Decision #107/11 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's loss of earning capacity and upper back/neck condition effective April 11, 2003 were related to the workplace accident of February 2, 2003. A file review was held on June 20, 2011 to consider the matter.Issue
Whether or not the worker is entitled to benefits effective April 11, 2003.Decision
That the worker is entitled to benefits effective April 11, 2003.Background
In February 2003, the worker filed a claim with the WCB for an upper back and neck injury that he related to his employment as a service technician. The worker stated:
Not sure of date of accident - I worked late on Feb 2/2003 and I woke up Feb 3/2003 with a stiff neck. Monday Feb 3/2003 I was really sore and worked through the day and advised employer that I would see a doctor. I was installing a hot water tank, which involves installing a water tank and removing the old one, the tank weighs approximately 100-130 lbs. I did this by myself. Did not feel anything in particular when doing this but woke up Monday, February 3, 2003 with stiff neck and upper back. The call was about 7:00 pm or 7:30 pm and I got to the call around 8:00 pm and arrived back home around 11:30 pm.
A medical report dated February 4, 2003 stated that the worker hurt his neck lifting a 130 pound object at work. The diagnosis was a cervical strain. The worker was instructed to stay off work and to be reassessed in one week's time.
In a follow up report dated February 11, 2003, the treating physician noted that range of motion was improving in the worker's neck but he still had tenderness to the right scalene and trapezius muscle. The physician felt that the worker could return to work with restrictions involving no lifting over 25 pounds and no overhead work for two weeks.
On April 7, 2003, the worker advised a WCB adjudicator that his neck and upper back were fine prior to the installation of the hot water tank. He said he went home afterwards and went straight to bed. When he awoke, his upper back and neck were very sore. The worker noted that he was off work for one week and then went on light duties for two weeks. His back was still not feeling 100% and he was thinking of returning to see his doctor.
On April 7, 2003, the employer advised the WCB that the worker returned to work on February 12, 2003 at light duties. He did not install any hot water tanks nor did he receive many calls.
In a medical report dated April 11, 2003, it was indicated that the worker reported a two week history of pain to the upper thoracic and cervical spines, although the initial injury was back in February 2003. The worker reported that the pain never completely went away and that the pain had now increased in severity. He now had numbness down the right arm and into the right thumb. The diagnosis was neurapraxia and the worker was instructed to avoid any lifting over 25 pounds.
An x-ray report of the cervical spine dated April 11, 2003 was read as showing normal findings.
On April 17, 2003, the worker was seen by a physiotherapist and was diagnosed with "? nerve entrapment R C6 root with compression/damage."
An orthopaedic report dated May 1, 2003 indicated "He does not remember having any problem with his neck until the beginning of February, when he apparently woke up with a sore neck that became more painful and stiff in the course of the next few days. Such pain and stiffness lasted for about three weeks…He recalls lifting and moving a hot water tank the day before he started to have problems with his neck." The specialist noted that the worker seemed to have discogenic pain and that his symptoms were getting better. There were no neurological changes. The specialist commented that the worker's remaining symptoms would subside in due course.
On May 8, 2003, the worker advised the WCB that he resumed regular duties approximately three weeks after the date of his compensable accident and was still experiencing ongoing neck difficulties. He worked alone and did not mention his neck difficulties to anyone. There were no new accidents or injuries that caused his flare-up. His neck pain was progressively getting worse over time.
On May 11, 2003, the treating physician diagnosed the worker with C6 nerve entrapment syndrome.
On May 28, 2003, a WCB medical advisor commented that there was an absence of a specific injury. He noted that the worker's pain started when he awoke on the morning of February 3, 2003 and that his symptoms increased two months after the initial onset.
The worker spoke with a WCB case manager on May 28, 2003. The worker indicated that following his return to work in February 2003, he saw a doctor for pain and numbness down his arm. The discomfort occurred when he lifted his tool case and felt a pop in his neck.
On June 2, 2003, the case manager met with the WCB medical advisor to clarify whether there was a relationship between the worker's February 2, 2003 cervical strain and his more recent symptoms which extended from his neck down his arm. The medical advisor explained that the difficulties experienced by the worker in early April were discogenic in nature. He noted that this type of injury would come about from an acute or specific incident and the symptoms would be experienced immediately. The medical advisor was unable to say that there was a relationship between the worker's cervical strain and radiculopathy.
In a decision dated June 4, 2003, the worker was advised that his claim for compensation was accepted based on the diagnosis of a cervical strain related to the February 2, 2003 accident and that the WCB was unable to accept responsibility for his ongoing neck symptoms for which he sought medical attention on April 11, 2003.
