Decision #165/11 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board ("WCB") for a soft tissue injury to his upper back and neck area due to an accident occurring on December 27, 2003.
On July 6, 2009, the worker contacted the WCB to advise that he was experiencing further problems with his neck region which he attributed to his 2003 injury. It was subsequently determined by primary adjudication and Review Office that the worker's ongoing neck difficulties were not related to his 2003 compensable accident. The worker disagreed and an appeal was filed with the Appeal Commission with the assistance from a union representative. A hearing was held on April 21, 2011.
Issue
Whether or not the worker's cervical/arm symptoms commencing July 6, 2009 are related to the December 27, 2003 compensable injury.Decision
That the worker's cervical/arm symptoms commencing July 6, 2009 are not related to the December 27, 2003 compensable injury.Decision: Unanimous
Background
The worker filed a claim with the WCB for an injury that occurred on December 27, 2003 when he sat down and leaned back in a chair and his left arm went numb. He had shooting pains in the left shoulder, chest area and left back area. The worker attributed his injury to work performed the night before when he and some co-workers were trying to move a marble hearth that weighed about 1000 lbs.
On December 27, 2003, the worker attended a hospital emergency facility for treatment. The worker reported a gradual onset of left scapular pain with an increase in intensity and pressure sensation through to the anterior left chest. The worker had worked during the night but did no strenuous activity. The diagnosis was chest wall pain.
An x-ray of the cervical spine dated December 31, 2003 revealed slight disc space narrowing at C6-C7 with small anterior osteophytes. Small osteophytes were seen at C5-C6. The findings were consistent with mild degenerative disc disease.
On January 5, 2004, the attending physician diagnosed the worker with cervical radiculopathy.
A WCB adjudicator spoke with the worker on January 14, 2004. The worker stated that he was using a pry bar with a great deal of physical effort in an attempt to move the 1000 pound piece of marble with several other co-workers. He did not initially feel any discomfort or pain and continued on with the rest of his shift. Several hours later he developed severe pain in his left shoulder and his left arm went numb. After several tests, a heart attack was ruled out.
On February 23, 2004, a WCB medical advisor reviewed the file and outlined the opinion that the worker's current signs and symptoms were consistent with a soft tissue strain/sprain and the normal range of recovery for this diagnosis was four to six weeks maximum.
The worker's claim for compensation was accepted based on the diagnosis of a soft tissue injury to his upper back and neck.
The worker attended a sports medicine physician on March 5, 2004. The diagnosis was C6-C7 radiculopathy.
On March 9, 2004, the worker saw an occupational health physician who felt the worker was suffering from the effects of nerve damage stemming from a disc herniation.
On April 30, 2004 the treating physician noted that the worker was about to attempt a return to work. On May 7, 2004, the worker returned to his regular work duties.
On June 1, 2004, the treating physician noted that the worker had less discomfort overall.
On July 31, 2004, the worker underwent an MRI of his cervical spine. At the C6-7 level, there was a moderate sized left posterolateral disc herniation. There was compression of the left C7 nerve root. There was slight flattening of the left lateral aspect of the cervical spinal cord without spinal cord compression. There was no evidence of disc herniation, spinal stenosis, spinal cord or nerve root compression at any of the other imaged levels. No other significant abnormality was identified.
Nerve conduction studies were done on December 7, 2004. The study report stated: "confirms a left C6 - C7 root injury in the past. His worsening symptoms with exertion would be consistent with ongoing nerve root irritation although there is no electrical evidence of recent denervation. He also has carpal tunnel syndrome of moderate degree on the left and mild degree on the right…"
In a report by a neurosurgeon dated February 22, 2005, it was noted that the worker complained of discomfort radiating into his left hand, a fairly typical C7 nerve root distribution and some subtle weakness of his left triceps. The worker had 4/5 to 4.5/5 power of the left triceps. He was free from any neurological issues. Upon reviewing the MRI, he had a lateral disc herniation at the C6-7 level. It was felt that this would be amenable to surgical removal. Given that the worker's symptoms were intermittent and not overtly severe, the neurosurgeon did not think that surgery at this juncture would be in the worker's best interest but if it continued to wear him down, surgery would be something to consider.
