The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim resulting from a work-related accident on July 27, 2014.

A hearing was held on November 4, 2015 to consider the worker's appeal.

Issue

Whether or not the worker's neck symptoms are related to the workplace injury; and

Whether or not the worker is entitled to full benefits after January 26, 2015.

Decision

That the worker's neck symptoms are not related to the workplace injury; and

That the worker is not entitled to full benefits after January 26, 2015.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left thumb injury that occurred on July 27, 2014. The worker stated:

"I was hauling shale. Two big chunks got caught in the endgate of my trailer, and blocked it off. It was half unloaded. I dropped the box back down, took a hammer to the chunks. The first one came out easy, and second one was more difficult, but it did come out. When it came out, the endgate slammed shut on my left thumb. It cut the end of my thumb and my next two fingers to the thumb are fractured."

The worker's claim was accepted by the WCB and benefits were paid. The compensable diagnoses were crush injury with traumatic partial amputation, left thumb, comminuted fracture of the distal phalanx, left thumb, and avulsion fracture at the base of the middle phalanx, left middle finger.

On December 22, 2014, a WCB medical advisor was asked to review the worker's file and provide a medical opinion as to whether or not the worker's current shoulder difficulties were related to the compensable injury of July 27, 2014. The case manager stated that the worker reported symptoms in his left arm into his shoulder and chest in early August and that the treating physician reported possible neurological fallout post-injury.

In a response dated January 7, 2015, the WCB medical advisor opined that there was a diagnosis of cervical disc disease with left arm radiculopathy and that the diagnosis was unlikely related to the effects of the compensable injury. The medical advisor referred to the following factors to support his opinion:

• the mechanism of injury was a left thumb crush injury in a tailgate. An association to cervical radiculopathy was unlikely.
• cervical radiculopathy is typically degenerative in nature with the combined effects of cervical arthrosis and cervical disc disease. The recent cervical MRI was in keeping with the combined effect of disc protrusion and arthrosis of the spine structures. In a 71 year old, this was typically a degenerative rather than traumatic condition.
• a neck injury was not reported in July 2014 following or in association with the left hand crush injury.
• the healthcare reports suggest the presence of left arm numbness until approximately three months following the compensable injury. A cause and effect relationship to the left hand crush injury is not likely or apparent.
• the cervical disc disease and possible cervical radiculopathy are pre-existing. The symptoms reported secondary to this degenerative condition appear to be interfering with a return to the workplace.

In a decision dated January 7, 2015, the worker was advised that the WCB was unable to establish a relationship between his current neck difficulties and the workplace injury of July 27, 2014. It was the WCB's decision that the worker's neck symptoms were degenerative in nature.

In a further decision dated January 19, 2015, the worker was advised that WCB wage loss benefits would end as of January 26, 2015 as it was felt that he had recovered from the accepted compensable injury diagnosed as a partial amputation of the left thumb, comminuted fracture in the proximal and mid portion of distal phalanx of left thumb and avulsion fracture at the base of the distal phalanx of the left middle finger. The worker was advised that he had no restrictions related to his left hand based on recent medical information.

In January, February and March 2015 , the worker and his representative wrote the WCB requesting reconsideration of the WCB decisions that his neck difficulties were unrelated to his workplace accident and that he was not entitled to benefits beyond January 26, 2015. In support of his appeals, the worker submitted reports from a chiropractor, a physiotherapist and his family physician for consideration by Review Office.

On March 17, 2015, Review Office confirmed that the worker's neck symptoms were not related to the workplace injury. Review Office noted that several weeks after the accident, the worker began to report pain in his left elbow, arm and shoulder and into the chest area. Prior to this, there were no reports of symptoms in these areas. Review Office indicated that the worker had pre-existing conditions in his neck region that were not caused by the workplace accident.

Review Office did not find evidence to support the worker's position that the pre-existing changes in his neck were aggravated or enhanced by the workplace injury. Review Office accepted the WCB medical advisor's opinion outlined on January 7, 2015. Review Office also indicated that it reviewed the new information provided by the physician, chiropractor and physiotherapist and was still unable to support that the worker injured his neck at the time of the workplace accident. Review Office found that the worker was entitled to limited benefits beyond January 26, 2015 in relation to his fractured middle finger or partially amputated left thumb. On June 5, 2015, the worker appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker has an accepted claim for a hand injury and is appealing the WCB decision that the accident did not aggravate or enhance his pre-existing neck condition and that he is not entitled to wage loss benefits for the neck condition.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

WCB Policy 44.10.20.10, Pre-existing Conditions, (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

The definition portion of the Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre- accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre- existing condition or makes necessary surgery on a pre-existing condition.

Worker's Position

The worker was represented by a family member at the hearing.

The worker's representative outlined the circumstances of the worker's July 27, 2014 accident. He said that the worker was working on a gravel truck when some rocks got caught underneath the gate. In attempting to dislodge the impediment, the gate came down and landed on his left hand. It caused a traumatic amputation of the thumb and some collateral damage to the rest of the hand.

The representative advised that on the date of the injury, there was an x-ray done, and spondylosis was noted.

