Decision #69/10 - Type: Workers Compensation

Preamble

The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that there was no correlation between his condition diagnosed as idiopathic brachial neuritis and the workplace event of August 24, 2006. A hearing was held on June 3, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond December 31, 2008.

Decision

That the worker is not entitled to wage loss benefits and services beyond December 31, 2008.

Decision: Unanimous

Background

On August 28, 2006, the worker filed a claim with the WCB for upper back, shoulders and neck pain that he related to his work duties on August 24, 2006 that consisted of the following activities: climbing scaffolds and ladders, lifting heavy pails of cement, steering wheelbarrows, plastering, dragging the hod and trowel through the plaster, stretching, squatting and reaching. The claim for compensation was accepted based on a muscle strain diagnosis and the worker was paid wage loss benefits commencing August 25, 2006.

On September 25, 2006, the worker returned to his regular work duties but avoided lifting activities. On October 19, 2006, the worker advised the WCB that he tried to work through the pain but the pain in his shoulders was such that he had to stop working. Wage loss benefits were reinstated effective October 18, 2006 to November 30, 2006. On November 24, 2006, the treating physician reported left shoulder pain more than right shoulder pain and the diagnosis rendered was left rotator cuff syndrome.

File records showed that the worker started a new job as a courier but continued to experience shoulder pain. On August 15, 2007, a WCB senior medical advisor reviewed the file information which contained medical reports from a sports medicine consultant and MRI results of the neck and left shoulder. The diagnosis outlined was as follows: “Small central disc C6-7, brachial neuritis and impingement syndrome secondary to muscle wasting.” Restrictions for six months were outlined to avoid lifting greater than 25 to 30 lbs. and no lifting above shoulder height.

The worker advised the WCB that he was planning to start school on August 27, 2007. On August 15, 2007, a WCB case manager advised the worker that the WCB would not cover his tuition reimbursement unless his restrictions became permanent and his schooling was a viable vocational rehabilitation option. The worker nevertheless started school as planned on August 27, 2007.

The WCB arranged for the worker to undergo a Functional Capacity Evaluation (“FCE”) on September 14, 2007 to determine his physical capabilities for a return to work as a courier driver.

On October 10, 2007, a WCB medical advisor commented as follows after his review of the file information:

· that the most pertinent diagnosis appeared to be left brachial neuritis with associated left shoulder symptoms. Suggested treatment included a home exercise program to maintain and improve shoulder range of motion (“ROM”) and strength.

· the FCE suggested restrictions to avoid heavy lifting greater than 50 pounds (capable of 56 lb. lift to shoulder on occasional basis) and repetitive above shoulder level work with the left arm. The restrictions could be reviewed after 3 months. No restrictions were needed for the right arm.

· there was no record of a significant neck injury and the small disc bulge at C6-7 noted on MRI was likely an incidental finding representative of pre-existing degenerative disc disease (“DDD”) with significant aggravation considered unlikely. The worker currently drove to school, which demonstrated his ability to drive.

In a decision dated October 15, 2007, the worker was advised that the WCB paid wage loss when there was a loss of earning capacity. As it was the worker’s personal choice to remove himself from the labour market to attend school and be unable to participate in modified duties, wage loss benefits were not payable beyond October 17, 2007.

On October 22, 2007, the worker indicated that he only registered to attend school as his shoulder was not improving and he was unable to continue working. He felt that he could not drive all day as a courier regardless of the duties.

On December 5, 2007 a WCB rehabilitation specialist performed a worksite and job analysis of the worker’s position as a courier driver. It was her opinion that the duties of a courier were not within the worker’s restrictions. Wage loss benefits were reinstated effective October 6, 2007.

The worker underwent an MRI of the left shoulder and brachial plexus on January 9, 2008. The brachial plexus revealed no abnormality. The right shoulder was read as “…This appearance may relate to a musculotendinous junction tear as opposed to brachial neuritis.”

A WCB orthopaedic consultant assessed the worker on February 6, 2008. During the interview portion of the examination, the worker indicated that when he awoke on the morning of August 25, 2006, he had severe pain in his shoulder girdles and neck. On August 24, 2006, he had worked the normal length of shift and had been doing exterior plastering on a restaurant. He said “the team pushed it a bit” in order to finish the job. During the course of work, one of his fellow workers bumped him on two occasions and his left shoulder struck the wall and he was knocked off the scaffold. He did not experience any particular pain on those occasions and after he went home he spent a normal evening before going to bed.

