The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits during certain periods in 2011 and medical aid after February 2013 in relation to his compensable injury. A hearing was held on April 22, 2015 to consider these matters.

Issue

Whether or not the worker is entitled to wage loss benefits after January 24, 2011; and

Whether or not the worker is entitled to medical aid benefits after February 5, 2013.

Decision

That the worker is entitled to wage loss benefits after January 24, 2011; and

That the worker is entitled to medical aid benefits after February 5, 2013.

Decision: Unanimous

Background

On February 18, 2010, the worker was loading pulp wood onto a trailer when the tree top came up and knocked him off the loader. The worker said he fell 12 feet to the ground and injured his left shoulder, back and neck. Following the accident, the worker underwent x-rays of his chest, thoracic spine, left wrist and left shoulder which were all reported as being negative. A head CT scan showed no acute bleed or fracture. A CT of the cervical spine revealed degenerative changes at C2-C3 and C3-C4. The worker was diagnosed with blunt trauma to the upper back and left wrist. File records showed that the worker underwent further testing due to ongoing difficulties and was seen by a neurologist and a neurosurgeon.

On November 12, 2010, a WCB medical advisor provided the following medical opinion to WCB case management after reviewing all the available file information:

• the current diagnosis for the worker's head injury was post concussive headaches, likely multifactorial, and a partial injury of the left brachial plexus.
• the July 1, 2010 brain MRI was reported as normal. Another MRI will be arranged.
• there was pre-existing degenerative cervical disc disease and there was right C2-C3 disc osteophyte complex. There was no specific evidence of enhancement of the pre-existing conditions by the workplace injury. The presence of osteophyte was indicative of degenerative disc disease.

On December 1, 2010, the treating neurologist outlined the opinion that the worker most likely suffered from tension headaches due to significant neck muscle tenderness and pain and that he may also have myofascial pain. A referral to a physical medicine and rehabilitation specialist was recommended for further evaluation and potential injection therapy.

On December 1, 2010, the attending physician reported that the worker had no sudden change in weight, no change in bowel habits, no migraines, no headaches, no chest pain, no shortness of breath, no heartburn, no back pain, no joint pains, no GU symptoms and no signs or symptoms of depression or anxiety. The worker's general appearance was alert, well appearing and in no distress. There was hyperparesthesia of the left trapezius, no leg edema, no skin lesions, no muscle atrophy on the left hand and Tinel's and Phalen tests were negative. The physician noted that nerve conduction studies would be arranged for carpal tunnel testing.

Following further consultation with the WCB's healthcare branch, it was determined by the WCB that the worker's current symptoms were no longer related to his compensable injury and that wage loss benefits would end on January 24, 2011. The rationale for the decision was as follows:

• the worker had degenerative disc disease in his cervical spine at C2-C3, and C3-C4 and osteopenia of his thoracic spine which was present prior to the February 18, 2010 workplace injury.
• there was no evidence found in test results to support the worker's current symptoms.
• there was no evidence of a work-related injury reported at the examination on December 10, 2010. On December 1, the treating neurologist noted that the worker's symptoms were most likely tension headaches.
• the brain MRI on January 4, 2011 showed no abnormalities.

On April 11, 2011, the worker sent an appeal to Review Office outlining his position that he was still suffering from the effects of his compensable accident. On April 26, 2011, Review Office returned the worker's file back to case management to conduct a further investigation prior to considering the worker's appeal.

In a May 17, 2011 report, the treating physical medicine and rehabilitation specialist stated that the worker's signs and symptoms were characteristic of myofascial pain, which could be perpetuated by the worker's poor posture and spinal degenerative changes.

On October 26, 2011, an external radiologist documented his interpretation of the worker's cervical CT scan dated February 18, 2010 and MRIs dated April 24, 2010 and January 25, 2011.

On November 30, 2011, a WCB medical advisor responded to questions posed by case management related to the worker's current symptoms and possible relationship to the workplace injury.

On December 8, 2011, the worker was advised that the WCB remained of the opinion that his current symptoms were not related to the February 18, 2010 compensable injury. On December 27, 2011, the worker appealed the decision to Review Office.

On February 6, 2012, a pain clinic physician outlined the impression that the worker likely had multiple causes for his pain. In particular, he suffered from some component of myofascial pain syndrome and he may have some component of cervical facet mediated pain or cervical nerve root compromise.

On February 21, 2012, Review Office determined that the worker was not entitled to wage loss benefits beyond January 24, 2011. Review Office referred to medical evidence on file to support that the worker continued to have symptoms, however, the objective findings were minimal and would not preclude him from performing his pre-accident job duties.

On November 7, 2013, the Worker Advisor Office requested reconsideration of the February 21 decision based on new medical evidence dated September 4, 2013 from an occupational health physician showing that the worker continued to suffer from the effects of his compensable injury which negatively impacted his earning capacity. The worker advisor noted that the worker struggled on a daily basis from his brachial plexus injury that was confirmed by EMG results. While objective findings to quantify his headaches and muscular dysfunction in his neck may be minimal, the worker advisor noted that the medical evidence supported these difficulties were due to myofascial pain which was directly related to his compensable injury. The worker's symptoms had been consistent since the day of his accident and they still impacted his capabilities and required ongoing medical management.

The worker advisor also stated that the worker went to grab a box of cereal at a grocery store on May 26, 2012 and that it dropped out of his hand. The worker then made a quick movement to try and catch it and he hurt his left shoulder again. It hurt from his shoulder down to the elbow and up to the neck.

