The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that his neck complaints were unrelated to his February 12, 2013 compensable back injury and that he had recovered from his compensable back injury by December 20, 2013. A hearing was held on July 16, 2014 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's neck difficulties as a consequence of the February 12, 2013 compensable injury; and

Whether or not the worker is entitled to benefits beyond December 20, 2013.

Decision

That the responsibility should not be accepted for the worker's neck difficulties as a consequence of the February 12, 2013 compensable injury; and

That the worker is not entitled to benefits beyond December 20, 2013.

Decision: Unanimous

Background

On February 12, 2013, the worker was rolling out and putting down plastic with four other employees when he slipped and fell on his buttocks. The worker reported low back, right leg weakness and right arm complaints.

Following the accident, the worker was seen by his family physician and a chiropractor for treatment. A CT scan and MRI assessment were carried out and were read as follows:

1. CT of lumbar spine dated March 10, 2013:

"At the L3-L4 level, there is a left paracentral disc herniation of moderate size which may be resulting in irritation of the left L4 nerve root. There is also a combined spinal stenosis of mild severity at this level."

2. MRI of cervical spine dated March 28, 2013:

"At the C5-C6 level there is a moderate-sized central right paracentral disc herniation with severe central spinal stenosis, spinal cord compression and abnormal spinal cord signal intensity."

On April 29, 2013, the worker was advised that the WCB was accepting responsibility for time loss, treatment and medical costs related to the L3-4 disc herniation but no responsibility would be accepted for his neck difficulties. The adjudicator noted that from February 13, 2012 onwards, the medical reports on file only referred to the low back and there was no mention of neck difficulties until the family physician's report of April 3, 2013. The adjudicator also referred to a March 7, 2013 discussion she had with the worker and his daughter at which time the worker did not indicate neck difficulties resulting from the slip and fall on February 12, 2013. The adjudicator concluded that there was no evidence of a workplace injury which led to the worker's neck difficulties.

On May 16, 2013, a WCB orthopedic consultant was asked to review the file information to confirm the current diagnoses and to comment on whether they were related to the mechanism of injury that the worker sustained on February 12, 2013. The consultant responded that the workplace injury was a fall that caused low back pain and that the cause of the low back pain was probably an L3-4 disc herniation in the environment of congenital spinal stenosis. The medical advisor commented that the worker's current neck and upper limb problems were probably related to pre-existing cervical degenerative disc disease and C5-6 disc herniation as seen on the March 28, 2013 MRI. It was felt that the cervical diagnosis was not related to the workplace injury. On May 16, 2013, a further letter was written to the worker advising him that his claim had been accepted for an L3-4 disc herniation but no responsibility would be accepted for any treatments related to his right arm and neck.

On June 3, 2013, a consulting neurosurgeon reported that the worker's lumbosacral and upper gluteal discomfort was very probably musculoskeletal. He felt that some of the pain to the thighs may relate to the latter or may be radiculopathic but may be the result of a cervical myelopathy which was responsible for the spasticity.

On June 13, 2013, the worker, through his daughter, appealed the May 16, 2013 decision to Review Office. The worker advanced the argument that his February 2013 work injury caused or aggravated his pre-existing C5-6 disc herniation and that this should be included as part of the claim. The worker stated that his family physician agreed that the C5-6 disc herniation was the cause of his right leg symptoms.

A WCB medical advisor reviewed the file evidence on June 19, 2013 and stated:

The method of injury reported, a physician's report indicating weakness and paraesthesias (tingling) of one month duration predating his fall by approximately 3 and 1/2 weeks, the absence of neck symptoms in the worker's first report and the chiropractor and physician's first reports, and the multi-level pre-existing degenerative disc disease and C5-C6 disc herniation, suggests that the neck problems are likely not related to the fall at work on February 12, 2013, on a balance of probabilities and has not resulted in aggravation or enhancement of pre-existing neck problems.