Following the assessment, the orthopaedic consultant opined that the worker’s current symptoms of shoulder and neck pain and left upper limb weakness were related to the compensable injury of August 24, 2006. He said there were three differential diagnoses: a) idiopathic brachial neuritis b) musculotendinous tear of the infraspinatus muscle or c) cervical radiculopathy. From his clinical assessment, the most likely diagnosis was idiopathic brachial neuritis. This was a rare condition and the events that may lead to idiopathic brachial neuritis included trauma and surgery. The consultant noted that should weakness of the shoulder girdle persist past August 2008, EMG studies of the infraspinatus should be carried out to determine if the condition was likely to become permanent.

In a memo to the WCB orthopaedic consultant dated July 25, 2008, primary adjudication noted that the worker was continuing to experience ongoing pain and limitation in his upper shoulders and back. The consultant responded that the reported current symptoms of shoulder pain and weakness appeared to be related to the compensable injury. He indicated that the diagnosis was uncertain although idiopathic brachial neuritis still appeared to be the most probable. He stated that he would arrange EMG studies as previously noted.

EMG studies done on September 2, 2008 were interpreted as follows:

“The EMG study confirms prior denervation to the left infraspinatus and supraspinatus as well as the deltoid. There is no abnormality of the left biceps. The findings would be consistent with a previous lesion affecting the upper brachial plexus. The testing confirms that the lesion affects more than just the supraspinatus nerve.”

The EMG test results were reviewed by the WCB orthopaedic consultant on September 10, 2008. The consultant stated that the EMG findings were consistent with the diagnosis of idiopathic brachial neuritis, also known as Parsonage-Turner Syndrome. The consultant noted that the mechanism of injury of August 24, 2006 was a reported blow on the left shoulder when the worker struck a wall and was knocked off a scaffold. The symptoms commenced on the morning of August 25, 2006. The consultant was unable to make a causal relationship between the worker’s current symptoms and the reported compensable injury.

In a memo to file dated November 10, 2008, a WCB medical advisor indicated that he reviewed the file in its entirety and discussed the case with a WCB case manager, a WCB senior medical advisor, a WCB physical medicine consultant and the WCB orthoapedic consultant. The medical advisor noted that the Employer’s Accident Report and Worker’s Incident report did not report a specific injury occurring to the worker in August 2006. He said the only description on the file of any type of specific work incident was during the call-in examination notes of February 2008 “…and in any event was not reportedly associated with any symptoms at that time.” The medical advisor stated:

“In summary the diagnosis in this case appears to be brachial neuritis, a condition of unknown cause, and without specific proven treatment. Any relationship to the workplace duties or influence is speculative. There is no compelling evidence that in cases where an injury does precede the condition, that such an injury plays a material role in causing or promoting the condition…The medical evidence reviewed does not substantiate a probable causal relationship between [the worker’s] workplace duties and the development or persistence of his current shoulder condition, brachial neuritis. As such, no restrictions in relation to a workplace injury or condition are indicated. Rather, any need for restrictions relates to the non work related condition.”

In a memo to file dated November 12, 2008, the WCB orthopaedic consultant stated that he agreed with the review outlined by the WCB medical advisor dated November 10, 2008.

When speaking with his WCB case manager on November 14, 2008, the worker suggested that on the day of the injury he had been bumped by a co-worker after being knocked off a scaffold. He did not include this in the report as he “was used to shrugging these things off”. The next day his shoulder was sore and has been sore ever since. He was quite certain that the WCB could call a witness at the work site to verify his report.

In a decision dated November 19, 2008, the worker was advised that the WCB was unable to accept responsibility for further wage loss or services beyond December 31, 2008 as the medical information did not support an ongoing relationship between the August 24, 2006 accident and his current symptoms. The case manager noted the opinion expressed by the WCB medical advisor that the MRI findings of July 2007 and January 2008 were consistent with the diagnosis of Parsonage-Turner Syndrome and that there was no evidence of a rotator cuff tear or tendinopathy. The case manager noted that Parsonage-Turner Syndrome was a condition of unknown cause and there was no evidence that an injury preceding this condition played a role in causing or promoting the condition.

On November 24, 2008, the worker appealed the case manager’s decision to Review Office. The worker believed that the diagnosis of Parsonage-Turner Syndrome was related to his work injury. “The injury and pain to my left shoulder corresponds with the action involved in plastering. The neck injury and pain corresponds with the shoulder injury and pain, each one aggravating the other.”

