Decision #98/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from her compensable injury by January 2011 and that her current symptoms were not related to the workplace injury of May 28, 2010. A hearing was held on June 17, 2014 to consider the matter.Issue
Whether or not the worker is entitled to benefits beyond January 25, 2011.Decision
That the worker is entitled to benefits beyond January 25, 2011 regarding her neck, upper back and right shoulder condition.Decision: Unanimous
Background
On June 15, 2010, the worker filed a claim with the WCB for neck, shoulder, back and chest pain that developed while leaning forward to clean a piece of equipment on May 28, 2010. Following the accident, the worker sought treatment from her family physician and was referred for physiotherapy treatments. The diagnosis outlined by the physician was a sprain of the neck and upper back and the physiotherapist's diagnosis was bilateral upper quadrant strain.
On July 17, 2010, the worker was examined by a sports medicine physician who identified a diagnosis of myofascial pain of the neck and upper back.
On July 22, 2010, a WCB physiotherapy consultant documented a telephone conversation he had with the treating physiotherapist. He recorded that the worker was exhibiting pain focused behavior and was not willing to do gentle neck stretches. The worker had upper extremity weakness due to pain and there was no true neurological weakness. The worker also complained of persistent dizziness.
On July 27, 2010, the worker sought treatment at a hospital facility and was diagnosed with chest wall pain.
A CT of the cervical spine was carried out on August 31, 2010. At the C6-7 level, there was a suspected moderate sized right paracentral and right posterolateral disc herniation which was not well visualized due to streak artifact.
On September 10, 2010, the worker was examined at the WCB by a sports medicine consultant. The consultant's impression of the worker's medical condition was right C7 radiculopathy which he opined was consistent with the mechanism of injury which involved traction of the right arm in combination with lifting. It was expected that the worker would make a full recovery and would be able to return to full duties. The consultant felt it was reasonable to introduce the worker to a modified duty work program and current work restrictions were outlined.
On October 21, 2010, an MRI of the cervical spine revealed mild disc degenerative changes throughout the cervical spine, most marked at the C6-7 level.
On November 30, 2010, the worker was examined by a neurologist who found no evidence of radiculopathy but noted that the MRI scan suggested the possibility of a C6-7 right posterolateral disc herniation. Arrangements were then made for the worker to undergo nerve conduction studies.
Nerve conduction studies taken December 7, 2010 showed no abnormalities.
On January 22, 2011, the WCB's sports medicine specialist opined that with no clinical findings of cervical radiculopathy, he was unable to relate the worker's current presentation to the original workplace injury.
By letter dated January 25, 2011, the worker was advised that the WCB was unable to accept further responsibility for her claim as it was felt that her current condition was not medically accounted for in relation to the May 28, 2010 workplace injury. On April 4, 2011, the worker appealed the decision to Review Office on the grounds that her condition started on May 28, 2010 and that the tests she had taken showed that she had nerve damage in her right arm.
On May 27, 2011, Review Office determined that the effects of the worker's right C7 disc herniation were no longer present based on its review of the medical evidence which included the CT and MRI results, the EMG and nerve conduction studies and the findings of the treating neurologist.
On October 26, 2011, the worker asked Review Office to reconsider its decision based on a report from an occupational health physician dated October 12, 2011 who examined the worker on July 12, 2011. The occupational health physician stated, in part: "By my assessment she has not recovered from her May 2010 right neck injury at work involving the right arm; the injury diagnosis was C6-7 postero-lateral disc herniation as demonstrated by MRI."
On December 7, 2011, Review Office advised the worker that it was unable to alter its prior decision to deny benefits beyond January 25, 2011. Review Office's decision was based on diagnostic testing, clinical examination findings of no positive neurological findings or evidence of ongoing radiculopathy, and the opinion of a WCB medical advisor who was unable to relate her ongoing symptoms to the compensable accident.
With respect to the October 12, 2011 report from the occupational health physician, Review Office advised the worker that it had consulted with a WCB medical advisor. It was his opinion that the symptoms of neck and shoulder pain were likely originally attributable to a strain injury in the presence of pre-existing, multi-level, degenerative cervical disc disease and that any ongoing symptoms were entirely attributable to the natural course of the demonstrated pre-existing, cervical degenerative disc disease. As such, there would be no change to the prior decision.
On December 23, 2011, the worker provided the WCB with an MRI report dated November 8, 2011. The worker indicated that the MRI report showed that she had herniation at the C6-7 disc level and that it was the occupational health physician's opinion that the alternate duties she had performed were the cause of the herniation.
