Decision #48/13 - 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 wage loss or medical aid benefits after July 4, 2011 or April 7, 2012 with respect to his workplace accident of June 14, 2010. A hearing was held on February 7, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after July 4, 2011; and

Whether or not the worker is entitled to medical aid benefits after April 7, 2012.

Decision

That the worker is not entitled to wage loss benefits after July 4, 2011; and

That the worker is not entitled to medical aid benefits after April 7, 2012.

Decision: Unanimous

Background

On June 25, 2010, the worker filed a claim with the WCB for a work-related injury that occurred on June 14, 2010. The worker stated:

I was walking between two forms and there was a gentleman taking the forms apart and he threw a 35 lb steel whaler and hit me in the back of my head and neck. The piece fell from 20 feet above.

On June 25, 2010, the worker advised the WCB that he attended a hospital facility for treatment on the day of accident and lost three hours of work. He returned to modified duties on June 15, 2010.

A report from the hospital confirmed that the worker attended for treatment on June 14, 2010. The report stated: "Pt was at work, was wearing hard hat. States something fell from overhead happened approx 20 min ago. Hit in head/neck with unknown object. States ? LOC. C/O pain to back of neck and shoulders. No tingling. No h/a. States dizziness at the time, resolved. No n/v." The diagnosis rendered was soft tissue injury to the neck.

The next hospital report showed that the worker attended for treatment on June 24, 2010. The report stated: "One week ago while at work pt had a large metal object fall and hit him on the back of head, was seen and treated here. Told to return if pain worsened or persists. Now c/o increasing pain to his neck, shoulders and lower back. Was taking medication with relief but states that rx ran out." The diagnosis outlined was contusion right shoulder.

On August 11, 2010, a CT report of the cervical spine identified a clay shovelers type fracture of the C3 spinous process. It was not known whether the fracture was acute or chronic. No other abnormalities were seen.

On August 19, 2010, the worker advised the WCB that he felt pain every day since returning to modified duties. On August 9, 2010 he attended a hospital facility and had a CT scan on August 11, 2010. He was diagnosed with a fracture at C3. He was told to stay off regular duties and the doctor sent him for physiotherapy treatment.

A physiotherapy initial assessment dated August 17, 2010 showed that the worker was seen for treatment related to his right neck and right shoulder. On September 20, 2010, the WCB authorized physiotherapy treatment for the worker.

A report was received from a second physiotherapist dated November 30, 2010. The diagnosis outlined was cervical spine and lumbosacral spine mechanical strain. On January 6, 2011, the WCB authorized 8 physiotherapy sessions as well as review and progression of an active based program.

The worker next contacted the WCB on March 2, 2011 to advise that he continued to have constant low back pain especially when driving or sitting for long periods. With physiotherapy treatment he was doing a lot of stretching and getting acupuncture. The worker noted that his first physiotherapist closed their doors so he did not have physiotherapy treatment for two to three months and his lower back pain got worse. Now that further treatment had been approved, his lower back pain was decreasing slowly. The worker noted that he continued working modified duties.

On March 17, 2011, a WCB physiotherapy consultant considered a request from the treating physiotherapist to provide the worker with more treatment. The WCB consultant stated that the current reported physiotherapy findings and reported lumbar concerns could not be accounted for in relation to the June 14, 2010 injury. He stated: "Even if there had been a spinal process fracture recovery should be complete at this point in time."

The worker spoke with his case manager on July 29, 2011 and he reported that his last day worked was July 11, 2011. The worker noted that he had been taking pain medication since December 2010 and that he was trying to wean himself off. His current symptoms included back pain tenderness and a sore neck. He had a C3 vertebrae crack.

In a progress report related to an August 11, 2011 examination, the treating physician report that the worker had weakness in his upper extremities secondary to cervical pain. It was indicated that the worker was unable to perform duties requiring repeated lifting and reaching above head level.

A WCB medical advisor reviewed the worker's file on October 26, 2011 and said there was little information to establish a probable relationship between the original compensable injury and the current symptoms. The medical advisor requested a copy of the June 14, 2010 x-ray report of the worker's cervical spine, shoulders and chest for review.

An x-ray report of the right shoulder dated June 14, 2010 showed the following: "There is a tiny lucency with associated tiny ossific fragment in the region of the inferior glenoid seen only on AP view. This may represent a fracture. A crescentic focus of air is seen in the superior aspect of the glenohumeral joint also seen only on AP view. No other abnormality is identified."

A cervical spine x-ray taken June 14, 2010 showed: "AP, lateral, oblique and odontoid views of the cervical spine were obtained. There is loss of normal cervical lordosis which may be positional. The cervical spine is otherwise in normal alignment. No fractures or dislocations are identified."

On November 28, 2011 the WCB medical advisor stated that there appeared to be a fracture of the spinous process at C3 on x-ray of June 14, 2010.