He advised that the worker does not disagree that the spondylosis was present or that it was a pre-existing condition. The worker does not contend that spondylosis itself was caused in any way, shape or form by the accident. The worker's position is that the resultant symptoms in the neck, back and arm are a result of the workplace accident, in that it enhanced or aggravated the pre-existing condition.

The worker's representative stated that "the vast majority of people go through their entire lives with this condition without ever experiencing any symptoms of it, and that’s the state that [the worker] fell into prior to July 27, 2014."

The worker's representative quoted from a letter provided by the worker's primary care physician. The physician noted that the worker had been his patient since February 2004, except for the period of 2007 to 2010. He said that he has seen the worker regularly, at least once or twice per year and at no stage were there any symptoms or signs of neck pathology or neurological symptoms of the left arm.

The worker's representative submitted that:

Although his changes on his MRI scan appear to be chronic, his symptoms only started post-injury left hand. Now, we would suggest that the mechanism of injury was that when the gate fell down on his hand, he reacted as any normal person would. He attempted to remove his hand from where it was trapped in the gate. This caused a fairly significant jerking motion, and we would contend that it was in that reflexive move that the damage was done that caused a previously unknown and asymptomatic condition to become both known and symptomatic.

The worker's representative noted that the first reference to the worker having mentioned any difficulty with his left arm was on August 6th, ten days after the injury, following an appointment with the surgeon. It was noted in a WCB memo that the worker was experiencing shooting pain to his left elbow, up to his shoulder and chest.

He said that whenever the worker had any conversation with the WCB there is consistent mention of exactly the same sorts of symptoms, the pain, numbness, up and down the left arm, into the neck, back and chest. The worker's representative disagreed with the WCB medical advisor's opinion of January 7, 2015 that neck symptoms are degenerative and not related to the injury of July 27, 2014.

The worker's representative referred to the January 19, 2015 report from a treating physiotherapist in support of the worker. The physiotherapist opined that:

The jarring of his arm after being hit by the gravel door caused symptoms from the otherwise asymptomatic degeneration. These issues have not developed over time gradually, but started after that specific traumatic event.

The representative also noted the February 11, 2015 opinion of the treating chiropractor in support of the worker's position.

The worker's representative noted WCB Policy 44.20.10.40, which provides that where a worker is considered to have a pre-existing spondylosis condition, and there is a relationship between the condition and the compensable injury as determined by the board, the board will accept ongoing responsibility on an aggravation, enhancement or accelerated degeneration basis.

He submitted that this is the core of the worker's argument:

There were no symptoms prior to the injury, there are symptoms now. There is no given medical explanation that would fit all of the facts as they are known, other than this is an enhancement due to the accident and injury itself.

He stated that if it were not for the compensable accident, in all likelihood, the worker would have remained with the rest of the majority of the population and stayed asymptomatic.

In answer to a question about the tingling the worker has from the two fractured fingers, the worker advised that:

Yes, like, they got hit too, you know. They never quit tingling. That tingling feeling will come all the way up this arm. It’s like walking around with a really good toothache back here behind my neck.

In answer to a question about whether he would be able to drive with just the thumb injury, the worker replied that he could. The worker acknowledged that the pain that he feels is going upstream, hand to neck.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing two issues.

1. Whether the worker's neck symptoms are related to the workplace injury

For the worker's appeal to be accepted, the panel must find on a balance of probabilities, that the worker's neck condition was aggravated or enhanced by the worker's workplace injury. The panel considered the worker's complete file, and the evidence and arguments discussed at the hearing, but was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's pre-existing neck condition was not aggravated nor enhanced by the worker's workplace injury.

In making the finding, the panel attaches significant weight to the evidence surrounding the development of neck symptoms:

• the worker's representative argued that the worker's neck symptoms were first noted 10 days following the accident. He referred to a WCB memo dated August 6, 2014 which notes "He is experiencing shooting pain in his left elbow, up to his shoulder and chest. The doctor stated that is possibly a result of the nerves being damaged in the thumb." The panel does not find this memo to establish a relationship between the worker's hand injury and his pre-existing neck problem. The memo notes pain moving up the arm which is not an indication of radicular pain; from the worker's cervical spine (which would radiate down the arm); rather, it indicates local nerve damage as suggested by the surgeon.

• on September 12, 2014 the physiotherapist examined the worker. The examination notes refer to the worker's shoulder girdle but make no reference to his neck or to radicular pain. This suggests there were no neck symptoms at that time.

• the panel considered all the medical and other evidence from the commencement of the claim but was not able to find evidence of neck/radicular symptoms until about 3 months after the accident. The evidence of late onset of neck symptoms does not support the worker's position that the worker's neck symptoms began at the time of or closely after the accident.

The panel attaches significant weight to the January 7, 2015 opinion of the WCB medical advisor that the worker's condition is unlikely to be related to the compensable injury. Given the time between the onset of the symptoms and the accident, the panel is not able to find that the worker's neck condition has been aggravated or enhanced by the compensable accident. The panel finds, on a balance of probabilities, that the worker's neck symptoms are not related to the workplace accident.

The worker's appeal on this issue is dismissed.

2. Whether the worker is entitled to full benefits for his neck difficulties

This issue is considered moot, given the panel's decision on the first issue that the worker's neck symptoms are not related to the compensable injury.

The worker's appeal on this issue 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 16th day of December, 2015