The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current difficulties were not related to his compensable accident and therefore he was not entitled to benefits after February 7, 2014. A hearing was held on October 16, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after February 7, 2014.

Decision

That the worker is not entitled to benefits after February 7, 2014.

Decision: Unanimous

Background

On January 29, 2013, the worker was involved in a motor vehicle accident and his vehicle was struck on the passenger side just in front of the front wheel and before the front passenger door. The worker advised the WCB that he was holding the steering wheel and the impact pushed his vehicle several feet over and he was thrown backwards. He struck the left side of his head against the left window and he injured his right shoulder and jarred his whole back.

A hospital emergency report showed that the worker was seen on January 29, 2013 complaining of right shoulder pain. There was tenderness of the right shoulder, right scapula along the acromion with extension to the humeral head. The worker had decreased range of motion due to pain and there was no tenderness over the olecranon epicondyle or wrist. X-rays of the right shoulder showed no fracture or dislocation. The worker was diagnosed with right rotator cuff tendinitis. His claim for compensation was accepted and the worker attended physiotherapy treatments related to his shoulder, back and neck.

On March 6, 2013, a right shoulder MRI was read as showing no significant abnormality.

On March 13, 2013, a WCB medical advisor reviewed the file information and stated that the diagnosis appeared to be a right shoulder strain and that the MRI did not demonstrate evidence of tendinosis or a new rotator cuff tear.

On May 10, 2013, the worker was diagnosed with ulnar neuropathy and chronic right shoulder/arm pain.

An MRI of the cervical spine taken May 26, 2013 was read as being normal.

On June 14, 2013, nerve conduction studies showed that the worker's right upper extremity did not reveal median nerve or ulnar neuropathy at the wrist or elbow and "f" responses were also normal. There was some suggestion of nerve compression at C8 or C7 but correlation with the MRI findings would be needed before a decision as to surgery could be made.

On June 27, 2013, a WCB medical advisor reviewed the file evidence and opined that the worker's right shoulder strain had resolved by April 15, 2013 and that his low back strain had resolved by March 26, 2013. It was also stated that the current diagnosis was unclear and there was a discrepancy between the relatively non specific EMG findings of June 4, 2013 and the normal cervical spine MRI of May 26, 2013. He said the matter required further clarification and a neurosurgical assessment was suggested.

On July 23, 2013, a specialist outlined his examination findings related to the worker's right shoulder complaints. It was concluded that the worker was experiencing pain that was more consistent with a radiculopathic cause. It was felt that the worker did not require operative intervention of his shoulder.

On August 12, 2013, a WCB medical advisor stated:

A diagnosis to account for the current presentation is not evident based on the entire claim folder review. The treating physician had requested a referral to a neurologist for the C8 radicular pain that the worker has to the right upper extremity. The treating physician previously declined referral to Dr. [neurosurgeon]. This likely will be useful to determine the further management for this worker. I will initiate a referral on an expedited manner to Dr. [neurosurgeon]."

In an August 28, 2013 report, the treating neurologist outlined his opinion that there was evidence of a mild right ulnar neuropathy at the elbow, similar to the test after the worker's first injury (July of 2010).

In a report to the WCB dated September 10, 2013, the neurosurgeon stated:

The submitted MRI of the cervical spine (May 2013) did not show any significant stenosis of the central spinal canal of the foramina. There was no process impinging upon the nerves.

The clinical presentation is suggestive of some cervical mechanical pain. There is some additional arthropathic pain of the right shoulder. The etiology of the more distal pain component and reported sensory deficits is unclear. There is obviously no element of radiculopathy. There is no obvious correlate for a C7 or C8 radiculopathy, as suggested by Dr. [neurologist] in his neurophysiologic evaluation of the patient.

On October 25, 2013, the worker was seen at a WCB call-in examination and the examining medical advisor stated:

The initial diagnosis, according to the medical information on file, consistency of symptoms, and today's examination was likely a right cervical radiculopathy at the C7 versus C8 area...Given the noted whiplash-like action during the mechanism of injury and given the consistency of symptoms, as well as findings on today's examination, the diagnosis will be medically accounted for in relationship to the workplace injury.

The medical advisor recommended that to promote functional recovery, a course of treatment focused on cervical radiculopathy was in order. The medical advisor also outlined work restrictions related to the worker's right arm/shoulder.

On December 5, 2013, an internal medicine specialist reported that the worker presented with ongoing neck and shoulder pain after a work/motor vehicle accident. He stated:

For the most part this looks like a combination of mechanical neck pain/myofascial pain. There is nothing that convinces me for rotator cuff tendinopathy or AC joint arthritis. It is possible that there is some proximal bicipital tendinopathy. I base that purely on his symptom description of the anterior shoulder and tenderness there, but really all provocative maneuvers provoked pain there. While typically this would be seen on a shoulder MRI you could empirically try a Corticosteroid injection there, though that certainly is not responsible for all of his pain complaints.

An MRI of the right elbow dated January 3, 2014 was read as being normal.

On January 26, 2014, a WCB medical advisor stated:

Upon review of the reports from the treating physiotherapist, the treating physical medicine and rehabilitation physician, and the treating sports medical physician, there is no further consistent clinical objective evidence of a cervical radiculopathy. There are no consistent reproducible reported myotomal, dermatomal or reflex deficits on clinical examination via multiple healthcare providers.

