Decision #147/06 - Type: Workers Compensation

Preamble

This claim deals with the relationship between a worker’s pre-existing condition and a workplace accident. The worker filed a claim with the Workers Compensation Board (WCB) for right sided symptoms he had been experiencing for several months. He noted the symptoms after a particularly busy week at work. He thought the symptoms might be due to an accident that occurred while lifting heavy windows. The worker was subsequently diagnosed with multi-level degenerative disc and joint disease. The WCB concluded that this condition could not be related to a workplace accident. The claim was denied and the worker appealed.

An appeal panel hearing was held on December 6, 2005, at the request of legal counsel, acting on the worker’s behalf. The panel discussed this appeal following the hearing and again on August 30, 2006.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Whether or not the claim is acceptable.

Decision

That a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act; and

That the claim is acceptable.

Decision: Unanimous

Background

While speaking with a WCB case manager about a different compensation claim on October 26, 2001, the worker made reference to a work injury that occurred about seven months earlier to the right side of his body and for which he did not file a claim. The case manager documented the following in this regard:

“…He does have another injury which did happen at work about seven months ago, he thinks - but did not claim - he has been dragging the leg for months and months, simple walking is hard - not painful but just wasn’t working - finally he spoke up - he did approach the nurse at first but didn’t know if it happened at work - one week prior he had a concussion, but not sure if this had anything to do with the leg - the next week at work he was doing double-pane windows - to be honest still not sure what caused the right side problem.”

During a home visit that occurred on October 29, 2001, the worker told his case manager that he was experiencing right leg pain and numbness for the past 6-7 months. He indicated that no specific incident brought this on. He said his entire leg from hip to toe becomes numb and occasionally spasms. The pain came on after a particularly heavy week of work which involved installing double windows. He said he used the right side of his body to lean into his work in order to generate power. He told the case manager that he did not submit a claim to the WCB as he discussed this with the company’s nurse who suggested that he wait until it was determined what his problem was before submitting a claim. The case manager urged the worker to file a claim so that his right side difficulties could be investigated.

On November 6, 2001, the worker filed a claim with the WCB for right side and leg difficulties that he related to the following accident that occurred in the workplace on March 15, 2001:

“I was installing double pane windows on the bus, having a difficult time fitting them. During the process I had a very sharp painful jolt from shoulders down to my feet.”

A medical report was received from the worker’s treating physician dated December 24, 2001. He noted that the worker jarred his lower back on February 5, 2001 and that he fell in the bath on February 12 and was knocked out for six hours. On July 4, 2001, the worker advised the physician that he had general muscular pain involving his shoulders, arms, upper and lower back which he related to lifting heavy windows in March and that the pain gradually worsened. When the worker was seen on July 16, 2001, the worker complained of general malaise, weakness, numbness and tingling in his hands and fingers with leg weakness.

The treating physician provided the WCB with a neurologist’s report dated December 13, 2001. The neurologist’s examination revealed that the worker demonstrated an unusual kind of gait impairment. “He walks with somewhat wide based gait, right leg is stiff but with effort he is able to walk in tandem and Romberg’s test is negative. His reflexes are brisk in the lower limbs and he has unsustained clonus at the right ankle. Neck movements are restricted but I can find little else on exam to explain his problems.” The neurologist suggested that the worker undergo an MRI scan of his brain and nerve conduction studies.

Following discussions with the employer’s nurse and the worker’s supervisor, an acting WCB case manager informed the worker on January 17, 2002 that his claim for compensation was denied as she was unable to relate his ongoing right sided difficulties to a work injury on March 15, 2001.

In a further decision dated January 30, 2003, the worker was advised by his WCB case manager that further medical information had been received. He stated:

“The evidence suggests that you suffered from a cervical myelopathy with multilevel degenerative disc and joint disease resulting in spinal cord compression.

The medical evidence was reviewed by numerous Workers Compensation Board (WCB) Medical Advisors. It was their consensus that the severe degenerative changes in your cervical spine and associated symptoms, could not, on balance of probabilities, be related to a workplace accident. The March 15, 2001 incident may have aggravated your pre-existing condition but there is no evidence to suggest that it would have been more than a temporary aggravation which should have since resolved.”