On August 28, 2013, Review Office was unable to find that the worker's neck difficulties were a result of the February 12 accident. Review Office noted that the mechanism of injury reported was a fall backwards onto the worker's buttocks and a resulting low back injury. The worker did not report neck symptoms to either his employer or the WCB following the workplace accident. Review Office also considered the initial medical reports from the treating chiropractor and treating physician and found there was no medical evidence of neck related difficulties or symptoms reported. Review Office accepted the WCB medical opinion that a cervical disc herniation would not have resulted from the reported mechanism of injury. Review Office did find that the worker's neck difficulties were pre-existing and were not caused by the February 12 accident.

Review Office also determined that the February 12 accident did not aggravate or enhance the worker's pre-existing neck condition. In making this determination, Review Office noted that the worker had right arm and right leg weakness prior to the slip and fall accident on February 12 based on the medical report from the treating physician. Review Office also referred to the neurosurgeon's report of June 3, 2013 and found the medical findings four months post accident to be similar to the findings and symptoms reported by the worker prior to the injury.

File records show that the worker had non-compensable neck surgery on September 23, 2013 and an MRI for his back on September 29, 2013.

On October 3, 2013, a WCB chiropractic consultant stated that the natural history of lumbar disc herniation was progressive resolution of symptoms over weeks to several months. In this worker's case, there were multiple overlapping factors including extensive pre-existing degenerative changes and spinal stenosis that could largely account for his current symptoms and disabilities. The consultant also indicated that the cervical spine decompression surgery would not impact the worker's recovery from the compensable L3 disc herniation.

On October 14, 2013, a physical medicine and rehabilitation specialist reported that the worker still had diffuse pain symptoms including low back pain, bilateral lower quadrant abdominal pain and lower limb pain. He noted that a recent MRI scan showed multilevel minor degenerative changes including a shallow disc bulge at L3-4 with mild spinal stenosis. The specialist stated: "In summary, this patient has a non-specific clinical presentation. While it is possible that some of his symptoms are consistent with lumbosacral radicular pain, he still has diffuse whole-body symptoms and a normal examination."

On November 8, 2013, a WCB orthopedic consultant opined that the current diagnosis was post-cervical spine decompression surgery and nonspecific low back pain. He also stated that the accepted diagnosis of an L3-4 disc herniation, was originally identified as being left paracentral on the CT scan and on the MRI a diffuse disc protrusion. However, there had been no clinical evidence that there was a clear presentation of a radiculopathy in the lower limbs, which if the original CT scan was clinically relevant, would probably have been left-sided rather than right. Therefore, it was necessary to revise the compensable diagnosis to nonspecific low back pain.

In a decision dated December 5, 2013, the worker was advised that wage loss benefits wouldend on December 20, 2013 as it was felt that he had made a functional recovery from his February 12, 2013 workplace injury and that he no longer required work restrictions. OnDecember 12, 2013, the worker appealed the decision to Review Office.On February 28, 2014, Review Office confirmed that the worker was not entitled to benefits beyond December 20, 2013.

Review Office indicated that the worker's reported widespread symptomology throughout the file had not been clinically corroborated to the imaging results suggestive of a left L3-L4 disc herniation. Therefore, based on the evidence as a whole, Review Office accepted the WCB orthopedic consultant's opinion that there was no relationship between the disc injury and the accepted compensable injury. Review Office also accepted the WCB orthopedic consultant's opinion that the compensable injury was no longer contributing to the worker's reported difficulties.

In December 2013 and March 2014, the worker appealed Review Office's decisions to the Appeal Commission and an oral hearing was held on July 16, 2014.

Following the hearing, the appeal panel met to discuss the case and requested additional test results and consultation reports. On July 28, 2014, all interested parties were provided with the family physician's medical chart notes and reports and were asked to provide comment. On August 27, 2014, the panel met further to discuss the case and to render a decision on the issues under appeal.

Reasons

Applicable Legislation

The worker has an accepted claim arising from an injury that occurred on February 12, 2013. He is appealing the WCB decisions regarding the relationship of his neck condition to the accident and his entitlement to benefits beyond December 20, 2013.

