Decision #101/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board
("WCB") which determined that his neck and back complaints were unrelated to his compensable elbow injury of October 11, 2007. A hearing was held on May 31, 2011 to consider the matter.
Issue
Whether or not responsibility should be accepted for the worker's neck and back complaints in relation to his compensable injury of October 11, 2007.Decision
That responsibility should not be accepted for the worker's neck and back complaints in relation to his compensable injury of October 11, 2007.Background
The worker injured his left elbow in a work related accident on October 11, 2007. His claim for compensation was accepted by the WCB and various types of compensation benefits were paid to the worker.
On March 15, 2010, the worker sought medical treatment at a local emergency facility complaining of being unable to lift his right arm since two days prior. The diagnosis rendered was right nerve palsy.
In a chiropractor's first report, it was recorded that the worker attended for treatment on March 16, 2010. The worker reported that he slipped and fell in 2007 and suffered nerve damage. The worker said he cannot sleep on that side and now has pain and numbness in the right arm. The chiropractor noted that the worker woke up on Saturday morning with his right arm completely numb with associated neck pain. The diagnosis was acute traumatic onset of VSC.
On April 7, 2010, a senior case manager referred the file to a WCB physiotherapy consultant noting that the worker suffered from a pinched nerve in his neck, thus disabling his right arm. The worker saw a chiropractor and made an appointment with a physiotherapist. The worker was also seen at the Pan Am Clinic. The physiotherapy consultant was asked to determine whether the worker's current condition was related to the 2007 compensable injury. The consultant responded that the worker's right arm and neck condition was not related to the compensable injury.
In a letter dated April 20, 2010, the worker was advised that the WCB was unable to accept responsibility for his right arm and neck complaints or for the costs of physiotherapy treatment. It was felt that a relationship had not been shown to exist between the current diagnosis and his compensable injury.
On June 1, 2010, the worker appealed the above decision to Review Office. The worker outlined the position that his neck and back complaints were related to his having to change his sleeping position and his inability to sleep and nap soundly as a result of his compensable injury.
On June 17, 2010, Review Office confirmed that no responsibility should be accepted for the worker's neck and back complaints. Review Office was of the opinion that the evidence did not support any relationship between the worker's neck and back complaints and his compensable accident. Any change in the worker's sleep habits associated by his compensable elbow injury would not account for a nerve palsy or a subluxation complex. The worker subsequently filed an appeal with the Appeal Commission as he did not agree with the decision made by Review Office. A 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.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:
A further injury occurring subsequent to a compensable injury is compensable:
(i) where the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.
A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.
Worker's Position:
The worker appeared on his own behalf at the hearing. He submitted that ever since his workplace injury in 2007, he has not been able to sleep on his left side, which was his normal sleeping side. He has had to change his sleeping position to lie on his back or right side, and this in turn has affected his neck, shoulder and back joints. As a result, he has required physiotherapy and does not get a restful night's sleep. He is constantly in pain.
When asked to describe the pain, the worker indicated that the pain is the worst in his neck and along the top of his left shoulder. The pain goes into his upper back and can also spread to the lower back. When asked to describe the nature of the pain, the worker indicated that the pain is more like "nerve" pain than muscular pain and it feels like the area tightens up. He goes to physiotherapy to get his neck and back "decompressed". Treatment consists of first applying hot packs down the length of his spine, then the physiotherapist performs a manipulation technique which the worker believed decompresses the nerves in his neck and back. After the treatment, the worker feels great and has more mobility and a lot less pain for approximately one day. As the worker pays for the treatments himself, he is only able to attend once or twice a week. He would like the WCB to help him with the cost of the physiotherapy treatments.
Employer's Position:
The employer did not appear at the hearing.
Analysis:
The issue concerns whether the difficulties the worker is now experiencing in his neck and back are related to the compensable injury. In order for the worker’s appeal to be successful, the panel must find that the neck and back complaints are predominantly attributable to the compensable injury. In the panel's opinion, there is insufficient evidence to allow us to reach that conclusion.
When making a decision on an appeal, the panel must be satisfied "on a balance of probabilities" and the decision must be evidence based. That means that we must be over 50% satisfied that the evidence as a whole supports the decision. In the present case, although we have the worker's testimony that his altered sleeping position is causing his neck and back complaints, his testimony alone is not enough to get us over the 50% mark. In order for us to decide that the WCB should accept responsibility for the neck and back complaints, the panel would need a medical opinion or some other authoritative evidence which establishes a positive link between the sleeping position necessitated by the compensable injury and neck/back nerve pain complained of by the worker. In this case, there is insufficient medical or other evidence to support such a causal connection.
For the foregoing reasons, we find that the worker’s neck and back complaints are not related to his compensable injury and that no responsibility should be accepted by the WCB. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 20th day of July, 2011