The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing neck difficulties were not related to his compensable injury and therefore he was not entitled to further benefits. A hearing was held on July 10, 2013 to consider the matter. The hearing reconvened on August 15, 2013.

Issue

Whether or not the worker is entitled to wage loss benefits or services beyond April 21, 2010.

Decision

That the worker is not entitled to wage loss benefits or services beyond April 21, 2010.

Decision: Unanimous

Background

On August 7, 2007, the worker sustained an injury to his back and neck when he slipped in wet mud while carrying a ladder against his shoulder. The worker reported that the day after his injury occurred, he felt sharp pain in his upper neck between his neck and right shoulder. The worker was initially diagnosed with a right neck/shoulder and trapezius strain.

The worker's claim for compensation was accepted by the WCB and benefits were paid accordingly. Ongoing medical reports showed that the worker underwent a number of investigations related to his cervical spine and shoulder and was seen by a neurosurgeon, an occupational health physician and a physical medicine and rehabilitation specialist ("physiatrist").

On December 9, 2008, a WCB case manager determined that the worker had recovered from his compensable injury and that his ongoing symptoms were due to chronic fluctuating symptoms related to his non-work-related degenerative neck condition. The worker disagreed with the decision and an appeal was filed with Review Office. On January 21, 2010, Review Office determined that the worker was entitled to compensation benefits beyond December 9, 2008 as it felt that the worker was still suffering from the effects of his injury. Review Office referred to medical information on file which suggested that the worker continued to suffer from neck and associated shoulder and arm pain related to his compensable injury.

On February 12, 2010, the worker advised his WCB case manager that he saw his family physician about once a month for his neck condition. The worker noted that his neck always hurts and that various types of treatment have not helped with the pain. He could not look up past certain angles.

On March 22, 2010, the worker was seen by a WCB medical advisor for a call-in examination to assess his back, neck and shoulders. The medical advisor indicated that his examination produced findings of slightly diminished range of motion of the cervical spine. There was tenderness in the cervical spine region over the C5 spinous process but it was only very minimal and superficial in nature. Other muscle groups in the bilateral neck and shoulder regions did not evoke painful responses. He noted that his findings argued against a significant musculoskeletal pain generator in the neck. The extremely hypertrophied and bilaterally equally well-developed muscles of the neck, back, shoulders and arms also argued against a significant musculoskeletal pain generator. The medical advisor opined that the current diagnosis was non-specific pain to the posterior lower cervical region. When determining the current level of function and whether the worker's current symptoms/findings were related to the 2007 workplace injury, the consultant noted the following:

• the initial diagnosis was a right-sided C6 and possible C7 radiculopathy. These conditions had resolved based on clinical reports, MRI examination and nerve conduction study results.
• the degree of degenerative changes noted on MRI would not be expected to result in a significant impairment, especially in an individual of 33 years of age.
• the degenerative changes on the MRI would not be expected to result in a significant loss of cervical extension. This was supported by the call-in examination which did not identify a bony limitation to extension and the consultation report of June 18, 2009 by the occupational health physician which documented neck flexion/extension movements to be of normal range.
• range of motion of the cervical spine is typically restricted by 10 to 20 degrees in all directions in an individual with large muscle development of the neck. The call-in findings were consistent with cervical limitation due to muscle mass and this could account for all or most of the diminished range of motion found.
• the loss of cervical extension on a pain basis, in an individual who is able to perform a heavy, prolonged weightlifting program sufficient enough to result in extreme muscle development in the neck, upper back and shoulder regions, was considered implausible.

In conclusion, the medical advisor stated:

"…a current functional impairment of the cervical region is not supported, on a balance of probabilities.

The degenerative changes identified on x-ray, CT and MRI scans is evidence of a pre-existing condition that could have interfered with recovery from the compensable injury. The body mass index above normal is not considered an obstacle to recovery as this is the result of a high level of muscle development as opposed to deconditioning and obesity.

