Decision #37/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the evidence did not establish a probable causal relationship between his employment and the development of his medical condition and therefore his claim for compensation was not acceptable. A hearing was held on February 23, 2012 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
In April 2004, the worker filed a claim with the WCB for injury to the left side of his neck which he related to his employment as a truck driver. The worker described the accident as follows:
Went to rest after coffee in a truck stop parking lot, woke with no ability to relax tense muscles. Six to seven months later after still working I lost the ability to turn my head at the neck without pain.
A doctor's first report showed that the worker sought medical treatment on February 13, 2004 for neck dystonia and a referral to a neurologist was arranged.
The worker was seen by a neurologist on April 2, 2004. In his report to the WCB dated June 3, 2004, the neurologist noted that the worker had complained of left-sided neck pain for the past two weeks. He noted that the worker had a previous history of other health issues and that he had a neck problem when trying to go off a medication which improved when he went back on the medication. The worker said he had been off the medication for over a year. The neurologist felt that the problem was more than neck torticollis, and thought the dystonia was more widespread. He referred the worker to a second neurologist for further management.
On May 5, 2004, the second neurologist diagnosed the worker's condition as idiopathic dystonia. In his opinion, the worker's condition was related to the medications he had taken for his other health condition but said there was no way of proving it. He said the pattern of dystonia typically seen with medication induced dystonia was more frequently retrocollis.
The worker spoke with a WCB adjudicator on May 4, 2004 and he confirmed the information he provided on his compensation application dated April 2004. The worker indicated that he was not sure exactly what caused his neck problems but thought that it could be related to his air ride seat, food poisoning or from throwing boxes.
On May 4, 2004, the employer advised the WCB that the worker told them that he had a neck injury when he started working for them. The worker said he had to be careful with his neck but never made any neck complaints. The worker's job duties entailed driving and pulling a van trailer with limited physical work.
On June 2, 2004, the worker sought treatment from a chiropractor and the diagnosis outlined was thoracic and lumbar strains, spinal luxation complexes, due to a defective truck seat.
The worker provided the WCB with information indicating that the seat in the truck he was driving was broken and that it kept slipping out of alignment.
On June 29, 2004, the WCB issued a decision that it was unable to relate the worker's condition of idiopathic dystonia to a workplace injury given that there was no report of a workplace injury to his employer or to his treating physicians.
A doctor's progress report dated March 8, 2006 stated: "Long-standing stiff neck. He attributes this to driving a truck with a crooked seat in 2003-2004. His neurologist [name] does not support his belief that this is work-related…I agree that [neurologist] is probably correct: the stiff neck is related to previous [condition] and medication related factors, rather than work injury."
On March 17, 2006, the case was considered by Review Office based on an appeal submitted by the worker in regard to the decision of June 29, 2004. On March 17, 2006, Review Office indicated that the preponderance of medical opinions on file established that the worker's neck complaints were caused by an idiopathic dyskinetic dystonia and that the condition could not reasonably be associated with the worker's job duties as a truck driver.
The worker's claim was reviewed again by Review Office on December 20, 2006 based on additional medical information from an occupational health physician, a physiotherapist and a psychiatric consultant. After reviewing the evidence, Review Office determined that no change would be made to its decision of March 2006.
On November 26, 2007, the worker submitted to Review Office that his neck injury occurred because of poor ergonomic positioning due to a broken seat which forced him to twist his body in an unnatural position while driving long haul for approximately 16 hours per day for nine months. In support, the worker referred to the opinions expressed by the occupational health physician in a report dated July 4, 2007 and his psychiatric consultant dated September 28, 2007:
Occupational health physician
By my assessment and review of all available information, there is no evidence that [the worker] had a pre-existing scoliosis, torticollis or idiopathic dystonia prior to 2001. Onset of left shoulder and upper thoracic and cervical postural changes and muscular restrictions developed gradually as a consequence of prolonged exposures to the faulty ergonomics of the truck's driving seat. If his [health condition] medication contributed to this condition, I speculate that it may have altered his pain threshold and suppressed normal patterns to re-establish upright posture; but this is conjectural. The massage therapist did note a high threshold levels for pain.
Psychiatric consultant
I have read the report of [occupational health physician] dated July 4, 2007 and agree that I also had "no evidence that [the worker] had pre-existing scoliosis, torticollis or idiopathic dystonia prior to 2001."
