Decision #21/07 - Type: Workers Compensation

Preamble

This case deals with the relationship between the worker’s ongoing neck symptoms, his workplace injury and his pre-existing condition.

The worker injured his neck when he hit his head on machinery at work on March 24, 2004. He applied to the Workers Compensation Board (WCB), his claim was accepted and benefits were provided. The WCB subsequently determined that the worker’s ongoing neck symptoms were not due to his workplace injury. The worker disagreed and sought reconsideration. The review office upheld the WCB decision and the worker appealed to the appeal commission.

An appeal panel hearing was held on October 25, 2006. The hearing was adjourned and reconvened again on December 13, 2006. The panel met following the hearing and rendered its decision on the two issues under appeal.

Issue

Whether or not there is a relationship between the worker’s neck symptoms and the March 24, 2004 injury; and

Whether or not the worker is entitled to physiotherapy treatment and related expenses beyond December 10, 2004.

Decision

That there is no relationship between the worker’s neck symptoms and the March 24, 2004 injury; and

That the worker is not entitled to physiotherapy treatment and related expenses beyond December 10, 2004.

Decision: Unanimous

Background

On March 24, 2004, the worker reported that he injured his neck when he straightened up from a bent position and struck his head on a drill press beam. He was wearing a hard hat at the time.

The worker sought medical attention on March 25, 2004 with findings of spasm, tenderness in the left trapezius, decreased range of motion and neurologically intact upper extremities. The diagnosis rendered was neck strain and muscle spasm of the left trapezius. In a subsequent progress report dated March 30, 2004, the worker was reported to have had less spasm and tenderness with increased range of motion. The physician suggested that the worker could return to his regular duties by March 31, 2004.

The Workers Compensation Board (WCB) accepted the claim based on the diagnosis of a neck sprain and the worker was paid benefits to March 29, 2004. On April 13, 2004, the worker told his WCB adjudicator that he was still having symptoms at the end of a work day.

On December 7, 2004, the worker told his adjudicator that he had been on holidays since November 19, 2004 and that he continued to have symptoms in his neck since the March 2004 injury. He denied any accidents or injuries to his neck. He stated that he saw a doctor for his back as well as his neck but could not recall the dates. On December 13, 2004, the worker indicated that his neck was feeling better with physiotherapy treatments which he attended three times per week. He stated that he continued working his regular work duties even though his neck had not been 100%. If he had a hard time with some of his duties he would ask his co-workers for assistance. The worker advised that he did not make any complaints about his neck difficulties to his employer.

The WCB received medical information from two treating physicians and from a physiotherapist regarding the worker’s neck condition. These reports were then reviewed by a WCB medical advisor on August 9, 2005 who provided the following opinion to primary adjudication:

“On a balance of probabilities, the ongoing neck symptoms are not likely related to the C/I [compensable injury] of March 2004:

The initial diagnosis on file from both Drs. [name] and [name] is “neck strain/trapezius spasm”. This would be expected to be resolved long before 18 months.

Dr. [name] mentions “postural dysfunction” and a “fixed thoracic hyperkyphosis” (July 05). This would represent a pre-existing condition, potentially contributing to ongoing sx [symptoms].

X-rays from Nov 04 & July 04 document degenerative change in the claimant’s cervical spine: another pre-existing condition.

The March 2004 C/I may have aggravated the pre x neck conditions but any such aggravation would have resolved some time ago.”

In a WCB decision letter dated August 15, 2005, the worker was advised that no financial responsibility would be accepted for any physiotherapy or ongoing treatment as it was determined that his current neck symptoms were unrelated to his workplace injury of March 2004. On November 28, 2005, the worker disagreed and appealed the decision to Review Office.

On January 19, 2006, Review Office determined that there was no longer a relationship between the worker’s neck symptoms and the March 24, 2004 injury. Review Office concluded that the March 24, 2004 accident was not severe as the worker only missed one day from work. It concluded that the March 24, 2004 accident caused an aggravation of the worker’s pre-existing condition in his neck and that the aggravation had resolved.

Review Office also found that the worker was entitled to physiotherapy treatment and related expenditures from November 24, 2004 to December 10, 2004 but not for his second course of physiotherapy treatment which began one year after the injury date. Review Office thought it was reasonable to authorize medical aid expenditures for the first course of physiotherapy treatment as it appeared to improve the worker’s functional status and therefore was likely required in relation to his compensable injury rather than solely in treatment of his pre-existing condition. Regarding the second course of physiotherapy treatment, Review Office noted that objective findings showed minimal improvement with that treatment and that the worker’s pain at discharge had increased. The treating physiotherapist noted that the worker’s condition had plateaued with physiotherapy. This suggested to Review Office that the worker had reached maximum or near maximum improvement with the first course of treatment.

In June 2006, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged for October 25, 2006. The October 25th hearing was adjourned and it reconvened again on December 13, 2006.

Reasons

Worker’s position

The worker attended the hearing with his wife and sister. He made a submission on his own behalf and answered questions posed by the panel.

