Decision #83/08 - Type: Workers Compensation
Preamble
The worker sustained multiple injuries in a work related accident that occurred on April 18, 1990. The Workers Compensation Board (“WCB”) accepted the claim for compensation and the worker was awarded a 1% cosmetic permanent partial disability (“PPD”) award for scarring of his forehead. The worker disagreed with the 1% rating and submitted that the PPD award should be increased to reflect the loss of mobility in his cervical spine. On February 28, 2008, Review Office outlined its position that the 1% PPD rating was adequate and that the worker was not entitled to a PPD award with respect to his cervical spine. The worker disagreed and filed an Application to Appeal and a file review was held on May 26, 2008.Issue
Whether or not the worker is entitled to a permanent partial disability rating with respect to his cervical spine.Decision
That the worker is not entitled to a permanent partial disability rating with respect to his cervical spine.Decision: Unanimous
Background
On April 18, 1990, the worker was working on a brake chamber when the chamber released from its mounting and struck him on the forehead. The worker suffered a gash to his forehead, a strain to the base of his skull and neck and bruising to both eyes. He was later diagnosed with a laceration to the forehead. The claim for compensation was accepted and benefits and services were paid to September 6, 1991 when it was determined by the WCB that the worker was capable of returning to work. The decision was confirmed by a majority appeal panel on June 2, 1992 (see Appeal Panel Decision No. 188/92).
On January 18, 2006, the worker asked the WCB to re-open his claim to determine whether he was eligible for further wage loss benefits, a PPD award and ongoing medical treatment. On March 15, 2006, a WCB case manager advised the worker that he was not entitled to wage loss benefits based on the June 2, 1992 appeal panel decision but that his file would be referred to the WCB’s healthcare branch to determine whether he was entitled to a PPD award for cosmetic deformity or scarring.
The worker was examined by WCB physiotherapy consultant on June 28, 2006. It was determined at this time that the worker was entitled to a 1% PPD award for scarring related to his forehead. The worker accepted the 1% PPD rating and received a one-time lump sum settlement.
On August 27, 2006, the worker appealed the amount of his PPD award and argued that he was still suffering from the effects of his compensable injury. The worker indicated that he had limited mobility and stiffness in his neck. He experienced frequent headaches which were accompanied with buzzing or ringing in his right ear and a dull throb that was always present at the base of his skull. The worker pointed out that he was forced to take long term disability for a span of 30 months after the WCB deemed he was fit to return to work in 1991.
In a letter to the worker dated September 6, 2006, Review Office confirmed that the 1% cosmetic impairment award was appropriate and was consistent with past practice. Review Office noted that there had been no further medical information on the worker’s claim since May 26, 1992. Review Office suggested to the worker that he attend a physician for assessment of his neck and to submit the medical information to the WCB for an assessment.
At the WCB’s request, a narrative report was received from the worker’s treating physician dated November 30, 2006. The report indicated that the worker was treated for his 1990 compensable accident and that he was again seen at the clinic for work related injuries to his back between January 1993 and December 2003. In 2002, the worker was referred to an ear, nose and throat specialist for tinnitus since the 1990 accident. The physician listed the following current diagnoses as being related to the worker’s April 18, 1990 compensable injury:
· laceration of forehead;
· myofascial pain neck and occipital area;
· tinnitus NYD; and
· myofascial pain low back.
Included with the physician’s letter were consultation reports and test results from 1992 onwards.
A chiropractor’s first report dated July 13, 2007 diagnosed the worker’s condition as chronic cervico-thoracic subluxation injury with associated myalgia and cervicogenic headaches.
The worker was examined again by the WCB physiotherapy consultant on August 15, 2007 at the request of primary adjudication. The worker was assessed with a 9% PPD rating for “deficit passive cervical mobility”.
On September 10, 2007, the case was referred to a WCB medical advisor for an opinion as to whether there was any evidence to support a cause and effect relationship between the worker’s current symptoms and his compensable injury. His response was as follows:
“1. The laceration has resolved and is not currently symptomatic.
2. The current myofascial neck pain is not related to the C/I [compensable injury] of Apr 18, 1990. The original strain resulted in a permanent loss of ROM (which has been reassessed by PPI). If this loss of ROM was creating symptoms medical attention or treatment would have been sought. There was no medical attendance for this from 1992 to 2006.
3. The tinnitus is not related to the C/I of Apr 24, 1990.
4. The myofascial back pain is not related to a workplace injury.”
In a decision dated September 26, 2007, the worker was advised of the WCB case manager’s position that on a balance of probabilities, there was no direct cause and effect relationship between his current ongoing back, neck or tinnitus symptoms and his compensable injury of April 18, 1990. The worker was advised that based on this decision, the cosmetic rating of 1% was appropriate and he was not entitled to further benefits. A worker advisor appealed this decision to Review Office on January 16, 2008. The worker advisor contended that the worker’s compensable injury left him with facial scarring and a permanently restricted range of cervical motion and that his PPD award should increase to compensate for his lost neck mobility.
