Decision #139/07 - Type: Workers Compensation

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 797/2007 which determined, in part, that responsibility for his claim should not be extended beyond November 1, 2006. The worker disagreed with this decision and appealed to the Appeal Commission. A hearing took place on April 5, 2007. The worker was represented at the hearing by his union representative and the employer was represented by two company representatives.

Following the hearing, the appeal panel sought and obtained additional medical information that was provided to the interested parties for comment. On September 14, 2007, the panel met to render its final decision.

Issue

Whether or not responsibility for the worker’s claim should be extended beyond November 1, 2006.

Decision

That there is no responsibility for the worker’s claim beyond November 1, 2006.

Decision: Unanimous

Background

On November 25, 2005, the worker experienced pain in his non-dominant left shoulder while performing his work duties as a sheet metal worker. A few days later he felt pain in his neck. Soon afterward, the worker attended a local hospital for treatment and was diagnosed with myalgia by the attending physician. When seen for treatment by the family physician, the diagnosis rendered was a left shoulder acromioclavicular strain and cervical sprain. The WCB accepted the claim and benefits were paid to the worker commencing November 28, 2005.

Subsequent medical reports revealed that the worker went for x-rays on December 16, 2005 which showed mild to severe degenerative changes at C3 to C7 and a suspicion of degenerative changes in the acromioclavicular joint.

In order to determine an exact diagnosis and suggestions for further management, the worker was examined by a WCB medical advisor on January 18, 2006. Following the assessment, the medical advisor was of the view that the worker aggravated the pre-existing changes within his cervical spine and the acromioclavicular joint. He suggested a referral to a physical medicine specialist for treatment.

On January 25, 2006, a sports medicine specialist diagnosed the worker with a resolving neck and shoulder region strain.

On March 16, 2006, a WCB medical advisor commented that the aggravation of the worker’s pre-existing changes within his cervical spine and acromioclavicular joint had resolved and that his symptoms were localized to the shoulder area.

A physical medicine and rehabilitation specialist assessed the worker on May 3, 2006. He felt that the worker had cervical dysfunction and an element of left shoulder impingement. The worker was treated with an injection into the left subacromial region without any adverse effect. Re-examination following the injection noted a significant decrease in impingement and subjective improvement with attempted range of motion. At a follow up visit on May 25, 2006, the worker advised the specialist that he did not gain any relief from the injection even after he left the office. When seen again on June 28, 2006, the worker’s symptoms and physical findings were not significantly changed. The specialist noted that the worker’s shoulder impingement signs continued to be mildly positive while there was moderate tenderness over the left acromioclavicular joint. The left trapezius was also tender and upper limb tendon reflexes were symmetrical.

On July 12, 2006, a WCB medical advisor stated that the degenerative changes in the worker’s cervical spine were extensive and would likely prevent him from returning to his pre-accident employment. On July 18, 2006, the medical advisor said the worker’s symptoms did not relate to one specific injury but rather to the daily aggravation of his pre-existing degenerative disease in the shoulder and cervical spine. The medical advisor recommended preventive restrictions due to the worker’s extensive pre-existing condition.

The worker was then examined by a WCB medical advisor on October 5, 2006. He opined, “Given the described mechanism of injury, given the duration of time since being in the workplace, given the quality of recent symptoms described by [the worker], and given the aforementioned radiographs, it appears most likely to implicate pre-existing degenerative changes as the cause for symptoms at the present time. Based on the above, I am not able to ascribe ongoing symptoms to the effect of the workplace aggravation of November 2005.”

On October 25, 2006, the worker was informed that WCB wage loss benefits would end on November 1, 2006 as it was determined that his ongoing neck and left shoulder difficulties were related to pre-existing degenerative changes. It was felt that the compensable injury was an aggravation of his pre-existing condition and that the aggravation had now resolved. On November 15, 2006, the worker’s union representative appealed the decision to Review Office.

On November 27, 2006, Review Office confirmed that no responsibility would be accepted for the worker’s claim beyond November 1, 2006. Review Office felt the worker had fully recovered from his compensable injury, a left shoulder and neck strain, by November 1, 2006. It noted that the worker’s healthcare providers indicated that the degenerative pre-existing conditions in his neck and shoulder were of primary significance and that these types of symptoms can become symptomatic and progressive. It felt it was improbable that the worker’s job activities caused an enhancement to his pre-existing condition given the length of time he was employed with the accident employer. This decision was appealed by the worker’s union representative and a hearing was held at the Appeal Commission on April 5, 2007.

