Decision #91/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to further benefits beyond March 2, 2012 in regards to his workplace accident of August 10, 2010. A hearing was held on July 31, 2012 to consider the matter.Issue
Whether or not the worker is entitled to further benefits after March 2, 2012.Decision
That the worker is not entitled to further benefits after March 2, 2012.Decision: Unanimous
Background
On November 10, 2010, the worker filed a claim with the WCB for injury to his neck and right shoulder that he related to an accident at work on August 10, 2010 while working as a bricklayer. The worker advised the WCB that he delayed in reporting the injury as he thought his condition would get better. The worker described the accident as follows:
We were working in the front of a house and there was a lot of bush and I tripped on the bush and I didn't fall down but I had a big stone in my hands and the stone slipped off my left hand and all the weight went onto my right arm and I felt a big pull between my joint like a snap in my right shoulder and the pain went up into my neck.
A doctor's first report showed that the worker attended for treatment on October 29, 2010 complaining of significant pain in his neck, right shoulder and right arm. The diagnosis was a right rotator cuff impingement/tear and cervical spasm. Also noted was that the worker had pre-existing "moderate underlying cervical degenerative disc disease."
On December 2, 2010, the worker was seen by a physiotherapist for an assessment. The worker complained of right shoulder pain/weakness and electrical shocks going down his right arm. The diagnosis was supraspinatus tendonopathy and right median nerve trunk irritation.
On December 14, 2010, the worker was advised that his claim for compensation was accepted by the WCB, but he was not entitled to any wage loss benefits. The adjudicator's position was that the worker continued to work his regular duties after the accident and had not sought medical treatment until October 29, 2010.
With the assistance of a lawyer, the worker provided the WCB with new information to support that he was entitled to benefits. On February 16, 2011, the worker was advised that no change would be made to the December 14, 2010 decision. The adjudicator noted that according to a medical report of November 23, 1990, the worker had chronic left shoulder symptoms that had been present for several years previous which suggested that his medical condition was long standing in nature.
The worker provided the WCB with an EMG/Nerve Conduction Study report, a report from the family physician dated April 20, 2011 and an MRI dated April 12, 2011. On April 21, 2011, the worker was advised that the new information did not alter the decision made on December 14, 2010. On May 25, 2011, the lawyer appealed the decision to Review Office.
In a report dated June 8, 2011, a neurosurgeon reported that the worker developed some cervical mechanical pain and probably a cervical radiculopathy. He could not detect any obvious signs of a myelopathy. The neurosurgeon stated: "We discussed the therapeutic options, particularly the surgical one (given the obvious compression of the spinal cord). [The worker] does not feel prepared to undergo a surgical intervention at this point in time. He is aware of the potential progressive nature of the process and of the fact he should avoid situations that could potentially result in traumatization of the spine."
On August 2, 2011, Review Office determined that the worker was entitled to benefits after August 10, 2010. Review Office indicated that the medical information supported that the worker had pre-existing conditions in his right shoulder and neck, specifically chronic bilateral impingement syndrome and advanced degenerative changes in the neck, as noted on the MRI results of April 2, 2011, the specialist report of November 23, 1990 and the attending physician's report of January 19, 2011. Considering the WCB's pre-existing policy, Review Office found that the evidence supported that at the very least, the compensable injury aggravated the worker's pre-existing right shoulder and neck conditions and that there continued to be a relationship between them after August 10, 2010.
On August 30, 2011, primary adjudication referred the worker's file to the WCB's healthcare branch to obtain a medical opinion on the worker's medical condition. The WCB medical advisor stated on September 30, 2011:
- the compensable injury was a right cervical radiculopathy at the C5 vs C6 region.
- the current diagnosis was a right cervical radiculopathy related to the workplace injury. The mechanism of injury involved a traction-like force to the right arm area in the environment of pre-existing degenerative changes of the cervical spine.
- the compensable diagnosis would require restrictions.
- the degenerative changes in the cervical spine specifically at the C5-6 level would be considered a favorable environment for the development of cervical radiculopathy. The presence of degenerative changes would have resulted in a delay in recovery from the cervical radiculopathy.
- the cervical radiculopathy would not be an aggravation or enhancement of the pre-existing degenerative changes.