On March 22, 2012, a WCB medical advisor made the following comments:
The report from [occupational health physician] dated 12-Oct-2011 contains (in summary) the following observations:
1. Work in the laundry was repetitive and vigorous;
2. The worker stated she had no prior neck problems;
3. WCB received misinformation from MGH Urgent Care and from the Neurologist re 2 years of neck problems prior to the workplace injury;
4. The worker was undertreated and not provided with light enough duties on RTW;
5. Clinical examination by [occupational health physician] on 12-July-2011 revealed no radiculopathy.
As the information about prior neck problems from caregivers was consistent, I conclude that the worker failed to remember such problems in her presentation. Investigation supported by WCB was thorough, treatment appropriate, and RTW plans considerate of the degree of injury.
The continuing symptoms are typical of degenerative disc disease, as was the follow-up MRI dated 4-Nov-2011. On balance of probabilities, the current condition is not the result of the workplace injury of 28-May-2010.
In a decision dated March 26, 2012, a WCB case manager advised the worker that there would be no change to the original WCB decision of January 25, 2011 based on the opinion of the WCB medical advisor that her continuing symptoms were typical of degenerative disc disease, as was the follow-up MRI of November 4, 2011.
On September 23, 2013, the Worker Advisor Office provided Review Office with additional medical information and asked it to reconsider its previous decisions dated May 27 and December 7, 2011. The additional information included a report from the family physician dated October 15, 2012, a report dated March 4, 2011 from the treating neurologist, a report dated April 6, 2011 from a neurosurgeon, reports dated June 6, September 21 and December 11, 2011 from a treating physiatrist, a report dated October 19, 2012 from the occupational health physician, and reports dated December 12, 2012 and August 1, 2013 from another physiatrist. The worker advisor submitted that the medical assessments offered evidence to support that the worker's symptoms were not due to degenerative changes of her cervical spine but were due to an ongoing muscular condition, attributable to her 2010 compensable injury.
Prior to considering the worker's appeal, Review Office obtained an opinion from a WCB physical medicine specialist dated November 26, 2013 which stated:
- Several new diagnoses have been suggested on the more recent received medical file information: i.e.; central sensitivity syndrome of C7, T4, T6, T9, T12, and of L4 with spread to the right torso, back and right lower extremity, and myofascial pain syndrome of the neck, shoulders, trunk and low back
- There are no objective findings to support these diagnoses. Also there is no objective way to confirm the subjective findings used to opine these conditions i.e. to confirm the subjective tenderness in the muscles and tenderness of the spinous processes and skin sensitivity to scratch testing in the stated dermatomal areas. Nor any indentified pathoanatomic or physical diagnosis to ascribe to these areas of soft tissue tenderness.
- The new presented diagnoses do not appear to be medically accounted for on the basis of the workplace injury of May 28, 2010. The supporting rational (sic) includes: that the diagnosis of central sensitivity syndrome of the now upper and lower body, is conjectural and without a definite pathoanatomic basis, especially as related to the claimed increase in symptoms that were initially in a localized bilateral distribution (neck, shoulders), also
the report of lack of any benefit to the therapy received which suggests against the typical musculoskeletal condition such as muscle strain that would have been expected to respond to therapy.
On January 3, 2014, Review Office determined that there was no entitlement to benefits beyond January 25, 2011.
Review Office indicated that the additional medical information provided new diagnoses of central sensitivity syndrome and myofascial pain syndrome of the neck, shoulders, trunk and low back. Review Office said it placed more weight on the recent WCB medical opinion that these new diagnoses were not medically accounted for on the basis of the workplace injury. The opinion offered was that the new diagnoses were speculative and without a definite pathoanatomical basis or physical diagnosis.
Review Office further stated that there was no basis to alter the previous determination that the worker sustained a neck/shoulder strain at the time of the injury which was in the environment of pre-existing multi level degenerative cervical disc disease. It noted that the natural history of a strain would have resolved within months following the workplace injury and that the pre-existing condition contributed to a delay in the recovery from the strain injury.
Review Office concluded that based on these findings, the worker recovered from the effects of the May 28, 2010 injury and that her current symptoms were not related to the claim.
On February 13, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. On April 24, 2014, the worker advisor submitted a further submission for consideration by the appeal panel. The hearing was held on June 17, 2014.
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 assisted by a worker advisor at the hearing and the services of a translator were provided. The worker's daughter attended the hearing as an observer. At the outset, it was noted that in 2008, the worker sustained a similar upper back injury soon after beginning her employment with the accident employer and this injury was accepted by the WCB as a mismatch between the worker's stature and her work. The worker functionally recovered from the injury and worked without complaint or seeking any medical attention for over a year. On May 28, 2010, the worker had a sudden onset of pain in her neck, upper back, shoulders and chest, sought immediate medical attention, and was diagnosed with a muscular injury. The muscular injury was accepted, and after an MRI showed a C6-7 disc herniation, a radiculopathic injury was accepted as well. The worker was provided with conservative treatment modalities, which did not provide any significant or lasting benefits. She returned to alternate work which, it was submitted, exacerbated her condition. It was repetitive and hurtful to the worker's compensable injury.