Given the clinical information available, the writer is unable to establish further causal relationship with [the worker's] subjective presentation and the workplace injury.

In a January 31, 2014 decision, the worker was advised that based on WCB medical opinion, it was felt that his current difficulties were no longer related to his original workplace injury of January 29, 2013 and that benefits would end on February 7, 2014.

On February 20, 2014, the worker's union representative requested Review Office to reconsider the WCB's decision of January 31, 2014 and reinstate the worker's benefits.

On April 14, 2014, the employer's representative submitted that there was no basis to vary the WCB decision of January 31, 2014. Attached to the submission was videotape footage of the specific accident mechanics. A copy of the videotape and the submission was forwarded to the worker and his union representative for comment. Their submission to Review Office is dated May 2, 2014.

On May 15, 2014, Review Office concluded that the worker's current difficulties and loss of earning capacity after February 7, 2014 were not related to the compensable injury of January 29, 2013. Review Office outlined the view that the compensable injuries of January 29, 2013 resulted in a back strain, right shoulder strain and right cervical radiculopathy. It found that both the back strain and the right shoulder strain had resolved and that there was no further evidence of a cervical radiculopathy. It was felt that the evidence did not support a causal relationship between an ulnar neuropathy and the compensable injury. On June 27, 2014, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from three treating physicians regarding the worker's medical status. The requested information was later received and was forwarded to the interested parties for comment. On January 6, 2015, the panel met further to discuss the case and render its final decision on the issue under appeal.

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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker attended the hearing and was assisted by a union representative. It was submitted that the worker was hurt quite badly in the January 29, 2013 accident, which involved his vehicle being hit by a car going approximately 60 to 70 kilometers per hour. He was off work for just over two months, after which he returned to work at light duties.

The union representative noted that the WCB ended the worker's claim on the basis that his arm was never the issue but it was submitted that the worker reported his arm from the outset. In the Worker Incident Report, the worker stated that "my whole arm is just killing me." Subsequent medical reports indicated "right shoulder radiating down the arm" and "shooting pain from right shoulder, radiates to the elbow and hand."

At the time of the hearing, the worker was still seeing a specialist for problems regarding numbness in the hand and arm.

Employer's position:

The employer was represented by its compensation coordinator. The employer's position was that the worker's claim was accepted for a back strain/right shoulder strain and right cervical radiculopathy. With respect to the complaints of symptoms in the right arm and hand, a variety of diagnostic testing was carried out. Following the last diagnostic test, the WCB medical advisor reviewed the file and commented on the ongoing relationship of the worker's complaints to the compensable incident of January 29, 2013. He stated that there was no further consistent clinical objective evidence of a cervical radiculopathy and that he was unable to establish further causal relationship between the worker's subjective presentation with the workplace injury. It was submitted that the despite the fact the worker had been treated by ten different medical practitioners and undergone numerous diagnostic tests, which revealed no compensable pathology, there was no medical rebuttal of the WCB medical advisor's opinion. With respect the ulnar neuropathy, it was submitted that this condition was first noted in 2010 and was not accepted as being compensable at that time.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits after February 7, 2014. In order for the appeal to succeed, the panel must find that the worker's ongoing right arm complaints were related to either his compensable injuries, which consisted of a back strain/right shoulder strain or right cervical radiculopathy. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker indicated that both his shoulder and back had recovered in about four weeks and that his right elbow pain was the only ongoing problem. He described a pain starting in the upper arm about halfway between the shoulder and the elbow and extending along his triceps on the underside of his arm down to the hand and through half of the palm and the ring and pinkie fingers.

At the time of the hearing, the worker was still undergoing referrals to specialists for treatment, and was scheduled for nerve transposition surgery. Following the hearing, the panel requested updated medical information from these specialists.

A report dated July 10, 2014 from a physical medicine specialist opined that the worker's neck and right shoulder blade pain was likely mechanical, associated with a myofascial pain component, and was perpetuated by his abnormal posture. It was felt that psychosocial factors could be contributing to his symptoms. Importantly, on repeat examination, the worker did not exhibit evidence of radiculopathy or myelopathy.

A report dated July 21, 2014 from a neurosurgeon indicated that the worker demonstrated severe pain in the ulnar nerve distribution but no findings at the level of the neck (i.e. no cervical radiculopathy).

Similarly, in a report dated October 31, 2014 from a physical medicine specialist, physical examination findings were reported as being consistent with a right ulnar neuropathy at the elbow.

Overall, the reports indicate that the worker's ongoing right elbow difficulties are attributable to an ulnar neuropathy at the elbow, as opposed to a cervical radiculopathy related to a continuing compensable injury to the neck/cervical spine. The right ulnar neuropathy is a medical condition which the worker had prior to the workplace accident. In 2010 he had electrodiagnostic testing which identified this condition. The video footage of the motor vehicle accident showed the body mechanics of the collision and the panel finds that the mechanism of injury is not consistent with either aggravating or enhancing an ulnar neuropathy.

The panel therefore finds that the compensable injuries of back strain/right shoulder strain and right cervical radiculopathy have resolved and that any ongoing problems with the worker's arm are attributable to an ulnar neuropathy, which is not related to the January 29, 2013 motor vehicle accident. It follows that the worker is not entitled to benefits after February 7, 2014. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of February, 2015