By letter dated October 20, 2011, the worker was advised that he would receive wage loss benefits from August 10, 2010 to at least April 12, 2011, the date of his MRI appointment. In a further decision dated November 2, 2011, the worker was advised that his benefits would be extended beyond April 12, 2011 and that the WCB would contact him in January 2012 to obtain an update on his current medical status and treatment details.
On January 16, 2012, the treating physician reported that there was no change in the worker's overall condition. He noted that the worker was very tender on palpation about the cervical spine and right shoulder. Range of motion of the neck was limited in all four planes. He stated that the worker's condition was likely permanent.
The worker was seen for a medical assessment on February 10, 2012 by a WCB sports medicine consultant. The consultant concluded that as of the date of the examination there was no further clinical objective evidence of a cervical C6 radiculopathy. It was noted that there may be symptoms related to degenerative changes; however, a relationship could not be established between the reported mechanism of injury and the worker's current presentation.
On February 27, 2012, the worker was advised that wage loss benefits would be paid to March 2, 2012 inclusive as it was felt that without the presence of any ongoing cervical radiculopathy, his current condition was not medically accounted for in relation to his workplace injury.
In a report dated March 14, 2012, the worker's treating physician wrote the WCB to advise that the worker was still suffering with significant ongoing neck and shoulder pain and was unable to return to his previous employment. It was felt that the worker's condition was still related to the effects of his workplace injury and that he was entitled to further benefits. On March 19, 2012, the worker appealed the decision dated February 27, 2012 to Review Office.
On May 14, 2012, Review Office determined that the worker was not entitled to further benefits. Review Office felt that the weight of evidence supported the position that the worker had recovered from his August 2010 accident. Review Office stated: "In reaching this decision, particular weight was placed on worker's inaccurate presentation when he was examined by the WCB sports medicine advisor as well as the doctor's findings and opinion. The worker's degenerative changes were also taken into account. In and of themselves they could account for significant musculoskeletal based complaints…Review Office considers the worker does not have a compensable loss of earning capacity and as such, is not entitled to wage loss benefits. It also follows that he is not entitled to any medical aid benefits."
On June 4, 2012, the worker 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The Worker’s Position
The worker was self represented at the hearing. He submitted that he was still experiencing disabling symptoms in his neck and arm, and that he was unable to perform the heavy lifting required by his occupation. He had been a bricklayer for 45 years and it was the only job he knew how to do. With his ongoing pain and weakness in his right arm, he was not able to make a living as a bricklayer. His condition required him to take medication on a daily basis and surgery offered only a low chance of resolving his condition. The worker questioned what he was supposed to do given that he was not able to perform brick work anymore.
Analysis
The issue before the panel is whether or not the worker is entitled to further benefits after March 2, 2012. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injury he sustained in the August 2010 workplace accident. We are not able to make that finding.
In the panel's opinion, by March 2, 2012 the worker had recovered from the cervical radiculopathy he sustained in the workplace accident. While it may be the case that he continued to have some pain and weakness in his neck and right arm, the evidence does not satisfy us on a balance of probabilities that these symptoms of pain and weakness were caused by the workplace injury. The panel notes that the x-rays and MRI on file identified extensive and advanced degenerative changes in the worker's cervical spine. This degeneration is not related to the August 2010 accident and is more likely to be the cause of any ongoing neck and arm issues.
In coming to this decision, the panel placed significant reliance on the report of the WCB medical advisor from the call-in examination of February 10, 2012. Although the worker had been diagnosed as having a cervical radiculopathy in early 2011 by a neurologist and neuro-surgeon, by the time of the call-in examination in February, 2012, the WCB medical advisor was unable to find objective findings of a cervical radiculopathy. He noted that inconsistencies between supine vs. seated test findings and during repetitive testing could not be explained via a pathoanatomical lesion.
The panel also notes the worker's evidence at the hearing that he experienced a 70% improvement in his condition in early 2012 when he had been receiving therapy at his son's out of province clinic. He also advised that the numbness in his fingers had been gone since at least January 2012. This would suggest to the panel that the cervical radiculopathy had resolved by early 2012.
For the foregoing reasons, the panel finds that the worker's injury from the August 2010 workplace accident has healed and any ongoing symptoms of pain or weakness in his right arm and neck are more likely attributable to the extensive degenerative changes in his cervical spine.
As a result, the panel finds that the worker is not entitled to further benefits after March 2, 2012. 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 22nd day of August, 2012