As no likely current impairment is identified, no formal workplace restrictions are recommended. Likewise, there are no current treatment recommendations."

On April 21, 2010, it was determined by the WCB case manager that a cause and effect relationship did not exist between the worker's current difficulties and the accident in 2007. The case manager referred to Review Office's January 2010 decision that there was still medical information available in 2008 suggesting that the worker had an aggravation of a pre-existing condition. The call-in examination of March 22, 2010 showed that no current impairment had been identified. The case manager concluded that the aggravation of the worker's pre-existing condition had resolved and there was no relationship between his current difficulties and the neck injury he sustained at work in 2007.

On May 24, 2010, the worker's family physician made reference to the physical findings outlined during the WCB call-in assessment which he felt were untrue. The physician outlined the opinion that the worker's neck extension was normal prior to his WCB accident and on a balance of probabilities, his reduced neck extension and his inability to perform his duties as a cable installer were secondary to the accident of August 7, 2007.

The family physician's report was reviewed by the WCB medical advisor on June 22, 2010 but concluded that there would be no change to the opinions expressed at the time of the call-in examination.

On June 7, 2010, the case manager advised the worker of his decision that based on inconsistencies noted with the information provided, he was unable to relate the worker's current difficulties to the work accident in 2007.

On September 29, 2010, an occupational health physician provided a report commenting on the worker's current diagnosis, its relationship to the August 2007 workplace injury and whether or not the worker was capable of performing his pre-accident duties. The physician stated that the chief problem that persisted was posterior neck pain in the region of the cervicothoracic junction and periodic bouts of neck stiffness and loss of neck extension. The symptoms of right arm pain from disc protrusion and C6 radiculopathy had resolved. The physician stated that the current findings were more related to direct injury and to the muscle hypertonis and related myofascial dysfunction that became established to stabilize the injured neck area with protruding disc. The degree to which underlying degenerative changes noted in the July 2008 MRI contributed to the worker's ongoing symptoms was likely modest. The myofascial findings dominated the clinical picture and had been relatively under-treated. The physician did not feel the worker had reached his maximum medical recovery. He felt the worker was not capable of performing his pre-accident duties.

The above medical report was reviewed by a WCB medical consultant on January 24, 2011. In his opinion, the new information did not warrant altering the opinions and recommendations provided at the time of his call-in examination. On January 24, 2011, the worker was advised that no change would be made to the previous decision of June 7, 2010 based on the January 24, 2011 WCB medical opinion.

On May 10, 2011, the Worker Advisor Office appealed the adjudicative decisions dated April 21, 2010, June 7, 2010 and January 24, 2011 to Review Office. The submission indicated that the worker's symptoms following the work accident were right-sided neck pain, sharp shooting pains and numbness into the right shoulder, arm and hand. While a number of these conditions had resolved, the worker still had posterior neck pain aggravated by neck extension. It was noted that the worker's pre-accident job duties primarily involved overhead work which required him to look up and hold his neck in extension for prolonged periods of time. The worker's family physician and the occupational health physician both considered that the worker was unable to return to these duties. It was submitted that the worker had not recovered from his accident and was entitled to benefits and services beyond April 21, 2010.

On June 15, 2011, Review Office determined that the worker was not entitled to wage loss benefits and services beyond April 21, 2010. Review Office indicated that there was significant conflict between the worker's description of his workouts at the gym (one description of lifting heavy weights and the other description was a cardiovascular routine) given to the WCB medical advisor and that provided to his physicians. Review Office's view was that it was obvious the worker was involved in a weight lifting program which did not seem to be in harmony with his subjective complaints of neck pain.

Review Office also referred to the comments made by the WCB medical advisor that there were inconsistencies in the worker's subjective complaints upon examination which were not supportive of an ongoing causal relationship between the current findings and the original 2007 workplace injury.