On December 6, 2011, an external radiologist outlined his interpretation of the worker's cervical spine x-ray of June 14, 2010 and the CT of the cervical spine dated August 11, 2010. He noted that both imaging studies showed a fracture to the spinous process of the C3 vertebra with very slight distraction of the fracture fragments. The fracture fragments appeared corticated suggesting the fracture was remote in age but the exact age of the fracture was uncertain. Various degenerative changes were seen at C3-4, C4-5 and C5-6.

On December 30, 2011, the WCB medical advisor observed that the treating physician, in his report of October 19, 2011, noted point tenderness over the third cervical vertebrae and decreased range of motion with neck extension and lateral rotation. The medical advisor was of the view that most workers would have recovered after 18 months. He said the need for lifting restrictions and overhead work was not substantiated in the medical record.

In a decision dated February 16, 2012, the worker was advised that the WCB was unable to accept responsibility for further time loss based on the opinion outlined by the WCB medical advisor on December 30, 2012.

A MRI scan of the cervical spine taken February 17, 2012 reported degenerative disc disease at C4-5 and C5-6 disc levels. There was severe narrowing at C5-6 intervertebral foramen by osteophyte which raised suspicion for exiting right C6 nerve root impingement within the narrowed intervertebral foramen.

On March 29, 2012, the WCB medical advisor reviewed the MRI report of February 17, 2012 and stated: "The MRI reports a number of findings, all of which can be considered degenerative changes, including right C5-6 intervertebral narrowing which raised suspicion for a C6 nerve root impingement. The previously alluded to fracture was not seen. Degenerative changes would be considered pre-existing conditions and would not likely be related to the workplace injury."

In a further decision dated March 30, 2012, the worker was advised of the WCB's opinion that he had recovered from the effects of his workplace accident and that his ongoing medical problems were not related to the work injury. The worker was advised that medical aid entitlement would be discontinued on April 7, 2012.

On April 17, 2012, the Worker Advisor Office submitted a report from the worker's treating physician dated March 30, 2012. The worker advisor contended that the report provided support of a causal relationship between the changes in the worker's C5-6 intervertebral foramina and the 2010 compensable injury.

In a report dated March 30, 2012, the treating physician referred to the CT scan of August 11, 2010 and the MRI scan of February 17, 2012. He stated: "Given the temporal relationship between the work place injury and the changes described in his radiological reports following this event it is reasonable to assume his work place injury on June 14, 2010 was a contributing factor in the development of his symptomatic neck pain."

On May 4, 2012, the case manager requested an opinion from the WCB's healthcare branch as to whether the worker's current presentation was medically accounted for in relation to the workplace injury.

On May 10, 2012, the WCB medical advisor stated that the mechanism of injury involved a significant blow from a heavy object to the posterior head, neck and shoulder region resulting in a fracture of the C3 spinous process. The mechanism of injury as described did not appear to have involved a significant compression or axial load. He stated:

Comparison of the February 17, 2012 MRI report and [external radiologist's report on December 6, 2011] regarding the August 11, 2010 CT of the cervical spine, does not identify any significant differences. In particular, [the external radiologist] noted that the CT demonstrated moderate right-sided foraminal stenosis at the C5-6 level while the MRI reports severe narrowing the intervertebral foramen on the right at this level. It is noted; however, that the severe narrowing was resultant of an osteophyte which was also noted on the CT but described as "spurring". The current osteophyte is more likely the result of an ongoing degenerative process as opposed to the result of a single traumatic blow. After considering all the evidence available, it is concluded by February 2011, the worker had likely fully functionally recovered which is supported by the return to full duties without further medical intervention. The degenerative cervical changes identified would typically result in symptoms such as pain in diminished ROM; however, the medical evidence available is insufficient to establish a causal relationship between the degenerative cervical changes and the initial workplace injury, on a probable basis.

On June 4, 2012, the worker was advised that no change would be made to the decision of March 30, 2012 based on the WCB medical advisor's opinion of May 10, 2012. On July 18, 2012, the Worker Advisor Office appealed the decision to Review Office. The worker advisor submitted that degenerative disc disease can be affected by trauma and that the MRI revealed a significant change in the right C5-6 intervertebral foramen in a short period of time. She concluded that the evidence supported that the traumatic mechanics of the June 14, 2010 injury accelerated the degenerative narrowing at the right C5-6 intervertebral foramen.

A submission by the accident employer dated September 19, 2012 outlined their position that the WCB's decision to terminate further wage loss and medical aid entitlement as of April 7, 2012 was supported by the worker's return to full duties from at least February 2011 to July 2011 with no complaints or concerns.

On September 20, 2012, Review Office determined that the worker was not entitled to wage loss benefits after July 4, 2011 or to wage loss and medical aid benefits after April 7, 2012. With respect to wage loss benefits beyond July 4, 2011, Review Office noted that the worker's claim was accepted for a C3 vertebral fracture of the spinous process. He attended for therapy and returned to his job laying rebar for concrete forms. The WCB accepted billings for physiotherapy until March 3, 2011. The worker did not follow up with any healthcare practitioner again until August 11, 2011 and he made no contact with the WCB from January 5, 2011 to July 29, 2011. Review Office concluded that the workplace accident of June 14, 2010 did not contribute to the worker's loss of earning capacity after July 4, 2011.