On December 5, 2007, Review Office advised the worker that its previous decision remained unchanged as Review Office preferred the opinion provided by the treating neurologist who was the pre-eminent expert in Manitoba in the diagnosis and treatment of dystonia. He clearly stated his opinion that the worker's condition was idiopathic or of unknown origin. A review of medical literature failed to identify postural problems as causative factor for the development of dystonia.
A report was received from the treating neurologist dated March 1, 2009. The neurologist stated, in part:
"I now conclude, based on information in the literature and [the worker's] clinical picture, his dystonia, contrary to my first impression, is not typical of a drug induced dystonia and as such, on the balance of probabilities and clinical features expected, that the pattern of abnormal posture of his neck and shoulder would be most in keeping with the type of torticollis described in association with prior trauma. As such, his concern that his medical condition arose from the chronic and awkward postures required for a 6'5" male to drive a truck with a broken and unstable seat is a valid one."
At the request of Review Office, a WCB medical advisor reviewed the March 1, 2009 report and outlined the following opinion on June 15, 2009:
Neck tightness is a symptom reported as early as January 2002 by [the worker] to his treating psychiatrist. Further documentation on file by the treating psychiatrist reports neck stiffness in November 2002, for which time off work was recommended. Documentation from a family doctor in November and December 2002 reports neck stiffness and sensation of pulling to the right. No precipitating trauma was identified by either physician. [The worker] apparently began working for [employer's name] on March 17, 2003. The broken truck seat [the worker] was apparently using at [employer's name] was, according to documentation on file, repaired on May 27, 2003.
Opinion
· The current diagnosis was fixed dystonia.
· The worker's symptoms in 2002 of neck stiffness and pulling to the side were characteristic of the fixed dystonia which he was later diagnosed with.
· Insofar as the dystonia pre-dated the worker's employment, it is concluded that the fixed dystonia was not caused by the worker's history of having worked in a broken seat while employed between March 17, 2003 to April 2004.
· This opinion is based on a review of the file information to date and future opinions may change if further information became available.
On June 30, 2009, Review Office wrote the worker to advise:
"It is [treating neurologist's] contention that your injury originated in 2002 due to chronic malpositioning related to driving a truck with a broken and poorly stabilized seat. However, file evidence, including information provided by yourself, establishes that the broken seat which you referred to occurred while working with [employer's name]. You have confirmed that you worked for [employer's name] between March 2003 and April 2004.
Given that the medical documentation obtained confirms that you had symptoms characteristic of fixed dystonia dating back to the year 2002, I am unable to associate your condition with chronic malpositioning related to driving a truck with a broken and poorly stabilized seat, as has been suggested by [treating neurologist], given that you did not drive a vehicle with a broken seat until March 2003 at the earliest.
Accordingly, I am unable to alter my earlier decisions to deny your claim."
Following the June 30, 2009 decision by Review Office, new medical information was placed on file which consisted of a medical appointment on February 21, 2003, medical chart notes dating back to September 2001 and a chest x-ray dated June 2001. On September 14, 2009, Review Office advised the worker that the new information had been reviewed and no change would be made to the decision that the claim was not acceptable.
Based on information submitted by the worker, Review Office referred the case to a WCB medical consultant on May 31, 2010 to provide a medical opinion concerning whether or not the worker developed a reversed lordosis due to the poor ergonomics he claimed to have been exposed to while driving and whether an individual with a reversed cervical lordosis would be predisposed to the development of cervical dystonia. His response to Review Office is dated June 7, 2010.
On June 17, 2010, Review Office advised the worker that the consulting medical advisor remained of the opinion that his diagnosed cervical dystonia was not related to his employment and that the reported reversed cervical lordosis was more likely due to ongoing cervical dystonia and muscle shortening than the ergonomic issues associated with his work as a truck driver. The worker was further advised that based on the complexities of the medical issues relating to the etiology of his condition(s), a Medical Review Panel ("MRP") would be convened. A MRP was later held on May 9, 2011 and its report is on file dated June 9, 2011.
On June 15, 2011, Review Office wrote the worker to advise that the MRP concluded that the correct diagnosis for his condition was fixed cervical dystonia with secondary facet arthropathy on the left. The MRP also was of the opinion that the cause of his condition was highly uncertain and was likely multifactorial. The MRP was unable to say if his employment was a significant causal factor in the development of his condition. Based on the MRP's findings, Review Office indicated that the decision to deny the claim would not be altered as the evidence did not establish a probable causal relationship between his employment and the development of his condition. On January 5, 2012, the worker appealed Review Office's decision through the Worker Advisor Office to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
Worker's Position
The worker was represented by a worker advisor who provided a written submission on the claim. The worker answered questions posed by the panel.
