Decision #158/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that she had recovered from the effects of her compensable injury by June 5, 2008.
A hearing was held on October 4, 2011 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss benefits beyond June 5, 2008.Decision
That the worker is not entitled to wage loss benefits beyond June 5, 2008.Decision: Unanimous
Background
In September 2006, the worker reported that she felt a "rip" in her left shoulder area when she did a lift slide to get a resident in a wheelchair onto an elevator. On September 17, 2006, the attending physician reported paracervical muscle spasm and sharp pain radiating down the C6 and C7 dermatomes. The worker held her arm in a flexed posture. The worker was assessed with a cervical root injury, possibly a disc. The claim for compensation was accepted by the WCB and benefits were paid to the worker.
On January 16, 2007, an MRI assessment showed a persisting left posterolateral disc protrusion at C5-C6 which appeared unchanged from a previous MRI dated September 26, 2006.
A WCB call-in examination was held on May 4, 2007. The examining medical advisor opined that the most likely diagnosis based on the mechanism of injury, initial clinical findings, imaging studies and clinical findings was C6 nerve impingement. The medical advisor outlined some treatment recommendations (acupuncture, physiotherapy, etc.) and indicated that the worker was fit for modified duties with restrictions if her employer was able to accommodate. If none were available, it was suggested that the worker at some point may benefit from a work-hardening type program.
The WCB arranged for the worker to attend a physical rehabilitation facility on June 1, 2007 to be assessed for a return-to-work program. It was determined that the worker would benefit from a 6 week work hardening program beginning June 25, 2007 including acupuncture treatment.
File records document that the worker and her treating physician were opposed to the 6 week work hardening program and instead wanted a graduated return to work arranged with the employer. On July 4, 2007, it was confirmed to the worker that a graduated return to work would be arranged through her employer and that the WCB was authorizing physiotherapy and acupuncture treatments during the six week return to work program. The worker was also informed that the WCB anticipated she would be fit for regular duties with no restrictions as of July 30, 2007.
The worker commenced modified duties starting July 12, 2007 but she only worked until July 30, 2007 as no further shifts were offered by the employer. She continued to receive wage loss benefits.
On August 8, 2007, the worker was seen by a certified athletic therapist who recommended an athletic therapy program, followed by a reconditioning program and a body strengthening program.
In a report dated August 27, 2007, a neurosurgeon reported an improvement of the C6 radiculopathy. He said the residual discomfort experienced by the worker was musculoskeletal and probably also arthropathic. He did not think decompression of the cervical spine was indicated. Conservative treatment was recommended.
On September 5, 2007, the athletic therapist advised the WCB that the worker complained of increased pain after the third or fourth session and that she had not been attending the program the past week. On September 6, 2007, the worker advised the WCB that she had not been attending the program as she had a major flare up and a "pinch" in her neck which was causing swelling and increased pain.
A Nerve Conduction Study report dated September 11, 2007 stated: "The nerve conduction study excluded neurogenic thoracic outlet syndrome. There is no evidence of carpal tunnel syndrome. The EMG excludes a C6 radiculopathy. It is my clinical impression that the majority of the pain is not neurologic but coming from the muscular structures around the left shoulder with particular emphasis on the left pectoralis muscles."
A CT of the neck was performed on September 11, 2007. No mass lesion was identified and no lymphadenopathy was present.
On January 17, 2008, a physical medicine and rehabilitation specialist ("physiatrist") reported to the WCB that the worker was seen on October 25, 2007. In his consultation report dated November 19, 2007, the specialist's impression was as follows: "She suffered C5-C6 disc protrusion complicated by irritation of the left C6 nerve root. She clinically does not have any evidence of acute radiculitis but may have some neuropathic pain. She does have left cervical scapular strain with possibly joint of Luschka strain. She has taut bands and trigger points of the left cervical scapular group of muscles."
On October 25, 2007, the worker advised the WCB that she did not put a lot of faith in the physiatrist and that she rejected his treatment recommendations.
On November 7, 2007, a WCB call-in examination by a WCB orthopaedic consultant was held.
An MRI of the left shoulder dated November 20, 2007 revealed moderate AC arthrosis and no evidence of rotator cuff tendon tear.
On November 28, 2007, the WCB orthopaedic consultant noted the findings of the November 20, 2007 MRI examination. In response to questions posed, the consultant outlined the following opinions:
- the compensable diagnosis was accepted as a left C5-6 disc herniation. A report of August 27, 2007 by the neurosurgeon gave the opinion that there had been an improvement in the diagnosis and that most of the residual discomfort was related to the shoulder joint rather than the cervical spine. He was unable to identify a diagnosis of the left shoulder pathology to explain the continued loss of function and pain.
