Decision #76/11 - Type: Workers Compensation

Preamble

This appeal deals with decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker had recovered from the effects of her compensable low back injury as of September 11, 2005 and that her neck, jaw and headache complaints were not related to her compensable accident. The worker disagreed with these decisions and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 8, 2011 to consider the matter.

Issue

Whether or not the worker's neck, jaw and headache complaints are related to the June 4, 2005 compensable accident; and

Whether or not the worker is entitled to wage loss benefits beyond September 11, 2005.

Decision

That the worker's neck, jaw and headache complaints are not related to the June 4, 2005 compensable accident; and

That the worker is not entitled to wage loss benefits beyond September 11, 2005.

Decision: Unanimous

Background

The worker advised the WCB that she injured her lumbar spine on June 4, 2005 from the following work-related accident:

One lady working on the line asked me for help to pick up a tub … to put on the table. We both took one end. I was walking very slowly moving backwards and she was moving forward. We didn't see the other line had put a tub on the floor and I tripped over the tub and fell down.

A chiropractor's first report showed that the worker attended for treatment on June 6, 2005 with complaints of low back pain with sitting and forward bending. The diagnosis was a lumbosacral strain and subluxation at L5-S1. A subsequent chiropractic report dated July 4, 2005 indicated that the worker's lower back pain was improving but that the lower cervical spine had been getting worse. The chiropractor wrote: "I didn't initially mention neck as it only slowly increased in symptoms."

During a telephone conversation on July 6, 2005 between the treating chiropractor and the WCB chiropractic consultant, the treating chiropractor stated that the worker developed neck pain the week following the accident, but he did not include this in the first reports because he did not think it to be significant. The neck pain had now become a problem for the worker.

At a WCB call-in examination on August 9, 2005, the worker advised the chiropractic consultant that she began to experience headaches, neck pain and dizziness about two weeks after the accident. The worker also described how she fell when she tripped over the tub. She said she fell back on her buttocks. She did not land flat on her back nor did she strike her head. Following the assessment, the consultant was of the opinion that the worker had progressed about 80% in regard to her low back. He was unable to find any tests in the cervical region which would indicate radiculopathy. The consultant indicated that the worker continued to have residuals of her compensable accident of June 4, 2005.

On August 25, 2005, the treating chiropractor reported that the worker tried a graduated return to work but suffered an increase of neck pain, headaches and low back pain.

On September 12, 2005, the chiropractor reported a new diagnosis of temporomandibular joint ("TMJ") dysfunction and hyperextension injury. On October 4, 2005, the WCB chiropractic consultant opined that the TMJ dysfunction was related to the compensable injury.

In a report dated October 24, 2005, a neurologist noted that the worker had fallen flat on her back in June. Although she did not hit her head, she had quite a sudden flexion/extension (or extension/flexion) injury to her neck. She also suffered pain in the TMJ and saw a dentist who gave her a mouth guard and other treatment. Then, neurological examination was completely normal. There was no spontaneous or positional nystagmus, in spite of her subjective complaints of positional vertigo. The neurologist outlined the opinion that the worker had post-traumatic headaches and vertigo which was expected to improve with time. He noted that the worker essentially had a whiplash injury as a result of her fall.

On January 18, 2006, the worker underwent an MRI of the brain and the cervical spine. The results confirmed a left posteromedial thalamic cyst. This likely represented an arachnoid cyst.

In a further report dated February 1, 2006, the neurologist reported that the worker had been off work for half a year and she continued to have prominent complaints of headaches, intermittent dizziness and neck pain going down into her right upper limb proximally. In reference to the recent MRI of the brain and cervical spine, the neurologist did not think that any of these findings were post-traumatic.

On March 1, 2006, the dentist reported that based on his initial consultation, the worker appeared to be suffering from a myofascial pain and dysfunction problem that included TMJ pain and limitation of movement. In a follow up report dated May 9, 2006, the dentist indicated that, in all medical probability, the worker's myofascial pain and dysfunction problem had been present since her work related injury.

In a note to file dated September 12, 2006, a WCB case management representative spoke with the worker who indicated that she was not sleeping much during the night due to the pain in her neck and because of headaches. The worker said her neck area hurt all around and she couldn't turn her head and had trouble swallowing.

On November 20, 2006, the worker saw a physiotherapist for neck, thoracic, shoulder/arm problems and TMJ symptoms.

On January 15, 2007, a neurologist reported that the results of a recent MRI showed no interval change and that the worker had a stable left thalamic cyst.

The worker was assessed by a physical medicine and rehabilitation specialist on June 18, 2007 and the diagnoses outlined were chronic myofascial neck and shoulder pains after a whiplash injury two years ago, fear of injury and somatic symptoms and work disability.