The worker advisor submitted that there is a relationship between the onset of the worker's neck difficulties and the poor posture he had to use while driving truck. She said that this neck condition was further aggravated by driving with a loose seat in May and June 2003.
The worker testified that:
- He had no neck difficulties prior to beginning to work as a truck driver.
- He commenced truck driving full time in May 1997.
- He is 6' 5 ¾" tall and had to slouch in the truck.
- He had been driving for 6 years when the symptoms started.
- He has returned to driving but finds that he is always uncomfortable as the seats are too small for someone his size.
The worker explained that his neck symptoms first developed in the summer of 2003. He said that he had some neck difficulties in 2002 and that these differed from the symptoms which he had commencing in 2003.
The worker brought a truck seat to the hearing that he noted was the original seat that had been replaced in 2003. He demonstrated how the seat was unstable and explained how he sat in the seat. He explained that due to his height and a low ceiling in the track's cab, he had to slouch in the seat and twist his body. His upper body leaned to the right and he steered the vehicle with his left hand forward. He said there was poor vibration control due to limited padding in the seat. He also explained that the air ride mechanism was not activated because he had to use the seat in its lowest position.
The worker advisor acknowledged that the MRP opinion was inconclusive but that it noted that one of the causes of cervical dystonia is postural strain. She noted that the treating neurologist opined that the worker's "…concern that his medical condition arose from the chronic and awkward postures required for a 6'5" male to drive a truck with a broken and unstable seat is a valid one."
The worker advisor also referred to the October 11, 2006 report of an occupational health physician which stated that:
"it is my opinion that his neck and shoulder condition described as 'idiopathic distonia' (idiopathic means of unknown cause) is more likely the result of poor ergonomics compensating for his tall stature by slouching in the driver's seat for prolonged periods of time, acquired over his initial years truck driving between 1997 and 2002."
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find that the worker's duties caused, aggravated or enhanced the worker's neck condition. The panel was able to make this finding.
We note that the worker commenced work with the accident employer in 2003. Prior to working with the accident employer, the worker had been diagnosed with scoliosis. In this regard, we accept the revised opinion of the worker's treating neurologist, dated March 1, 2009, that the worker did not have a medication induced dystonia, and favored instead that it arose out of chronic and awkward positions. We find that the evidence does not support a finding of dystonia prior to 2003. The worker's scoliosis in his cervical spine is quite severe, leading to a significant tilt/misalignment of the worker's upper body. This is a pre-existing condition that, in our opinion, was not caused, aggravated, or enhanced by the worker's job duties.
The MRP found the worker to have thoracic scoliosis convex left and cervical scoliosis convex right. Regarding the worker's current condition affecting his neck, the MRP found the worker to have cervical dystonia with secondary facet arthropathy on the left. The MRP found the worker's neck condition to be multi-factorial but was unable to determine the role of the various factors in the development of the condition. However, it listed postural strain as a possible etiological factor.
We place significant weight upon the opinion of the treating neurologist and occupational health physician. Initially the neurologist considered the worker's dystonia to be medication related. However, as further medical information was gathered, he altered his position and agreed that the dystonia was likely due to trauma. He agreed with opinion of the occupational health physician as to the cause of the worker's dystonia. In a October 2006 report, the occupational health physician said that it is more likely that the worker's dystonia is the result of poor ergonomics compensating for his tall stature by slouching in the driver's seat for prolonged periods of time.
The panel notes that the worker had significantly increased pain complaints after he returned to work with the employer in 2003 which led to him seeking medical treatment (and the identification of dystonia) in February 2004. We find that the onset of the dystonia was consistent with the timing of the worker's exposure to the broken seat and the associated driving conditions.
We find that postural strain in an environment of pre-existing scoliosis caused the worker's cervical dystonia. With respect to the worker's posture, we rely upon the worker's evidence including his demonstration of his posture while driving. We note his posture was awkward due to his size and the limited space and poor ergonomic design of the driver's seat. He sat in a static position for long periods of time, with his body twisted and slouched. He had little protection from vibration as the seat bottomed out and the air ride mechanism did not work because the seat was in its lowest position. A defective mechanism caused the seat to be poorly stabilized causing additional strain.
We find the claim to be acceptable. The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of March, 2012