- based on his examination findings, the worker had largely recovered from the effects of her compensable injury.
- there was no need for compensable restrictions but, due to the length of time of being off work and possible deconditioning, initial limitation of activity would be reasonable.
On January 15, 2008, the worker advised the WCB that she refused to undergo treatment with the physiatrist as she had the legal right to refuse having anything injected into her body. She did not want to let anyone touch her and cause her pain.
In a decision dated January 15, 2008, the worker was advised that effective February 22, 2008, her entitlement to WCB wage loss and medical benefits would end based on her refusal to participate in the recommended treatment plan (trigger point injections).
On January 23, 2008, the worker advised the WCB that she received needling treatment and it did nothing for her, except cause increased pain, swelling and headache.
On January 23, 2008, the treating physician reported that the worker experienced no improvement after receiving needling treatment. He outlined a new diagnosis of myofascial pain syndrome.
File records show that the worker agreed to undergo a series of lidocaine injections, supported by physiotherapy through a second physical rehabilitation facility. On January 30, 2008, the case manager advised the worker that if she was fully compliant with the program, the WCB would extend her benefits beyond February 22, 2008.
A Physiotherapy Progress/Discharge Assessment dated April 16, 2008, reported that the worker showed slight objective improvements but was very pain-focused.
On May 13, 2008, the worker was assessed by a WCB physiatrist at a WCB call-in examination.
On May 20, 2008, the consultant was asked by primary adjudication to review a video surveillance of the worker performed in late April 2008 which preceded the May 13, 2008 call-in examination. In response to questions posed, the consultant indicated the following:
- the worker's presentation at the time of the call-in examination was not consistent with the surveillance which suggested no significant impairment or symptoms present. The worker was not observed to hold her arm up across her chest at any point. During the call-in examination, the worker held her left arm up across her chest and elevated for the duration of the examination.
- the surveillance confirmed that the worker was capable of progressing to a return to work to her usual work duties.
In decision dated May 21, 2008, the worker was advised that in the opinion of the WCB, she had recovered from her compensable injury and was functionally capable of resuming her pre-accident duties. Wage loss benefits would end effective the date her employer could schedule a meeting to arrange for her return to work. On May 29, 2008, the worker appealed the decision to Review Office.
On July 7, 2008, an advocate representing the employer submitted to Review Office that the worker should not have been entitled to benefits beyond August 7, 2007.
On July 28, 2008, Review Office advised the worker that it was returning her file to Rehabilitation and Compensation Services with a request for them to gather additional information and to reconsider entitlement decisions on her claim.
On September 5, 2008, the treating neurosurgeon reported that the worker's cervical discomfort was substantial, particularly if she was extending her neck. The worker denied any pain extending to the upper extremities but mentioned some persistent numbness of the thumb. The specialist indicated that the worker's clinical presentation was suggestive of some cervical mechanical pain which accounted for the proximal discomfort. The sensory impairment at the tip of the thumb was probably a residual C6 radiculopathy. The worker was offered an infiltration of the facets but she declined since her trigger point injections had not been beneficial. He felt that surgical intervention was not indicated at this time.
The worker underwent an MRI assessment on October 21, 2008. The report read: "…At the C5-6 level the previously identified left posterolateral disc herniation appears to have decreased in size. There is some persistent central and left posterolateral disc bulging and endplate degenerative spurring without central spinal stenosis. There is mild compression of the left lateral aspect of the thecal sac and I cannot exclude a very mild degree of persisting compression or irritation of the left C6 nerve root. Degenerative spurring in the Luschka joint on the left results in mild left-sided foraminal narrowing. There is no other evidence of disc herniation, spinal stenosis, spinal cord or nerve root compression at any of the other imaged levels. No other significant abnormality is noted."
With respect to the employer's appeal, Review Office determined on December 4, 2008, that the worker was entitled to wage loss benefits and services beyond August 2007.
In a memo to file dated January 15, 2009, the case manager indicated that a review of the worker's Manitoba Public Insurance injury claim file for a 2003 motor vehicle accident ("MVA") had been undertaken. He noted that the MVA injury file clearly documented that the worker had chronic myofascial pain syndrome affecting the same anatomical areas noted in the WCB claim, an injury to the cervical nerves and pre-existing degeneration of the acromioclavicular joint. He stated: "From an adjudicative perspective, this worker has a history of difficulties involving her neck, shoulders and upper body musculature. The compensable injury may have aggravated those complaints, but this has long since resolved, as is evidenced by [WCB consultant] examination and opinion. Any ongoing complaints this worker may express would be considered due to either the MVA related injuries, or the issues pre-dating even the MVA."