In dealing with this appeal the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.
• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
• ss. 39(2) 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.
• ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was represented by his daughter who made a submission on behalf of the worker. The worker answered questions from the panel with the assistance of an interpreter and his daughter.

1. Neck Injury:

The worker's representative noted that "the lower back pain was a result of the lumbar disc herniation, which was accepted. Anything related to his right side, including his right hand and his right leg, specialists have advised us is a result of the cervical disc herniation."

She advised that the worker received two independent medical opinions. She said that after providing the same information to both professionals "they provided medical opinions that the accident could have been a result of -- that the cervical and lumbar disc herniations more likely were a result of the accident, primarily because my dad basically fell backwards into a ditch, which was what we had initially reported on the written statement."

The worker's representative disagreed with the mechanism of injury referenced by the WCB that he fell backwards on his buttocks. She said that the worker fell backwards into a ditch of frozen soil. She said it is unknown whether his lower back hit first, his bum or his neck. She said that the worker did not feel anything in his neck, he felt more pain to his right leg and lower back.

She submitted that cervical disc herniations, primarily C5-C6, wouldn't necessarily cause neck pain and that to date, both pre- and post-surgery he's never experienced neck pain.

She submitted that the worker's neck condition was enhanced by the workplace accident.

2. Benefits beyond December 20, 2013

The worker's representative noted that the worker received no medical treatment to correct his lumbar disc herniation other than a few chiropractic services that provided temporary relief. Given the lack of treatment, she said it is uncertain what would have changed from the period of February to December that would warrant the worker suddenly returning to normal work.

She noted that the worker attended a neurosurgeon who performed surgery on his cervical disc herniation on September 23, 2013. She said the worker began to improve after the surgery and was able to return to a lighter job with another employer on May 12, 2014.

The worker's representative noted that when the worker was considered fit to return to work to modified duties the employer did not offer modified duties. She said "So when we finally reached to the point where he was able to work modified duties, which I believe around September, October, the Workers Compensation requested that he go on-board under modified duties, [employer] actually advised him that they no longer had modified duties available for him."

The worker's representative said that the reason the worker is appealing this issue is that even without the cervical disc herniation coming into play, it is unlikely that a company, without a history of the worker's work ethic, would take a man on-board that has been injured and is seeking modified duties. She said the employer was unable to provide modified duties, even beyond December 20, 2013, and the worker could not find a job that would allow him modified duties. She submitted that the worker did not have an earning capacity on December 20, 2013 because he required modified duties and was still experiencing pain in the lower back.

In answer to a question about the physical medicine specialist's report which noted a normal examination, the worker's representative noted that the physical medicine specialist's examination was limited because the worker had recently had cervical disc surgery and was wearing a collar to the examination.

In answer to questions from the panel, the worker provided information on his medications, treatments, symptoms after the accident, mechanism of the accident, return to work and other claim matters. Regarding the September surgery, he advised that it helped with "overall everything." He said that the first thing that came back was his right hand, three fingers. He said that his upper body strength, from the waist up, feels good but that his left leg continues to hurt.

Regarding his current condition, the worker described a tightening feeling which commences at his beltline and goes out towards his hips. He said that the pain in his low back is sometimes unbearable. He also advised that sometimes his left leg hurts. He said he had some chiropractic treatments but no other treatments for his lower back.

The worker's representative provided a further submission in response to the additional information which the panel had obtained. She submitted that:

[The physical medicine and rehabilitation specialist] and [consulting neurosurgeon] were referred to [the worker] by the WCB. [The physiatrist] focused on the lumbar disc herniation and [consulting neurosurgeon] focused on the lumbar disc herniation as well but advised [the worker] that it would be critical to operate on the cervical disc herniation. Both doctors have expressed that there is a possibility of the reported symptoms being caused by radiculopathy or musculoskeletal factors. [The operating neurosurgeon], the only doctor who physically examined and operated on [the worker's] cervical disc herniation provided a medical opinion based on the information provided by [the worker] stating that the probability of the cervical disc herniation being caused by the work accident is very likely. [The operating neurosurgeon] also stated in the letter dated August 29, 2013 that the reported symptoms are consistent with those of cervical myelopathy.

