The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury. A hearing was held on August 29, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond July 18, 2011.

Decision

That the worker is not entitled to benefits beyond July 18, 2011.

Decision: Unanimous

Background

While employed as an automotive mechanic on December 17, 2007, a truck on a hoist fell and struck the worker on the head knocking him to the ground. The worker reported pain in his neck and upper back region along with headaches.

When seen for treatment at a hospital facility on the day of the accident, the worker underwent x-rays and a CT scan of his cervical spine. The x-rays showed pre-existing marked degenerative disc space changes with large anterior osteophytes from C3-4 to C6-7. The CT scan revealed mild facet joint osteoarthritis with large anterior osteophytes at C3 to C6 without fracture. The worker was diagnosed with axial load and muscle tenderness by the hospital physician.

When speaking with the WCB in January 2008, the worker indicated that prior to the workplace injury he had experienced occasional neck difficulties. The worker's claim for compensation was accepted and benefits were paid to the worker.

File records showed that the worker sought treatment from a chiropractor and also attended physiotherapy related to his cervical spine. When seen by a WCB chiropractic advisor on March 12, 2008, the worker was diagnosed with a soft tissue sprain/strain with mechanical neck pain related to the compensable injury. It was anticipated that the worker would be fit for sedentary duties and a return to work in six week's time.

In August 2008, the worker was again seen by the WCB chiropractic advisor as the worker's neck condition was worsening and he was still experiencing headaches. It was concluded that the worker's pain complaints were related to the zygapophyseal joint originating in the right upper cervical region and that this condition was the result of the compensable injury. It was felt that the condition rendered the worker unable to perform the essential job demands as a car mechanic.

In April 2009, the worker was seen by a physical medicine and rehabilitation specialist (a "physiatrist") and his diagnosis of the worker's condition was non-specific cervical pain. The worker was treated with diagnostic cervical medial branch blocks and later, a pulsed radiofrequency neurotomy at the right C2-3 level.

On January 16, 2010, a WCB medical advisor reviewed the file information which included the follow-up reports from the treating physiatrist. The medical advisor outlined the opinion that a structural abnormality specifically related to the compensable injury had not been identified. The medical advisor was of the opinion that based on the nature of the injury, the time that had passed for recovery and noting the treatments which had been performed to date, the worker was now at MMI (maximum medical improvement) with regards to his neck condition.

Based on the medical advisor's opinion dated January 16, 2010, the worker was advised on March 19, 2010 that the WCB considered him to have recovered from his neck/upper back injury sustained at work on December 17, 2007 and that any ongoing neck/upper back difficulties were unrelated.

In a note to file dated March 24, 2010, the WCB medical advisor stated that imaging studies had demonstrated significant pre-existing degenerative disc disease and facet osteoarthrosis at the cervical spine which were likely factors contributing to the worker's delay in recovery from the compensable accident.

The WCB received reports from the family physician dated March 31, 2010 and from the treating physiatrist dated April 26, 2010. Both physicians outlined the view that the worker was still suffering from right-sided neck pain and headache related to his compensable injury.

On April 20, 2010 and May 21, 2010, the worker was advised that new medical reports had been reviewed and there would be no change to the decision that he had recovered from the effects of his compensable injury. On July 23, 2010, a worker advisor appealed the decision to Review Office.

On October 7, 2010, Review Office determined that the worker was entitled to wage loss and medical aid benefits after March 27, 2010. Review Office accepted the treating physiatrist's examination findings and explanation for the worker's return to his pre-treatment baseline. Review Office found that the worker was not fit to return to his pre-accident mechanic position because of the compensable injury and found that the worker continued to have a loss of earning capacity due to his injury. Review Office noted that further treatment had been recommended and that it accepted the explanation provided by the treating physiatrist. The worker's benefits were then reinstated based on the Review Office's decision.

On May 18, 2011, a WCB physiatry consultant reviewed the up-dated medical reports from the worker's treating physiatrist and the family physician. The consultant opined that the current treatments of percutaneous radiofrequency blocks would not be considered as treatment for any claim-related soft tissue strain/sprain. He felt there was no medical relationship between the worker's current presentation and the original claim injury. He was also of the view that there was no evidence to support that the worker would have an inability to return to his pre-injury duties as a mechanic.

On July 12, 2011 the WCB case manager advised the worker that the WCB was unable to accept further responsibility for his neck/upper back injury and that medical treatment and further wage loss benefits would end on July 18, 2011. The decision was based on the WCB medical opinion dated May 18, 2011. On August 8, 2011, the worker appealed the decision to Review Office.

