The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") that he had recovered from the July 2008 work injury and that his current bilateral arm complaints are not related to the accident. A hearing was held on July 10, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Decision: Unanimous

Background

On July 7, 2008 the worker injured his neck, ribs and low back when 40 gallon juice jugs fell off a cart and struck him in the back and right ribs.

When seen for treatment on July 9, 2008, the attending physician reported that the cart hit a dip in the floor and several jugs fell off the cart striking the worker in the back. The worker turned quickly to respond to this and felt a pain in his neck. The diagnosis was a back contusion and a neck strain. It was also documented that the worker had a two year history of neck pain and stiffness.

The worker was seen by a physiotherapist on July 15, 2008 and was diagnosed with strain to the cervical and lumbosacral spine.

The claim for compensation was accepted by the WCB and physiotherapy treatments were authorized.

On October 22, 2008, the attending physician reported that the worker's back condition had significantly improved and he could return to his regular duties by October 27, 2008. A physiotherapy discharge report dated October 30, 2008 indicated that the worker's pain was minimal and he had mild stiffness in the cervical spine. A home program was provided to the worker.

In late 2011, the worker contacted the WCB to advise that he was having difficulties with both arms, fingers, neck and shoulder which he related to the effects of the July 2008 compensable accident.

Primary adjudication contacted the worker's treating physician to obtain his chart notes, consultation letters and test results from October 2008 onwards.

An MRI report dated September 23, 2011 of the cervical spine read as follows:

Posterior disc herniation at C5-C6 level indenting on the anterior cord with no severe cord compression. Bilateral neuroforaminal narrowing at C3-C4 level secondary to unconvertible osteophytes.

On December 13, 2011, a physical medicine and rehabilitation specialist reported that the worker was seen on December 13, 2011 for review of his neck and bilateral upper limb pain. He noted that the MRI films and report revealed a moderate sized right central disc herniation at C5-6 indenting the spinal cord. The specialist concluded that the worker had "myelopathic symptoms and hyperreflexia and an otherwise normal neurological examination associated with a right central disc herniation at C5-6."

On January 9, 2012, a chiropractor reported that the worker was seen on December 16, 2009 for a chief complaint of left cervical spine, left shoulder and thoracic joint pain. The worker stated that the pain had been persistent over the previous two years. The chiropractor's diagnosis was cervical and thoracic joint sprain/strain. He noted the worker's left shoulder and arm pain was due to pain referral from his cervical spine and thoracic joint injury.

On February 7, 2012, a WCB medical advisor reviewed the file at primary adjudication's request. The medical advisor stated that the current diagnosis of myelopathy in relation to a C5-C6 disc herniation indenting the spinal cord was not accounted for in relation to the July 7, 2008 compensable injury. He commented that there was no indication currently on file that the July 7, 2008 mechanism of injury either aggravated or enhanced the degenerative changes noted in the MRI findings. The medical advisor opined that the worker had functionally recovered from his July 7, 2008 back contusion and cervical spine strain at some point following his October 27, 2008 return to full duties. It was felt that his current cervical symptoms were likely related to the natural history of degenerative changes that was ongoing in the cervical spine and manifested as neck pain/stiffness for two years prior to the July 7, 2008 compensable injury.

On February 18, 2012, the worker was advised that the WCB could not establish a relationship between his current bilateral arm difficulties and the injury which occurred on July 7, 2008. The adjudicator noted that it was difficult to relate the worker's current symptoms to the original workplace incident as he had never previously reported bilateral arm difficulties.

On April 8, 2012, the worker appealed the decision to Review Office. The worker stated that he never fully recovered from his 2008 injury and that he did not sustain another neck injury due to physical activity or a car accident since the July 7, 2008 incident. He said he returned to work and used Tylenol to mask the pain. It eventually got to the point where he experienced bilateral arm difficulties with general pain and discomfort. The worker indicated that the WCB accepted his claim based on a cervical strain and that his current symptoms were directly related to the blow he sustained from the juice jugs.