[The worker's] earning capacity was impacted significantly longer than December 20, 2013, the date the WCB determined [the worker] had obtained earning capacity and would no longer pay [the worker] beyond that date. [The worker] returned to work with modified duties on May 12, 2014 for his current employer [name], and they rehired [the worker] with a condition of modified duties due to his long work history and good standing with them. [The worker's] disc herniations required a longer healing process before [the worker] could return to work at minimum with modified duties. Accordingly, [the worker] should have continued to be paid until he was capable of returning to work with modified duties which was around the time that [the employer] rehired him. Further, the chances of a company hiring [the worker] with modified duties due to an accident with a past employer and no previous knowledge of his work ethic and capabilities is unlikely because it does not make sense from a business perspective to do so and this is another factor to support that [the worker's] earning capacity was impacted significantly longer than December 20, 2013 until at least around the time his previous employer [name], rehired him with modified duties. Another possible factor is that during the winter [the worker] did experience more pain and as the last spring eventually arrived, [the worker] did see faster progress so the weather could have also been a potential factor for his longer recovery. As well, this compensation does not even consider how hard it has been and may continue to be for an undetermined amount of time for [the worker] to continue to work with these injuries. [The worker] has permanent damage as a result of his cervical disc herniation because his right leg is still weaker and may never return to its original state. The lumbar disc herniation is still there and therefore continues to cause him regular back pain and although he has improved to a sufficient condition to return to work, it is not without pain, suffering and determination.

Employer's Position

The employer was represented by an employer advocate who participated by teleconference. The employer's HSE Manager also participated by teleconference.

The employer representative noted that the mechanics of the accident were that the worker was rolling out some plastic, stumbled while moving backwards and fell down, landing on his back. He said this was a relatively innocuous or minor incident. He submitted that by December 2013 the worker's compensable condition would have reasonably and fully resolved. He noted the worker did not require immediate hospitalization and there was nothing traumatic in the initial aftermath.

The employer representative agreed with the WCB's adjudication, that the neck was not injured as a result of the work accident. He reviewed the various WCB and Review Office decisions and concluded that the employer supports the vast preponderance of evidence assessed and reviewed by the WCB and Review Office "... was appropriately assessed as being that the neck entitlement was not in order in this claim."

The employer representative noted that the Review Office considered the WCB's pre-existing conditions policy and concluded that on a balance of probabilities, the worker's pre-existing neck condition was not affected by the workplace accident.

The employer representative noted the various medical reports. He noted that the neurologist's report of June 3, 2013 concluded that the worker's clinical picture was most consistent with musculoskeletal related to muscle and tendon injury and found no definitive evidence of a radiculopathic feature in relation to the L3-4 disc herniation.

The employer representative agreed with the WCB orthopedic consultant's comment that if the original CT scan showing a left-sided disc, or disc injury was relevant, the worker's symptomology would likely be left-sided not right. He said that it is quite revealing when the actual herniation is noted to be a left-sided disc injury and there are symptoms reported to the right side. He said that this confirms that the lumbar disc herniation is not persuasive in terms of causing any specific disability. He also submitted that the WCB orthopedic consultant's opinion rules out a disc injury, leaving a musculoskeletal injury which would have resolved between February 2013 and December 2013.

In response to the additional medical information which the panel collected and shared with the parties after the hearing, the employer representative submitted, in part, that:

"The current medical evidence obtained by the Appeals Commission further bolsters our position that the Worker has diffuse pre-existing and non-compensable findings that likely enhanced and prolonged his recovery. Nevertheless, we are satisfied that the Worker's compensable back strain was sufficiently compensated for."

Analysis

There are two issues before the panel:

1. Whether responsibility should be accepted for the worker's neck difficulties as a consequence of the February 12, 2013 compensable injury?

For the worker's appeal of this issue to be accepted, the panel must find, on a balance of probabilities, that the worker's neck difficulties arose out of and in the course of his employment. The panel was not able to make this finding. The panel was not able to find that the worker injured his neck when he fell at work on February 12, 2013.

