The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the June 25, 2012 decision made by the Workers Compensation Board ("WCB") that he did not require restrictions related to his workplace injury of October 22, 2010. A hearing was held via teleconference on March 5, 2013 to consider the matter.

Issue

Whether or not the worker requires compensable restrictions in relation to his accident of October 22, 2010.

Decision

That the worker requires compensable restrictions in relation to his accident of October 22, 2010.

Decision: Unanimous

Background

The worker filed a claim with the WCB for head, neck, lower back and elbow injuries that he sustained in a work-related accident on October 22, 2010. The worker reported:

I had climbed up the ladder with a coworker holding the bottom of the ladder. I was checking the rain gutters so I was at the top of the ladder (15 ft). All of a sudden the ladder was not there and the next thing I remember I was on the ground. I could move my legs but could not get up.

On the day of the accident, the worker attended a hospital emergency facility for treatment. The report indicated that there was no history of loss of consciousness. The worker had two bumps on his scalp and two bumps on his forehead. The worker complained of pain in his low back and had no weakness or numbness in his upper lumbar area. He had neck stiffness.

X-rays of the chest, pelvis, lumbosacral spine, skull and cervical spine performed on October 22, 2010 identified no fractures.

The worker was seen by his family physician on October 25, 2010. The physician noted limited range of movements of the neck due to pain. The diagnosis was a neck strain.

On October 29, 2010, the treating chiropractor reported that the worker complained of a sore neck, memory loss, irritability, low back pain and shoulder pain. The worker experienced cognitive difficulties suggestive of brain swelling, and some balance difficulties. The diagnoses were WAD II (whiplash associated disorder of cervical spine), TSD (thoracic segmental dysfunction) and LSD (lumbar segmental dysfunction).

On November 26, 2010, the treating chiropractor reported that the worker was capable of performing "light duties", however, his cognitive impairment made return to work problematic.

In a note to file dated January 4, 2011, a WCB chiropractic consultant authorized a 4 week extension of chiropractic treatment for the worker.

On January 10, 2011, the treating physician reported that the worker's post-concussive symptoms appeared to have resolved.

On January 21, 2011, the treating chiropractor reported that the worker had pain looking up, headaches, neck pain and left shoulder pain. He noted that the worker had progressed well with treatment but had biomechanical issues with range of motion, point tenderness and myospasm. Restrictions were outlined to avoid heavy and overhead lifting and no head tilt into extension.

On January 27, 2011, the WCB chiropractic consultant approved a five week extension of chiropractic therapy to assist the worker with his return to work.

On March 21, 2011, the treating physician advised a WCB medical advisor that he would see the worker the following week and at that point he anticipated that the worker would likely be capable of returning to full work duties.

In a progress report of March 23, 2011, the treating physician reported objective findings of overextension of neck limited to 90 degrees, pain on lateral flexion of neck (bilaterally). Restrictions outlined were to avoid overhead work and climbing as tolerated.

In a progress report dated October 18, 2011, the treating physician noted that the worker's recovery was not satisfactory and an MRI and consultation was arranged.

The worker had an MRI performed on November 29, 2011. The findings showed minor degenerative changes in the cervical spine. No traumatic abnormality was identified.

The worker was seen for an assessment by a WCB sports medicine consultant on November 29, 2011. On December 16, 2011, the WCB sports medicine consultant outlined the opinion that the initial diagnosis was likely a neck strain and that the current diagnosis was nonspecific non-radicular neck pain. He felt it was safe and appropriate for the worker to resume his usual activities based on the following findings:

• the nature of the injury was a strain.
• the natural history of the injury is functional improvement in 2 to 6 weeks.
• the time that elapsed since the date of injury is over 1 year.
• the call-in examination findings of full cervical spine flexion, extension, side flexion and rotation, plus the absence of upper extremity myotomal/dermatomal deficit and absence of upper extremity reflex changes.
• the November 29, 2011 cervical spine MRI findings indicative of degenerative changes with no identification of a traumatic lesion.

In a decision dated January 23, 2012, the WCB advised the worker that there no longer was a need for restrictions in relation to his claim as the WCB considered that he had recovered from the effects of his injury based on the opinion expressed by the WCB sports medicine consultant.

On January 26, 2012, the treating chiropractor reported that he discussed with the worker his loss of short term memory and his ongoing cervical pain and headaches. A neurological assessment was suggested.

On April 11, 2012, the worker appealed the adjudicator's decision of January 23, 2012. The worker indicated that he disagreed that his fall from the roof was only a neck strain. The worker indicated that he found it painful to look sideways without turning his shoulders. He still had to take a rest before the end of his day. He was attending physiotherapy which helped with the pain but the condition would later return.

On June 5, 2012, the treating chiropractor reported a new diagnosis of cervical segmental dysfunction.