Review Office outlined the opinion that the worker had ample opportunity for physical rehabilitation of his neck injury between the date of accident and April 21, 2010. It was felt that the worker did not have a compensable condition which would functionally impair his neck to the point where he was disabled from his regular duties.

On March 13, 2013, an appeal of the Review Office decision was filed with the Appeal Commission by the worker's legal counsel. A hearing was held on July 10, 2013 and reconvened on August 15, 2013.

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 submission:

The worker was represented by legal counsel at the hearing. The Appeal of Claim form filed by the worker stated that when the WCB made its decision, it relied heavily on the comments of the WCB medical advisor who conducted the call-in examination. Furthermore, the WCB took the position that the worker's compensable injury was an aggravation of a pre-existing condition which resolved, and that the current symptoms experienced by the worker were simply a recurring non-workplace related aggravation of the pre-existing condition. It was submitted that the WCB reached these conclusions contrary to a number of medical reports and opinions. The worker had suffered and continued to suffer neck pain and other associated symptoms since the date of his workplace injury, which never completely resolved. He never complained of any symptoms prior to the workplace injury, and even if he had a pre-existing condition, it was asymptomatic before the workplace injury. It was the worker's position that when all of the objective medical evidence was examined, the only reasonable conclusion was that his inability to work was related to his compensable injury from 2007 and that as a result, his entitlement to ongoing WCB benefits should be reinstated.

At the hearing, it was emphasized by the worker's legal counsel that the foundation of the WCB's decision was based on the report of the WCB medical advisor, who relied on inaccurate facts and a short physical examination. Notwithstanding a clarification of the facts regarding the worker's post-accident activities, the WCB maintained the discontinuation of benefits.

Three witnesses were called by the worker's counsel at the hearing. The first witness was an occupational therapist ("OT") who conducted a Functional Capacity Evaluation ("FCE") of the worker on February 7, 2012. The OT's evidence was that his main determination after testing was that the worker had restrictions in range of motion in the cervical spine, extension most significantly, as well as some range of motion restrictions in the right shoulder. Strength at lower heights was good, but limited with overhead or over shoulder lifting. Repetitive movements with the neck and shoulder such as reaching or overhead or in front also provided significant limitations. The OT measured the worker's extension at 10 degrees on the first day of testing and 5 degrees on the second day of testing. Normal range of motion in cervical extension would be 75 degrees. With respect to validity testing, 54 out of 60 measures were considered within the expected limits. Typically, an average of about 80 percent would mean that testing could be considered reliable and valid. The worker was over 80 percent. When asked whether he was able to foresee the worker ever being able to go back and perform his pre-accident employment, the OT's opinion was that it was unlikely.

The second witness was an occupational health physician who prepared two reports dated June 18, 2009 and September 29, 2010. With respect to the June 18, 2009 report, the physician's evidence was that when preparing the report, he tried to understand the mechanism by which the worker injured himself. The physician realized that based on how the accident occurred, there would have been a lot of strain and exertion, and the worker's neck would have been in a precarious position in terms of loading facet joints and risk of disc protrusion. The injury likely sustained by the worker was a combination of disc protrusion, for which there were clear symptoms of radicular pain going down the worker's arm, as well as fairly significant trauma in overloading the shoulder girdle muscles holding the ladder as well as the neck muscles. When the physician assessed the worker on April 9, 2009, it was more than a year after the accident. At that time, there was diminished involvement of shooting pains into the right arm but the worker complained of near constant discomfort in the lower posterior neck. This would be aggravated by neck extension. The physician did not agree that the worker's ongoing condition was attributable to pre-existing degenerative changes. The worker had no prior problems with his neck and was making vigorous use of it in body building, working out and doing his job as a cable installer. Since the direct injury involving fairly significant forces in a hazardous position, the worker's neck had not been the same. The radiologic findings showed mild to moderate changes on three different cervical levels for which there were no prior clinical correlation of symptoms or limitations. The physician did not agree that this would constitute clinically relevant disease. In his mind, the pre-existing disease was insignificant in the face of the nature of the injury sustained. The physician went on to state that if there was degenerative changes in the neck, because of the accident, there would be enhancement of those changes leading to loss of range of motion expected and likelihood of further problems with performance of work as a cable installer. The physician opined that the worker could not go back to his pre-accident employment and that his restrictions would be permanent.

