The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker disagrees with the decision made by the Workers Compensation Board ("WCB") that his current difficulties were related to the natural progression of his cervical degenerative joint disease and not to his 1989 and/or 1992 compensable workplace injuries. A hearing was held on November 6, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's current difficulties as being related to the 1989 and/or 1992 compensable workplace injuries.

Decision

That responsibility should not be accepted for the worker's current difficulties as being related to the 1989 and/or 1992 compensable workplace injuries.

Decision: Unanimous

Background

On October 6, 1989, the worker reported that he injured his neck, left shoulder and left arm from the following work-related accident:

I was lifting a bar mat from my tandem, it was stuck on one side in the box, I gave it several pulls to jar it loose and that is when I felt my arm shoulder, neck pain.

On the day of his accident, the worker attended a hospital emergency facility who reported that the worker felt a pulling in his left neck/shoulder three days ago when pulling a tractor tire. He had increased pain especially with movement and lying on his left side along with paresthesia. The left shoulder had full range of motion and there was tenderness in the left trapezius to palpation. The diagnosis was a left muscle strain trapezius.

X-rays of the cervical spine and left shoulder taken October 16, 1989 showed mild degenerative disc narrowing at C5-6 with posterior osteophytes. The left shoulder was considered to be "unremarkable."

On November 10, 1989, the worker was diagnosed with a cervical radiculopathy at C6 and C7 by his treating neurologist.

In a December 8, 1989 report, an orthopaedic specialist stated that the worker had a relatively trivial injury to his neck and left shoulder lifting a 60 or 70 lb. weight. He was able to lift the weight and throw it off the truck after the injury. Since that time he has been complaining of severe discomfort.

In a follow-up report dated March 26, 1990, the orthopaedic specialist reported that the worker had full range of neck movement without significant pain and there was no tenderness. His arms had full range of movement with shoulders, elbows, wrists and fingers having full range. There was normal sensation throughout. The specialist could not detect any muscular weakness of the left hand. The specialist indicated that the worker could return to work when a job became available.

On March 17, 1991, a CT scan of the cervical spine read: "There is minor congenital narrowing of the canal at C5-6 and perhaps to a lesser extent at C6-7. A small left sided disc herniation is superimposed on this at the upper level."

In a September 25, 1991 report, a neurosurgeon reported that the worker's symptoms and signs had been stable since the October 1989 injury. He noted that numbness and weakness were present immediately after the injury and have neither improved nor deteriorated. The neurosurgeon stated: "I do not think the CT scan findings explain the symptoms and signs completely. It appears that he may have had trauma to the left C6 nerve root at the time of his injury. The CT scan abnormality is not sufficient to warrant surgical intervention."

In a report dated October 15, 1991, a general practitioner reported that the worker had pain in his left arm which was associated with numbness especially when he sleeps or sits for prolonged periods of time. The numbness was worse in the C6 dermatome distribution and had been associated with weakness of his hand grip and bicep strength. He also had problems with referred pain into the back of the neck and head for which he suffered headaches. The CT scan showed a small disc lesion at C5-6 with slight cervical spine stenosis. The physician felt that the worker should consider job retraining or reassignment given his disability.

On October 29, 1992, the worker filed a WCB claim for injuries he suffered in a work-related accident on October 7, 1992. The worker reported that he was pulling on a rope to release crushed concrete from his dump truck when his left arm jerked upwards in the process causing him to experience pain in his left shoulder, left arm and neck. The claim for compensation was accepted and the worker was paid wage loss benefits to April 30, 1994.

On July 15, 1994, the WCB's Review Office determined that the worker had recovered from the effects of the physical injuries he incurred at work on October 6, 1989 and October 7, 1992 and that the worker's restrictions, which were preventative in nature, were due solely to a pre-existing condition, medically diagnosed as congenital cervical stenosis.

On May 8, 2012, the worker called the WCB to advise that his neck injury from 1992 had worsened over the past 1.5 years. In order to determine whether the worker's current symptoms were related to his 1992 injury, the WCB obtained medical information from his treating physicians.

In a report dated April 2, 2012, a physical medicine and rehabilitation specialist reported that the worker's clinical presentation was consistent with cervical myelopathy with upper limb symptoms and a relatively normal neurological examination.

In a report dated June 11, 2012, a second physical medicine and rehabilitation specialist reported that the worker presented with constant neck pain and symptoms in favor of severe multi-level degenerative disc disease in his cervical spine, and that MRI findings were in favor of severe spinal stenosis and cord myelomalacia. The worker also had symptoms and physical examination findings in favor of bilateral carpal tunnel syndrome.

During a telephone conversation with a WCB adjudicator on May 18, 2012, the worker reported that since 1992, he had felt pain and numbness that moved from his left shoulder into both shoulders, both arms, both hands, back, neck and legs. He said his right leg gives out and his left leg feels like a stump. The worker said he had nerve impingement in his neck according to his treating physicians.

On June 13, 2012, the worker advised the WCB that he may require surgery, as an MRI taken in March 2012 showed that the C6 and C7 were severely deteriorated. The worker stated that he had fallen many times because of the pinched nerve that was affecting his legs.