Review Office asked a WCB senior medical advisor to review the file and provide his medical opinion as to the diagnosis of the worker’s current cervical spine complaints, whether the current loss of range of motion was permanent and whether the current loss of range of motion was causally related to the worker’s 1990 accident. The medical advisor’s response to Review Office is dated February 27, 2008.
On February 28, 2008, Review Office confirmed the decision that the worker was not entitled to a PPD rating with respect to his cervical spine. Review Office felt that the weight of evidence supported that the worker’s current loss of range of motion of the cervical spine was not causally related to his 1990 accident based on the opinion expressed by the WCB medical advisor on February 27, 2008. On March 19, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.
The worker’s injury occurred in 1990 and his claim is governed by the Act as it existed at that time. Subsection 40(1) of the Act provided for the payment of PPD awards. WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule, also applies to requests for impairment ratings.
Worker’s Position
The worker was represented by a worker advisor who made a written submission in support of the worker’s request for a PPD rating for his cervical spine. The representative submitted that the worker is entitled to a PPD as the evidence is sufficient to establish that he has a permanently restricted range of cervical motion as a result of his 1990 compensable injury.
The representative noted that the WCB accepted responsibility for the worker’s injuries which arose when a heavy mechanical assembly sprung loose and a brake chamber struck the worker in the head with significant force. He reviewed the medical reports after the accident which referred to the worker’s neck symptoms. With respect to the lack of reference to the worker’s neck in medical reports between 1992 and 2006, the representative submitted that this is of little relevance to the issue as the reports pertain to other low back injuries and is not evidence that the worker’s neck condition had resolved. He also submitted that the lack of treatment for the neck does not provide evidence to deny an ongoing impairment.
The representative submitted that the most significant evidence, on which the greatest weight should be placed, is the evidence of the worker’s treating physician who has followed the worker since the initial injury.
The representative submitted that the evidence on file supports that, on the balance of probabilities, the worker suffered a permanent impairment in the mobility of his neck as a result of his 1990 injury.
Analysis
The issue before the panel was whether the worker is entitled to a PPD rating with respect to his cervical spine. For the worker’s appeal to be approved, the panel must first find a relationship between the worker’s workplace injury and the condition of his cervical spine, and also find that the worker’s condition is rateable under the WCB’s Permanent Impairment Rating Schedule.
The panel was not able to find, on a balance of probabilities, a relationship between the worker’s 1990 workplace injury and the current loss of mobility of his cervical spine. The panel acknowledges that the worker injured his neck in the 1990 accident but finds there is minimal evidence on the nature of the injury to the neck and concludes there is insufficient evidence to link his current loss of range of motion to the workplace injury.
The panel has reviewed the medical reports on file and notes that findings regarding the cervical spine varied in the reports between 1990 to 1992. The findings included: good range of motion, spasm of the trapezius, limitation in all neck motions, no tenderness on palpation of the muscles of the neck, back or shoulder, no muscular wasting, no mention of the cervical spine, soreness to fully extend, and limited extension and rotation of the neck. The panel also notes that an x-ray performed after the accident found no abnormality of the cervical spine.
The panel places significant weight on the report of a neurologist who saw the worker in April 1991. The neurologist noted good range of motion but soreness. This finding is almost one year after the accident and is consistent with a finding that the loss of range of motion has been inconsistent and is not a result of the 1990 injury.
The panel notes that the treating physician reported objective findings in October 1991 of limitation of extension, lateral rotation, & lateral flexion of the neck. In the final report in 1992 the same physician notes full range of motion except for left sided rotation. This suggests the worker’s neck condition, to the extent that it included a loss of range of motion at that time, was resolving.
The panel relies upon the opinion of the WCB medical consultant who reviewed the file and provided a report dated February 26, 2008. In particular, the panel notes the physician’s opinion that the worker’s current loss of range of motion does not appear to be permanent, or consistent. He notes that the range of motion identified by the WCB at the call-in examination differed from the range of motion described by the treating physician.
The panel notes that the worker had other workplace injuries after the 1990 injury including six claims related to the lower back/lumbar area. The panel acknowledges that these claims deal with different injuries to the worker arising from different accidents. It understands that these claims do not identify cervical spine pain or range of motion issues. The lack of reporting of cervical spine symptoms between 1992 and 2006, suggest that the cervical spine was not a significant concern during that period.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of July, 2008