Public Decisions | The Appeal Commission

Decision #124/10 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") that the worker no longer had a loss of earning capacity and treatment that was directly related to his compensable injury beyond August 30, 2002. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through his union representative. A file review was held on December 13, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond August 30, 2002.

Decision

That the worker is not entitled to wage loss benefits and services beyond August 30, 2002.

Decision: Unanimous

Background

On May 18, 2001, the worker reported that he injured his left shoulder and back left side of his neck from the following work related accident:

"[co-worker] was having trouble securing the fixture pan (16'x48"). He clipped one end but couldn't do the other. I offered to help. I went up his ladder with my linesmen (electrical pliers) I got hold of the clip (lose (sic) one). At same time the secured clip broke on its own, causing pan to fall on me…edge of pan hit my shoulder. I turned my head to the right to avoid getting hit in the face. The pan sprang off my shoulder and hit my neck."

In a doctor's first report dated May 19, 2001, the worker was diagnosed with a neck and left shoulder contusion and strain. The physician noted a pre-existing condition, C5-C6 degeneration, that may affect recovery.

In a consultation report to the treating physician dated June 28, 2001, an orthopaedic specialist stated that the worker was seen for multiple complaints in regard to his left upper limb and his neck. "He apparently had a sore neck off and on for a couple of years after his initial injury some two years ago when he fell backwards off a stage from a height of 3 feet and he hit his neck that apparently lasted for a couple of months. After that, he had pain off and on in his neck. Since May, he has been feeling more pain after he had another injury when a 4 feet x 18 inch piece of light fixture apparently fell from a height of 3 feet and hit his shoulder and his neck. At that time, he also had bruising on top of his shoulder that lasted for two weeks. He had pain in that shoulder that lasted for over a month; after that he has been having occasional discomfort on top of his shoulder. During the last two months, he has been aware of some pain in the shoulder blade as well as in his arm and forearm with some numbness, according to him, in all his fingers that usually comes and goes, sometimes lasting for a day to as short as a few hours. He also has been having some pain in his left elbow. He localized his pain over the lateral epicondylar region on activities involving lifting."

The orthopaedic specialist concluded that the worker had degenerative disc disease in his cervical spine and osteoarthritis at the AC joint and lateral epicondylitis. An associated carpal tunnel syndrome could not be ruled out. He stated that the worker should have nerve conduction studies, EMG studies and a referral to a neurologist if the numbness in his hand persisted.

On July 30, 2001, a WCB medical advisor stated that the current diagnosis was degenerative osteoarthritis multilevel (spondylosis) of the cervical spine plus osteoarthritis (OA) of shoulder and long standing calcific changes of the left lateral epicondyle. He stated the worker's current signs and symptoms two months post injury were more likely related to the pre-existing condition. He said the compensable injury probably was aggravated as the acute blunt trauma may have caused pain from the contusion but there was no objective evidence of an acute new fracture, etc.

On September 20, 2001, a CT of the cervical spine read as follows:

"Degenerative disc narrowing at C5-C6 and C6-C7 accompanied by a small left paracentral disc protrusion at C5-C6 and probable left posterolateral disc protrusion at C6-C7. There is also degenerative narrowing of the exit foramen on the left at C6-C7. MRI possibly could be considered for confirmation."

On October 11, 2001, a WCB medical advisor reviewed the CT scan and commented as follows:

the diagnosis was a left C6-7 disc herniation, degenerative disc disease (DDD) C5-C7, foraminal narrowing and left radiculopathy;
the compensable injury enhanced the pre-existing condition; and
the current signs and symptoms were more likely related to the compensable injury rather than the pre-existing condition.

EMG and nerve conduction studies were arranged. The studies showed evidence of prior denervation and a C7 greater than C6 distribution in the left arm, suggestive of involvement of both these nerve roots. No active or recent changes were identified.

On December 10, 2001, the worker was examined by a WCB medical advisor due to his continuing pain. The clinical examination revealed reduced cervical ROM producing radicular neuropathic pain radiating into the left upper limb in a C6-C7 distribution. There was no obvious wasting or muscle atrophy but significant decrease in power along with decreased left triceps reflex and altered sensation in a C6-C7 dermatomal pattern. The medical advisor said he was at a loss to explain the worker's ongoing symptomatology but felt it would be related to his mechanism of injury and his pre-existing condition.