On July 17, 2012, the WCB advised the worker that no responsibility could be accepted for his current neck and shoulder difficulties and the associated costs related to treatment or time missed from work. The adjudicator noted that the worker reported ongoing difficulties since his original accident and that no new accidents had occurred. She noted that the WCB's Review Office had determined in July 1994 that he had recovered from the effects of the October 7, 1992 work- related accident. The adjudicator recognized that the worker may have difficulties but felt that they were the result of a pre-existing condition which was not accelerated or enhanced by the original accident. On September 21, 2012, the worker appealed the decision to Review Office.

In a September 26, 2012 report, the treating neurosurgeon noted that the worker presented with axial neck pain, bilateral brachialgia and some sensory discomfort and had very subtle signs of cervical myelopathy with severe degenerative spinal stenosis at C5-C6 with myelomalacia. It was felt that the worker was a candidate for an anterior cervical decompression and fusion.

At the request of Review Office, a WCB orthopaedic consultant reviewed the worker's file on October 31, 2012 and stated that the current diagnosis was degenerative joint disease of the cervical spine causing cervical cord myelopathy. He said it was not possible to confirm a causative relationship with the workplace injury of October 7, 1992. Rather, the current clinical findings were related to the natural history of the degenerative process in the cervical spine. The expected course was that of progressive hypertrophic bone and joint changes causing increasing pressure upon the cervical cord.

In a decision dated November 22, 2012, Review Office determined that no responsibility should be accepted for the worker's current difficulties as being related to the October 7, 1992 workplace accident. In reaching its decision, Review Office considered the WCB medical opinion of October 31, 2012 and also referred to its previous decision of July 15, 1994, the MRI findings of March 6, 2012 and the reports from the treating physicians. Review Office concluded that the worker's current difficulties were solely related to his pre-existing condition and found no medical evidence to support that the worker's pre-existing condition was enhanced by the 1992 accident. It found that the worker's current difficulties were related to the natural progression of the degenerative disease process in his cervical spine.

On December 17, 2012, the worker filed an appeal with the Appeal Commission asking that wage loss and medical aid benefits be re-instated. The worker claimed that he remained symptomatic in relation to the injuries he sustained in 1989, 1992 and 1994 while participating in a preventive vocational rehabilitation program. The worker argued that his symptoms were the result of each incident individually or by way of a combination of all incidents.

On January 4, 2013, the Appeal Commission advised the worker that his case would be referred back to the WCB and Review Office so that decisions could be made concerning his entitlements in relation to his 1989 claim and to rule on whether he was entitled to benefits stemming from the combined effects of his 1989 and 1992 claims.

In a decision dated January 30, 2013, the WCB adjudicator advised the worker that the combined or cumulative effects of the 1989 and 1992 workplace injuries were not responsible in part or in whole, for his current difficulties and the need for decompression and fusion of the cervical spine. The adjudicator placed weight on the medical information that the worker's current difficulties were attributable to the progression of his pre-existing multi-level degenerative condition which was at prior specified times, aggravated by the effects of the 1989 and 1992 workplace incidents. It was the adjudicator's opinion that the prior workplace incidents did not cause any permanent or structural worsening of the pre-existing condition.

On April 24, 2013, Review Office confirmed that no responsibility should be accepted for the worker's current difficulties as being related to the combined effects of the October 6, 1989 and October 7, 1992 workplace injuries. Review Office concluded that the medical evidence on file did not support that the workplace accidents caused the worker to develop cervical degenerative joint disease nor did the workplace accidents enhance his cervical degenerative joint disease. It found that the worker's cervical degenerative joint disease was a pre-existing condition that was temporarily aggravated by his workplace injuries and that his progression of symptoms over the years was due to the natural history of this progressive degenerative disease. On July 9, 2013, the worker disagreed with Review Office and he filed an appeal with the Appeal Commission.

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.

The worker has accepted claims arising from workplace accidents in 1989 and 1992. The worker has had further difficulties which he relates to his 1989 and 1992 compensable workplace injuries.

Worker's Position

The worker was self-represented. He explained his reason for appealing the Review Office decision and answered questions from the panel.

The worker advised that in addition to his 1989 and 1992 injuries, he was injured in 1994 while participating in a training-on-the-job position arranged by the WCB.

The worker told the panel that since 1989 he had suffered from the same symptoms, has never been pain free and has never recovered. He described the symptoms as pain and tingling in his neck, shoulders, arms, and hands. He said about eight years ago or longer, the symptoms moved to his legs. He would fall down as his left leg felt like a stump. The severity of the symptoms would vary, sometimes they would flare up.

The worker also identified a February 2011 incident where he said that his symptoms changed. Unlike in the past, his symptoms did not go away and consisted of a sharp pain. Before this incident the worker said that he did not have to take medications. He said he was cranking a dolly in extremely cold conditions and felt sharp pain on his left side. He said he did not file a WCB claim at the time. He did not miss time from work due to this injury except for medical appointments or the occasional day when he had too much pain.