With respect to the September 29, 2010 report, the physician explained that often times when a neck, or in the worker's case, the shoulder, is injured, the first symptoms are stiffness. When the muscles tense up in the neck, they pull on the structures that are attached to it, which are the vertebrae, thereby leading to increased axial loading on the spine with muscle tension. He stated: "this will directly increase compression forces on the spine, on the discs; and I suspect the protrusion and the pattern of radicular pains into the arm had to do with part of the contribution to this is the muscle tone that the tension that -- and I think you can see it now, in the lack of movement in his shoulders and neck." The physician acknowledged that when he re-assessed the worker on August 18, 2010, the worker's movements of his neck were a lot less than when first seen. He also noted that one of the differences the WCB medical advisor highlighted was the degree to which the physician found muscle tenderness. While the physician could not speak to the WCB medical advisor's exam style, he noted that he recalled the worker saying that his own examination was more thorough. The physician stated that it was a "huge issue" between his views and the WCB's position that objective findings on x-rays had more validity than complaints of pain and physician examination of soft tissue structures like muscle groups. Findings such as "tenderness" were, in the WCB's eyes, considered subjective complaints and the WCB discounted the importance of such findings. Finally, with respect to the range of motion measured, when conducting his examination of the worker, the physician spent time asking the worker to achieve neck extension as best as he could. While it was painful for the worker, the worker complied by slowly forcing his head back as far as he could. The physician noted that this was neither a functional nor comfortable range for the worker.

The third witness was the worker's family physician. The family physician testified that since his injury, the worker had always had problems with radiating pain down his neck. He kept his neck very still in trying to heal this injury. He developed a stiff neck and was unable to extend his neck. He never returned to his pre-accident baseline at any time. He never got better. The family physician did not agree with the conclusions reached by the WCB medical advisor at the call-in examination. The family physician noted that the WCB medical advisor stated that the MRI degenerative changes did not cause any impairment for a man of the worker's age, nor did it cause any loss of cervical extension. To explain the reduction in neck extension, the WCB medical advisor said that it was all or mostly due to the big muscles the worker had in his neck. The family physician did not agree with this statement. He indicated that he was familiar with the worker's physical condition and his neck muscles had not changed. He also noted that the information about the worker participating in mixed martial arts post-accident was incorrect. Any such activity was discontinued after the worker was injured. He could not perform those sorts of activities due to his neck injury. With respect to a pre-existing condition, the family physician noted that the first x-ray in September 2007 showed no signs of osteoarthritis. The mild degenerative changes shown on MRI were extremely sensitive and not likely the cause of his problems. The family physician did not agree that with the passage of time, the worker's condition would get better. He stated: "The longer [the worker] is left without any active rehab, the stiffer his neck will get, the more painful his neck will be. The more lack of motion he will get, the more damage he will cause trying to move a neck that doesn't want to move any more. He needs rehabilitation. Time won't make this better. It's not like a cut on the skin."

Near the end of the hearing, there was a discussion regarding the scope of the appeal before the panel. During the course of the hearing, considerable evidence was led regarding a psychological condition the worker developed after a change in his work arrangements on April 21, 2010. The family physician's evidence was that it was the psychological condition which took the worker off work and was keeping him off work at the present time. The panel notes that the compensability of the psychological condition has never been investigated nor adjudicated by the WCB. Therefore, the panel specifically limits the scope of this decision to the worker's entitlements related to his neck and shoulder injury. As the WCB has not previously considered the psychological condition, we do not have the jurisdiction to address the issue.