At the request of the WCB medical advisor, the worker was examined by a physical medicine and rehabilitation specialist on February 1, 2002 for left sided neck and arm pain. He summarized that the worker had signs of diminished neck range of motion and compressive abnormalities at the mid-cervical spine. His physical examination correlated somewhat with this but he suspected that some of his weakness was due to pain rather than neurologic loss.

A report from a neurologist to the treating physician dated March 8, 2002 indicated that the worker had a C7 root injury confirmed on EMG likely as a result of the injury based on the timing and the lack of preceding health problems. He further thought that the majority of the worker's persisting and ongoing pain related to the myofascial pain that he had developed as a result of the neck muscular spasm that would have occurred to protect his neck during the acute pain from the disc irritation. In a second letter by the neurologist dated March 8, 2002 he stated that the diagnosis was a post traumatic C7 root lesion complicated by regional cervical muscular spasm and chronic regional myofascial pain syndrome.

MRI of the cervical spine dated May 6, 2002 revealed no disc herniation, central stenosis or cord compression at any of the levels imaged. At the C6-C7 there was evidence of Luschka joint spurring with resultant moderate-to-severe foraminal narrowing on the left. Compression or irritation of the left C7 nerve root may well be present. No other significant abnormalities were detected.

On May 14, 2002, the WCB medical advisor indicated that the worker was fit for modified duties and restrictions were identified. He also reviewed the above MRI results and noted aggravation of pre-existing condition and no enhancement. A referral to an orthopaedic surgeon for surgery was suggested if applicable.

In a report to the WCB case manager dated June 4, 2002, the physical medicine and rehabilitation specialist summarized that the worker had clinical evidence of a left C7 radiculopathy that was improving and was not primarily symptomatic. His MRI demonstrated narrowing that was focal at the level expected and his response to Prednisone had been appropriate with a steroid effect for an affected spinal nerve.

In a report to the family physician dated June 4, 2002, the physical medicine and rehabilitation specialist noted that the worker had returned to work and his hours had been increased past four hours per day and the worker noticed an increase in left arm symptoms. The worker was started on Tylenol #3 and still had significant discomfort.

On July 11, 2002, the worker was seen by a WCB physical medicine and rehabilitation specialist and a WCB medical advisor to assess his current status and work capabilities. It was stated in the report:

"…There is no evidence in the current clinical examination of any ability on examination to irritate the cervical nerve root with cervical foraminal compression testing. This suggests that the prior irritability likely was related to some edema in the area that has now resolved. There were limited findings in the current clinical examination. These were restricted to subjective tenderness, primarily of the left trapezius. The primary current symptomatic complaints appear to be related to these soft tissues. There is no evidence of any definite axial myofascial pain involvement and this may represent prior resolving activity. There is a suggestion of history of some neck mechanical symptoms. Current clinical examination suggests only very likely mild lower cervical spine mechanical symptoms. These likely related to degenerative changes at these levels. There was also a slight suggestion there may be some ulnar nerve irritability about the right elbow."

The examination report outlined treatment suggestions. It was indicated that the worker's condition would continue to improve and that he would be able to progress his work hours to full hours with the modified duties followed by a return to his prior duties.

On July 24, 2002, the physical medicine and rehabilitation specialist stated, "…he still has Grade 5 power at all C7 muscles…I recommended observation and gradually increasing his activity to include resistance training with weights and gradually increasing his hours at work. Follow-up to be arranged in 6 to 8 weeks."

In a letter dated July 26, 2002, the worker was advised that based on the call in examination of July 11, 2002, it was felt that he was capable of increasing his hours at work and by August 5, 2002 he should be working full eight hour shifts.

On October 10, 2002, a WCB medical advisor reviewed the file and stated that the worker had recovered to his pre-accident condition sufficiently to return to work at modified duties and to progress to regular duties.

The worker was advised in a letter dated October 11, 2002 that the latest medical information had been reviewed in consultation with a WCB medical advisor and it was the opinion of the WCB that he had essentially recovered from the effects of his compensable injury and there was no basis on which to extend further responsibility for the claim.

