The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 047/2007 holding that responsibility should not be accepted for the December 11, 1992 surgery and that the worker was not entitled to wage loss benefits beyond May 8, 1992. The worker is also appealing Review Office Order No. 257/2007 which held that a Medical Review Panel (“MRP”) should not be convened.

On October 7, 1991, the worker reported injuries to his low back and upper neck when he fell 10 feet off a backhoe and fell to the ground. The WCB accepted the claim and the worker was paid temporary total disability (“TTD”) benefits to May 8, 1992 when it was determined that he had recovered from his 1991 compensable neck injury and that his ongoing difficulties were related to a pre-existing condition. The WCB did not accept responsibility for cervical spine surgery that took place on December 11, 1992 as it was felt that it was not a direct result of the compensable injury but was due to spinal stenosis, a non-compensable condition.

In January 2006, the WCB was advised that the worker had a workers compensation claim for a right shoulder injury with another jurisdiction but his benefits were terminated, as it was considered that his ongoing symptoms were originating from his 1991 cervical spine injury. On October 28, 2006, the WCB outlined its position that the worker’s C3-4 disc protrusion and subsequent surgery were unrelated to the 1991 compensable injury but were rather associated with pre-existing factors. The worker appealed the decision to Review Office. Based on the opinion expressed by a WCB medical advisor in 1992 and a recent opinion of a WCB orthopaedic consultant, Review Office determined that the worker’s new and ongoing symptoms were not related to the compensable injury. With regard to the worker’s request for an MRP, both primary adjudication and Review Office determined that the worker’s treating orthopaedic surgeon did not provide supporting factual evidence in support of his statement and therefore it did not constitute an ‘opinion’ as defined in The Workers Compensation Act (“the Act”).

The worker appealed Review Office’s decisions to the Appeal Commission and a hearing took place on August 28, 2007. The worker provided evidence to the panel as did his representative, a worker advisor, via teleconference. No one appeared on the employer’s behalf. On August 28, 2007, the panel rendered its final decision.

Issue

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

Whether or not responsibility should be accepted for the December 11, 1992 surgery; and

Whether or not the worker is entitled to temporary total disability benefits beyond May 8, 1992.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act;

That responsibility should be accepted for the December 11, 1992 surgery; and

That the worker is entitled to temporary total disability benefits beyond May 8, 1992.

Decision: Unanimous

Background

In response to questions posed by primary adjudication, the worker stated that prior to his shoulder injury in Alberta in November 2004, his neck was pretty good but it was not perfect ever since his surgery in 1992. He said he had to be careful with his activities as a wrong move might cause a problem. He said he was still employed as a heavy duty mechanic.

Medical reports:

When admitted to hospital on October 8, 1991, the case summary report stated that x-rays showed spondylolisthesis at L5. When seen in consultation, there were no acute signs of cervical spine injury and no acute deficit at the L5-S1 level. The worker complained of right sided numbness.

An MRI dated October 22, 1991 revealed the following findings: “The most significant finding is a central and left lateral disc protrusion at C3-4. This, in combination with the congenitally small AP diameter of the spinal cord, produces moderately severe spinal stenosis at this level with resultant spinal cord compression.”

On October 8, 1991, a CT scan of the lumbosacral spine showed “Bilateral L5 pars defects, without evidence of malalignment.”

A report from an orthopaedic surgeon dated November 8, 1991 outlined his impression that the worker had an acute cervical disc protrusion at the C3-4 level that had caused his transient neurological deficit. Treatment suggestions included a decompression, discectomy and fusion at the C3-4 level.

On November 22, 1991, an orthopaedic specialist commented that the worker complained of some neck pain and was wearing a neck collar.

On December 24, 1991, the orthopaedic surgeon commented that the worker had a C3-4 disc protrusion that was causing his right arm weakness and pain.

On February 19, 1992, the orthopaedic surgeon indicated the worker was getting increased bilateral radiating pain from his neck to both arms. A myelogram and possible discectomy was suggested.

In April 1992, a WCB medical officer reviewed the file and commented that there was no evidence that the worker’s cervical problems were a direct result of the compensable injury but rather were due to non-compensable spinal stenosis.

The CT myelogram results dated February 27, 1992 stated “There is no evidence of disc herniation. Minor encroachment upon the canal is present at C3-4, related to a developmentally borderline canal, with superimposed osteophytes anteriorly.” It also showed, “…Minor canal narrowing at the C3-4 level is suspected.”

On May 19, 1992, the orthopedic surgeon outlined his opinion the worker’s C3-4 disc protrusion was secondary to the fall on October 9, 1991. He noted that prior to the 1991 accident, the worker had no cervical complaints. The worker did have lower lumbar complaints but this was not the reason that he was to have the operation.

Another orthopaedic surgeon, in a report dated September 17, 1992, stated the worker suffered a head and neck injury in October 1991. He complained of persistent pain mainly on the left side of his neck. The pain was in the trapezius muscles and went into the left shoulder. He also had pain down his left arm. He noted the worker was involved in a motor vehicle accident in April of 1992. The worker was not sure whether he may have suffered an injury to his neck in the accident. The surgeon stated “this man may indeed have a significant injury to his neck, ie. a disc herniation at the C3-C4 level as [the other orthopaedic surgeon] believed, I am not sure, however, that this is responsible for all of [the worker’s] symptomatology….If we inject his shoulders and his pain goes away, then there is probably no point in operating on his neck.”

The worker was admitted to hospital on December 11, 1992 and underwent the following surgery: C3-4 anterior cervical discectomy with partial C3 and C4 corpectomy and fusion with autogenous right iliac crest bone graft.

In a follow-up report dated January 20, 1993, the treating surgeon stated the worker was doing well and most of his symptomatology was resolved. He outlined his view that the worker’s cervical disc herniation probably occurred at the time of his head and neck injury in October of 1991.

On January 11, 2007, a WCB orthopaedic consultant responded to questions posed by Review Office. He stated the following:

“What is/was the most probable diagnosis associated with the CI?

Claimant may have traumatized a cervical disc at time of CI October 7/91, but subsequent CT myelogram did not substantiate the initially reported C3-C4 disc herniation. Claimant on initial investigations was also noted to have degenerative changes at C4-C5-C6. Furthermore the right arm symptoms at that time did not correlate with the initial reported left-sided disc herniation at C3-C4. The history suggests early multilevel, pre-existing degenerative cervical spondylosis, which in combination with congenital stenosis at C3-C4 gave rise to the persisting neck symptoms in 1991.

Did the CI aggravate or enhance a pre-x condition?

Temporary aggravation of the pre-existing congenital and multilevel degenerative changes.

On balance of probabilities, was the December 11, 1992 surgery necessitated by the worker’s pre-x, the CI or a combined effect of both?

The subsequent surgery of discectomy and fusion at the C3-C4 level was done for pre-existing congenital and degenerative changes at C3-C4.”

Reasons

As noted earlier the panel is not dealing with the issue of the MRP, as this request has been resolved with reinstatement of the worker’s TTD benefits.

The worker’s appeal is allowed.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Day - Commissioner

Signed at Winnipeg this 3rd day of October, 2007