On February 3, 2003, the WCB case manager wrote to a neurosurgeon who had examined the worker on January 8, 2003 which was subsequent to cervical decompression surgery. In response to questions posed by the case manager, the neurosurgeon stated,

  • “…after a full discussion of [the worker’s] work requirements including working in a cramped space with his head and neck in awkward positions for prolonged periods of time lifting the bus windows, I cannot help but come to the conclusion that environmental work related factors would significantly contribute to the, if not the presence, then the degree of advanced degenerative changes in the worker’s spine.”

  • “…All I have to go by is [the worker’s] description of his work with his head and neck in cramped spaces and lifting heavy objects. It would be my opinion that this repetitive strain of the cervical spine could significantly contribute (sic) exacerbating degenerative changes and thus contributing (sic) to his spinal cord compression.”

  • the worker was presently restricted from any heavy lifting over 30 lbs. for three to six months.

  • “…There are no prospective randomized double-blinded trials that would allow me to state with supreme confidence that the repetitive strain that [the worker] incurred in his job directly resulted in his incomplete spinal cord compression and incomplete spinal cord injury. I am strongly of the opinion, however, that constant repetitive strain as [the worker] has described in his work definitely significantly contributes to the development of the condition that [the worker] presents with.”

The above report was reviewed and commented on by two WCB medical advisors, an orthopaedic consultant and a physical medicine and rehabilitation consultant. Based on their opinions, the case manager advised the worker on April 14, 2003 that the evidence did not support a relationship between his medical condition and a workplace accident. It was felt that the workplace activities likely aggravated the worker’s degenerative changes in his spine but were not likely the cause of his underlying degeneration. The worker was therefore advised that no change would be made to the WCB decision of January 30, 2003.

In a memorandum dated May 29, 2003, the case manager recorded a conversation that he had with the employer’s nurse. During that conversation, the nurse indicated that the worker always worked inside the coach with a drill and a screwdriver. Typically, he would not lift the windows into place. He may have done lifting on occasion when co-workers were ill or away. She indicated that motorized lifts are used so windows only had to be lifted from foot level to chest level and that two people would pick up the window.

In a report to the family physician dated April 22, 2003, the neurologist outlined his impression that the worker’s cervical myelopathy was “exacerbated by work at the very least”.

On September 16, 2004, the worker’s union representative submitted a request for the WCB to convene a Medical Review Panel (MRP) pertinent to this claim. The case was then referred to a sector services manager to consider the MRP request.

On October 7, 2004, the sector services manager wrote to the union representative. She stated that the attending physician provided an opinion that the worker’s years of labor related employment activities may have contributed to, or caused the development of his multi-level degenerative disc disease and joint disease. She stated that “years of labour related activities” did not meet the definition of an accident under The Workers Compensation Act (the Act). The case manager explained that the WCB was unable to establish that an accident occurred and that this was the basis for denying the worker’s March 2001 right side/leg injury. She determined that the requirements of subsection 67(4) of the Act had not been met and therefore she was unable to grant the convening of an MRP.

In a submission to Review Office dated October 26, 2004, the union representative advanced the argument that it was clear from the file evidence that an accident at work did occur (memo from the adjudicator dated October 26, 2001) and that the review of medical information is what denied the worker’s claim. The union representative therefore asked Review Office to reconsider the decision that was rendered on October 7, 2004.

The employer’s advocate provided Review Office with a submission dated December 21, 2004. The advocate outlined her position that there was no support to conclude that an ‘accident’ as defined by the Act occurred on or around March 15, 2001.

The case was considered by Review Office on January 6, 2005. It was Review Office’s decision that the claim was not acceptable based in part, on the following factors:

  • comments that were made by the worker to WCB adjudicative staff that there was no specific incident which brought on his right sided problem;
  • years of labour-related activities did not meet the definition of accident under the Act;
  • the lack of reporting of the alleged condition by the worker to his physician and employer;
  • Review Office stated that the worker’s employment did not create the severe and significant degenerative conditions found in his cervical spine or that the worker’s employment on March 15, 2001 enhanced the pre-existing condition in the worker’s cervical spine.

With respect to the request for an MRP, Review Office agreed with the sector services manager that the issue was not a medical matter but rather an adjudicative matter. It concluded that the criteria for convening an MRP had not been met.

On September 1, 2005, the union representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged for December 6, 2005.

On December 13, 2005, the appeal panel advised all interested parties that it decided to convene an MRP under subsection 67(4) of the Act prior to determining whether or not the claim for compensation was acceptable.