On July 16, 2007, an advocate for the employer advanced the following positions in relation to the claim:

  • that the duration of the claim was excessive in view of the minor nature of the original injury;
  • that the worker had recovered from her compensable injury by August 2, 2005 when chiropractic treatment ended for the low back condition;
  • the late reporting of neck and jaw problems was unrelated to the June 4, 2005 compensable injury; and
  • if the neck and jaw conditions were considered to be related to the compensable injury, there was a lack of objective evidence to support either an aggravation or enhancement of the neck and jaw conditions or the worker's prolonged absence from work beyond August 2, 2005.

At a WCB call-in examination held on July 17, 2007, the worker described her current symptoms as dizziness and pain in her neck/head region and right arm. The consultant noted that he reviewed video surveillance of the worker's activities which were taken in July and August 2006. He noted that the worker's activities which included walking, standing, neck movements, were all carried out fluidly without hesitation, self limitation or evidence of discomfort. The consultant concluded that the worker's diagnosis was non-specific pain involving multiple areas of her body and that her widespread symptoms were not accounted for on the basis of a probable structural pathoanatomic lesion in relation to the workplace injury sustained on June 4, 2005.

In a decision dated September 6, 2007, primary adjudication advised the worker that effective September 5, 2007, the WCB was no longer able to establish a loss of earning capacity or an ongoing relationship between her compensable injury and her current condition based on comparing her reported symptoms and her abilities demonstrated on the surveillance video.

On February 7, 2008, the worker advisor provided Review Office with a rebuttal to the employer's appeal of July 16, 2007. The worker advisor indicated that the call-in examination of August 9, 2005 supported that the worker had not recovered from her compensable accident. The worker advisor also indicated that reports from the treating neurologist and from the physical medicine and rehabilitation specialist supported that the worker's neck and jaw condition was related to the mechanism of injury sustained on June 4, 2005.

The employer's advocate provided Review Office with a further submission dated March 7, 2008, asserting that the video evidence and subsequent medical advisor's opinion detailed in his July 17, 2007 report supported the employer's position that responsibility for the worker's claim beyond August 2, 2005 was not warranted.

On March 26, 2008, Review Office determined that WCB coverage for the worker's low back condition was in effect until September 11, 2005, following which it was the opinion of Review Office that the worker no longer had a low back condition producing a loss of earning capacity.

Review Office indicated that the benefit of doubt should be given to the worker with regard to her low back up to and including September 11, 2005. As of September 12, 2005, chiropractic reports made no mention of the worker's low back condition and all the focus was on the worker's neck, jaw and headache complaints. Therefore, as of September 12, 2005, Review Office felt that the worker no longer had a compensable loss of earning capacity with regard to her low back.

Review Office also determined that the worker's complaints of neck and jaw pain along with associated headaches were not compensable. Review Office noted that when the worker was examined by a WCB chiropractor on August 9, 2005, she indicated that it was not until two weeks after the fall in the workplace that she started to have neck and jaw complaints. Review Office therefore was of the opinion that there was no connection between the commencement of her neck and jaw symptoms and the fall in the workplace on June 4, 2005.

On March 16, 2010, the worker advisor provided Review Office with a medical report dated February 25, 2010 to support the position that there was a connection between the worker's neck and jaw symptoms to the work related accident of June 4, 2005. Review Office was also asked to consider the WCB's policy on pre-existing conditions. The worker advisor noted that there was confirmation of a diagnosis being a whiplash type injury which arose out of and in the course of the worker's employment on June 4, 2005 causing a strain to the muscles and structures of the worker's neck. With the current medical opinion that the strain superimposed on a pre-existing condition was a material contributor to her current condition, there was an entitlement to wage loss benefits.

On May 6, 2010, Review Office determined that no change would be made to its decision of March 26, 2008. Review Office noted that the new medical information indicated that the worker's complaints commenced 3 to 5 days post-accident. This differed from the information the worker told a WCB chiropractor on August 9, 2005 that it was not until two weeks post fall in the workplace that she started to have neck and jaw complaints. Review Office felt it would be more reasonable to use the evidence available right when the situation occurred as opposed to the worker's verbal presentation to the new physician four years post-accident. It therefore remained of the opinion that given the two week gap in the commencement of the neck and jaw symptoms, a connection between the fall in the workplace on June 4 and the neck and jaw complaints had not been established. Review Office agreed with the WCB medical advisor's opinion that if a whiplash scenario truly occurred in the June 4, 2005 fall, it would not have taken two weeks for the symptoms to surface.

With regard to the request for a review of the applicability of the WCB's Policy on pre-existing conditions, Review Office did not feel that a compensable aggravation of the worker's underlying neck condition had occurred. It stated that if the worker's neck was injured on June 4, 2005 as an aggravation of a pre-existing condition situation, it should not take two weeks for the effects of the aggravation to commence. On May 27, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on March 8, 2011.

Following the hearing and a discussion of the case, the appeal panel requested additional medical information from the worker's treating physicians and two physiotherapists. The requested information was later received and was forwarded to the interested parties for comment. On April 26, 2011, the panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable legislation:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

Section 37 of the Act provides that where a worker sustains a loss of earning capacity, wage loss compensation is payable. Subsection 39(2) of the Act provides that wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB.