Employer’s submission:

The employer was represented by its disability specialist who participated in the hearing by teleconference. The employer's representative clarified certain points of evidence, largely related to accommodations provided by the employer when the worker returned to modified duties. With respect to the appeal, the employer's position was that they approved of the WCB's decision.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits or services beyond April 21, 2010. For the worker’s appeal to be successful, we must find on a balance of probabilities that after that date, the worker's ongoing difficulties with his neck and right shoulder were caused by his August 7, 2007 workplace accident. For the reasons outlined below, we are not able to make that finding.

As noted earlier, this appeal will address the neck/shoulder injury only. There are two aspects to this injury: a C6 radiculopathy and a soft tissue component.

With respect to the C6 radiculopathy, the panel accepts that the small right paracentral disc protrusion with compression of the exiting right C6 root seen in the November 23, 2007 CT scan was attributable to the workplace injury. This disc protrusion caused the worker to suffer radicular symptoms of shooting pain down the arm, pain in the armpit, into the elbow ditch and down the worker's forearm. On reviewing the medical reports, these radicular symptoms appear to have resolved by April 21, 2010. The panel specifically notes:

• The neurologist's report of July 23, 2008 refers to the pain extending to upper extremities and the numbness and tingling sensation as being significantly improved.
• The family physician's January 1, 2009 report refers to the C6 radicular pain as having improved.
• By the time of the March 22, 2010 call-in examination, the WCB medical advisor opined that based on normal sensation, deep tendon reflexes and muscle strength combined with the 2008 MRI indicating a lack of acute pathology and the normal nerve conduction study of 2008, a cervical radiculopathy was not currently present and had resolved.
• The September 29, 2010 report of the occupational health physician stated: "His earlier complaint of numbness and discomfort radiating into the right arm and hand has subsided … He has not had this since March 2010." He later concluded that the symptoms of right arm pain from disc protrusion and C6 radiculopathy had resolved.
• There was suggestion at the hearing by the family physician that the FCE finding of reduced grip strength of 50 percent on the right side was an indication of ongoing damage to the C6 nerve root. The evidence of the OT, however, was that the grip strength tests of the worker's right hand did not pass validity tests (although as a whole, the worker's overall efforts were considered valid). One of the tests was extremely divergent from expected reliability, with a variance of 137.6% compared to normal variance of up to 15%. Further, certain of the grip strength results could be interpreted as demonstrating equal strength between the left and right hand, which would be the normal expected result. While the worker did still report weakness in the rotator cuff while raising his right arm, the family physician acknowledged that he did not specifically test for this. The occupational health physician described the previous symptom of shoulder fatigue as having subsided. Given the conclusions of a resolved C6 radiculopathy by both the WCB medical advisor and the occupational health physician, the panel does not accept the family physician's suggestion that there was ongoing damage to the C6 nerve root.

The panel acknowledges that there were references to the return of radicular symptoms in the December 12, 2011 report from a treating physiatrist. Given the 1 ½ year interval, however, we are unable to accept the more recent radicular symptoms as being related to or a continuation of the original compensable injury.

We therefore find that the worker's ongoing difficulties beyond April 10, 2010 were not attributable to the C5-6 disc protrusion he suffered as a result of the workplace injury and he has no further entitlement with respect to that aspect of his injury.

The soft tissue component of the worker's neck injury was much more difficult to adjudicate. The worker's evidence at the hearing was that the posterior neck pain had been continuous since the time of the accident. While in hindsight this may be the worker's recollection, indications on file point to a fluctuating condition, which at times improved significantly. It was notable that when seen in July 2008 by the neurologist, the worker declined infiltration of the facets as he did not think the pain was so severe as to justify the intervention. This would suggest that by that time, the worker had experienced a significant recovery.