In a letter dated March 22, 2006, the employer’s advocate was asked to provide background information concerning the worker’s work activities. On April 2, 2006, the advocate provided the appeal panel with the information it had requested which was shared with the interested parties. On April 12, 2006, the advocate was advised that the appeal panel would be using the information she supplied on April 2, 2006 when drafting its questions for the MRP.

On June 12, 2006, an MRP was convened. On July 27, 2006, the MRP provided the appeal panel with a copy of its final report which was shared with all interested parties for comment. On August 30, 2006, the appeal panel met to render its final decision.

Reasons

Worker’s Position

The worker was represented at the hearing by legal counsel who made a submission on the worker’s behalf. The worker answered questions posed by his counsel and the panel. A physician was called as a witness to give evidence in support of the worker’s claim.

The worker described his duties as a window installer, which he did for approximately four years. He advised that he worked with a team of four people, two worked inserting the window into position from outside the bus and two attaching it inside the bus. The worker worked inside. He used a drill with self tapping screws to attach the window. He was required to push the window upwards to get it into position and hold it in place while attaching with screws. The worker noted that the work area had a low ceiling and that his height was six feet one inch. As a result he worked in an awkward position.

The worker acknowledged that he worked on 2.5 to 3 buses per day and that there were 11 to 14 windows per bus, and that he was installing a maximum of 42 windows per day. He also acknowledged that the holes are pre-drilled.

The worker advised that he was in good health when he started in this position. He stated that the job was very physical. The worker advised that he frequently had a sore neck at work and would get an ice pack from the occupational health nurse.

A physician who works at an occupational health clinic gave evidence on the worker’s condition. He advised that he first saw the worker in June 2003, approximately six months after the worker had surgery. He stated that

“…What concerned me most in terms of the hazards to the neck was the side bending, forcing the head up into the luggage rack, given his height and given the constraints of space, and the rotation forces of turning left and looking down to be able to see the screw gun and where he’s putting the – where he’s screwing and at the same time is in that side bent, rotated position, pressing his head into the luggage rack and probably against the window itself, the lifting forces required, transmitted through the gun to lift the sash and to screw in.”

The physician explained the impact of working in this position on the longitudinal ligament. He referred to research regarding an opacification of the posterior longitudinal ligament (OPLL).

“I think doing what he did for more than three years, if it was a typical routine part of his day to forcefully load his neck in a side bent and rotated position like that, that is exactly what can cause cervical spondylosis and changes in the ligaments that led to surgery.”

The worker’s counsel submitted that the “the real issue is whether the kind of work he did over the period of time that he did it either caused or enhanced the degeneration that he has experienced.” He noted that the worker was basically in good physical shape and then did a job that put stress on his neck at points at which he ended up having problems. He also noted the medical opinion that the worker’s condition is related to his employment. Counsel submitted the claim is acceptable on a balance of probabilities.

Regarding the opinions on file from WCB healthcare consultants, the worker’s counsel noted that these physicians did not examine the worker and may not have had a full understanding of the worker’s job duties. He asked that an MRP be convened if the panel thought there was medical controversy.

Employer’s Position

The employer was represented by an advocate and its rehabilitation specialist. The employer called the worker’s supervisor as a witness to provide information on technical aspects of the workplace and the worker’s duties.

The witness described the tools used in the workplace, tasks performed by staff and in particular the worker, number of staff involved in the process, time required for certain tasks, volume of work (number and type of buses, and specifications of the product and work area).

With respect to the worker’s accident, he advised that he could not remember the worker asking permission to go to the health unit. He did recall some occasions when the worker asked for an ice pack. He advised that no other employees complained about problems working on the installation of windows. The worker did not advise him of an injury that occurred on March 15, 2001.

The advocate reviewed the worker’s history of claims with the WCB and noted that the worker promptly reported his other injuries. On this claim the advocate noted that the worker did not mention the injury to the WCB until October 21, 2001 or file an accident report until November 6, 2001. Nor did he report to his supervisor or the employer’s occupational health nurse.

The advocate noted the worker’s diagnosis. She referred to medical reports from a neurologist and neurosurgeon which note a worsening of symptoms even though the worker had been absent from work. She noted the opinions of WCB healthcare consultants that the worker’s condition is not work related. The advocate submitted that the “…facts confirm that, on a balance of probabilities, the very severe pre-existing condition was at most minimally aggravated by the workplace duties and did not, of its own, result in a loss of earning capacity.” She noted that the worker did not miss any time from work on or about March 15, 2001.