A letter was then received from the worker's family physician dated June 4, 2003. He noted that the worker developed a sharp pain to the right side of his neck in early February 2003 when carrying a 130 pound hot water tank up some stairs by himself. The diagnosis was a cervical strain. When next seen on February 11, 2003, the worker still had residual pain to the right side of his neck and was given a note to return to work with restrictions. When seen on April 11, 2003, the worker complained of pain in a similar location. The worker noted that he had been working with pain since February and it had flared up and worsened in the two weeks prior to his April 11, 2003 appointment. The physician concluded that the worker's description of injury and the objective findings on physical examination were entirely consistent with radiculopathy related to a cervical disc and that the cause of the disc injury was from lifting the 130 pound hot water tank.
On July 11, 2003, a physical medicine specialist noted that the worker "attributes onset of symptoms to an injury sustained at work on approximately February 2, 2003, This occurred while pulling a hot water tank out of a basement while fatigued. He noticed a sore neck beginning the next day and increasing in severity over the next 2 days to difficulty performing shoulder checking. The pain improved over some time but not completely. Subsequently, in early April 2003, pain worsened."
In a memo to the file dated July 14, 2003, the case manager noted that she met with the WCB medical advisor to discuss the June 4 report. The case manager stated "[the treating physician's] letter noted pain at the outset; initially clmt [sic] had indicated to WCB that he did not experience difficulties until the next morning following his accident. However, [the medical advisor] was of the medical opinion that it is probable, given the information on file that the disc injury arose out of the February 2, 2003 accident and worsened as the claimant continued to work his duties. Given the fact that information on file could support the development of the current condition combined with the fact that there are no further identified risk factors, it was indicated that claimant's current difficulties could be a result of injury on February 2, 2003."
On July 15, 2003, the worker was notified that responsibility was being accepted for his ongoing neck condition and that he would be paid benefits commencing April 11, 2003.
On June 30, 2010, the employer's advocate appealed the acceptance of the worker's ongoing neck symptoms as of April 2003. The advocate outlined the position that there was overwhelming evidence on file to support that there was no symptomatology at the time of the installation of the hot water tank. He requested that all costs effective April 11, 2003 and onward be expunged from the employer's firm experience statement and be transferred to the Second Injury Fund.
On August 15, 2010, a WCB sector services manager advised the employer's advocate that after review of the file evidence, he did not feel there was evidence to support a reversal of the decision to provide ongoing acceptance of the worker's claim after April 11, 2003. On November 25, 2010, the advocate appealed the decision to Review Office and submitted a medical report dated November 10, 2010 for consideration.
On December 30, 2010, Review Office determined that there was entitlement to benefits effective April 11, 2003. Review Office outlined the opinion that the worker had not recovered from the effects of his compensable injury when he began to perform his regular duties in February 2003; that the job duties the worker performed from February to April 2003 would have aggravated his neck condition; that the worker's upper back and neck symptoms were noticed within a reasonable period of time after his work duties of February 2, 2003; that in relation to the November 10, 2010 medical report, there was no evidence to support that any injury/condition or personal actions unrelated to work were responsible for the worker's injury or his need for treatment and restrictions; and that the mechanics of lifting a hot water tank was consistent with the diagnosis of a cervical disc and radiculopathy. Review Office accepted the opinion of the WCB medical advisor dated July 14, 2003 and was unable to conclude that the worker suffered a new injury that occurred on an unspecified date in April 2003.
On January 5, 2011, the employer appealed Review Office's decision to the Appeal Commission and a file review 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 (WCB Policies).
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered injury by an accident that arose out of and in the course of employment.
Board Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness, deals with injuries where there is a recurrence of the injury that results in a loss of earning capacity.
Employer's Position
The employer was represented by an advocate who provided a written submission on behalf of the employer for consideration by the panel.
The employer referred to its prior submissions to the WCB and indicated that this submission addresses its concerns regarding the rationale provided by Review Office and selectively references different aspects of the submissions.
The employer notes that Review Office referred to Board Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness in its decision. The employer states that the original injury was diagnosed as a cervical strain, and that it is not the medical problem that recurred in April 2003. The employer also states that the worker's condition is not consistent with the details of the accident and the diagnosis as established in the original claim. The employer also states that the medical evidence on file clearly establishes that the diagnosis noted on April 11, 2003, is not a relapse of an injury which has been directly related to a previous compensable condition. The employer asserts that Review Office's reliance on this policy is not supported by the medical evidence on file and is in error.
