vomiting, photophobia and sonophobia. Initially, these headaches were quite infrequent, occurring once per year. In 1993 there was an abrupt increase in his headache frequency. Although his headaches did not change in character, they were occurring on a near daily basis. Fortunately, this settled down in late 1994."

Also of significance is the examination report of a consultant neurologist, dated November 17th, 1997, to which we attached considerable weight:

"Diagnosis: Aggravation of chronic daily headaches with migraine. Current headaches are more typical of a mixed vascular tension-type headache. There is mention of cervicogenic headaches which come from the higher facet joints and now a lot of emphasis is placed upon a positive discogram at C 5/6 which would not be related to cervicogenic headaches.

There is certainly a significant amount of embellishment and I note in the formal neurological examination in the Headache Clinic that he had a sensory loss on the hemicorporal to pin prick and light touch extending to the mid-line on the entire right side of his body. Hence there is evidence that there is some functional overlay.

He needs to become unfocused from the C 5/6 source of pain as that is not the cause of his neck pain or headache.

He had what would be considered a mild head injury based upon a loss of consciousness of 30 minutes maximum and a modest anterograde amnesia. He has very little in the way of post-concussion symptoms most of which have resolved."

We find that the claimant's neck pain and headaches are not, on a balance of probabilities, related to his compensable injury of October 5th, 1995. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of October, 1999