The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal from the decision of the Review Office of the Workers Compensation Board (“WCB”), which held that the worker’s current head, neck and right shoulder problems were not related to his compensable injury that occurred in 1978. The worker filed an appeal with the Appeal Commission through the Worker Advisor Office. A hearing was held on November 17, 2010 to consider the matter.

Issue

Whether or not the worker's current head, neck, shoulder and arm problems are related to the compensable injury of February 6, 1978.

Decision

That the worker's current head, neck, shoulder and arm problems are not related to the compensable injury of February 6, 1978.

Decision: Unanimous

Background

On February 6, 1978, the worker, who was employed as a car salesman, was injured when an overhead door fell and struck him on the top of his head. The worker was taken to the hospital where he was treated for a 6 cm laceration on his frontal scalp that required six stitches. The hospital emergency report notes that the worker did not lose consciousness and no x-ray was taken. The worker was sent home with instructions to see his physician in one week to remove the stitches. The report also indicated that the worker was fit to return to work.

On February 7, 1978, the worker was examined by his physician. The Doctor’s First Report indicates that the worker complained of headaches and neck stiffness. The physician ordered an x-ray. In the Doctor’s Progress Report of February 9, 1978, it was noted that there was no bone injury. Complaints of sharp frontal headaches and insomnia were noted. The worker was advised to remain off work until the following week and time loss from work was estimated at 1 - 7 days.

The worker was examined by his physician on February 17, 1978. In the Discharge Report dated February 17, 1978, the physician noted that the sutures were removed and the laceration healed well. The report also noted that the worker was able to resume work on February 10, 1978. The physician did not report any complaints or ongoing symptoms.

The worker’s claim for compensation was accepted by the WCB on February 15, 1978 and the worker was paid wage loss benefits for two days.

There was no further communication with the WCB until September 28, 2007 when the worker wrote a letter to the WCB in which he indicated that he had spent the last number of years going to various doctors, physiotherapists, acupuncturists and massage therapists to try and relieve pain, which he attributed to the 1978 injury.

According to a report dated October 15, 2007, the worker was assessed by a physiotherapist on October 11, 2007. The physiotherapist noted that the worker complained of pain to the Para C8, right shoulder girdle and scapula, right arm, headaches, poor sleep and right arm weakness. The diagnosis outlined was degenerative disc disease: root impingement C6-7 pain.

A WCB case manager met with the worker on October 23, 2007. The worker indicated that he had problems with his neck ever since the accident. He indicated that the physician he was seeing following the accident had retired and that he had been seeing a chiropractor for treatment over the intervening period. The worker advised that he had continued with the accident employer until 1981 and had been employed since then with different car dealerships until 2005 when he retired voluntarily at the age of 60 due primarily to hypertension.

The case manager noted that the worker appeared to have a limited range of motion in his right arm and virtually no grip strength. The worker complained of pain in the back of his trapezius when he raises his arm with the pain radiating down the arm from the region of C7-C8.

The case manager sought to obtain medical information from all of the physicians and therapists who had treated the worker for neck related problems since 1978.

The case manager received a report dated November 12, 2007 from the chiropractor who had treated the worker following the accident. The chiropractor explained that all of his records had been destroyed after he sold his practice in 1995. In his report the chiropractor advised that he had treated the worker following the workplace accident in 1978 and recalled that the worker had an altered cervical curve and mild cervical spondylosis suggestive of trauma and cervical segmental subluxations or misalignments that were amenable to chiropractic intervention. He also noted that the worker’s response to his care was positive and his symptoms (headaches, neck pain, and symptoms to the upper extremities) were under control fairly rapidly. The worker stopped treatment after several months.

The worker did not seek further treatment from his chiropractor. Sometime after 1985, the chiropractor visited the worker as a customer of the dealership where the worker was employed. The chiropractor advised the worker to see him professionally, but the worker never did. In a report dated November 12, 2007, the chiropractor recalled the nature of his informal treatment and diagnosis as follows:

