Decision #87/00 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on July 26, 2000, at the request of the claimant.

Issue

Whether or not the claimant should be awarded a 3.97% permanent partial disability award.

Decision

The claimant should not be awarded a 3.97% permanent partial disability award.

Background

During the course of his employment on July 5, 1984, the claimant was involved in a rear-end collision and sustained a whiplash injury to his neck region. The initial diagnosis rendered by the attending physician was an acute cervical strain. The claimant decided to claim with the Workers Compensation Board (WCB) instead of pursuing legal action. No time loss was incurred as a result of the accident. In 1985 the claimant retired from employment. The following is a brief summary of the medical information noted on file:

  • on August 10, 1984, x-rays of the cervical spine revealed a slight narrowing of the discs at C4-5 and C5-6. No other bone or joint abnormality was identified.
  • in a letter to a law firm dated January 16, 1985, an orthopaedic surgeon outlined his August 14, 1984, examination findings with respect to the claimant’s cervical spine. The surgeon indicated that the claimant’s complaints and symptoms were due to the July 1984 motor vehicle accident. He believed, however, that the claimant would eventually recovery and would be left with no disability.
  • on October 8, 1996, a physician from the Department of Orthopaedics reported his examination findings of the claimant on June 2, 1985. The physician indicated that the claimant’s symptoms suggested a cervical strain, complicating a mild degenerative disc disease in his cervical spine that was aggravated by his work activities.
  • on November 19, 1986, x-rays of the cervical spine revealed no loss of cervical lordosis. No degenerative changes or narrowed disc spaces were seen. No bony abnormality was seen. Flexion and extension views of the cervical spine showed normal flexion and extension views.
  • on November 19, 1986, a second orthopaedic specialist indicated that the claimant appeared to have mechanical problems related to his neck and that he undoubtedly had some underlying cervical degenerative disc disease. The specialist stated it was difficult to ascribe what degree of the claimant’s ongoing symptomatology was related to the motor vehicle accident. In a follow up report dated November 24, 1986, the specialist indicated that the degenerative cervical disc disease was aggravated by the road accident. Recommendations were made for the claimant to undergo range of motion/strengthening exercises.
  • in February 1987, the claimant was again seen by the orthopaedic specialist for continuing neck complaints. In this report, the specialist noted that the claimant claimed he had never had any specific therapy to his neck, so arrangements were made for a short course of physiotherapy treatments.
  • on April 8, 1987, a WCB medical advisor reviewed the case and was of the opinion that the claimant’s ongoing neck complaints were not a sequela of the initial injury as “the initial injury was minor, as described, by attending orthopaedic consultant at that time.” The physiotherapy treatments were not considered to be related to the initial motor vehicle accident.
  • in a June 3, 1987 report, the orthopaedic specialist stated, in part, “underlying degenerative changes or wear and tear can in fact become symptomatic and not necessarily accelerated by an accident..”.
  • on October 5, 1987, chiropractic x-rays revealed mild osteoporosis, very early degenerative changes and upper cervical subluxations.
  • in September 1999, a chiropractor reported the following objective findings: cervical range of motion was within normal limits with pulling in right lower cervical region. Hypomobility of C6-C7 articulation. The chiropractor diagnosed the claimant with lower cervical subluxation complexes.
  • on December 2, 1999, the claimant was examined by a WCB impairment awards medical advisor with respect to a permanent partial impairment award. Examination findings revealed that the claimant had 45 degrees loss in total range of movement in his cervical spine. The permanent partial impairment award was calculated at 3.97%.
  • on December 9, 1999, primary adjudication asked the WCB’s Director of Healthcare to review the file and provide comments as to whether the PPI award was warranted for the 1984 compensable injury diagnosed as a whiplash. In response, the Director of Healthcare stated the following in a memorandum dated December 30, 1999:

“I have reviewed the complete file. Of note – essentially normal exam when first seen by [orthopaedic surgeon] and further exams reports good ROM [range of motion]. No neuro deficit. WCB have indicated now acceptance of claim first October 1984. I would agree based on the evidence.

I note patient had neck symptoms 10 years prior to Dr. [orthopaedic specialist] consultation in 1986, i.e. many years pre-dating this alleged whiplash injury. Based on all evidence on file he may have some loss of ROM on an age-related basis and associated degenerative disease. There is NO justification based on all the facts on file to relate this to the effects of C.I. [compensable injury].