In making this decision the panel relies on the following:

• the March 28, 2013 MRI report which indicates that the worker has degenerative disc disease in his cervical spine.
• the lack of any mention of neck problems by the worker immediately after the accident. The first reference to neck issues was approximately eight weeks after the accident in a progress report from the family physician. The panel would expect symptoms within a few days of the incident had the worker sustained a whiplash type injury.
• the family physician advised the worker reported he had right arm and right leg weakness before the accident. This does not support the worker's position that the neck problem was caused by the workplace accident.
• the first report by the worker's chiropractor refers to symptoms of leg and low back pain and weakness and provided a diagnosis of acute L4-L5 disc syndrome right side.
• the mechanism of injury being a fall backwards on his buttocks does not support a finding that the worker injured his neck. The panel notes that the worker's representative disagreed with the description of the accident accepted by Review Office. The panel finds that this description is consistent with the description in the Doctor's First Report that states the worker slipped while rolling out plastic and "fell on buttocks." In a later report the family physician also noted that the worker used his right hand to break his fall. The Chiropractors First Report simply indicates that while working on heavy pipe the worker felt sudden lower back pain. There was no indication in the worker's description, of his landing on his back or neck or hitting his head. At the hearing, the worker indicated that he did not hit his head. He also confirmed that he was wearing a parka when he fell. The panel notes that the worker was able to get up and continue working after the fall.
• WCB medical advisor opinions, including opinions from May 9 and 16, 2013, June 12 and 19, 2013 and November 8, 2013 that the worker's neck problems are not related to the workplace accident.
  

The panel notes that the treating neurosurgeon has opined that the features of the worker's case are consistent with his primary event having been a cervical injury and is consistent with the fall as described. The panel attaches greater weight to the opinions of the WCB medical advisors who have given significant attention to the mechanism of the accident and other early documentation on file, and found no relationship.

Having considered all the evidence, the panel finds on a balance of probabilities that the worker's neck condition is not related to the workplace accident and is not a consequence of the workplace accident. The evidence does not support a finding that the workplace accident caused, aggravated or enhanced the worker's neck condition.

The worker's appeal of this issue is dismissed.

2. Whether the worker is entitled to benefits beyond December 20, 2013?

For the worker's appeal of this matter to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical assistance as a result of the workplace injury beyond December 20, 2013. The panel was not able to find that the worker sustained a loss of earning capacity or required medical assistance beyond December 20, 2013 as a result of the workplace injury.

This decision is made in light of the panel's decision on Issue 1. The panel relies on the following:

• October 14, 2013 report of physical medicine and rehabilitation specialist. This physician examined the worker and found that he had diffuse pain in the low back, bilateral lower quadrant abdominal pain and lower limb pain. He noted that an MRI of the worker's back showed multilevel minor degenerative changes including a shallow disc bulge at L3-4 and mild stenosis. He found the worker had non-specific clinical presentation with diffuse whole-body symptoms and a normal examination. He made recommendations for addressing underlying risk factors but did not recommend treatment of the lower back.
• August 29, 2013 report of treating neurosurgeon. This physician examined the worker and made no findings regarding the worker's lower back. He noted other unrelated findings.
• November 8, 2013 opinion of the WCB orthopedic specialist. In reply to the question of whether the worker's compensable injury was still contributing to a material degree to the worker's status the medical advisor opined that:
• "this refers to diagnosis currently accepted as compensable, an L3-4 disc herniation, originally identified as being left paracentral on the CT scan, and on the MRI a diffuse disc protrusion. However, there has been no clinical evidence, on file, that there was a clear presentation of a radiculopathy in the lower limbs, which if the original CT scan was clinically relevant, would probably have been left sided rather than right. Therefore, it is necessary to revise the compensable diagnosis to non-specific low back pain."

The panel finds on a balance of probabilities that the worker had recovered from his compensable low back injury by December 20, 2013 and is not entitled to benefits beyond that date.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of September, 2014