In a November 23, 2002 report, a neurosurgeon stated that the worker was having cervical surgery for a compressed nerve root and that he was physically unable to work at this point in time.

On November 29, 2002, the physical medicine and rehabilitation specialist outlined the opinion that the worker continued to have ongoing evidence consistent with a left C7 radiculopathy. He noted that this had been consistent over multiple examinations with symptoms and signs correlating with his presentation. This was also consistent with the imaging study showing a focal lesion at the level of this nerve. He felt the worker had not yet recovered from his workplace injury and thought the proposed surgical decompression was reasonable. He also stated that he reviewed the November 26, 2002 nerve conduction study and felt that the study was not useful in delineating the nature of the worker's pathology.

On November 29, 2002, the WCB case manager confirmed to the worker that it was the opinion of the WCB that he had now recovered from the aggravation to his pre-existing condition and any further complaints were related to the moderately severe foraminal narrowing as noted on the May 6, 2002 MRI. The case manager said he could not relate the need for surgery to the May 18, 2001 injury.

In a letter to the neurosurgeon dated January 8, 2003, the WCB medical advisor stated that the WCB would not accept any financial responsibility for the proposed surgical decompression at C6-7 as it was felt that the surgery was related to the worker's pre-existing degenerative disc disease. The medical advisor stated that it was the opinion of the WCB that the worker suffered an aggravation of his pre-existing degenerative disc disease of the neck and that the aggravation had resolved.

On March 19, 2010, a union representative wrote to Review Office stating that she disagreed with the decisions made on October 11, 2002 and January 8, 2003. In accordance with the reports submitted by the treating physical and rehabilitation medicine specialist dated November 29, 2002, it was the union's position that there was no evidence whatsoever that the worker had recovered from the effects of his workplace injury and that the worker was entitled to WCB benefits from the date in which his benefits were erroneously terminated by the WCB.

In a letter to Review Office dated July 23, 2010, the employer's representative outlined the position that despite the comments made by the physical medicine and rehabilitation specialist that the worker had not recovered from his injury, all objective evidence pointed to the pre existing foraminal narrowing as being the reasons for his ongoing symptoms. There was no evidence that the compensable injury created an enhancement of the pre existing problem and all evidence pointed to any aggravation having resolved.

On August 4, 2010, Review Office determined that there was no entitlement to wage loss benefits and services beyond August 30, 2002. In reaching its decision, Review Office referred to specific reports on file from the start of the claim up to the neurosurgeon's report of November 14, 2002. It felt there was insufficient evidence to conclude that the worker continued to experience a loss of earning capacity and treatment that was directly related to the compensable injury of May 18, 2001 beyond August 30, 2002. It felt that the majority of the evidence supported that the worker recovered from the workplace accident to the point that it was no longer contributing, to a material degree, to a loss of earning capacity. It stated that ongoing medical treatment was no longer related to the compensable injury.

On September 13, 2010, the worker through his union representative appealed Review Office's decision to the Appeal Commission and a file review was arranged. A December 6, 2010 submission from the union representative was received for the panel's consideration.

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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker's Position

The worker's union representative provided a written submission in support of the worker's appeal.

The worker's representative reviewed the mechanism of injury and the medical reports on the worker's claim file. She noted the November 29, 2002 report of the worker's treating physical medicine and rehabilitation specialist who wrote that the worker "…has ongoing evidence of left C7 radiculopathy. This has been consistent over multiple examinations with symptoms and signs correlating with his presentation. This is also consistent with his imaging study showing a focal lesion at the level of this nerve." The physician commented that the worker has not yet recovered from his workplace injury.

The worker's representative concluded that on a balance of probabilities, the worker had an ongoing loss of earning capacity related to the compensable injury when his benefits were terminated by the WCB. She submitted there is no evidence of a recovery to the worker's pre-accident status or level of functioning. She submitted further that there is evidence of enhancement of the worker's condition and notes a WCB medical advisor provided an opinion with respect to an enhancement on May 14, 2002.