“Whenever I came to [dealership] for service of my vehicle, I would always do some trigger point therapy to his Trapezius muscles to relieve him of symptoms. I would also palpate his neck and consistently found that he had severe misalignments to the upper and lower cervical spine characteristic of degenerative arthrosis also known as cervical spondylosis. These informal examinations and treatments occurred three or four times per year for close to 9 years and ended when [the worker] left [dealership]. During this time I frequently told [the worker] that his neck was getting worse and that he needed to have it looked after… The pathological development of [the worker's] neck problems is congruent with the head injury he suffered in 1978, especially if he did not receive adequate treatment to prevent the degenerative processes that inevitably follow serious neck injury. The nature of a severe neck injury demands follow-up for many months, and sometimes, many years. In my opinion, if [the worker] had followed my suggestion (sic) continue to receive periodic chiropractic care after his initial injury and treatment in 1978, his spondylosis problem would not have evolved to the advanced degenerative state I am certain has occurred. My feeling is that he has severe disc degeneration in the lower cervical spine not to mention the presence of chronic and advanced subluxation patterns in the upper neck".

According to the chart notes provided by the worker’s physician, the worker visited his physician in October 2007 for neck and right shoulder pain.

An x-ray of the of worker’s neck and right shoulder taken on October 10, 2007 noted considerable narrowing of the intervertebral disc spaces at C5-6 and C6-7 level with anterolateral and posterior osteophytes. Degenerative changes were seen in the apophyseal joints and in the right shoulder AC joint.

An MRI of the worker’s cervical spine taken on November 4, 2007 showed moderately severe degenerative changes at the C3-4, C4-5, C5-6 and C6-7 levels as well as considerable exit foramina narrowing at multiple levels.

The worker was referred to a neurosurgeon for assessment. On November 28, 2007, the neurosurgeon reported that the worker described a chronic recurrent cervical pain and pain extending to the right upper extremity. The report notes that the radiculopathy started a few months before and was associated with numbness of the 4^th and 5^th fingers and the ulnar side of the right hand as well as weakness of the flexion of the fingers. The neurosurgeon was of the view that the clinical presentation suggested some cervical mechanical pain. He also thought it was likely that the pain extending to the right upper extremity was due to ulnar neuropathy at the elbow. He referred the worker to a neurologist for assessment.

The worker was examined by a neurologist. In the neurologist’s report dated January 3, 2008, it is noted that the worker complained of increased neck pain over the last few months with fairly severe pain in the right paracervical and shoulder girdle region extending down his lateral arm and numbness of the fourth and fifth digits as well as difficulty using his right hand and abducting his right shoulder. The neurologist was of the opinion that there was no significant ulnar neuropathy at the elbow. In his view some of the symptomatology likely relates to the multifocal spondylotic cervical spine changes and right shoulder joint musculoskeletal disease.

A WCB medical advisor was asked to review the file and provide an opinion as to whether the worker’s current symptoms of headaches, pain and numbness in his hand are related to the 1978 injury.

On January 23, 2008 the WCB medical advisor provided his opinion that the worker has extensive degenerative disc disease of the cervical spine that is globally distributed and could not be related to the blow on the head but rather to general osteoarthritis of the worker’s cervical spine. The medical advisor concluded that the worker’s current symptoms are related to the generalized degenerative disc disease of his spine and not to the 1978 injury.

The worker’s physician provided a report dated March 8, 2008 noting that since October 2007, the worker had increasing pain, discomfort and was quite disabled as a result. The report included copies of x-rays taken by the worker’s previous physician who had since retired, as follows:

• 1979 x-ray of the cervical spine, which indicated that the “vertebral bodies and disc spaces appear well maintained”;
• 1982 x-ray of the skull, which showed no abnormalities;
• 1988 x-ray of the cervical spine and chest, which showed relatively well maintained vertebral bodies and disc spaces, however, early degenerative changes were noted in the joints of Luschka involving C5-6;
• 2002 x-ray of the cervical spine showed minor degenerative disc space narrowing at the C5-C6 level as well as prominent osteophyte formation anteriorly. The findings at the C5-C6 level were noted as having progressed since the 1988 study;
• 2003 x-ray of cervical spine and left shoulder, which showed slight worsening of degenerative disc changes at C5-C7 and minor degenerative narrowing at the A.C. shoulder joint.

The WCB obtained a report from the worker’s physiotherapist listing the dates of all of the treatment the worker had received. The report indicates that the worker was treated in 1998 and 2002 for his neck; in 2003 and 2004 for his neck and shoulder; and in 2007 for neck, arm and shoulder problems.