Following the hearing, the appeal panel requested additional information from an orthopaedic specialist that the worker attended for treatment.

In a report dated May 3, 2007, the orthopaedic specialist noted that the worker had “potentially several pain sources including the AC joints, rotator cuff, and cervical spine.” He stated that an MRI and the results of a CT scan were pending. On May 28, 2007, the panel decided to write to the orthopaedic specialist for additional information prior to considering the appeal.

In a consultation report dated August 15, 2007, the orthopaedic surgeon stated the recent MRI confirmed AC joint arthritis but no rotator cuff tendon tear. He stated that if the worker underwent a distal clavicle excision and decompression, he would likely get significant relief but there would still be the cervical disc degeneration to manage.

In a letter to the Appeal Commission dated August 22, 2007, the orthopaedic surgeon stated, in part, “There is likely more than one source of pain around his neck and shoulder. The degenerative change in his lower cervical spine may cause some radiating pain into the upper lateral shoulder and similarly, the AC joint arthritis, likely secondary to injury, may be associated with radiating pain back up into his neck.”

On August 23, 2007, all interested parties were provided with copies of the reports that the panel received and were asked to provide comment. On September 14, 2007, the panel met and rendered its final decision.

Reasons

THE WORKER’S EVIDENCE:

The worker says he has not recovered from his compensable injury as of November 6, 2006. He states the initial claim for neck and shoulder strain did have some improvement in early 2006; however it has not totally resolved even with injections from a sports medicine physician and another course of physiotherapy.

The worker was provided some temporary lighter duties in February 2006 but then laid off and has not returned to work in any capacity.

He felt his initial course of physiotherapy in early 2006 helped his condition but the injections by the sports medicine physician failed to provide any relief. He has recently been attending physiotherapy again with complaints of grinding and stiffness in his neck. His level of reported soreness is the same as early 2006. He indicated he has an upcoming medical appointment with an orthopedic surgeon as the sports medicine physician had no further treatment for him. He is of the opinion that his ongoing difficulties are causally related to his compensable injury.

THE EMPLOYER’S EVIDENCE

The employer says the worker had a significant pre-existing degenerative condition that was noted in a December 2005 x- ray shortly after his workplace strain injury. Their position is that the workplace strain was taken care of by March 2006. They note the worker’s condition seems to be getting worse and the degeneration is causing that. They supported their position by referring to the WCB medical advisor’s comments of July 12, 2006: “The medical advisor further commented that the degenerative changes in the worker’s cervical spine were extensive and would likely prevent him from returning to work to his pre-accident employment.”

The employer feels the worker’s ongoing symptoms are not related to the compensable injury but instead to his degenerative changes.

ANALYSIS:

To accept the worker’s appeal we must find, on a balance of probabilities, his neck and left shoulder complaints continue to be related to his compensable injury. We were not able to make that finding. While the worker may still be symptomatic, we find there is substantial medical evidence that demonstrates his ongoing difficulties relate to his pre-existing condition and are no longer causally connected to his original compensable injury.

In arriving at this decision, the panel relied on the medical information on file, evidence presented at the hearing, as well as the material we requested from an orthopedic specialist. The panel finds the worker suffered a lifting injury, which according to the worker, along with his treating medical professionals, had improved by March 2006. Shortly thereafter, he was symptomatic again and has sought various forms of treatment, none of which have provided sustained benefit or improvement.

The panel finds the worker had a significant pre-existing condition that was aggravated by his compensable lifting injury. In making this determination we relied on the following:

  • A December 15, 2005 x-ray that showed slight to severe degenerative changes at different levels of his neck and left shoulder.
  • In January and February 2006 the treating physician and physiotherapist note resolving neck and shoulder strain.
  • A WCB medical advisor in July 2006 confirms the degenerative pathology in both the cervical spine and shoulder, and commented that his degenerative changes in his spine were extensive and would likely prevent him from returning to work in his pre-accident employment.
  • In March 2007, a physical medicine specialist notes no sustained or significant responses following injections to the shoulder area.
  • A MRI of the left shoulder on July 3, 2007 notes moderate AC arthrosis.
  • An orthopedic specialist in August 15, 2007 notes AC joint arthritis and advanced degenerative changes at C5-6.

The panel finds the pre-existing degenerative changes were aggravated by his workplace injury, and that this aggravation had resolved by November 1, 2006. His ongoing difficulties after November 1, 2006 relate to the significant pre-existing degeneration in his cervical spine and shoulder and are not compensable. The worker’s appeal is denied.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Day - Commissioner

Signed at Winnipeg this 16th day of October, 2007

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