Employer's Position

The employer did not provide a submission to the Appeal Commission. However, its position is set out in a letter dated July 23, 2010. The employer's letter reviewed the medical information on the claim file. The employer disagreed with the treating physical medicine and rehabilitation specialist's opinion that the worker has not recovered from the workplace injury. The employer wrote "…all objective evidence points to the pre-existing foraminal narrowing as being the reasons for his ongoing symptoms. There is no evidence that the compensable injury created an enhancement of the pre existing problem and all evidence points to any aggravation having been resolved." The employer supported the WCB's adjudicative decision.

Analysis

Although framed as one question, the issue before the panel included two related issues. The first issue dealt with entitlement to wage loss benefits and the second issue with entitlement to WCB services.

The issue before the panel is whether the worker is entitled to wage loss benefits and services beyond August 30, 2002. For the appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and required additional services as a result of the accident after August 30, 2002. On a balance of probabilities, the panel finds that the worker did not have a loss of earning capacity after August 30, 2002 and therefore he was not entitled to wage loss benefits after that date. The panel also finds that the worker was not entitled to services after August 30, 2002.

In reaching this decision the panel relies on the following:

· The claim was first reported and accepted as a neck and left shoulder contusion and strain. Medical reports from the treating physician for the period from May 18 to June 30, 2001 identified no neurological signs and provided a continuing diagnosis of neck and shoulder contusion and strain. These reports and the mechanism of injury do not suggest a long term injury.

· The worker had a pre-existing osteoarthritic condition in his neck. This was confirmed by the diagnostic tests including:

o the December 3, 1999 x-ray report which pre-dates the 2001 workplace injury,

o the June 17, 2001 x-ray report,

o the September 19, 2001 CT of the worker's cervical spine,

o the May 6, 2002 MRI of the worker's cervical spine.

· June 28, 2001 a report by an orthopaedic surgeon notes that "in summary, this gentleman has degenerative disc disease in his cervical spine and osteoarthritis at the AC joint…" The report also notes that the worker has had a sore neck off and on for a couple years.

· March 7, 2002 report by a neurologist comments that the majority of the worker's pain relates to the myofascial pain that he developed as a result of the neck muscular spasm that would have occurred to protect the neck during the acute pain from the disc irritation.

· July 11, 2002 examination notes by a WCB medical advisor and physical medicine and rehabilitation consultant indicate that "Current clinical examination suggests only very likely mild lower cervical spine mechanical symptoms. These are likely related to degenerative changes at these levels."

· August 16, 2008 progress report by treating physician notes that the worker is working full time 8 hours. The report notes full range of motion of neck and normal range of motion in the left shoulder.

· September 3, 2002 report by the treating physician indicates that left shoulder and neck have normal range of motion and that the worker's cervical degenerative disc narrowing was impeding progress.

· November 14, 2002 report from a neurosurgeon indicates that "On exam he has reasonable range of motion of his neck."

· November 18, 2002 report from a neurosurgeon indicates that he has reviewed the MRI and states this shows clearly uni-level left C6-7 osteophytic compression perfectly consistent with the majority of his symptoms.

· November 27, 2002 memo from a WCB medical advisor summarizes the WCB's medical position that the worker sustained an initial injury that produced an aggravation of the worker's significant pre-existing condition and that the worker has recovered from the initial injury with subsequent and ongoing symptoms being due to the pre-existing condition.

The worker's representative submitted that the worker's pre-existing condition was enhanced as a result of the workplace injury. She notes that a WCB medical advisor provided an opinion on this issue. The panel has considered this submission and notes that a WCB medical advisor initially had indicated that the injury likely enhanced the worker's pre-existing condition. However, after reviewing the MRI report, the medical advisor commented, in a memo dated May 14, 2002, that the injury aggravated but did not enhance the pre-existing condition. The medical advisor reiterated this opinion that the pre-existing condition had been aggravated in his memo of November 27, 2002. The panel finds that the evidence does not support the conclusion that the worker suffered an enhancement of his pre-existing condition.

Considering all the above information, the panel finds, on a balance of probabilities, that the worker recovered from the compensable injury by August 30, 2002 and that ongoing symptoms/complaints are related to the worker's pre-existing condition.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 30th day of December, 2010

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