The employer notes that it provided a report from an occupational health physician who had concluded that the cervical disc and radiculopathy were unrelated to the incident of February 2, 2003, and that these problems must therefore be related to a new and separate incident.
The employer notes that it urged the Review Office to consult with the orthopedic surgeon assigned to Review Office, but that Review Office chose not to do this. The employer provided a copy of a recent Review Office decision on a different claim in which Review Office did consult with an orthopedic surgeon.
The employer points out that when the worker saw his physician on April 11, 2003, his entry complaints were that of "a two week history of pain to the upper thoracic and cervical spine." The employer submits this chronology conflicts with Review Office's position that the worker's neck problems were continuous from the date of the original injury.
The employer notes three physicians, a WCB medical advisor, a WCB orthopedic consultant and an occupational health physician have all indicated that for the cervical disc/radiculopathy to have been the result of the February 2003 incident there must be an immediate onset of symptoms. It is the employer's position that it is a well established fact that, in this claim, the symptoms did not appear until the following morning.
The employer asks that the Appeal Commission rescind the Review Office decision.
Worker's Position
The worker did not participate in this appeal.
Analysis
The issue before the panel is whether the worker is entitled to benefits effective April 11, 2003. For the employer's appeal to be successful, the panel must find that the worker's back/neck condition and loss of earning capacity effective April 11, 2003 did not result from the February 3, 2003 workplace accident. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker is entitled to benefits effective April 11, 2003.
The panel reviewed and considered the complete file including the employer's submissions.
The panel finds, on a balance of probabilities, that the worker injured his upper back and neck on February 2, 2003 and that this injury was aggravated by the worker's continued employment, resulting in the diagnosis of a disc injury in April 2003 and ultimately a diagnosis of C5-6 disc herniation and radiculopathy. In reaching this conclusion the panel relies upon the following:
- the opinion of the physical medicine and rehabilitation specialist in a report dated July 11, 2003 that:
- "In terms of relationship to the February 2003 injury, although the paresthesia did appear somewhat later then (sic) February, i.e. in April, there was at least historical evidence of some temporal ongoing neck issues. Whether this reflects a small herniation with a larger herniation due to minimal trauma later on and subsequent predisposition or subsequent event at work…remains to some degree hard to establish. Nonetheless, I would think that compensability for either of these possibilities would still be feasible."
- the opinion of the WCB medical advisor that it was probable that the disc injury arose out of the February 2, 2003 accident and worsened as the claimant continued to work.
- the lack of evidence of a non-work related incident in the period of February 2, 2003 to April 11, 2003.
- the lack of evidence of any degenerative condition found on the November 17, 2003 MRI.
- the worker continued to have symptoms from the February 2, 2003 injury, throughout the period February to April 2003, notwithstanding that he returned to work.
- the worker reported to the WCB on May 8, 2003 that his symptoms continued. The worker advised that although he returned to work he was still having pain but worked around it thinking it would get better. He also said that the flare up he reported to his physician was caused by his ongoing work and that his symptoms were progressively getting worse over time.
- the job duties performed by the worker between February 2, 2003 and April 2003 were sufficiently physical to aggravate the worker's condition. A report received on May 16, 2003 from the treating physiotherapist notes the worker was still installing water heaters and servicing furnaces. The physiotherapist comments that there has been some improvement but the worker is sore due to maintaining furnaces with lots of looking up at awkward angles.
The panel notes that the worker continued to work both before and after the disc injury was diagnosed. This is consistent with the worker's evidence that he continued to work in pain while not knowing the serious nature of the injury. The panel also notes that the findings on examination before and after the formal diagnosis of a radiculopathy were similar.
The panel finds that the evidence does not support a finding that a new accident occurred in between February 2, 2003 and April 11, 2003. There is, however, evidence of a worsening of symptoms consistent with an aggravation of the worker's original injury. The panel is satisfied in this case that symptoms were identified promptly on February 3, 2003 and worsened as the worker continued to work. The panel is satisfied that the radiculopathy is related to the initial injury.
The panel notes the employer's position is that for a radiculopathy to have occurred there must have been an immediate onset of symptoms. The employer provided a report from an occupational health physician. The report states that "It is important to note that disc herniation is not usually related to one injury, unless substantive force is at play. The mechanism of injury on February 2, 2003 is not consistent with a force severe enough to cause an acute herniation." The panel attaches no weight to this report as it appears to be limited to cases of acute injury. It is not relevant to a case such as this where the worker is injured and continues to work, aggravating his original injury.
The panel did not apply the Recurrence Policy which deals primarily with calculation of benefits.
Based on this analysis, the employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of July, 2011