Review Office referred to the opinion expressed by the worker advisor in her submission of July 18, 2012. Based on the WCB medical opinion outlined on May 10, 2012 and WCB policy, Review Office concluded that by as early as March 3, 2011, the worker had recovered from the workplace accident to the point that it was no longer contributing to his neck discomfort. There was no evidence to suggest that the worker's naturally advancing degenerative disc disease was in any way accelerated or had permanently or adversely affected a pre-existing condition. On September 26, 2012, 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. 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.

Worker’s position:

The worker was self represented at the hearing. The worker described the accident and explained that a 35 pound length of steel fell on his head from two stories up. He was taken to the hospital, where they said nothing was wrong with him and put him on light duties for 14 days. After 14 days he returned to the hospital for follow up and told them that he was sore and that he could not move his neck very well. His complaints were disregarded, and it was only when he returned to his home province in August 2010 that it was discovered that he had a fracture and was sent for physiotherapy. The worker was also in the process of finding a new family doctor as his had retired and he was only able to meet with his new doctor in October 2010. Since the time of the accident, the worker had continued to experience pain and stiffness in his neck, shoulder and back. His physician had told him that the reason why he was in pain was because of a pinched nerve and the deterioration in his spine. Because of the pain, the worker was no longer able to perform the rebar work that he previously performed. He had been able to find some work as a supervisor, but the availability of that work was limited and he had to travel far away from home to find it. In addition to the physical effects, the worker had suffered financially and the situation had been hard on his family. The worker felt that this was all due to the effects of his workplace injury, which continued to the present time.

Employer’s position:

A representative from the employer participated in the hearing via teleconference. The employer supported the decision made by the WCB and it was submitted that a causal connection could not be established between the ongoing neck issues resulting from a pre-existing degenerative disc disease condition and the June 14, 2010 accident.

Analysis:

The issues before the panel are whether or not the worker is entitled to wage loss benefits after July 4, 2011 and medical aid benefits after April 7, 2012. In order for the worker’s appeal to be successful, the panel must find that the cervical neck, shoulder and low back difficulties the worker continued to experience after the relevant dates are related to the injuries he sustained in the workplace accident of June 14, 2010. After reviewing the evidence as a whole, the panel finds on a balance of probabilities that the work related C3 spinous process fracture, shoulder contusion and back strain had resolved by July 4, 2011 and that the worker’s current difficulties are attributable to pre-existing degenerative changes in his cervical spine.

In coming to our decision, the panel relied on the following:

  • The fracture suffered by the worker occurred at the spinous process at the C3 vertebrae. The panel understands the spinous process to be the long slender projection of bone that extends out from the back of the vertebrae. This area differs significantly from the area of the worker's most severe degenerative change, which is severe narrowing of the right C5-6 intervertebral foramen by osteophyte, and degenerative disease at C4-5 and C5-6 disc levels.
  • It is notable that the MRI of February 17, 2012 reported that the C2-3 and C3-4 discs were normal, thus indicating an absence of degenerative disease at the level of the C3 fracture.
  • The CT scan of August 11, 2010 was taken only two months after the accident and reported osteophytes at C5-6. As osteophytes develop gradually over time, this would suggest that the worker already had significant pre-existing degeneration developing in his cervical spine prior to the workplace accident.
  • The WCB medical advisor's memorandum of May 10, 2011 considered the possibility of whether the degenerative changes could be related to the workplace accident but concluded that a causal relationship was not probable. He considered the description of the accident but felt that the mechanism of injury did not involve a significant compression or axial load.
  • At the hearing, the worker described the object that hit him as a T-shaped piece of steel tubing measuring about three feet by two and a half feet. He was knocked out so he did not know exactly what happened but he surmised that the steel must have landed flat on him on the back of the head and caught his neck and the back of his head at the same time. There was a bruise on his shoulder between his neck and shoulder blade which went a bit down his back. Given the point of impact appeared to be on the back of the head and shoulder, the panel also does not view the workplace accident as involving significant compression or axial load and we accept the WCB medical advisor's opinion on causation.
  • The worker's treating physician provided the opinion that given the temporal relationship between the workplace injury and the degenerative changes seen in the radiological reports, it would be reasonable to assume that the workplace injury was a contributing factor in the development of the worker's symptomatic neck pain. The panel does not accept that a temporal relationship alone is sufficient to establish causation. This is particularly so given that the worker was able to continue working for up to months at a time and although he claimed that he was working in pain, he was not taking any painkillers during the initial period from June to October, 2010. This would suggest that the pain has not been as continuous and constantly severe as was described by the worker.

Overall, the panel must be satisfied on a balance of probabilities that the effects of the compensable injury impaired the worker beyond July 4, 2011. Unfortunately, the evidence is simply not sufficient to establish a causal link between the worker's spinal degeneration and the acute trauma of June 14, 2010. The panel therefore finds that the worker is not entitled to further wage loss benefits after July 4, 2010 nor is he entitled to further medical aid benefits after April 7, 2012. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of April, 2013

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