The September 29, 2010 report of the occupational health physician described chiefly findings of hypertonic, irritated neck musculature in the right cervical pillar posteriorly, the suboccipital area, and right scalene, with lower cervical segmental sensitization and ligamentous tenderness around the cervicothoracic junction, and muscle strain/myofascial pain in the upper scapular girdle. The occupational health physician wrote:

The current findings are more related to direct injury and to the muscle hypertonis and related myofascial dysfunction that became established to stabilize the injured neck area with protruding disc, and the upper shoulder girdle loading the neck structures. The degree to which underlying degenerative changes noted in the July 2008 MRI contribute to his ongoing symptoms is likely modest; by my assessment the myofascial findings dominate the clinical picture and have been relatively under-treated.

The difficulty the panel had with finding a myofascial injury was that the more significant worsening of the worker's range of motion only occurred after the radiculopathy resolved. When the occupational health physician examined the worker in April 2009, he described the radicular symptoms as having diminished, but there remained residual low posterior neck "discomfort." The panel places significant weight on the fact that at that time, neck flexion and extension movements were of normal range (despite the explanation given by the occupational health physician at the hearing). The panel notes that the FCE findings measured the worker's extension at 5 and 10 degrees (compared to normal range of 75 degrees). The explanation given regarding the extra effort given by the worker would not sufficiently explain the 65 to 70 degree difference in range of motion.

The reason given by both the occupational health physician and the family physician at the hearing for the worker's current limitation in range of motion was that it was largely caused by tensing of the neck and shoulder muscles due to the radicular symptoms. It does not seem plausible, however, that the myofascial findings would only be identified three years post accident in August 2010, long after the radiculopathy had already essentially resolved.

It is notable that at the time of his April 2009 examination, the occupational health physician did not identify any myofascial findings. At the hearing, the physician confirmed that when conducting an examination, he tried to do a thorough muscular screening and usually, if he were to find taut bands and myofascial trigger points, he would include it in his report. On review of his chart notes, he confirmed that he did not identify any active trigger points in his examination.

Similarly, the WCB medical advisor's report from the March 22, 2010 call-in examination found only very minimal and superficial tenderness in the cervical region over the C5 spinous process. The rest of the cervical and thoracic spine and other muscle groups in the bilateral neck and shoulder regions did not evoke painful responses. Range of motion of the shoulders was normal and non-painful. The WCB medical advisor concluded that his findings argued against a significant musculoskeletal pain generator in the neck.

The WCB medical advisor's January 24, 2011 memo also noted that the theory of muscle hypertonis and related myofascial dysfunction becoming established to stabilize an injured neck area is not a medically established valid mechanism and is considered to be a medical opinion that is not objectively evidence-based.

On a balance of probabilities, the panel is not satisfied that the worker's current myofascial soft tissue condition can be traced back to the workplace accident. Although the worker's evidence was that he never recovered from the effects of the accident, the record shows that at times, he was reporting significant improvement. A considerable amount of time (approximately three years) had elapsed between the workplace accident and the report of a myofascial condition in August 2010 and we are not satisfied that the evidence supports a continuous progression of the original soft tissue injury into a myofascial condition.

With respect to the worker's submissions regarding the extent of his physical activities following the workplace injury, we accept his evidence that post-accident, he was no longer involved in competitive mixed martial arts. We also accept that his strong muscular physical stature was developed pre-accident and that his post-accident exercise regime is a scaled back version of what he did previously. To the extent that the WCB medical advisor attributed the worker's limitation in range of motion to his body habitus, we do not accept these findings. Nevertheless, when determining entitlement to further benefits, the panel is only required on a balance of probabilities to find a positive connection between current symptoms and the effects of the workplace accident. We are not required to identify an alternate etiology for the worker's condition, although in some cases it is useful to consider what other factors may be contributing to a worker's presentation. In this case, the panel does not know what has caused the worker's myofascial soft tissue condition. It could be caused by a pre-existing degenerative processes or another non work-related incident or some other unknown etiology. We are not, however, convinced on a balance of probabilities that the August 2007 work injury has caused this condition, and for that reason, the worker's appeal must be dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of October, 2013