Worker’s position:

The worker appeared at the hearing with the assistance of a worker advisor. It was submitted that the worker's neck, headache, jaw and upper trapezius complaints were a result of the whiplash type injury she suffered when she fell backwards at work. The most common symptoms of whiplash injuries include those to the soft tissues which result in neck pain and stiffness, headaches, dizziness, shoulder pain and numbness or tingling in the arm. The worker did gradually develop these symptoms after the workplace fall. It was argued that the commencement of the symptoms did not start after two weeks, but rather that they gradually started within a few days after the accident and progressed in the two weeks, which is typical of whiplash soft tissue injuries. The notes of the conversation between the WCB chiropractic consultant and the treating chiropractor were relied upon, where the treating chiropractor confirmed that the worker developed neck pain in the week following the accident. The worker advisor highlighted the medical reports on file which supported a causal relationship and submitted that the evidence supported a relationship between the compensable accident and the worker's symptoms and disability.

Employer’s position:

An advocate and a representative from the employer were present at the hearing. The employer supported the decision made by the WCB and it was submitted that the preponderance of evidence did not support a cause and effect relationship between the worker's neck, jaw and headache complaints and the workplace accident of June 4, 2005. On reviewing the medical evidence, it was argued that the conditions could not be shown to have occurred out of and in the course of employment. Further, even if the Appeal Commission were to accept responsibility for the worker's neck, jaw and headache complaints, these conditions were not totally disabling due to the lack of objective medical evidence of disability and the availability of modified duties from the employer.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker has experienced after September 11, 2005 are related to the injuries she sustained in the workplace accident of June 4, 2005. We are not able to make that finding.

In the panel's opinion, the injury suffered by the worker in the workplace fall of June 4, 2005 was limited to a low back strain which resolved by September 11, 2005. It follows that the neck pain and other conditions which have continued to impair the worker's earning capacity were not caused by the fall at work and therefore are not compensable.

In coming to this decision, the panel paid close attention to the worker's description of the accident. At the hearing, she indicated that she was walking backwards carrying a rectangular tub filled with 20 kgs of product with a co-worker. The tub was made of plastic and was approximately 1 ½ feet by 2 feet and 8 to 10 inches high. There was another empty tub on the floor and when the worker stepped backwards onto that tub, she lost her balance and started to fall to the right side. She tried to keep the tub from tipping, but was unable to do so and the contents spilled out to the right and onto the floor. The worker fell down and landed on her buttocks on the concrete floor. She described her fall as "being like a rocking chair." She curled her body and rolled backwards so that almost her entire spine made contact with the floor. By curling up, she managed to save her head from striking the floor. It was a very quick movement and she was back standing on her feet almost immediately. She completed working the remaining four hours of her shift, which involved standing and working at a table. Her first impression was that she felt a very strong pain in both her hips, which then changed to aggravation of her whole pelvis. The spreading of the pain prompted her to go see the attending chiropractor on June 6, 2005.

While it is clear that the backwards fall was awkward, we find that the incident was not so severe as to cause the widespread range of symptoms which the worker developed in the following months. The mechanism of injury lacked the force/velocity which would be expected in order for a significant whiplash injury to occur. Further, the panel notes that over the course of several months, the worker developed multiple sites of injury which have changed over time and are varied in onset and severity. The most notable of these is the delayed onset of the neck pain. Although there are some reports on file of the initial neck symptoms developing within 3 to 5 days after the accident, our review of the treating chiropractor's chart reveals that the first time the neck pain was significant enough to be noted was on June 29, 2005 when it was recorded: "Rt neck getting worse." On the next appointment on July 4, 2005, there was another notation: "neck worse." In view of the chart notes, the panel finds that the worker did not develop significant neck pain until approximately three weeks after the initial fall. Given the delay in onset of symptoms, the panel is not satisfied that the worker's neck condition was causally related to the workplace accident.

Similarly, numerous physicians on the file have seen the worker for various conditions which arose in the months and years following the accident, including TMJ disorder, anterior neck pain, episodic benign parosysmal positional vertigo (BPPV) and myofascial pain. Given the temporal gap between the development of these conditions and the time of injury, we do not accept that there is a causal relationship between any of these conditions and the workplace accident.

The panel notes the WCB medical advisor's opinion expressed after the call-in examination of July 17, 2007 wherein he concludes that the worker's diagnosis is non-specific pain involving multiple areas of the body and that the widespread symptoms are not accounted for on the basis of a probable structural pathanatomic lesion in relation to the workplace injury sustained on June 4, 2005. He also noted that the reported time course of symptoms in this case was not consistent with neck pain, nausea, dysphagia and TMJ pain as bearing a probable relationship to the workplace injury. We accept this opinion.

For the foregoing reasons, the panel therefore concludes on a balance of probabilities, that the worker's neck, jaw and headache complaints are not related to the June 4, 2005 compensable accident and she is not entitled to wage loss benefits beyond September 11, 2005. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of June, 2011

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