On October 5, 2011, Review Office returned the worker's file back to case management to obtain additional information and to re-visit its previous decision regarding the worker's entitlement to benefits beyond July 18, 2011.

Arrangements were then made for the worker to be assessed by a WCB medical consultant on November 15, 2011. Medical information was also obtained from an internal medicine consultant who saw the worker in 2008.

In a decision dated January 11, 2012, the worker was advised that no change would be made to the previous WCB decision to end responsibility for his claim on July 18, 2011. The case manager's decision was based on the following rationale:

Based on a review of the file information, including information from a 2008 assessment by an internal medicine specialist, the WCB medical advisor confirmed the diagnosis of the December 17, 2007 workplace injury was a cervical sprain/strain. The medical advisor noted the (sic) that the imaging studies (x-ray, CT scan, MRI etc) has demonstrated significant pre-existing degenerative changes at the cervical spine and other sites. The WCB medical advisor opined that the sprain/strain injury would have gradually resolved, and ongoing symptoms would likely be accounted for by the progressive effects of the underlying degenerative and inflammatory condition.

In a report dated June 5, 2012, a neurosurgeon stated: "The discomfort he is experiencing is very probably musculoskeletal. I cannot detect any obvious signs of an ongoing radiculopathy or myelopathy."

On November 12, 2012, the WCB medical consultant indicated that the opinion expressed by the neurosurgeon that "the discomfort he is experiencing is very probably musculoskeletal" does not lend support for or against the role of the compensable injury in causing the worker's symptoms. He stated that his opinion remained the same as was outlined in his examination notes of November 2011.

By letter dated November 27, 2012, the worker was advised by case management that his diagnosis of a neck and upper back strain would be expected to have resolved seven years post-injury. It was felt that the worker's current symptoms were related to his significant degenerative changes as observed by the neurosurgeon.

In a letter dated December 14, 2012, the worker's treating chiropractor stated that he disagreed with the WCB's diagnosis of a neck and upper back strain simply because of the mechanism of injury. He stated:

[The worker] received a 500 pound compression type of injury which would cause injury to the tendons, muscles, ligaments, capsule, and hyaline cartilage within the zygapophyseal joints. I would expect degenerative changes to increase post accident. I will agree with the writer that after 7 years a diagnosis of neck and back strain should be resolved, but in this case you are not dealing with simple case of strain. It is my opinion that [the worker] is experiencing musculoskeletal discomfort that is a permanent impairment and is a direct result of this compression injury.

On December 27, 2012, the WCB chiropractic advisor stated:

It is a matter of record that compressive forces were imparted in the injury. However, there is no evidence that the injury resulted in tissue disruption or instability. As such, this would be considered a sprain/strain type of soft tissue injury, and be subject to the usual expectation for that type of injury.

The chiropractor's letter does not contribute anything new, in my opinion, and so would not change any opinions expressed.

On March 6, 2013, the worker submitted an appeal to Review Office stating that he had medical support from his chiropractor and doctor that his current neck problems were still related to his December 2007 compensable injury.

On May 10, 2013, Review Office determined that the worker had recovered from the effects of his compensable injury and that he was not entitled to wage loss or medical aid beyond July 18, 2011. Review Office concluded the following from its review of the worker's file:

• that the worker had a pre-existing condition in his cervical spine that was not caused by the accident.
• the probable diagnosis in relation to the worker's accident was a soft tissue sprain/strain within mechanical neck pain in an environment of an osteoarthritic spine.
• that there was no file objective evidence of the worker's inability to return to his pre-injury duties as a mechanic.
• there was no relationship between the findings noted by the neurosurgeon and the accident.
• there may be non-compensable reasons for the worker's change in function.
• the worker was able to work in some capacity following the 2007 accident which demonstrated that he did not have a total loss of earning capacity.

On June 7, 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.

Provision of medical-aid services to injured workers is payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.

Worker’s position:

The worker attended the hearing accompanied by his brother. The worker described the accident where he was working on a half ton truck. The truck was on a hoist and he was standing with his legs bent and slightly more than shoulder width apart. He was working with his arms over his head when the truck dropped about a foot and the bumper struck him on the head. His head got pushed to the left so much that his left ear touched his shoulder and he fell straight to the ground. When he got up, he could feel pain in the right side of his neck. He went to reposition the stands so that he could finish the job when his boss came out and told him to go to the hospital.