The WCB medical advisor was asked to review the new information provided by the worker’s physician dating back to 1979. The medical advisor reviewed the original accident reports and all of the correspondence provided by the worker’s physician and noted that the worker had recovered from his original injury within approximately 11 days with some post injury complaints of headaches but was able to return to full duties. He noted that there was no evidence on file of concern of any skull or neck injury. In his opinion the information provided by the worker’s physician showed a worker “who has developed fairly severe DDD of his cervical spine over the years but based on review of the initial injury there is no evidence of concern of injury of cervical vertebrae at the time of injury.” He went on to state that “the initial description of injury and clinical findings do not bear out current symptoms being attributable to blow to head or the extensive DDD of cervical spine.” The medical advisor was therefore of the view that there was no relationship between the worker's current symptoms and the 1978 injury.

In a WCB decision dated April 1, 2008, the worker was advised that the WCB would not accept responsibility for the worker’s ongoing problems on the basis that the evidence did not support a causal relationship between the current symptoms and the 1978 injury.

On April 20, 2009, the worker provided the WCB with the following new medical information:

• A report dated June 26, 2008 from an occupational health physician; and
• A report dated March 3, 2009 from a physiatrist

In the report from the occupational health physician, the assessment provided is that the worker “has a long standing condition of posterior neck pain, treated by chiropractic, later by physiotherapy with acupuncture. There is clear onset of the neck and right shoulder pains with the 1978 injury…". In the narrative, the physician refers to the worker having regularly attended chiropractic treatments for neck pain from 1978 until the mid 1980s and physiotherapy treatments from 1985 until 2005.

In the report from the physiatrist, the assessment provided is that “[t]here is a significant probability that his long standing head, neck and right shoulder pain, that has become more of an issue over the last 3 years, had their origin at the time that he was struck on the head by the heavy steel door." In the narrative, the physiatrist refers to the worker having suffered a severe concussion; that he was rendered unconscious; that the worker had regular chiropractic treatment since the injury; and that it would be helpful to see if any x-ray of the spine was done near the time of the 1978 injury.

On May 25, 2009 the WCB medical advisor reviewed the new medical reports and advised the case manager that the worker’s current diagnosis was degenerative disc disease of the cervical spine and that there was no causal relationship between the 1978 compensable injury and his current complaints. The medical advisor was also of the opinion that there was no clinical reason to establish a permanent impairment related to the 1978 injury.

In a decision dated June 3, 2009, the WCB advised the worker that it would not accept responsibility for his current problems on the basis that they were related to degenerative disc disease of the cervical spine and there was no causal relationship to his 1978 injury. The WCB advised that it would not accept responsibility for further medical treatment; that the worker was not entitled to further wage loss benefits or a permanent partial disability award. The worker had requested reimbursement for a damaged suit and broken eyeglasses indicating that in 1978 he paid $650 to purchase a new suit and $600 for new glasses. As there were no receipts, the WCB determined that the worker was entitled to $200.00 based on an estimate of the cost to replace the damaged suit and broken eyeglasses.

An appeal was made to the Review Office by the Worker Advisor Office on behalf of the worker and a submission dated September 1, 2009 was filed with the WCB.

In its decision dated October 1, 2009, the Review Office held that the worker's current head, neck and right shoulder problem was not related to the February 6, 1978 compensable injury. The Review Office concurred with the opinion expressed by the WCB medical advisor that the worker's current symptoms were more likely due to a non-work related condition, degenerative disc disease.

On April 7, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on November 17, 2010. The worker gave evidence at the hearing and was represented by a worker advisor. No one appeared on behalf of the employer.

At the hearing the worker testified that he currently suffers from severe pain in his lower neck, shoulder and arm area. He testified that his symptoms were primarily neck pain and headaches until 2007 when he woke up with numbness in his arm, shoulder and fingers and an inability to raise his arm with pain radiating into his right shoulder.

Reasons

For the reasons noted above, the panel finds on a balance of probabilities, the initial description of the injury and clinical findings do not support a finding that the worker’s current symptoms are related to the 1978 blow to his head. The panel agrees with the medical advisor’s opinion that given the lack of evidence of injury to the worker’s cervical vertebrae, the worker’s fairly severe and extensive degenerative disc disease is not related to the 1978 injury, rather the worker’s current symptoms are related to general degenerative osteoarthritis of the cervical spine.

The panel therefore finds that, on a balance of probabilities, the worker’s current head, neck, shoulder and arm symptoms are not related to the 1978 compensable injury. The worker’s appeal is dismissed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 14th day of January, 2011