From February 2005 to July 2009, there was no activity on the WCB file.
On July 10, 2009, the worker contacted the WCB to advise that he was taken to the hospital on July 6, 2009 due to severe neck pain. The worker indicated that he had not been doing anything and the pain slowly got worse. He had been retired for 18 months.
In a report to the WCB dated August 19, 2009, the family physician made reference to the neurosurgeon's findings and recommendations when he saw the worker in 2005. The family physician noted that the worker had been doing well with conservative treatment and appeared quite stable until this year. He was seen at a hospital facility after experiencing a significant increase in neck pain which travelled to his left arm. The worker had no significant injury or over use prior to these symptoms. The worker had undergone a CT scan on July 8, 2009 and was being re-referred to the neuro-surgeon for an assessment.
The July 8, 2009 CT scan findings of the cervical spine revealed findings at the C3-4, C4-5, C5-6, C6-7 and C7-T1 levels.
Following consultation with a WCB medical advisor on September 28, 2009, primary adjudication advised on October 8, 2009 that in its opinion, a relationship did not exist between the worker's current difficulties and the injury he sustained on December 27, 2003. It was felt that the worker had recovered from his December 2003 injury, a left sided cervical radiculopathy at C6 vs C7 levels, and that his current difficulties likely represented a new injury.
On January 17, 2010, the worker's union representative submitted a report from the family physician dated January 14, 2010 to support that the worker's difficulties experienced on July 6, 2009 and his ongoing symptoms were related to the accident of December 27, 2003.
In his report of January 14, 2010, the family physician outlined the opinion that all of the worker's present symptoms were consistent with his previous symptoms and were part of the same injury and that complete resolution had never been obtained.
In a decision dated January 26, 2010, the WCB case manager advised the worker that following review of the new information, there would be no change to the decision outlined on October 8, 2009.
The case was then considered by Review Office on April 22, 2010. Review Office considered a submission from the employer's representative dated March 10, 2010 and the union representative's rebuttal submission of April 14, 2010.
Review Office determined that the intense cervical and arm symptoms suffered by the worker commencing on July 6, 2009 were not related to the compensable injury of December 27, 2003. Review Office referred to the union representative's April 14, 2010 submission that the worker was sweeping the floor in the garage on July 6, 2009 when the intense symptoms occurred. As the worker's symptoms occurred 18 months post-retirement, Review Office concluded that the symptoms were not connected to the workplace. Review Office made reference to the CT scan findings of 2004 and 2009. It noted that the C7-T1 level now demonstrated a herniated disc situation since 2004 and this supported the contention that through the natural aging process, the worker's cervical spine would continue to deteriorate and become symptomatic. It was felt that the worker's symptoms could come at any time and there would not necessarily be a need for significant stress to be placed on the neck to commence symptomatology.
On June 18, 2010, the union representative submitted new medical information from the worker's neurosurgeon dated May 28, 2010 for Review Office's consideration. On July 7, 2010, Review Office determined that the new medical evidence did not provide the basis to alter its original decision. On July 20, 2010, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing held on April 21, 2011, the appeal panel requested additional medical information from several sources. The requested information was later received and was forwarded to the interested parties for comment on August 10, 2011.
The appeal panel met on August 30, 2011 to discuss the case. It requested further information from the worker's neurosurgeon. A report from the neurosurgeon was later received and was forwarded to the interested parties for comment. On November 4, 2011, the panel met to decide the worker's appeal.
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(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 resulting from the accident ends.