On January 30, 2009, the worker submitted to Review Office that she injured her left shoulder in the 2003 MVA and not her neck. Her claim with the WCB was for a medically documented C5-C6 disc injury. The worker submitted that her injury had not healed, based on the October 21, 2008 MRI results.
On February 4, 2009, Review Office determined that the worker was not entitled to wage loss benefits beyond June 5, 2008. Review Office made reference to file evidence to support that the worker's compensable left shoulder injury was likely an aggravation of a pre-existing condition and that the aggravation had resolved by June 5, 2008. Based on the video surveillance evidence, Review Office felt the worker would have been capable of a return to work on unrestricted duties. It accepted the opinion of the WCB physical medicine consultant who was unable to identify any medical explanation for the worker's ongoing symptomatology with the exception of the numbness in the left thumb. In the opinion of Review Office, the worker's left thumb difficulties would not preclude her from returning to work to her regular duties.
The Worker Advisor Office submitted an appeal to Review Office requesting reconsideration of the decision dated February 4, 2009. The worker advisor referred to new medical information from the treating physiatrist dated July 14, 2009 to support that the worker remained in a loss of earning capacity related to her compensable diagnosis and therefore was entitled to further benefits.
Review Office obtained a medical opinion from the WCB's physical medicine consultant dated November 3, 2009. The consultant indicated that there was no evidence on the July 14, 2009 report of any causal relationship between the worker's ongoing difficulties and the injury in question. He noted there were no new findings presented related to the compensable injury to support that the worker was unable to perform her pre-accident duties full time.
On November 24, 2009, Review Office confirmed that there was no entitlement to wage loss benefits beyond June 5, 2008. Review Office noted that the physiatrist in his July 14, 2009 report provided the diagnosis of left C6 radiculitis related to the C5-C6 disc herniation. However, in a November 19, 2007 report, the physiatrist indicated that the worker did not have any evidence of acute radiculitis. Review Office was of the opinion that the clinical findings reported by the treating physiatrist were not sufficient to support that the worker's loss of earning capacity was related to the compensable injury. It accepted the opinion of the WCB consultant outlined in his May 13, 2008 examination.
The Worker Advisor Office submitted to Review Office a medical report dated September 7, 2010 from another treating physiatrist to support that the worker had not recovered from her compensable injury and was unable to return to her full pre-accident duties.
The physiatrist reported on September 7, 2010 that the worker "probably developed left C6 radiculopathy which is currently resolving. On today's examination no evidence of acute myofascial pain or acute myelopathy or radiculopathy were identified."
In a February 28, 2011 decision, Review Office upheld its position that the worker was not entitled to benefits beyond June 5, 2008. Review Office indicated that the examination findings of the physiatrist dated September 7, 2010 would not preclude the worker from working unrestricted duties full time. There was insufficient evidence to support a causal relationship between the worker's loss of earning capacity and the compensable injury of September 15, 2006.
On March 23, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and 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.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “where an injury to a worker results in a loss of earning capacity.” 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, or the worker attains the age of 65 years.
Worker’s position:
The worker appeared at the hearing and was assisted by a worker advisor. The worker's position was that the compensable injury sustained in the September 15, 2006 workplace accident continued to contribute to his loss of earning capacity beyond June 5, 2008 and there was an entitlement to partial wage loss benefits beyond that date. It was submitted that immediately prior to when benefits were terminated, medical evidence supported that the effects of the compensable accident affected the worker's ability to return to her pre-accident duties. The family doctor's medical report of March 6, 2008 identified ongoing neck pain to the left shoulder with C6 radiculopathy. He supported no alternate or modified work. The WCB medical consultant opined that the worker could perform initial light home care duties, starting at four hours per day, which confirms the worker was in a loss of earning capacity as she was not cleared to perform full time hours. The family doctor's later report dated June 3, 2008 confirmed a gradual return to work and also identified workplace restrictions of no lifting, use of left shoulder, reaching or lifting over fifteen pounds. The worker was not at any time cleared to return to full-time hours. Subsequent medical reports confirmed continuing symptoms. As at the hearing date, the most recent medical report from a treating physician dated August 29, 2011 stated that the modified duties identified were of a permanent nature and that the worker continued to have significant ongoing partial disability resulting from the injuries sustained in the work related accident.