On May 7, 2012, Review Office determined that the worker was not entitled to further benefits. Review Office accepted the opinion outlined by the WCB medical advisor on February 7, 2012, noting that a WCB orthopaedic consultant to the WCB also agreed with the opinions expressed. It found that the worker's neck/cervical spine difficulties beyond October 2008 were not related to the compensable injury sustained on July 7, 2008.

On December 10, 2012, the worker provided Review Office with a report from his treating physician dated November 26, 2012 to support that his current difficulties were related to the 2008 accident. The worker also advised Review Office: "It should be noted that in your review letter there is blatant mis-information, on page 3 of 6, it states that there was a 2011 report from Dr. [name] stating that I had been punched in the head and an MRI was done on myself 4 years ago. This is completely false."

By letter dated January 31, 2013, Review Office advised the worker that no change would be made to its previous decision. Review Office indicated that the reports from the worker's treating physician contained inconsistent information. It noted that on July 9, 2008, the treating physician reported that the worker had a two year history of recurrent neck pain and stiffness. In another report, he made reference to the 2011 cervical spine MRI findings and stated: "these undoubtedly had developed over a number of years. Accepting this, it is still clear that this gentleman had no history of any neck or upper back pain prior to 2008 injury and even if there were degenerative disc findings at that time, he was asymptomatic and these symptoms clearly were triggered by the incident at work."

Review Office indicated that it preferred to place weight to the clinical findings recorded after the compensable injury from July 7, 2008 which in its opinion were consistent with a cervical strain. By October 2008, the worker was managing well with his regular work duties and minimal symptoms were reported in regards to the neck region. It indicated that the medical information from the treating physician showed that the worker was seen multiple times from October 2008 to June 2011 and the records did not note any ongoing neck complaints or neurological findings which could be related to a neck injury. When medical attention was sought in June 2011 for neck difficulties and a MRI was arranged, symptoms extended to the upper extremities.

Review Office indicated that considering the compensable diagnosis of a neck strain, it could not establish a causal relationship between the compensable diagnosis and the report of more diffuse symptoms almost three years later. On February 8, 2013, 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(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 self-represented at the hearing and was accompanied by his father. The worker felt that the WCB's decision to not reopen the claim due to the lack of a connection with the original injury should be reversed. He submitted that the original claim information stated that the area of injury was the neck and lower back. During the three year gap in question, the worker did see his family physician on June 1, 2009 about a sharp pain in his chest and neck, and was told that the pain was musculoskeletal and clearly related to his injury sustained at work. During those three years, the worker received some chiropractic treatments and some physiotherapy. He was not subject to any motor vehicle accidents or sports injuries during that time. After he returned to work following the accident, the worker never really felt one hundred percent. He was always in some sort of discomfort.

The MRI showed a herniated disc which the worker's doctors told him was caused by some sort of whiplash or trauma to the area which in turn related to the sharp pain in his chest and neck. The herniated disc also related to the numbness and tingling in his fingers. There was arthritis in the worker's neck which was due to aging, but this was different from the herniation. The family physician's report of November 26, 2012 supported that the worker's symptoms were triggered by the incident at work.

Overall, the worker submitted that his claim should be considered as a re-flare of symptoms from the original injury. He had originally been able to return to work following which the WCB went and closed his file. However, as time wore on, symptoms and pain got worse and the injury took a toll on his body over time. The worker therefore asked that his claim be reopened, that it stay open, and that he receive the benefits for the missed time from work from November 2011 to April 2012.