In my opinion the proposed PPI is totally inappropriate for a muscle strain – considered of recent degree by first orthopaedic surgeon and orthopaedic specialist clearly indicates his inability to relate his symptoms to be directly related to the effects of C.I.

Given he had symptoms since 1976 and has continued to do regular farm work and given the WCB denied acceptance of claim beyond October 1984 I do not know how this examination ever took place and there is certainly no reason to consider far less implement a PPI in this case.”

On January 4, 2000, Rehabilitation & Compensation Services wrote to the claimant and his advocate to advise that the permanent partial impairment award would not be implemented as the loss in range of motion was not related to the compensable injury. Rehabilitation & Compensation Services based its decision on the comments expressed by the WCB’s Director of Healthcare, i.e. that the severe loss in range of movement was related to the claimant’s age and associated degenerative disease and not to the soft tissue compensable injury. This decision was appealed to the Review Office by the claimant’s advocate on February 3, 2000.

In a February 2000 decision, Review Office confirmed that the claimant should not be awarded a 3.97% permanent partial disability award. Review Office was of the opinion that the weight of evidence did not support that there was a relationship between the claimant’s current neck complaints and his 1984 accident. The advocate appealed Review Office’s decision and a non-oral file review was arranged.

Reasons

The claimant has argued that he should be awarded a 3.97% permanent partial disability [PPD] award, for the loss of mobility assessed during a December 2, 1999 examination by a WCB impairment awards medical advisor. For the claimant to succeed, it would have to be demonstrated, on a balance of probabilities, that the current loss of mobility of the claimant’s neck was causally related to his 1984 compensable accident.

After reviewing all the evidence on file, we find that the evidence does not support a relationship between his current neck problems and his 1984 compensable accident. In making this finding, we have noted the following comments expressed in medical reports throughout the file:

  • August 10, 1984 - X-rays of the cervical spine revealed a slight narrowing of the discs at C4-5 and C5-6. This report was dated five weeks after the compensable injury, and is strongly suggestive of degenerative condition preceding the July 1984 compensable accident.
  • November 19, 1986 - An orthopaedic specialist notes “He undoubtedly has some underlying cervical degenerative disc disease”,
  • November 24, 1986 - The orthopaedic specialist notes “There is some underlying degenerative disc disease.”
  • February 16, 1987 - The orthopaedic specialist notes “He has been known to have cervical degenerative disc disease.”
  • June 3, 1987 – The orthopaedic specialist notes “I tried to explain to him that underlying degenerative changes or wear and tear can in fact become symptomatic and not necessarily accelerated by an accident.”
  • October 5, 1987 - Chiropractic x-rays revealed mild osteoporosis and very early degenerative changes.
  • December 30, 1999 – The WCB’s Director of Healthcare reviewed the entire file, and notes as follows:

“I have reviewed the complete file. Of note – essentially normal exam when first seen by [orthopaedic surgeon] and further exams reports good ROM [range of motion]. No neuro deficit. WCB have indicated now acceptance of claim first October 1984. I would agree based on the evidence.

I note patient had neck symptoms 10 years prior to Dr. [orthopaedic specialist] consultation in 1986, i.e. many years pre-dating this alleged whiplash injury. Based on all evidence on file he may have some loss of ROM on an age-related basis and associated degenerative disease. There is NO justification based on all the facts on file to relate this to the effects of C.I. [compensable injury]."

We find that the weight of evidence does not, on a balance of probabilities, support that there was a relationship between the claimant’s current neck complaints and his 1984 accident through an enhancement of the degenerative disc disease present in the claimant’s neck. While it was unusual for the WCB to have undertaken the PPD examination in December 1999, without first finding a causal relationship between the claimant’s current and past neck problems, the examination simply determined and confirmed that the claimant is suffering from a loss of mobility in his neck of a permanent nature.

As we have found that the cause of the loss of mobility – the degenerative disc disease in the claimant’s neck – is not related to the 1984 accident, there is no basis on which the claimant can be awarded a 3.97% permanent partial disability award. Accordingly, the claimant’s appeal is denied.

Panel Members

B. Campeau, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

B. Campeau - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of September, 2000

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