The worker stated that three injuries in the same spot would have to have an effect on bone formation.

The worker said that over the years he had seen many physicians and that all have said there is nothing that could be done for his condition.

The worker referred to an opinion from his treating neurosurgeon that if prior to the accident he was symptom free and after the accident he had progressive problems, you can draw the conclusion that the onset of the symptoms is related directly to the injury. The worker said that this is what has happened in his case.

The worker noted that his longtime family physician supported his position and provided a written report to the WCB dated August 1, 2013. In this report, the physician stated that a summary of his records supports the worker's claim that it is his neck injury which caused a radiculopathy and not his pre-existing stenosis or degenerative arthritis that caused his inability to work.

The worker advised that in January 2013 he had surgery to his neck and his pain has resolved.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's current difficulties are related to the compensable 1989 and/or 1992 workplace injuries. For the worker's appeal to be successful, the panel must find that the symptoms he is currently experiencing are related to the 1989 and/or 1992 workplace injuries. The panel is not able to make this finding. The panel finds, on a balance of probabilities, that the worker's difficulties beginning in 2011 are not related to the noted workplace injuries.

The worker told the panel that he never recovered from the 1989 and 1992 injuries. He said his symptoms have always been present but worsened in 2011. He attributed the worsening to the further deterioration of his workplace injuries.

The panel considered the worker's position but finds that the evidence on file does not support his position that his current difficulties are related his past claims. The panel finds that the worker sustained discrete injuries in 1989 and 1992 and recovered from each injury.

With respect to the 1989 injury, the panel finds that the worker recovered from this injury by March 1990. In reaching this conclusion, the panel relies upon the opinion of the orthopaedic specialist who examined the worker on March 26, 1990. The orthopaedic specialist reported that the worker had "…full range of neck movement without significant pain. There is no tenderness. Arms have full range of movement with shoulders, elbows, wrists and fingers having full range. There is normal sensation throughout. I cannot detect any muscular weakness of the left hand." The specialist advised that the worker could return to work.

The panel also finds that the 1992 claim resolved. The panel relies upon the May 19, 1993 opinion of the WCB medical advisor. The medical advisor found that the worker had a pre-existing condition. With respect to the 1992 injury he found that the worker suffered a new injury which resulted in a neck/shoulder strain at most with associated reflex nerve root (C5-C6-C7) which had been aggravated in the workplace accident. He opined that the aggravation factor had ended.

The panel relies upon the opinion of the neurosurgeon who saw the worker on February 22, 1993. The neurosurgeon noted that the worker's main complaint was of pain in the left shoulder which is exacerbated by shoulder movements, particularly by abduction and flexion of the shoulder. On examination, the neurosurgeon found that cervical range of motion was normal, muscle tone symmetrical and there was no evidence of muscular wasting. He found restricted abduction of the left arm, restricted extension, and tenderness at the shoulder joint, exacerbated by movement. The neurosurgeon noted that the remaining examination was within normal limits. He concluded that the worker's problem appeared to be related to trauma to the shoulder joint itself and that there was no evidence of new lesions affecting the nerves.

The panel also relies upon the opinion of the WCB orthopaedic specialist set out in memos dated October 31, 2012 and January 30, 2013. In the January 30, 2013 memo the specialist opined:

"The workplace injuries of 1989 and of 1992 caused exacerbations of symptoms of cervical degenerative joint disease. There is no objective medical evidence that continuing aggravation or enhancement of the pre-existing degenerative disease occurred. The progression of symptoms over the years is what would generally be expected with the natural history of this progressive degenerative disease, even in the absence of injuries causing temporary exacerbations of symptoms."

The panel noted the opinion of the worker's family physician but finds that the above noted medical reports do not support the family physician's opinion.

The worker advised the panel that since the original accidents he continuously felt pain from the injuries. However, in a discussion with a case manager noted in a May 18, 2012 memo, the worker said that pain has been on and off since 1992. In another conversation with the case manager on June 13, 2012, the worker said that his pain would come and go but has been more persistent since February 2011. The waxing and waning of symptoms is not consistent with the worker's evidence at the hearing that the pain has been continuous. However, the evidence is consistent with a degenerative condition in which the symptoms are known to wax and wane.

The panel notes the relatively minor mechanism of injury for the 1989 and 1992 accidents and finds that the evidence does not support that a significant traumatic injury caused or enhanced the worker's degenerative condition.

Given the panel's finding that the worker recovered from his 1989 and 1992 workplace injuries, the panel finds, on a balance of probabilities, that the worker's 1989 and/or 1992 workplace injuries are not the cause of the worker's current difficulties. The worker's appeal is dismissed.

The worker advised that while cranking a dolly on February 14, 2011 he felt pain as he had before, but on this occasion the pain did not subside. The worker advised he filed a WCB claim for this incident but that the WCB cancelled the claim file and attached the information to the 1992 claim file. The panel notes it is available for the worker to appeal the WCB decision and to ask it to adjudicate the February incident as a separate workplace accident. In noting this, the panel is not suggesting an outcome for such adjudication.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of November, 2013