On December 11, 2008, Review Office determined that the worker was not entitled to wage loss benefits and services beyond December 31, 2008. Review Office noted that two different WCB medical advisors agreed that the worker’s ongoing complaints were related to idiopathic brachial neuritis. There was no known cause for this condition and any correlation between this condition and the worker’s employment or the events of August 24, 2006 would be speculative in nature. Given the existing opinions from medical practitioners who were unable to associate the worker’s ongoing complaints with a work related cause, and the absence of any contrary medical opinion, Review Office was unable to rule in favor of the worker.

In a report to the WCB dated January 9, 2009, a treating sports medicine specialist suggested that there may be two diagnoses in play. One was a musculo-tendinous tear of the rotator cuff and the other, a brachial neuritis.

An MRI of the worker’s left shoulder taken February 15, 2009 showed the following findings:

“The appearance of the shoulder is relatively unaltered from the most recent prior study of January 9, 2008. There is marked atrophy of the infraspinatus muscle as noted on the previous examination. No interval abnormalities are identified. In particular, no abnormalities of the remainder of the rotator cuff is seen.”

On February 26, 2009, the WCB orthopaedic consultant referred to the MRI of February 15, 2009 and stated there was no evidence of trauma and no appearance of a rotator cuff tear. He stated, “No therapeutic interventions have been proven to be effective for idiopathic brachial neuritis.”

An MRI of the cervical spine taken March 10, 2009 stated “Within the cervical spine, there is very minimal central protrusion at the C6-7 level. This has no affect on the central canal or foramina.”

On March 23, 2009, the worker wrote to the WCB stating that he had not recovered from the injury of August 24, 2006. He said his left shoulder and neck have not been the same since the injury and that he was in good health prior to the injury. The worker believed that the injuries he received caused Parsonage Turner Syndrome. He said the injury and pain to his left shoulder corresponded with the action involved in plastering, amongst others.

In a letter dated March 25, 2009, Review Office advised the worker that no alterations would be made to its decision of December 15, 2008. Review Office noted that the MRI exams of the left shoulder and cervical spine failed to demonstrate any damage to the worker’s rotator cuff as had been postulated by the treating physician. Review Office also indicated that the WCB orthopaedic consultant still believed that the worker’s ongoing complaints were due to idiopathic brachial neuritis which he was unable to relate to the worker’s employment.

On August 25, 2009, a worker advisor asked Review Office to reconsider its prior decision based on additional medical documentation from the family physician. The family physician’s opinion was that the worker’s condition had been incorrectly called idiopathic. He stated that the family physician agreed with the treating sports medicine specialist that the diagnosis was brachial plexus neuritis denervation. The worker advisor submitted that because the worker’s condition had been called idiopathic, this did not mean that it could not be attributable to his workplace duties or injury. In the worker’s case, there was acknowledged trauma and repetitive physically demanding duties preceding the development of his ongoing symptoms and restrictions. It was suggested that the continuity of the worker’s symptoms and restrictions since his initial injury made it more than probable that his injury was casually related to his employment.

A submission received from the employer’s advocate dated September 22, 2009 outlined the position that there was no new evidence brought forward that would allow a change to the decision of Review Office dated March 25, 2009.

In a letter to the Worker Advisor Office dated October 20, 2009, Review Office indicated that the view points outlined by the family physician had been previously advanced by the treating sports medicine specialist and that there was nothing substantively new in the report to alter its earlier ruling. Review Office considered the argument that the continuity of symptoms experienced by the worker suggested a causal relationship between his injury and his employment but did not agree with the assertion. It remained of the position that there was no probable relationship between the worker’s condition and his employment. On October 22, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing 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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

The Worker’s Position

The worker was assisted by a worker advisor and participated in the hearing by teleconference. His position was that there was a relationship between the onset of the worker's condition and his employment activities. The worker's condition had been incorrectly labeled idiopathic. It was argued that in medicine, any disease that is of uncertain or unknown origin may be termed idiopathic. There is a difference, however, between unknown and uncertain. In the context of a WCB claim, decisions must be made on the known evidence that is most certain or likely. In this case, there were repetitive and physically demanding work duties, as well as a reported bumping incident, which could be responsible for the worker's injuries. The medical reports from the sports medicine specialist and the family physician provided support for the worker's position. It was also submitted that the fact that the worker attempted to return to work on a number of occasions, only to face recurrent flare ups of his symptoms, provided further corroboration that the condition was work-related. Overall, it was asserted that the continuity of the worker's symptoms and restrictions since his initial injury made it more probable that his condition was causally related to his employment.