Overall, it was submitted that the WCB accepted benefits up to June 5, 2008 based on the ongoing symptoms starting from the neck to the left shoulder and down to the hand. Based on physician-imposed restrictions, and based on medical opinions from attending physicians and specialists, the evidence supported an ongoing relationship to the compensable injury at the C5-6 level. Therefore, there was an entitlement to partial wage loss benefits beyond June 5, 2008, as the loss of earning capacity did not end on this date.
Employer’s position:
The employer was represented by an advocate and its disability management program manager. The employer did not dispute that the worker did sustain a C5-6 disc protrusion but its position was that the worker had significant pre-existing problems related to the prior MVA. The worker only divulged that she had been involved in a prior motor vehicle accident during a call-in examination in May 2008 and related the incident as being a relatively minor pulling of some muscles in the left shoulder and arm. A review of the MVA files, however, showed a claim which lasted over two years, ending in May 2005. Diagnostic testing showed degenerative changes at the left acromioclavicular joint, which were the same sort of complaints being made in the present claim. In any event, there were two WCB medical advisors who examined the worker, reviewed all of the reports on file and failed to identify an organic basis for the nature and extent of the worker's complaints. Further, inconsistencies were noted between the medical findings and the worker's abilities observed in videotaped surveillance.
It was submitted that there was irrefutable and comprehensive medical information showing that the worker had recovered from the effects of the compensable injury by June 2008. There had been extensive investigation, including x-rays, a sonogram, EKG, three CT scans, five MRIs and three WCB call-in examinations. People do recover from disc herniations and the imaging studies showed that was the case here. It was submitted that it was now a degenerative problem which was affecting the worker and the panel was asked to deny the appeal.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond June 5, 2008. In order for the worker’s appeal to be successful, the panel must find that after June 5, 2008, the worker continued to suffer a loss of earning capacity related to the injury she sustained in the workplace accident of September 15, 2006. We are not able to make that finding. On a balance of probabilities, we find that by June 5, 2008, the effects of the worker's compensable injury had largely resolved and that her capacity to earn her pre-accident wages was no longer impaired.
The panel accepts that the compensable injury suffered by the worker on September 15, 2006 was a C5-6 disc herniation. The question in this appeal concerns the status of this condition as of June 5, 2008. It is the panel's understanding that a disc herniation is an evolving condition which may cause increased or decreased symptoms depending upon the extent to which the herniation impinges on adjacent structures in the spinal column.
A review of the medical reports reveals the following:
- In May 2008, the WCB physical medicine consultant examined the worker and found no evidence of significant nerve involvement or cervical nerve root involvement. There were limited physical findings on examination.
- The consultant's findings were consistent with the findings of three earlier examining specialists. In August 2007, the treating neurosurgeon noted that from a clinical standpoint, there had been an improvement of the C6 radiculopathy and that most of the residual discomfort at that point was musculoskeletal and probably also arthropathic. Three months later, the worker was examined by two physicians who found minimal residual signs of a left C5-6 disc herniation (November 7, 2007 examination) and no evidence of acute radiculitis (November 19, 2007 examination).
- The nerve conduction study of September 2007 excluded a C6 radiculopathy and the neurologist's clinical impression was that a majority of the pain was not neurologic but coming from the muscular structures around the left shoulder with particular emphasis on the left pectoralis muscle.
- At the hearing, the worker submitted a recent MRI report dated September 27, 2011. Although the imaging identified persistent posterior and left posterolateral disc herniation indenting the anterior lateral aspect of the spinal cord and compressing the left C6 nerve root at the foraminal level, the description of C5-C6 was as follows: "There are degenerative changes with disc narrowing, disc desiccation, posterior and left posterolateral disc osteophyte bulging, bilateral Luschka joint osteoarthritis resulting in mild central spinal canal stenosis and left foraminal narrowing." It would appear that the current impingement is related to degenerative changes rather than an acute event. The panel notes that the MRI of October 21, 2008 indicated that the previously identified disc herniation had decreased in size although at that time, a very mild degree of persisting compression or irritation of the left C6 nerve root could not be excluded.
- Information from the 2003 MVA file indicates a previous trauma to the left shoulder and arm. The panel finds that the worker's current condition of neck pain radiating to the left shoulder, arm and chest wall is more likely related to this pre-existing condition.
The overall effect of the foregoing is that the panel is of the view that there is insufficient support in the medical evidence to conclude that the worker's earning capacity remained impaired by her compensable C5-6 disc herniation injury. While the worker may have had some pain and limitation in the use of her left arm, we find that this condition was not caused by a C5-6 radiculopathy. We therefore find that the worker is not entitled to wage loss benefits beyond June 5, 2008. 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 29th day of November, 2011