With respect to the request for an MRP, the advocate submitted there are “no conflicting opinions medically of the actual condition that [the worker] has.” She noted a conflict exists on the issue of whether the job duties are the contributing factor to the need for surgery. She stated that this is an adjudicative matter and not a medical matter and that the requirements of subsection 67(4) have not been met.

Analysis

For this appeal to be successful the panel must find that a relationship exists between the worker’s employment duties and his pre-existing condition. The panel does find, on a balance of probabilities, that a relationship exists between the worker’s employment duties and the worker’s pre-existing condition, specifically that the worker’s employment duties enhanced his pre-existing condition. The panel finds that the claim is acceptable in accordance with WCB Policy 44.10.20.10.

As noted in the background, the panel determined that an MRP should be convened under subsection 67(4) to consider the difference of opinion that exists on this file. The panel notes the reports of the worker’s neurosurgeon and occupational health physician conflict with the opinions of WCB physicians regarding the etiology of the worker’s medical condition and whether it could have been specifically caused or enhanced by the worker’s job duties. To assist the MRP in considering this case, the panel prepared a summary of the worker’s job duties from the hearing transcript and information provided by the employer. This summary was provided to the MRP.

The MRP provided its report on July 27, 2006. In accepting this claim the panel places significant weight upon the report and opinion of the MRP. The MRP answered the question posed as follows:

Question #1:

Medical evidence confirms that [the worker] developed advanced cervical spondylosis with neurologic compromise.

Question #1(a):

Was [the worker]’s cervical spondylosis caused by his work as a window installer? Please explain the reasons for the panel’s opinion.

Answer:

No. The cervical spondylosis was not caused by his work as a window installer. Cervical spondylosis is a common slowly progressive condition which in the case of [the worker] had probably been present for many years without causing symptoms.

Question #1(b):

If no, did his work enhance or accelerate the progression of pre-existing or idiopathic cervical spondylosis? Please explain the reasons for the panel’s opinion.

Answer:

Yes. The type of work he did enhanced the progression of pre-existing idiopathic cervical spondylosis. The opinion of the panel is based on the fact that the physical requirements (which have been well defined by the appeal panel and also described by the claimant) of the job were instrumental in the enhancement of the pre-existing spondylosis and the appearance of a severe myelopathy.

Question #1(c):

If no, was his cervical spondylosis essentially unaffected by his work? Please explain the reasons for the panel’s opinion.

Answer:

Not applicable.

Question #2:

[The worker] underwent cervical decompression and stabilization surgery.

Question #2(a):

What is [the worker]’s current condition and state of recovery?

Answer:

[The worker]’s current condition and state of recovery are not good. Included in his list of problems are weakness and pain in his left leg – particularly his knee, impaired co-ordination, ataxia and neck and shoulder girdle pain all of this is related to his residual myelopathy. He also has restriction of movements of his neck, some of which is related to his surgery. He will not likely achieve further recovery.

Question #2(b):

Does he have any residual physical impairments of his neck or extremities as a result of his neck condition?

Answer:

Yes, he does have residual physical impairments of his neck and extremities.

Question #2(c):

If yes, please describe his physical impairments in detail. Also indicate whether they should be considered temporary or permanent, and if temporary, for what duration of time.

Answer:

[The worker] has a painful neck with decreased range of motion with the only movement even close to normal being rotation, reduced co-ordination of arms and legs with resulting slowness of movement, a painful right leg probably related to the loss of muscle co-ordination and which results in a limp and finally, ataxia. These impairments should be considered permanent.

The panel notes that in addition to the MRP report, there is other evidence on the claim file which supports the existence of a relationship between the worker’s employment duties and his pre-existing condition. This evidence includes the opinion of the worker’s witness, a physician who practices at an occupational health clinic as well, the worker’s neurosurgeon who commented in a report dated February 5, 2003 that “…after a full discussion of [worker’s] work requirements including working in a cramped space with his head and neck in awkward positions for prolonged periods of time lifting the bus windows, I cannot help but come to the conclusion that environmental work related factors would significantly contribute to the, if not the presence then the degree of advanced degenerative changes in [worker’s] cervical spine.”

The worker’s claim is accepted and accordingly the appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of October, 2006

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