The Worker’s Position
The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that there was a direct relationship between his significant exacerbation of symptoms on July 6, 2009 and the original compensable injury of December 27, 2003. Prior to the workplace accident, the worker had no previous neck/back/arm problems and was highly active in sports, playing golf, baseball and curling. Since the December 27, 2003 injury, he has not been able to do any of these things as the compensable injury never resolved. Then on July 6, 2009, while he was routinely sweeping his garage floor, without exertion, overuse or any remotely strenuous activity, the worker experienced an exacerbation of symptoms. It was submitted that had it not been for the original compensable injury in 2003, the worker would not have incurred the significant exacerbation of those specific, same and distinct symptoms. While the worker may have had a "normal" rate of disc degeneration (which had been deemed "mild" by the radiologist), this condition was accelerated, acutely traumatized as well as permanently and adversely affected by the trauma he sustained on December 27, 2003.
The Employer’s Position
A representative from the employer appeared at the hearing. The employer’s position was that the onset of symptoms in July 2009 was the natural progression of degenerative disc disease which will, from time to time, spontaneously flare up with or without associated physical activity. In the worker's case, a significant exacerbation occurred on July 6, 2009 while he was sweeping in his garage at home. Based on the worker's resumption of full duties effective May 7, 2004 and his retirement from active duty effective January 19, 2008, it would seem that he was able to perform his regular duties for some 44 months. It was also noted that there was no medical attention sought during the period February 22, 2005 to July 6, 2009. The claim was dormant during this time. This would further support that there was no relationship to the 2003 incident. Overall, it was submitted that the precipitating factor, which led to the need for further medical treatment, was the non-compensable incident of July 6, 2009. The weight of the evidence tended to contradict any relationship between the onset of symptoms on July 6, 2009 and the incident of December 27, 2003.
Analysis
The issue before the panel is whether or not the worker’s cervical/arm symptoms commencing July 6, 2009 are related to the December 27, 2003 compensable injury. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries he sustained in the December 27, 2003 workplace accident. We are not able to make that finding.
A considerable period of time has elapsed between the oral hearing of this matter and the rendering of our decision. The reason for the delay was that the panel was seeking further medical information regarding the worker's condition from the time in May 2004 when he was cleared for full duties following his compensable injury, up until the time of his exacerbation in July 2009. At the request of the worker, we also sought information regarding recent investigations into the worker's current condition. Unfortunately, after reviewing all of the information, the panel is not able to find that the symptoms in July 2009 were related to the 2003 compensable injury. The evidence does not, on a balance of probabilities, establish a causal connection between the two events.
The worker had returned to work in May 2004 and continued full time employment until he retired in January 2008. The evidence at the hearing was that when he returned to work, the worker was promoted to a managerial position which did not involve the same type of physical work. This information, however, does not affect the panel's view of the matter. The fact remains that the worker was able to work without any impairment to his earning capacity or need to seek medical attention for another 3 ½ years. That is a significant period of time.
The imaging studies on file show that degenerative changes are present in the worker's cervical spine and that they have been known since December 2003. In his report of May 28, 2010, the treating neurosurgeon indicated that he was unable to conclusively state whether the exacerbation of symptoms was directly related to original work injury. At best, he was only able to state that it was possible. In a further report dated October 11, 2011, the neurosurgeon indicated that the worker's persistent symptoms of local neck tenderness and pain and loss of sensation in his left hand were attributable to a two fold diagnosis of carpal tunnel syndrome (with failed surgery to the left wrist) and cervical spondylosis with C7 nerve root impingement. Neither of these diagnoses are linked to the acute incident of December 27, 2003.
Overall, the panel is inclined to agree with the September 28, 2009 opinion of the WCB medical advisor. In our view, the evidence supports that the worker's cervical and arm symptoms which commenced July 6, 2009 were caused by a significant non-work-related event which occurred when the worker was working in his garage. Although the union representative characterized the worker as performing routine sweeping of the garage floor, without exertion, overuse or any remotely strenuous activity, the emergency report form suggests that the worker may have been engaged in the more vigorous task of painting the garage floor with a roller. Regardless of what the worker was specifically doing, the panel finds that his activity that day was sufficient to cause an exacerbation of his pre-existing degenerative changes. This was a new and separate injury which was unrelated to the December 27, 2003 injury. The worker's appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of December, 2011