When the worker went to the hospital, they took x-rays and the doctor told him that he had arthritis in his neck. A CT scan was also taken. The worker later went to his chiropractor who told him that he had a bad case of whiplash. Usually whiplash is forward to backwards, but the worker's case was sideways and all the tendons, ligaments and muscles in the right side of his neck had been stretched. The worker's evidence was that on his right side, he can still feel that the C1 vertebrae is out of alignment.

To this day, the worker advised that he still has the same symptoms as he did at the time of the accident. He has tension in his neck muscles, both on the left and right side, and in the scalene muscles. The worker felt that his case had slipped through the cracks at the WCB because he was still not fit to go back to work at his regular job as a heavy-duty mechanic. He had been trying to find light duty work, but it was impossible given the small community he lived in. His quality of life had changed substantially and he was unable to engage in activities he used to enjoy. The worker acknowledged that he was capable of doing some work, but he was seeking assistance from the WCB in finding employment or providing retraining.

Overall, it was submitted that the worker undisputedly had an accident. As a result of the accident, he could not perform his duties as a heavy duty mechanic and has not yet been made whole in order to return to his own health and to work. The worker should be entitled to further benefits from the WCB.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his neck after July 18, 2011 are related to the injuries he sustained in the workplace accident of December 17, 2007. On a balance of probabilities, we are unable to make that finding.

The issue the panel must grapple with is whether the worker's symptoms are a result of his workplace injury or whether his workplace injury has resolved and the symptoms he now has are related to natural progression of degenerative aging processes.

At the hearing, the worker disputed that aging was the cause of his neck difficulties. He stated that his problems are at the C1 and C2 level of his cervical spine and that any arthritis is at the lower cervical levels. He felt that the pre-existing arthritis at C3, C4, C5, C6 and C7 acted to reduce the flexibility of his cervical spine such that the bulk of the blunt force of the accident was placed on C1 and C2. He stated that he could feel C1 protruding from his neck.

On a balance of probabilities, the panel does not accept the position taken by the worker. The panel notes that the worker has been seen by multiple medical specialists and the reports from the specialists do not support the finding of an ongoing injury at the C1 and C2 levels. In particular, the panel notes:

• The June 5, 2012 report from the treating neurologist specifically addressed the cervical spine and the neurologist noted that: "I cannot appreciate any significant increased mobility/laxity of the C1, C2 or other segments." Evidence of significant degenerative changes associated with narrowing of disc spaces, spurring of end plates at multiple levels and osteoarthritic degeneration of the zygapophyseal joints was noted from an x-ray of the cervical spine.
• The specialist chiropractic radiologist's reading of the October 11, 2008 MRI identified ossification of the anterior longitudinal ligament from C2 to C7. While this is not arthritis, it is indicative of degenerative changes extending up to the C2 level.
• An x-ray taken February 6, 2013 of the cervical spine from C1 top to C7 with flexion and extension views indicated that alignment was preserved with flexion and extension and that no acute fracture or joint dislocation was identified. This would tend to refute the worker's observation that his C1 vertebrae "slides out of place". The x-ray report noted large anterior bridging osteophytes throughout the cervical spine and degenerative change of the mid and lower cervical facet joints.
• The January 12, 2012 report from a treating physiatrist stated: "…the most significant pain is, in my opinion, secondary due to facet joint osteoarthritic changes."
• The WCB medical advisor's report arising from the November 15, 2011 call-in examination noted pre-existing degenerative and inflammatory processes in the worker's cervical spine and stated that the natural history of the worker's spinal condition would be for gradual progression with the expectation of gradually increasing symptoms and associated functional limitations. He opined that with the passage of time, it was most likely that the effects of the 2007 cervical sprain/strain injury would have gradually resolved and ongoing symptoms would likely be accounted for by the progressive effects of the underlying degenerative and inflammatory condition. There was no evidence to indicate that the 2007 incident caused a permanent alteration of the structures of the cervical spine.

Although the treating chiropractor provided a report opining that the compression type injury suffered in the workplace accident was the cause of permanent impairment in the worker, the panel finds that the weight of the medical evidence and opinion rests on the side of finding that the workplace injury has resolved and that the worker's ongoing difficulties are attributable to pre-existing non-compensable causes.

Based on the foregoing, the panel is not convinced on a balance of probabilities that the difficulties the worker experiences with his neck are related to the injuries he sustained in the workplace accident of December 17, 2007. We find that pre-existing degenerative and inflammatory processes are more likely responsible for his ongoing complaints. For that reason, the panel finds that the worker is not entitled to benefits beyond July 18, 2011. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
M. Day, Commissioner
C. Devlin, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of October, 2013