The Employer’s Position

A representative from the employer appeared at the hearing. The employer noted that the worker had been absent from work from November 23, 2011 to April 3, 2012. Based on a review of the file, it was submitted that it was difficult to link the 2011 absences to the 2008 injury. What was missing was a medical link between the two periods. To be compensable, an injury must have been a result of an accident arising out of and in the course of employment. The worker did sustain a workplace injury to his neck and low back on July 7, 2008. The medical documentation from the family physician dated October 22, 2008 indicated the worker was doing much better and he was cleared for a full return to work. In December 2011, the physical medicine specialist gave a diagnosis of a disc herniation at C5-6 and this diagnosis was separate and apart from the initial diagnosis of the cervical and low back strain/sprain. The employer agreed with the WCB's observation that the medical information was not sufficient to link the 2011 condition to the 2008 workplace injury.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. 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 July 7, 2008 workplace accident. We are not able to make that finding.

The condition for which the worker is seeking further benefits has been diagnosed as a posterior disc herniation at the C5-6 level which is indenting the spinal cord. It is the panel's understanding that a disc herniation is typically associated with neurological symptoms such as shooting pain down the arms, numbness, tingling, and weakness/reduced dexterity in the hands. On reviewing the medical reports, it would appear that complaints of this nature were not made by the worker until 2011. The medical charts from the worker's family physician were obtained and they show no complaints of neurological symptoms until November of 2011, despite regular visits throughout 2008, 2009, 2010 and 2011.

The worker consulted a sports medicine physician regarding neck pain, but this did not occur until June 2011. The worker's evidence at the hearing was that he had continuous pain in his lower back and neck since the accident, but he pushed through it by self-medicating with over the counter painkillers. 2011 was the year his symptoms got extreme and he sought specialist treatment from the sports medicine physician: "as my fingers were constantly tingling, I was losing grip on things at work, and there was numbness that ran down both the length of my arms."

In the panel's opinion, the significant time lapse of approximately three years weighs against finding any causal relationship between the worker's 2011 symptoms and the 2008 workplace accident. Further, when the worker went to see the sports medicine specialist in June 2011, his symptoms were markedly different from a residual pain in the lower back and neck, which was manageable with over the counter medication and caused no time loss from work. Again, this weighs against finding a connection between the two conditions.

At the hearing, the worker identified an incident in June 2009 where he reported a sharp pain in his left ribcage to his family physician. The worker felt that this incident was indicative of the ongoing problem. The panel does not accept this submission as the family physician's notes of June 1, 2009 identify the problem as being "MSK" (i.e. musculoskeletal) which is a differing condition from a disc herniation.

The panel also considered the medical reports which were filed with the WCB in 2008 while the worker's claim was still active. The focus of the reports was on a back contusion and neck strain. There was no referred pain or other neurological symptoms reported in either upper extremity. The treatment at that time was all directed at treating a strain injury. It is notable that the worker's evidence at the hearing was that his physiotherapy treatment in 2011 included the use of traction, which is a technique used to treat a disc herniation. The physiotherapy the worker received in 2008 to treat his compensable injury did not include this type of treatment. This further supports the view that the work injury was limited to a soft tissue sprain/strain and did not include a herniated disc.

When the worker was discharged from treatment in October 2008 and returned to his regular duties, the physiotherapist described the worker's condition as "pain minimal now, mild stiff C-spine." The family physician's report indicated that as of October 22, 2008: "He is doing much better w/his back. There is some residual soreness and a bit of stiffness but he has improved quite nicely and will rtn to reg duties October 27." There is no suggestion that there was any type of cervical disc injury remaining.

The family physician provided a report dated November 26, 2012 which characterized the worker's condition as a "re-flare of symptoms from the 2008 injury." As noted earlier, the panel was unable to identify any complaints of neuropathic symptoms in the reports from 2008. We therefore do not accept that the worker's 2011 condition is a "re-flare" of the workplace injury. A strain injury would not later recur as a disc herniation.

Unfortunately, after reviewing all of the information, the panel is not able to find that the symptoms in 2011 were a continuation of the 2008 compensable injury. The evidence does not, on a balance of probabilities, establish a causal connection between the two conditions. The worker's appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of August, 2013