It was submitted that despite the fact that there was no change in the worker's presentation since the onset of her injury, the WCB discontinued its support on the basis that the disc herniation and associated radiculopathy had resolved. The worker's position was that the radiculopathy was only a portion of the issue and that there was an ongoing muscular injury that the WCB did not recognize. The WCB relied on its medical advisor's opinion that the worker's symptoms were attributable to degenerative changes, but myofascial pain was diagnosed by three physicians who saw the worker. It was submitted that the worker suffered from central sensitivity syndrome, which encompassed myofascial pain, and that this condition was related to the workplace accident. The panel was asked to recognize that the worker had an ongoing muscular injury that was caused by the initial workplace accident and that the condition persisted because the worker had had inadequate treatment.
Employer's submission:
The employer was represented at the hearing by its director of safety. The employer's position was that it was in agreement with the determination made by the WCB. With respect to the worker's return to alternate work, the employer's representative noted that the company offered modified work based on the information it received from the WCB and the worker's doctor. When the worker indicated that the table she was working at was too high, adjustments were made. When the modified work involved something beyond the worker's abilities, support was provided by other employees. The employer felt that it did its best to offer suitable modified work according to the information it had been provided.
Analysis:
The issue before the panel is whether or not the worker is entitled to benefits beyond January 25, 2011. For the worker’s appeal to be successful, we must find that after January 25, 2011, the worker continued to suffer from the effects of her May 28, 2010 workplace accident. On a balance of probabilities, the panel is able to make that finding.
In the panel's opinion, the adjudication of the worker's claim was confounded by the later acceptance of the diagnosis of a right C7 radiculopathy. At the outset, the worker was diagnosed by her family physician as having suffered a sprain of her neck and upper back. She attended physiotherapy but reported no improvement. On July 17, 2010, the worker was examined by a sports medicine specialist who diagnosed her with myofascial pain of the neck and upper back. The sport medicine physician suggested that the worker be referred to a physiatrist for assessment and treatment.
Subsequently, on August 31, 2010, a CT scan of the worker's cervical spine was taken which indicated a suspected disc herniation at the C6-7 level. Following a call-in examination, the WCB medical advisor opined that the worker's clinical presentation was consistent with a right C7 radiculopathy. He stated:
The clinical presentation was most consistent with a right C7 radiculopathy. This is in light of the noted CT scan findings, the noted symptoms which include right-sided neck pain with radiation to the parascapular areas and the right arm, consistent 4/5 triceps testing on repetitive testing at this examination, and the lack of improvement with treatment for myofascial pain or a rotator cuff injury. The diagnosis would be consistent with the mechanism of injury which involved traction of the right arm in combination with lifting.
Based on this opinion, the WCB accepted the C7 radiculopathy diagnosis as being related to the compensable injury.
Over the next several months, the C7 radiculopathy symptoms resolved, and based on this, the WCB determined that the worker had recovered and no further benefits were payable. The earlier diagnosis of myofascial pain of the neck and upper back was not revisited. The panel notes that in his call-in examination notes, the WCB medical advisor appeared to dismiss the diagnosis of myofascial pain based on the lack of improvement with treatment. The worker did not, however, by that date receive any treatment for the myofascial pain other than physiotherapy. It had been recommended that she be referred to a physiatrist but this had not occurred.
In the September 10, 2010 call-in notes, the WCB medical advisor noted that the worker reported provocative pain to the posterior neck, and right mid-upper arm, scapular and parascapular regions. When seen by a physiatrist on June 6, 2011, the worker was still presenting with pain in the posterior neck, upper back and right shoulder and she was diagnosed as experiencing myofascial pain syndrome rather than a definite C6-C7 radiculopathy, although it was acknowledged that the worker may have had the radiculopathy at some point. The worker was provided with a prescription and was advised she could consider more invasive treatments such as myofascial trigger point injections.
Based on the foregoing, the panel is satisfied on a balance of probabilities that the earlier identified diagnosis of myofascial pain of the neck, upper back and right shoulder is a compensable diagnosis related to the May 28, 2010 workplace accident and that this condition remained compensable beyond January 25, 2011. As such, the worker is entitled to benefits for same. In making this decision, the panel notes that the later medical reports indicate more widespread complaints of pain which spread down the right side through the worker's torso, lower back and right lower extremity and propose the new diagnosis of central sensitivity syndrome. The panel wishes to clarify that its decision is limited to acceptance of myofascial pain to the neck, upper back and right shoulder only.
The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of July, 2014