The Employer’s Position

An advocate and a representative from the employer were present at the hearing. It was submitted that the panel should confirm the earlier adjudications of the WCB as those decisions were made based on the best evidence possible. There was no new evidence offered at the hearing that would suggest that the decision be changed. The comments made by the WCB medical advisors were the best that could be expected under the circumstances. The 16 months of benefits the worker had already obtained for the accepted compensable diagnosis of a strain/sprain and overuse was more than adequate compensation for the worker, and in fact was more than the WCB normally compensated for such diagnosis. To suggest the worker was entitled to further benefits beyond 16 months was unacceptable to the employer and unsupported.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits and services beyond December 31, 2008. In order for the appeal to be successful, the panel must find that the neck and shoulder difficulties which the worker currently experiences are related to the injuries he sustained in the August 24, 2006 workplace accident. We are not able to make that finding.

At the hearing, it was agreed that although various potential diagnoses for the worker’s left shoulder condition were investigated during the course of his claim, the only condition remaining relevant for the purposes of this appeal was the diagnosis of brachial neuritis, also known as Parsonage-Turner syndrome.

The issue for consideration by the panel was therefore the etiology of the worker’s brachial neuritis and whether his job duties somehow caused the condition to develop.

The worker’s treating physicians provided reports in support of the position that the brachial neuritis was work related. The sports medicine specialist’s report dated July 7, 2009 indicated support for the worker’s argument that his diagnosis of Parsonage-Turner syndrome was related to his workplace injury. The report detailed the physician’s examination findings and the treatment history. It was emphasized that when the physician first saw the worker on November 7, 2006, the worker had complained of significant left shoulder pain after doing work which involved repetitive overhead prolonged activity. The physician felt that it was clear from the examination that the worker had injured his left shoulder/rotator cuff and despite physiotherapy and steroid injection trials, the symptoms did not resolve. The worker did not complain of any left shoulder pain prior to the August 2006 injury.

The difficulty the panel had with the sports medicine physician’s opinion on etiology was that it relied primarily on the timing between the workplace incident and the onset of neck and shoulder symptoms. In the panel’s opinion, the temporal relationship alone is not sufficient to establish, on a balance of probabilities, a causal link between the worker’s job duties and the brachial neuritis.

The family physician’s report of July 28, 2009 outlined examination findings and cited a history whereby the worker was bumped by a fellow worker on two occasions and his left shoulder struck the wall when he was knocked off the scaffold. The family physician felt that the worker’s diagnosis was brachial plexus neuritis denervation and that this was related to the sustained injury at work. The family physician disagreed that the condition was idiopathic and noted that the worker did not have any problems other than the work injury which could cause other pathology of the neural plexus. As such, the family physician was of the opinion that the worker’s problems should then be clearly related to the August 2006 injury.

Again, the panel had difficulty accepting the family physician’s opinion on etiology as it was based largely on the temporal relationship and as well, relied on a described mechanism of injury which did not quite accord with the description given by the worker at the hearing. At the hearing, the worker described the bump by the co-worker as being an event that he "didn't really think was anything." He said that he fell forward, but broke his fall with his hands and arms which were in front of him. The worker confirmed that he was knocked off his scaffold, but advised that the scaffold consisted of a plank supported by two stepladders which was only about two feet off the ground. He fell, but it was a standing fall. In the worker's opinion, the bumping incidents were minor in nature. The worker himself did not consider the bumping to be the cause of his condition, but rather he attributed his neck and shoulder pain the next day to the fact that he had worked harder than normal in order to complete the job that day. Thus, while the family physician attributed the brachial neuritis to the bumping incidents, the worker himself considered these to be minor incidents. It would appear that the trauma inflicted on the worker was minimal and the panel has difficulty accepting that there would be long-ranging consequences resulting from such minor incidents.

The panel decides, instead, to rely on the consensus opinion of the WCB medical consultants which concluded that the worker’s brachial neuritis is of undetermined cause and that any relationship to workplace duties is speculative. Brachial neuritis is an uncommon condition and it appears that the WCB medical advisors conducted an in depth review of the medical literature before forming the opinion. The WCB senior medical officer, a physical medicine specialist, an orthopedic specialist and a general medical advisor all reviewed the matter and concluded that no causative link between the reported compensable injury and the diagnosis could be established. The panel accepts the consensus opinion and we therefore conclude that as the brachial neuritis diagnosis is not related to the August 2006 compensable workplace incident, the worker is not entitled to wage loss benefits and services beyond December 31, 2008. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 28th day of July, 2010

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