In a decision dated November 18, 2013, the WCB case manager advised the worker that he was unable to accept the grocery store incident of May 26, 2012 as being related to the compensable injury.

On January 28, 2014, Review Office determined that there was no entitlement to wage loss benefits beyond January 24, 2011 and no entitlement to medical aid benefits beyond February 5, 2013. Review Office acknowledged that the October 18, 2011 nerve conduction studies showed a brachial plexus injury. It agreed with the WCB medical opinion of November 30, 2011 that the medical evidence on file did not identify a specific structure to account for the worker's current headaches and left sided neck pain. Based on the April 2010 MRI findings, Review Office found that the file evidence supported that the worker's ongoing treatment was not related to the February 2010 workplace injury and there was no entitlement to medical aid benefits beyond February 5, 2013. It also found that the file evidence did not support that the May 2012 incident met the criteria of WCB policy, Further Injuries Subsequent to a Compensable Injury and therefore no responsibility should be accepted for the worker's current left shoulder difficulties.

On February 13, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral 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.

The worker has an accepted claim for an injury arising from a February 18, 2010 accident. He is seeking wage loss benefits after January 24, 2011 and medical aid benefits after February 5, 2013.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented by a worker advisor. The worker's representative provided a detailed written submission and an oral summary of the worker's position at the hearing.

The worker described the events surrounding the accident and the mechanism of injury. He said that on the day of the accident he was on top of his log roller when he picked up a large tree approximately 50 feet in length and 24 to 29 inches in diameter with the machine. The tree was crooked and when lifted by the machine, the bottom of the tree stuck into the ground then slipped out on an icy patch, unexpectedly causing the top to swing down towards him, in a chopping motion hitting him on the right neck and shoulder. He was knocked off the machine and fell about 12 feet to the ground on his left side. He does not remember details of the fall because he was unconscious. He sought medical attention immediately after the incident and had complaints of pain in the left shoulder, left wrist, neck, head and back. The next day he had complaints of headache and nausea.

The worker advised that he eventually returned to work, although he is performing different duties now due to his injuries. The worker advised that he is currently working as a truck driver. He drives a truck with air ride which he says is more comfortable than a car. His work is seasonal, June to December, and he works between 9 and 12 hours each day, 5 days a week.

Regarding his medical condition, he advised that his condition has improved since he attended a pain clinic. He said that aside from resting he also uses a hot tub twice daily, does exercise and uses a traction machine.

The worker advised that he saw a physiatrist who told him that his "muscle and nerves are all jammed together." The physiatrist stuck needles into his shoulder and neck to freeze them. He said this treatment did not help. The physiatrist then referred him to a pain clinic where they are "doing nerve blocking to block the pain in my neck and shoulder." The blocks are in the C2-C3, 4, 5, and 6 area. He said that it has helped but not cured his pain and headaches. He continues to receive this treatment every 3 months.

The worker advisor reported that the worker has seen a variety of physicians since the incident. He noted that the WCB has accepted a brachial plexus injury and headaches as compensable.

The worker advisor noted that the muscular injury to the worker's neck, shoulder, and upper back have been characterized as myofascial pain and have been diagnosed by a physiatrist, occupational health clinic physician and a pain specialist. He suggested that the worker also had an injury to his cervical facet joints which has been supported by the physiatrist, occupational health clinic physician and a pain clinic physician.

The worker advisor submitted that the injuries have resulted in ongoing impairment.

The worker advisor submitted that:

"So, in summary, in our view, the facet joint dysfunction, the myofascial pain, the brachial plexus injury are all diagnoses which are attributable to the workplace accident. The ongoing effects are subjective and that, in our view, does not discount their relevance or their importance. The ongoing headaches, neck pain and arm dysfunction have prevented [the worker] from going back to his pre-accident work that he did all his life. And we submit it’s the Board’s responsibility to help him recover from this to the extent he can, and to compensate for any effects that won’t be dealt with otherwise."

Employer

The worker was self-employed and registered with the WCB for coverage.

Analysis

The worker is seeking wage loss and medical aid benefits. For the worker's appeal to be approved, the panel must find that the worker suffered a loss of earning capacity after January 24, 2011 and required medical assistance after February 5, 2013 as a result of the injury. The panel was able to make these findings.

The panel notes that the WCB has accepted as part of the worker's claim a brachial plexus injury and headaches.

1. Whether the worker is entitled to wage loss benefits after January 24, 2011.

With respect to this issue, the panel finds that the worker continued to sustain a loss of earning capacity after January 24, 2011. The panel accepts the worker's evidence that he could not return to work as of January 24, 2011 because of the effects of his workplace injury.

The panel notes the opinion of the WCB orthopedic consultant who examined the worker in May 2010 and found that the worker continued to complain of pain in the neck and left shoulder, and constant headaches. The WCB orthopedic consultant also noted complaints of numbness in the left thumb, 2nd , 3rd, and 4th digits and shooting pain in the back of the neck.

The panel notes that the worker continued to participate in treatment for the diagnosed conditions. Treatments were provided by a physiatrist and subsequently by a pain specialist for the symptoms which were noted by the WCB orthopedic consultant in 2010 and were considered to be related to the compensable injury. The panel notes, in particular, that the treatments provided at the pain clinic are providing relief and improvement to the worker's conditions.

2. Whether the worker is entitled to medical aid benefits beyond February 5, 2013.

As a consequence of the panel's findings outlined in issue 1 and based on assessment of all the evidence including the treatments directed to the affected areas, the panel finds that the worker is entitled to medical aid for his workplace injury beyond February 5, 2013.

The worker's appeal of both issues is approved.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of May, 2015