The worker described the workplace accident. He hit his head while using a drill press. He provided photographs of the equipment. The worker advised that he was wearing a hard hat at the time of the injury. He felt a sudden pain in the back of the neck. He felt dizzy and had a headache. He immediately reported the accident to his foreman. He stated that the next day he was still in pain so his foreman took him to a clinic where he saw a physician who told him to stay home for a couple days and take some Advil. He saw this physician again on March 31, 2004. He also saw his family physician on April 14, 2004.

The worker advised that on November 23, 2004, he was driving out of town when he was forced to turn back due to severe neck pain. He saw a different physician on November 24, 2004 who prescribed physiotherapy. The worker advised that he continued to see this physician until July 2005. He also received further physiotherapy after December 10, 2004. He was referred to a physiatrist who he continued to see until June 2006. He advised that he received cortisone shots, was advised to do stretches and was prescribed medication.

The worker advised that he currently uses prescription medication for his neck injury. He acknowledged that at the time of the neck injury he was taking the same prescription medication for a back problem.

The worker advised that he has continued to work since the injury. He also advised that before the March 24, 2004 injury he did not have a history of neck pain.

With respect to a Medical Review Panel (MRP) that was convened on a prior claim file arising from a lower back injury, the worker advised that at that time he was having problems with his whole body. He stated that on the day of the MRP examination, “…I was pretty bad - like I was in … pain because I wasn’t even answering their questions or anything.”

The worker submitted that his neck symptoms have continued since the accident and that he is entitled to further physiotherapy treatments and related expenses after December 10, 2004. The worker referred to a report from a chiropractor dated July 14, 2006 in support of his position that the work injury continues to cause his neck symptoms.

Employer’s Position

The employer was represented by an advocate who made a presentation on behalf of the employer and a staff person.

The employer’s representative noted that the worker is a longstanding and highly regarded employee. She submitted that the worker’s ongoing difficulties with his neck are not related to the March 2004 soft tissue injury but to pre-existing degeneration in his neck.

The employer representative referred to various medical reports in support of this position. She noted that an MRP was convened in September 2003 on a different claim involving a low back injury. The MRP examined the worker and found markedly restricted and slightly painful movements of the neck. She also noted that the worker’s treating physician commented that he had seen the worker slowly deteriorate. She referred to x-rays taken in July and November 2004 which showed degenerative changes to the cervical spine and to other test results which showed a degenerative condition. She noted that the worker had minimal improvement from physiotherapy treatments which was consistent with a finding of long standing progressive osteoarthritis.

The employer representative advised that the employer agreed with the WCB that the worker suffered a temporary aggravation of a pre-existing condition.

Analysis

There were two issues before the panel. The first issue was whether there is a relationship between the worker’s neck symptoms and the March 24, 2004 injury. The second issue was whether the worker is entitled to physiotherapy treatment and related expenses beyond December 10, 2004.

The panel was not able to find a relationship between the worker’s ongoing neck symptoms and the March 24, 2004 injury. The panel finds, on a balance of probabilities, that the worker’s ongoing symptoms are not related to the March 24, 2004 injury and that the worker is not entitled to physiotherapy treatment and related expenses beyond December 10, 2004.

In making this decision the panel placed significant weight upon the MRP report dated September 7, 2003, which found the worker’s neck movements were markedly restricted and slightly painful in all directions. This MRP was convened several months before the workplace injury in March 2004. While the MRP focused on the worker’s low back, it commented that the worker suffered from a progressive degenerative condition. This report supports the panel’s finding that the worker’s neck condition existed before the March 2004 workplace accident.

Further evidence of the degenerative condition in the worker’s neck is found in the x-ray report of his cervical spine dated November 24, 2004. Findings in this report included minor degenerative changes with small anterolateral osteophytes and degenerative changes in the apophyseal joints. An earlier x-ray dated July 27, 2004 also found degenerative changes.

The panel notes that the treating physiatrist commented in a letter dated May 5, 2006 that CT and MRI findings demonstrate degenerative segments which may have been aggravated in the accident. He ordered a bone scan to help clarify if there is any active area of inflammation that might correspond to the current pain. The bone scan was negative finding no significant abnormality.

The panel also notes that the worker had minimal time loss and did not receive active treatment (physiotherapy) until November 24, 2004. These suggest the worker did not sustain a significant injury at work.

Finally, the panel notes and relies upon the opinion of the WCB medical advisor in a memo dated August 9, 2005 that the March 2004 workplace injury may have aggravated the pre-existing neck condition but any aggravation would have resolved some time ago.

The worker relied upon the opinion of a chiropractor dated July 14, 2006 in support of his position that the workplace injury is the cause of his current pain. The panel is unable to give this report any weight as it is based upon the chiropractor’s incorrect assumption that the worker’s neck was pain free before the injury. The panel notes that the MRP report demonstrated that the worker’s neck was symptomatic before the injury and that various diagnostic tests demonstrate the worker had pre-existing degeneration.

In conclusion the panel finds that there is no ongoing relationship between the worker’s neck symptoms and the March 24, 2004 compensable injury. Given this finding, the worker’s ongoing medical problems are considered to be non-compensable in nature in December 2004 and therefore, there is no basis for the WCB to pay for the worker’s physiotherapy treatment and related expenses beyond December 10, 2004.

The worker’s appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 8th day of February, 2007

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