In a decision dated June 25, 2012, Review Office determined that the worker had no loss of earning capacity as of January 23, 2012 and there was no need for compensable restrictions regarding his duties. Review Office concluded that there was no medical evidence to support any claim of compensable functional impairment requiring compensable restrictions to be implemented at this point in time. It was felt that after such a lengthy period of time, the worker did not have a compensable loss of earning capacity. The decision was based primarily on the December 16, 2011 WCB medical opinion. On October 30, 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.

Worker's Position

The worker was self- represented at the hearing and participated via teleconference. The worker stated that in his view, after his fall at work, he is lucky to still be able to work. When he was laying on the ground, he thought that his injury was going to be more serious since initially, he could not move or lift his head. Over time, he was able to return to the workplace and his pre-accident position, but he disagreed that he was fully recovered. The worker continued to have physical limitations in that he could not turn his head all the way to the left and he could not tilt his head back to look upwards without supporting it. The worker stated that he was able to modify the way he performed his duties so as to avoid having to tilt or move his head, and in cases where he could not perform a task, he was able to ask his employer to have someone else do the job for him. Because of the ability to modify his job duties, the worker was not missing any time from work as a result of the residual effects from his injury. Nevertheless, the worker disagreed with the WCB's determination that he was one hundred percent back to where he was before and what he was seeking in this appeal was acknowledgement that he still had some physical limitations as a result of his workplace injury.

Analysis

The issue before the panel is whether or not the worker requires compensable restrictions in relation to his accident of October 22, 2010. In order to determine the appeal, the panel must find that the worker continues to experience physical limitation as a result of his October 22, 2010 workplace injuries. On a balance of probabilities, we are able to make that finding.

The worker's evidence was that he had difficulty turning his head to the left and tilting his head back to look upwards. At most, he could tilt his head back for 30 seconds, but for anything more than that, he would be required to support his head with his left hand while he performed the task using his right hand. When looking to the left, the worker would have to turn his whole body as his neck was limited to moving more than 45 degrees to the left. On days where he pushed himself at work, he would have to wear a neck brace in the evening to give his neck some support.

The reports from the worker's treating medical providers support his position of continued dysfunction. The family physician's report from examination on October 15, 2012 set out restrictions of no overhead work, no lifting arms past shoulders, no tilting the head back, rotation of the neck limited to 45%. He also recommended lifting, pulling, pushing and carrying limits of 20 pounds, no twisting of the neck, bending limit to 90 degrees and no overhead lifting.

A September 10, 2012 report from the physiotherapist who treated the worker from March to May 2012 confirmed that he was experiencing ongoing pain in his neck, decreased range of motion in the neck and difficulty performing his regular work duties. She confirmed that: "Following an injury, it is not uncommon to have flare-ups. It can be an ongoing challenge to manage the symptoms. Certain activities can flare the neck. Examples are working overhead, holding neck one (sic) position for prolonged periods such as rotation, flexion or extension."

A report dated October 29, 2012 from a treating chiropractor indicated that the worker had been a patient at the clinic since October 29, 2010 and noted the worker showed cervical myospasm as well as taut and tender fibers and palpable swelling.

The panel has considered the December 16, 2011 opinion of the WCB sports medicine consultant which acknowledged that the worker's current diagnosis at that time was nonspecific nonradicular neck pain but opined that the workplace injury was likely limited to a neck strain with anticipated functional improvement within 2-6 weeks. The degenerative changes identified in the November 29, 2011 MRI were referred to but the panel feels that limited weight should be placed on these findings as the degenerative changes were described as "minor" in the MRI report.

It is notable that at the time of the call-in examination, the worker reported the same symptoms as were relayed to the panel at the hearing, namely that his condition had improved since the date of injury, but that the pain mostly affected him in the evening at the end of the work day. The worker reported that his neck pain was aggravated by extension. On examination, the worker demonstrated full cervical extension associated with report of posterior neck pain. When cervical rotation was attempted on the left, the worker was unable to complete the maneuver and indicated non-radiating neck pain with same.

Overall, the panel was impressed with the fact that the findings of the WCB sports medicine consultant were consistent with the worker's evidence at the hearing. Given the significant degree of trauma which was involved in the workplace fall, the consistency in reporting of symptoms, the temporal continuity, and the recent medical reports from the worker's treating medical practitioners, the panel finds on a balance of probabilities that the worker does experience some residual physical limitation as a result of his accident of October 22, 2010. We do not accept the WCB medical consultant's opinion that the compensable injury was limited to a neck strain which would have been expected to have resolved. The panel found the worker to be forthright and credible and we accept his evidence that he has continued to have problems with maintaining his head in extension for more than 30 seconds and that he is limited in the degree to which he can rotate his head to the left. We therefore find that the worker requires compensable restrictions in relation to these limitations, which restrictions are to be subsequently determined by the WCB.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of April, 2013